• A Return to Common Sense: Protecting Health, Safety, and the Environment Through Pragmatic Regulatory Impact Analysis

      The Center for Progressive Reform (2009-10)
      For almost all of the last 30 years, cost-benefit analysis (CBA) has been the principal yardstick by which federal regulatory agencies measured the value of regulatory protections for health, safety, and the environment. During that time, its failings have been laid bare repeatedly. It overstates the “costs” of regulation, often because it relies on inflated estimates from industry, and understates the benefits, sometimes ignoring huge benefits altogether because their dollar values are not readily fixed. It has been subject to gross political manipulation. And it has produced absurd results, leaving people and the environment vulnerable to unnecessary and unjustifiable risks. While proponents of CBA sometimes acknowledge that their method of regulatory impact analysis is flawed, they routinely assert that there is no better method. This white paper demonstrates otherwise, proposing that agencies adopt a method of regulatory decisionmaking called “pragmatic regulatory impact analysis” (PRIA). In many ways, PRIA represents a a return to the original “pragmatic” approach to regulatory decisionmaking that agencies employed before the advent of CBA. PRIA would: 1. Focus on the decisionmaking criteria that Congress established in the various the health, safety, and environmental statutes; 2. Take into account the informed input of a broad range of agency experts with relevant expertise regarding the risk to be addressed and how best to respond to it; and 3. Seek to fulfill the precautionary objectives of these statutes by enabling agencies to take regulatory actions consistent with the best judgment of fully informed agency experts and administrators. PRIA would require agencies to make their decisionmaking more explicit and transparent by adding three procedural reforms: 1. Pre-decisional development. A document labeled a “pragmatic regulatory impact analysis” (PRIA) would be developed as soon as an agency begins the process of considering a new regulation. At the outset, the PRIA would serve as the repository of the substantive issues the agency’s multi-disciplinary team believed it must inves tigate before formulating an actual rulemaking proposal. PRIAs would thus become the blueprint for the process, undergoing constant change, as the agency understood the issues better. 2. Public notification. The PRIA document would be published before a Notice of Proposed Rulemaking (NPR) is released. An NPR is a standard rulemaking document in which an agency typically announces a proposed rule, providing along with it an explanation of how it tentatively resolved each of the preliminary issues that needed to be sorted out in order to justify its proposed rule. The PRIA document would function as a discussion draft of the NPR by offering a clear and concise overview of the key issues an agency must resolve before it can issue a NPR. PRIA therefore would not only assist agency officials in formulating a NPR, it would provide the public with the background to the NPR in an accessible and understandable format. 3. Public input. In appropriate situations, agencies could invite public comment on the PRIA document. Under current practice, an agency sometimes issues an Ad vanced Notice of Proposed Rulemaking (ANPR), which proposes various policy options to the public and requests comment on them. But the PRIA document would provide a more in-depth analysis of the issues at stake and the advantages and disadvantages of different policy options. Accordingly, it would produce more informed public input and be of more assistance to the agency.
    • Contracting COVID: Private Order and Public Good

      Lipson, Jonathan C. (2020-09-02)
      The novel Coronavirus (2019) (COVID) has created a dilemma: Open the economy and spread disease; quarantine and choke the economy. Thus far, the response has looked to government for health-safety standards and financial subsidies. Although these are necessary steps, they have become politicized, thereby exacerbating severe uncertainties created by the pandemic. While we will surely halt it, we do not know how, when, or what comes next. Many writers are exploring litigation that will flow from COVID. This Article considers the flip side: the important but under-appreciated role that ex ante contracting plays in addressing the COVID dilemma. Liability waivers, for example, will be ubiquitous, but might be misused to shelter poor risk management. This essay argues that these waivers should be enforceable only when coupled with reasonable health-safety precautions, which may appear in contracts such as workplace rules or supply chain agreements. Without such balance—or worse, when imposed by fiat, as President Trump did in the meat processing industry—they can inflame the public health crisis. At the same time, the COVID-induced shutdown has caused most contracts to be in or near breach. This has resulted in responses such as litigation, bankruptcy, and bailouts. While these may be inevitable, second-order contracts such as standstill agreements provide certainty that enables parties to adjust commercial relationships in ways that may preserve more value at lower cost than public interventions. Contract in this context is thus doing more than creating private order; it is also producing public good. This hearkens to Depression-era scholarship which argued that contract had public ramifications. Although modern writers have largely abandoned that view, it reflected a change in mindset that cleared the way for sweeping New Deal reforms. While we do not yet know whether COVID will be as disruptive as the Depression, the uses of contract described here may signal a comparably dramatic realignment of private and public.
    • Land use change in four landscapes in the Peruvian Amazon

      Center for International Forestry Research (CIFOR) (2020)
      This working paper uses remote sensing data and methods to characterize land cover change in four sites in the lowland Peruvian Amazon over a period of three decades (1987-2017). Multi-village landscapes were purposefully selected to include road accessible sites and others only accessible by river. Landscape analysis focused on buffers around the selected villages used to approximate the areas of influence of farmers in these communities. Deforestation in the Peruvian Amazon has been commonly attributed to agriculture expansion by smallholders. This belief falls short in acknowledging that the contribution of smallholder deforestation is mediated by others decisions around infrastructure development. In this analysis, road connected landscapes experienced greater loss of closed-canopy forest while closed canopy forest remained mostly stable in the river sites over the thirty year study period. Results indicated that closed canopy forest loss occurred in parallel with agricultural expansion at the road sites. The findings contribute to a more nuanced understanding of local land use dynamics and the role of regional infrastructure development as a driver of forest loss.
    • Obama’s Regulators: A First-Year Report Card

      The Center for Progressive Reform (2010-01)
    • Protecting People & the Environment by the Stroke of a Presidential Pen: Seven New Executive Orders for President Obama's Second Term, CPR Issue Alert 1215

      The Center for Progressive Reform (2012-12)
      Over the next four years, the nation will face a daunting to-do list of public health, safety, and environmental challenges. If progress is to be made on these challenges, the Executive Branch must take the lead. President Barack Obama has broad authority over the Executive Branch’s various regulatory agencies, including the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and the Occupational Safety and Health Administration (OSHA). Existing statutes authorize these agencies and the White House itself to address the greatest public, health, and safety challenges. So if progress is to be made, President Obama will need to unleash this potential by making full use of his authority to manage agency activities by issuing Executive Orders. He can use these orders to direct the agencies to focus on high priority regulatory initiatives and to streamline the processes by which they carry out their statutory missions. This white paper recommends seven Executive Orders for the second term of the Obama Administration, all of which are directed at addressing critical public health, safety, and environmental challenges. Each Order directs government agencies to take specific steps to create meaningful new safeguards for people and the environment. Adopting and successfully carrying out these recommendations would help to cement President Obama’s legacy as a strong defender of public health, safety, and the environment.
    • Regulatory Blowout: How Regulatory Failures Made the BP Disaster Possible, and How the System Can Be Fixed to Avoid a Recurrence

      The Center for Progressive Reform (2010-10)
      The BP oil spill in the Gulf of Mexico is destined to take its place as one of the greatest environmental disasters in the history of the United States, or for that matter, of the entire planet. Like so many other disasters on that list, it was entirely preventable. BP must shoulder its share of the blame, of course. Similarly, the Minerals Management Service (MMS) – since reorganized and rebranded – has come under much deserved criticism for its failure to rein in BP’s avaricious approach to drilling even where it was unable to respond to a worst-case scenario in a responsible and timely fashion. But the problems run much deeper than a single risk-taking company and a single dysfunctional regulatory agency. This report sketches out widespread regulatory failure, touching several agencies of the federal government and affecting several critical environmental statutes. Prepared by Member Scholars of the Center for Progressive Reform (CPR), it has two goals: (1) to identify how and why the regulatory system failed to protect the public and environment and prevent the BP disaster, and (2) to recommend the priority reforms that are essential to correct these regulatory deficiencies. The report begins by laying out the shortcomings in the primary statute under which deepwater oil drilling is regulated – the Outer Continental Shelf Lands Act (OCSLA) – and outlines key reforms needed to provide the authority necessary to protect the public interest. It then turns to systemic problems within the agency charged with regulation of deepwater oil drilling under the OCSLA – the Mineral Management Service (MMS), renamed the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) in the wake of the disaster. These include problems of agency capture and inadequate funding. The third topic addressed in the report is the role of the National Environmental Policy Act (NEPA) – how and why this landmark statute was disabled from performing its critical role in the case of the BP well, and what regulatory changes can ensure that it functions effectively in the future. The report next details the problems that surrounded the implementation and enforcement of the Endangered Species Act (ESA) as it applied to oil drilling and recommends several key reforms. The report then discusses a systemic problem that is a theme in each prior section and that specific statutory reforms cannot fully remedy: obstacles to making sound regulatory decisions in the face of uncertain, low probability risks of potentially catastrophic or irreversible harm. This section highlights a common sense solution: adoption of a precautionary stance. A precautionary approach would replace the current widely-adopted presumption that regulation must await a high – and often unattainable – degree of certainty, even when the potential costs are irreversible or catastrophic. In the last sections of the report, we step back to look at the regulatory system from a broader perspective. We consider first how the regulatory system and its failures in this case were caused in part by the absence of coherent policies on energy and climate change. Our current policy provides vast incentives for risky oil and gas development like deepwater drilling and few for low-carbon alternative energy sources. In the wake of yet another painful lesson on the cost of our current incoherent approach, it is time to focus political attention on the difficult but necessary task of debating and adopting a coherent and sound energy policy. In the final section, we step back geographically to suggest why another lesson of this disaster is that the United States should undertake to learn more from the experience abroad, offering the example of the North Sea. Had we been paying closer attention, the investigations and reforms in the wake of the infamous Piper Alpha spill or the Bravo platform blowout might have offered insights to help us avoid this disaster.
    • Six Myths About Climate Change and the Clean Air Act

      The Center for Progressive Reform (2011-03)
    • The Hidden Human and Environmental Costs of Regulatory Delay

      The Center for Progressive Reform (2009-10)
      Each year dozens of workers are killed, thousands of children harmed, and millions of dollars wasted because of unjustifiable delays in federal regulatory action. Such delays in regulatory action have become commonplace, part of the wallpaper of Washington’s regulatory process for the protector agencies-the Consumer Product Safety Commission (CPSC), EPA, the Food and Drug Administration (FDA), the National Highway Traffic Safety Administration (NHTSA), and OSHA. Despite its significance, the problem of regulatory delay and the costs it generates has been virtually ignored in the debate over the general wisdom of the U.S. regulatory system over the last 30-plus years. Opponents of the regulatory system have deliberately framed this debate in terms of the “costs and benefits” of regulatory action, implying that regulatory inaction caused by regulatory delay is somehow cost-free. The one-sided nature of this debate is perhaps best exemplified by the White House Office of Management and Budget’s annual Report to Congress on the Benefits and Costs of Federal Regulations, as required by the 2001 Regulatory Right-to-Know Act. These annual reports document in painstaking detail the quantified and monetized costs and benefits of regulatory action, providing aggregate estimates of these costs and benefits for many of the regulations that federal agencies have issued over the previous year as well as over the previous ten years. Not once, however, have these reports ever sought to document the costs of regulatory delay. The problem with ignoring the costs of regulatory delay is that it provides an incomplete picture of the value of the U.S. regulatory system - one that is inevitably skewed against stronger regulatory protection. Broadly speaking, the purpose of this white paper is to begin the process of filling in the rest of this picture, so that in the future the debate over the general wisdom of the U.S. regulatory system can continue on more robust and balanced terms. To this end, this white paper presents three case studies. Each tells the story of a recent or ongoing example of regulatory delay that has caused real harm to Americans and their environment.
    • Twelve Crucial Health, Safety, and Environmental Regulations: Will the Obama Administration Finish in Time?

      The Center for Progressive Reform (2011-04)
      When President Obama came to the White House and put his appointees in place, they faced a long to-do list. For the preceding eight years, the dominant view within the Executive Branch had been that health, safety, and environmental regulation was a nuisance to business, cutting into industry profits in service of objectives that had never been part of President George W. Bush’s agenda. By the time Bush II left office on January 20, 2009, little had been done and a lot of important safeguards had been rolled back. Crucial rules mandated by Congress were delayed or derailed, and enforcement was a shadow of its former self. The Obama Administration came to power promising to reinvigorate protections for public health, worker and consumer safety, and the environment; and, indeed, the Administration has made important progress on several fronts. But the President’s first term in office is more than half over, and too much remains to be done. To fulfill the promises he made to the American people, prevent further catastrophes, and save American industry from its own short-sighted opportunism, the President needs to exhort his Cabinet, his political appointees, and the White House staff to get crucial things done. This report identifies 12 such regulatory safeguards, a collection that in the view of the authors represents the 12 most critical environmental, health, and safety regulations still in the pipeline. Too many of them are in serious danger of being stuck in the pipeline long after January 20, 2013. In particular, for nine of these 12 most critical rules, the Administration is currently on a trajectory that makes it possible, even likely, that it will not complete work on the regulation by the end of the President’s first term. Such an outcome would be particularly distressing because it would not be the consequence of congressional interference or other political opposition, but a flat out failure of the Administration to get its work done in a timely manner – a straightforward unforced error with potentially huge consequences. The report says that three factors will play an outsized role in whether the Administration finishes in time: delays from the Office of Information and Regulatory Affairs, needlessly protracted deliberations by the agencies themselves, and pressure from anti-regulatory interests.