The Role of Health and Safety Evidence in Regulation and the Civil Justice System: Preserving Protection of the Public

Thomas O. McGarity holds the Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law at the University of Texas in Austin. He is a member of the board of directors of the Center for Progressive Reform, and a past president of the organization.

Professor McGarity has taught and written in the areas of Administrative Law, Environmental Law, Occupational Safety and Health Law, Food Safety Law, Science and the Law, and Torts for twenty-five years.

While in academia, McGarity has served as a consultant and/or advisor to the Administrative Conference of the United States, the Office of Technology Assessment of the U.S. Congress (OTA), the U.S. Environmental Protection Agency, the U.S. Occupational Safety and Health Administration (OSHA), the Texas Department of Agriculture, and the Texas Natural Resource Conservation Commission. With Professor Sidney A. Shapiro, Professor McGarity designed and helped initiate a rulemaking prioritization process for OSHA rulemaking during the early 1990s. As a consultant to OTA, Professor McGarity helped write the "Regulatory Tools" report that agencies have frequently cited in designing regulatory programs. As a consultant to the Texas Department of Agriculture, McGarity was a primary draftsperson of that agency's first farmworker protection regulations in the late 1980s. During the mid-1990s, he was also actively involved in the drafting of and negotiations surrounding the federal Food Quality Protection Act.

Professor McGarity began his legal career in the Office of General Counsel of the Environmental Protection Agency. In the private sector, Professor McGarity has served as counsel or consultant in various legal and administrative proceedings to the Natural Resources Defense Council, Public Citizen, the Sierra Club, the American Lung Association, the National Audubon Society, Texas Rural Legal Aid, California Rural Legal Aid, and many local organizations, including, for example, The Bear Creek Citizens for the Best Environment Ever. McGarity has also served on many advisory committees for such entities as the U.S. Environmental Protection Agency, the Office of Technology Assessment, and the National Academy of Sciences.

Professor McGarity has published widely in the areas of regulatory law and policy. His book Reinventing Rationality analyzes the advantages and disadvantages of cost-benefit analysis in regulatory decision-making and describes the use of such regulatory impact assessments by federal agencies and the Office of Management and Budget during the Reagan Administration. Workers at Risk, co-authored with Sidney A. Shapiro, describes rulemaking, implementation and enforcement in the Occupational Safety and Health Administration from its inception in 1970 through 1990. The book then analyzes OSHA's strengths and weaknesses and makes many recommendations for improving standard-setting and enforcement. McGarity's casebook, The Law of Environmental Protection, co-authored with John Bonine, has been used in introductory Environmental Law courses at law schools throughout the country. His relatively recent books include The Preemption War: When Federal Bureaucracies Trump Local Juries, Yale University Press 2008, and Bending Science: How Special Interest Corrupt Public Health Research, Harvard University Press 2008, co-authored with fellow CPR Member Scholar Wendy Wagner.

Professor McGarity has published dozens of articles on environmental law, administrative law, and toxic torts in prominent law reviews, such as the Harvard Law Review, Chicago Law Review, Pennsylvania Law Review and Law & Contemporary Problems, as well as in specialty journals, such as the Administrative Law Review, the Harvard Environmental Law Review, Risk, and the Kansas Journal of Law & Public Policy, and consumer magazines like the American Prospect and the Hastings Center Report. McGarity has written on federal regulation of biotechnology since the advent of the commercialization of recombinant DNA techniques, and his article in the Duke Law Journal on the "ossification" of the federal rulemaking process, which elaborates on the dangers of encumbering the process of promulgating health and environmental rules with burdensome analytical requirements and review procedures, is frequently cited in the recurrent "regulatory reform" debates.

Professor McGarity has been an active participant in efforts to improve health, safety and environmental quality in the United States. He has testified before many congressional committees on environmental, administrative law, preemption of state tort laws in cases involving medical devices, and occupational safety and health issues. During the first session of the 104th Congress (the "Gingrich" Congress), Professor McGarity was frequently the lone representative of the view that federal regulation had an important role to play in protecting public health and the environment on panels testifying before House and Senate Committee considering "regulatory reform" legislation. Professor McGarity has also participated in path-breaking legal challenges to government inaction like Environmental Defense Fund v. Blum (a challenge to EPA's decision to allow further use of the carcinogenic pesticide mirex through emergency use exemptions) and Les v. Reilly (a challenge to EPA's failure to establish protective tolerances for eight carcinogenic pesticides). As a result of the latter litigation, the pesticide industry was forced to accept the greater protections afforded children in the Food Quality Protection Act of 1996. 

Thomas McGarity
The University of Texas School of Law
Austin, TX
512.232.1384
email
website

Wendy E. Wagner holds the Richard Dale Endowed Chair at the University of Texas School of Law in Austin, Texas. Prior to joining the University of Texas Law faculty, Professor Wagner was a professor at the Case Western Reserve University School of Law and School of Management, and was a visiting professor at the Columbia Law School and the Vanderbilt Law School.

Professor Wagner has taught a number of courses on environmental topics. Within the law school, she has taught an Environmental Law survey course, an advanced course on Toxics, a survey course on Regulation, and seminars on Law and Science and Citizen Participation in Environmental Law (in this latter seminar, the students wrote citizen guides designed to educate citizens about their rights under the environmental laws). Wagner has also co-taught interdisciplinary University-wide courses and seminars on: Lead and the Environment; The Great Lakes and the Environment; Environmental Priority Setting; Environmental Justice; the Automobile and the Environment; and Complex Problem Solving: A Case Study on the Environment. Wagner writes primarily in the area of environmental law and science, exploring the ways that science is used and misused in decision-making by the courts, Congress, and the agencies.

While in academia, Professor Wagner has participated as an officer or committee member in a number of professional societies, including several sections of the American Bar Association; the Society for Risk Analysis; the National Conference of Lawyers and Scientists; and a task force initiated by U.S. Representative Dennis Kucinich.

Professor Wagner has also participated as a speaker at various conferences convened for the practicing bar, environmental scientists, and governmental policymakers. Professor Wagner has spoken at local bar associations, given presentations for Continuing Legal Education programs, spoken at a variety of scientific meetings, and presented papers at meetings convened for government officials by the U.S. EPA and the Harvard Center for Risk Analysis. Professor Wagner was a guest speaker on the national public radio show "Science Friday" (part of "Talk of the Nation"), which spotlighted the EPA's recently promulgated standards for ozone and particulates. Professor Wagner was also an invited expert for a hearing on delegation convened by the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs of the House Committee on Government Reform, U.S. Congress.

Professor Wagner recently collaborated with two other UT colleagues (Thomas McGarity and Lynn Blais) on a U.S. EPA-funded project identifying the problems associated with, and the legal authority available for regulating air toxins in the state of Texas. The Texas Council for Environmental Quality commissioned the project and plans to use the results in its regulation writing and legislative activities. Professor Wagner also published a book with colleague McGarity in 2008 entitled Bending Science: How Special Interests Corrupt Public Health Research (Harvard University Press), and they also produced a report for the Wilson Center for International Scholars on the types of legal challenges that can be filed against EPA's environmental models and their past success in court.

Professor Wagner began her legal career in 1987. From 1987-88, she served as a law clerk for the Honorable Albert Engel, the Chief Judge of the U.S. Court of Appeals, Sixth Circuit, in Grand Rapids, Michigan. Professor Wagner then served as an Honors Attorney at the Environmental Enforcement Section of the Environment Division at the Department of Justice in Washington, D.C. While an attorney at DOJ, Professor Wagner was the first or second chair on a number of prominent cases, including U.S. v. Vertac, a large Superfund case, and U.S. v. City of Seattle, one of the first natural resource damage cases brought by the National Oceanic and Atmospheric Administration under the Superfund law. Wagner then moved to the General Counsel Office of the Department of Agriculture in 1991 where she served as the Pollution Control Coordinator and established a central office, with six satellite legal offices, to manage and advise DOA agencies on compliance under the pollution control laws. Professor Wagner began her academic career in 1992 as an assistant professor at the CWRU School of Law.

Professor Wagner has published widely in the areas of law and science, and presented a number of papers in a wide variety of academic and practice-based settings.

Professor Wagner is also trained as an ecologist. After majoring in biology at Hanover College (graduating summa cum laude), she received a masters degree from the Yale School of Forestry and Environmental Studies and began (but did not finish) a Ph.D. in ecology from the University of Virginia School of Environmental Science. Throughout this period (1979 through 1984 and the fall of 1988), Wagner's research focused primarily on the ecology of benthic diatoms in wetland systems. She conducted research and coursework on diatoms at summer research institutes at the Marine Biological Laboratory, Woods Hole, Massachusetts; the University of Michigan Research Station in Pellston Michigan; and the Iowa Lakeside Laboratory in Okoboji, Iowa. 

Wendy Wagner
University of Texas School of Law
Austin, TX 78705
512.232.1477
email
website

Sidney A. Shapiro holds the Fletcher Chair in Administrative Law at the Wake Forest University School of Law and is the Associate Dean for Research and Development. He is a member of the board of directors of the Center for Progressive Reform.

Professor Shapiro has taught and written in the areas of Administrative Law, Regulatory Law and Policy, Environmental Policy, and Occupational Safety and Health Law for 25 years.

While in academia, Shapiro has served as a consultant to the Administrative Conference of the United States (ACUS), the Office of Technology Assessment of the U.S. Congress (OTA), and the U.S. Occupational Safety and Health Administration (OSHA). With Professor Thomas O. McGarity, Professor Shapiro designed and helped initiate a rulemaking prioritization process for OSHA rulemaking during the early 1990s. As a consultant to OTA, Professor Shapiro assessed various regulatory tools or options that agencies can use to implement regulation. As a consultant to ACUS, Professor Shapiro studied the efficacy of the regulatory process at EPA (noise control), OSHA, and the Food and Drug Administration (FDA).

Professor Shapiro began his legal career as a trial attorney in the Bureau of Competition of the Federal Trade Commission and later worked as the Deputy Legal Counsel, Secretary's Review Panel on New Drug Regulation at the Department of Health, Education and Welfare.

Professor Shapiro has published widely in the areas of regulatory law and policy. He co-authored The People’s Agents and the Battle to Protect the American Public: Special Interests, Government, and Threats to Health, Safety, and the Environment, with CPR President, Rena Steinzor. This book reviewed years of government actions and inactions leading to the decline of the five protector agencies. His book, Risk Regulation at Risk: Restoring a Pragmatic Approach, analyzes health and safety and environmental protection laws and policy, and argues for a pragmatic approach to policy in these areas instead of using economic analysis to set regulatory goals. Workers at Risk, co-authored with Thomas O. McGarity, describes rulemaking, implementation and enforcement in the Occupational Safety and Health Administration from its inception in 1970 through 1990. The book analyzes OSHA's strengths and weaknesses and makes many recommendations for improving standard-setting and enforcement. Shapiro's casebook, Administrative Law and Procedure: A Problem Approach, co-authored with William Funk and Russell Weaver, is used in administrative law courses at law schools throughout the country. His casebook, Regulatory Policy and Law, is the first of its kind, and is used to train lawyers to evaluate and advocate for public policy.

Professor Shapiro has published dozens of articles on regulatory policy, health and safety laws, environmental law and administrative law in prominent law reviews, such as the Harvard Law Review, Duke Law Journal and the Wake Forest Law Review, as well as in specialty journals, such as the Administrative Law Review and the Ecology Law Quarterly.

Professor Shapiro has been an active participant in efforts to improve health, safety and environmental quality in the United States. He has testified before congressional committees on administrative law and occupational safety and health issues. He has worked with various public interest groups in advisory and support capacities, including Public Citizen Global Trade Watch, Public Citizen Congress Watch, and OMB Watch. 

Sidney Shapiro
Wake Forest University School of Law
Winston-Salem, NC
336.758.7320
email
website

James Goodwin, J.D., M.P.P., is a Senior Policy Analyst with the Center for Progressive Reform. He joined CPR in May of 2008. Prior to joining CPR, Mr. Goodwin worked as a legal intern for the Environmental Law Institute and EcoLogix Group, Inc. He is a published author with articles on human rights and environmental law and policy appearing in the Michigan Journal of Public Affairs and the New England Law Review (co-author with Armin Rosencranz).

Mr. Goodwin graduated magna cum laude from Kalamazoo College, where he received a B.A. with honors in Political Science. He received his law degree (with a certificate in environmental law) from the University of Maryland School of Law, where he graduated magna cum laude, and his master’s degree in public policy (concentration in environmental policy) from the University of Maryland School of Public Policy, where he graduated as class valedictorian. While at the University of Maryland School of Law, Mr. Goodwin was a member of the Moot Court team. He is a member of Order of the Coif and Phi Beta Kappa. 

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