Citizen Health & Safety
The Future of Long-Awaited Public Protections in Obama's Second Term
A number of high-profile rules that would strengthen health, safety, and environmental protections failed to move through the regulatory review process in the first term of the Obama administration. Many speculate that the administration avoided publishing controversial rules during the election season. With the election settled, some overdue rules may finally see the light of day. However, corporate interests that have been fighting against stronger standards continue to do so, and advocates for stronger protections are waiting to see if the administration will act more aggressively to protect public health and the environment in its second term.
Rules Caught in the Regulatory Review Logjam
The regulatory process is a lengthy one, and it often takes agencies years to adopt public protections. A significant source of delay for many protective rules is mandatory review by the Office of Information and Regulatory Affairs (OIRA). Under Executive Order 12866, OIRA review is limited to 90 days with a possible 30-day extension, but rules are routinely delayed beyond the 120-day deadline. As of Nov. 20, 129 of the 156 regulatory actions (and 20 of 24 economically significant rules) pending at OIRA had been waiting for more than 90 days. In fact, the average time that the 20 economically significant rules have been under review at OIRA is 264.8 days – more than twice the time allowed by executive order.
One long-delayed proposal is an effort by the Occupational Safety and Health Administration (OSHA) to strengthen workplace exposure limits for crystalline silica, a known cancer-causing substance that is linked to fatalities and disabling respiratory illnesses. The silica rule has been at OIRA since Feb. 14, 2011 – almost two years. During this time, OSHA estimates that more than 100 workers have died from silica-related illnesses. This unreasonable delay, which came after OIRA held a number of closed-door meetings with industry groups, sparked an outcry from 300 occupational health experts, public safety advocates, and labor officials, who sent the White House a letter on Jan. 25, 2012, urging President Obama to release the rule for public comment. Almost a year after the letter was sent, the rule remains at OIRA.
Another proposed rule long past due is the U.S. Environmental Protection Agency's (EPA) proposed Chemicals of Concern List, which would identify chemicals that may present unreasonable human health risks. Under the Toxic Substances Control Act (TSCA), EPA would add a number of chemicals, including bisphenol A (BPA), to a list of substances that present or may present an unreasonable risk of injury to human health or the environment. The rule would have important health and safety benefits and is not economically significant, yet it has been stalled at OIRA since May 2010. Over a year ago, Sens. Frank Lautenberg (D-NJ) and Sheldon Whitehouse (D-RI) wrote OIRA a letter asking that the proposed rule be released. OIRA has yet to release the rule or explain the reason for the delay.
Environmental regulations were targeted by an increasingly anti-regulatory, anti-environmental House of Representatives during the 112th Congress, and a number have been delayed by Obama administration officials. (For a more complete list of environmental rules that could be on the horizon, see this article by Kate Sheppard.)
In September 2011, the president ordered the EPA to withdraw a rule establishing a new standard for ground-level ozone pollution, directing the agency to wait and update the standard in 2013. Industry and environmental advocates alike are waiting to see how stringently the administration will regulate ozone pollution. In the face of intense opposition from business interests and some of their allies in Congress, EPA Administrator Lisa Jackson had proposed a rule that would strengthen the previous ozone standards of the George W. Bush administration, following the recommendations of the agency's scientific advisory panel. The Bush ozone standards were not sufficiently protective in the scientists' view and were overturned by a federal court in 2010. Environmentalists viewed the White House action as inappropriate political interference in agency rulemaking. Evidence shows that the standards scientists recommended to the agency would save thousands of lives every year. EPA is to review the ozone standard next year, and hopes are that a tougher standard will prevail.
Another environmental rule under review would regulate coal ash, a toxic waste produced when coal is burned. This December will mark the four-year anniversary of a massive spill in Tennessee that sparked new calls for the regulation of coal waste. While EPA proposed new standards for the regulation of coal ash in 2010, little progress has been made toward issuing comprehensive national standards. There are new reports that the agency will likely default to the less stringent regulatory option preferred by the coal and waste recycling sectors, but there is no official word yet from EPA.
Getting Rules Moving
When OIRA blocks publication of the rules proposed by federal agencies, the regulatory process grinds to a halt, the public officials and scientists who have worked on the standards are demoralized, reforms are delayed, and most importantly, public agencies are unable to implement the safeguards and protections that Congress wrote into law.
In the coming months, President Obama will be appointing a new OIRA administrator and some new agency heads. These staffing decisions will no doubt be important in determining whether stronger environmental and health standards are part of the Obama administration's legacy. But even before new candidates are nominated and confirmation hearings take place, the administration could move the rules already under review at OIRA forward. They should do so. Promptly.