Obama's Path Forward: Impart a Sense of Urgency to Regulatory Agencies Protecting Health, Safety and the Environment

There’s a lot of punditry left to be committed about whether and how the GOP majority in the House and the enhanced GOP minority in the Senate will work with the Obama Administration. I’m not optimistic. But even if the President and House Republicans are able to find some small patch of common ground, the hard reality that progressives need to swallow is that whatever major progressive legislation will bear Barack Obama’s signature has already become law, at least for his first term.

The same is not true, however, for what Barack Obama might accomplish simply by infusing the health and safety  agencies in his Administration—from EPA to OSHA to FDA—with a sense of urgency, clearing away barriers to regulatory progress within his own White House, and insisting that the agencies enforce existing laws with newfound vigor. A string of catastrophes have shown that we need proactive government at least as much in these areas as we need cops on the beat in neighborhoods and airport security, even as Americans claim to hate government in a larger sense.

Resurrection of these agencies was a low priority for the President during his first two years. He made great appointments, but then left the agencies to cope with budget shortfalls and inadequate legal authority. As just one especially shocking example, FDA cannot order a recall of salmonella-poisoned food but instead must depend on the producer’s cooperation to get the food off the shelves. Worst of all, Cass Sunstein, his appointee to the post of “regulatory czar,” where he essentially supervises the agencies from the White House, has in many ways continued the Bush II pattern of red tape and neglect. “Yes we can” became “No we won’t” in too many instances. His small office continues to serve as a lobby for any powerful business interest—from coal companies to chemical manufacturers—intent on consigning the cops to desk duty.  

Republicans followed the pattern of the Bush II Administration, screaming about overregulation and even going so far as to protest the rough treatment of British Petroleum in the Gulf. As usual, they gained traction by ranting against government writ large, not by acknowledging the need—no, the expectation and rock-solid demand—that these first-line responders keep Americans safe.

The predictable result was a mixed record--some regulators seized the opportunity and moved briskly ahead. Others bogged down.  

All of that is squarely within the President’s power to fix. But will he?

On the assumption that the President does in fact want to squeeze as much progress out of his first term as possible, a number of Center for Progressive Reform Member Scholars (Holly Doremus, Dan Farber, Christine Klein, Tom McGarity, Catherine O’Neill, and Sidney Shapiro) brainstormed some suggestions, and here are the highlights of those discussions.

By far the most important initiative is to reinvigorate enforcement across the board, especially with respect to criminal violations. Enforcement—especially criminal enforcement—produces tremendous bang for limited bucks because it gives white collar executives ample incentive to prevent practices that, quite literally, kill people. The Administration’s track record is agonizingly weak. Consider the outrageous case of Stewart Parnell, former president of the Peanut Corporation of America, who knowingly shipped product tainted with salmonella, killing nine and sickening thousands. In September, the AP reported that he was back as a consultant to the peanut industry, the Justice Department’s supposed criminal investigation of his company having languished for two years.   In a similar vein, we await decisions by Justice regarding ongoing  criminal investigations of BP and its executives, especially former CEO Tony Hayward, as well as Don Blankenship, CEO of Massey Energy, a chronic violator of mine safety laws whose negligent mine “safety” policies resulted in the death of 29 at the Big Branch mine in West Virginia.

The further beauty of enforcement is that it is immune from interference by corporate sympathizers in the House of Representatives. Taking cases of wrongdoing to court pulls the debate down from the ideological stratosphere of “big” government arguments to the hands-on practicality of the ways that greedy executives injure actual men, women and children with impunity.

Some more specific regulatory and executive action steps on which the President should move forward:

• The President should direct his science adviser John Holdren to get cracking on the guidelines to protect scientific integrity within the government. This policy, now about 16 months overdue, should prevent political appointees from muzzling scientists who bring bad news for industry.
• The President should issue an Executive Order directing agencies to protect children from toxic chemicals. The order would require all federal agencies to develop plans implementing an affirmative agenda to protect children from toxics, to account for the unique attributes of children when conducting risk assessments, and to stop discounting prospective benefits for children and future generations when conducting cost-benefit analyses.
• FDA should tighten oversight of state agencies that work under contract with FDA. State agencies handle much of the FDA’s enforcement, under contract with FDA. To be clear, this is not delegated authority (something EPA does in some contexts); there’s actually a contract, and money goes from the feds to the states. FDA should also ban non-therapeutic uses of antibiotics in agriculture. Antibiotic use in agribusiness is out of control, and we’re paying the price in the form of antibiotic resistance.
• The Department of Interior must continue to develop further deep well drilling rules, especially those that require far more rigorous protections for the workers who run the rigs as well as those brought in to clean up the inevitable spills. Such facilities, which can be characterized as living quarters on top of a volcano, are far from safe, despite the Administration’s decision under excruciating pressure to life the drilling moratorium.
• Soon after taking office, the Obama Interior Department pulled the plug on a Bush Administration regulation that undercut a provision in the Endangered Species Act requiring that federal agencies consult with either the Fish and Wildlife Service or the National Oceanic and Atmospheric Administration when they were considering steps that would harm endangered species. Rolling back the bad Bush regulation was an important step; even better would be a new regulation spelling out consultation requirements.
• EPA should continue its work under the Clean Water Act to encourage states to hold large agricultural producers liable for nutrient pollution that has produced dead zones in almost every major body of water in the continental United States. One particularly important aspect of this work is revision of the weak Bush era rule curtailing discharges from concentrated animal feeing operations (aka huge hog farms and chicken houses).
• EPA has a number of important regulations at various stages in the pipeline, including the White House, including new controls on mercury, ozone, hazardous air pollutants and coal ash. All of these proposals need to be expedited.
• OSHA needs a broader interpretation of employers’ obligation to provide a safe workplace. OSHA has been moving slowly on an Injury and Illness Prevention Program regulation that would require most employers to study potential safety and health problems, identify them, and put in place remedial measures to address them. On its end, OSHA would dispatch inspectors to make sure employers are indeed living up to their commitments.

The battle for the future of the republic is far from over, no matter which group of strident partisans is on top this round. Meanwhile, back on the streets, the storefronts, rivers, and factory floors, Americans need government to protect them when they cannot protect themselves.