Thomas O. McGarity

The Expanded Debate over the Future of the Regulatory State

If the regulatory state is at a crossroads, it is because the winners of the 1994 elections have elevated the usually dry topic of federal regulation to a highly visible status. During the summer of 1995, the prominence in the news media of articles and editorials about cost-benefit analysis, risk assessment, scope of judicial review, and regulatory budgets caused twinges of excitement in the normally leaden breasts of public policy wonks; these self-styled experts then raced to Capitol Hill in droves to testify on the virtues and limitations of this or that species of regulatory reform. Following the hearings, members of Congress took to the floor with fancy props to debate esoteric language designed to change fundamentally the way federal agencies do business. The primary significance of the 1994 elections for the continuing debate over the role of regulation in society has been to reopen previously settled questions and to revive positions that have remained virtually dormant since the New Deal. Congress is now within a vote or two of enacting radical changes to the Administrative Procedure Act that would significantly affect both the pace and substantive content of federal regulation. Also on the table are radical changes to environmental statutes, occupational safety and health laws, banking regulation, and legal protections against employment discrimination. These have not been especially attractive developments for those (often among the beneficiaries of existing regulatory programs) who believe that government has an important role to play in a robust capitalist economy and who would not welcome a return to the moral and legal regime of late nineteenth-century America. Although defenders of the federal regulatory bureaucracy are rarely featured on the evening news or the radio talk shows, the programs that the much reviled bureaucrats administer provide a crucial protective shield against the misery and waste that always accompany the abuse of private power.

Regulatory reinforcement of journal conflict of interest disclosures

A variety of economic and ideological forces threaten the integrity of public health research.1–4 In response, the editors of the top biomedical journals now require conflict of interest disclosures for submissions. Their increasingly extensive disclosure policies have resulted in some progress towards protecting the integrity of public health research by disclosing for readers potential sources of author bias.5 6 Yet the journal editors appear to be reaching the limits of what they can realistically accomplish. Letters to the editor reporting undisclosed conflicts,7 editorial retractions of non-compliant articles8 and occasional news scandals9 10 are still far too common. Several empirical studies have also confirmed problematic levels of author non-compliance with journal disclosure policies.11 12 And journal editors themselves seem frustrated by the scope of the conflicts problem and their limitations in addressing it. As Catherine DeAngelis, editor-in-chief of JAMA , explained: “I’m not the F.B.I.” and cannot look “in the hearts, minds and souls of authors”, much less oversee the completeness of the disclosures accompanying the over 6000 articles submitted annually to her journal.13 Moreover, as Dr DeAngelis notes, even if JAMA could miraculously identify all …

EPA at Helm's Deep: Surviving the Fourth Attack on Environmental Law

In the second volume of J.R.R. Tolkiens The Lord of the Rings, Theoden, King of Rohan, learns that the armies of Saruman, the evil wizard, are advancing upon the defenseless city. He therefore orders the citizens to relocate to Helms Deep, a massive fortress carved into the side of a mountain that has heretofore remained impenetrable. With the help of some elven allies who arrive in the nick of time from Rivendell, the Rohan soldiers repel wave after wave of attacks by the vicious Uruk-hai. As one wall is breached, the soldiers fall back behind an interior wall until at last there is nowhere to retreat. At that point, the king seizes the offensive, orders his soldiers to mount their steeds and take the battle to the enemy. Fortunately, at that moment Gandalf, a good wizard, returns to Helms Deep with a band of Rohan mounted soldiers, and the two armies put the enemy to rout. For much of the past 30 years, the Environmental Protection Agency (“EPA”) and the laws that it administers have been under siege, much like the people of Rohan, from powerful economic, ideological and political actors who believe that the companies subject to EPAs regulatory authority should have greater freedom to go about their business unimpeded by “senseless” and “burdensome” regulations. The assaults came in three waves that peaked during the first years of the Reagan Administration, the first year of the 104th Congress, and the first six years of the George W. Bush Administration. During the first two years of the Obama Administration, EPA seized the offensive. Unlike the heroes of Helms Deep, however, the forces of environmental progress were driven back behind the ramparts after only two years by a wholly unanticipated fourth assault from a reinvigorated business community that took advantage of an economic crisis brought on by the lack of federal regulation of the banking industry to inspire a populist uprising that inexplicably blamed federal regulation for the nations current economic woes. Whether EPA and the foundational environmental laws that it implements will survive this fourth assault is by no means clear.

The Role of Government Attorneys in Regulatory Agency Rulemaking

Every time a federal regulatory agency exercises its power to write rules to govern private conduct, it must be prepared to resolve a wide variety of technical, economic, political, and legal issues. To assist them in these efforts, the agencies have invented a variety of internal decisionmaking models to bring different kinds of expertise to bear on regulatory problems. Legal expertise is nearly always required at some stage of the internal decisionmaking process because regulatory agencies are created by statute, agency powers are vested and limited by statute, and virtually all agency rules are subject to judicial review for substantive rationality, procedural correctness, and fidelity to those statutes and the Constitution. Agency lawyers from the Office of General Counsel (sometimes called the Office of the Solicitor) therefore play important roles in internal agency decisionmaking. Not surprisingly, the roles that agency lawyers play in many ways mirror the roles that reviewing courts play in reviewing agency rules under the Constitution, agency statutes, and general statutes like the Administrative Procedure Act (“APA”). This essay will explore the many roles that agency lawyers can play in the internal processes of developing proposed rules and responding to public comments on those rules. After briefly describing the two predominant models of the internal decisionmaking process from the lawyer’s perspective, the essay will examine how the agency lawyer functions within those models. In virtually all rulemaking contexts, agency lawyers have the power to determine external

Multi-Party Forum Shopping for Appellate Review of Administrative Action

f Professor of Law, University of Texas. B.A. 1971, Rice University; J.D. 1974, University of Texas. An earlier version of this Article was prepared as a report to the Administrative Conference of the United States. The views expressed herein are, however, the authors own and not necessarily those of any member of that agency or its advisory committees. The author would like to express his appreciation to Professors Craig, Gottlieb, Kissam, Pierce, Schroeder and Shapiro of the University of Kansas School of Law, Charles Alan Wright of the University of Texas School of Law, William Allen of Covington and Burling, and Linda Sedivek of the Administrative Conference of the United States for their helpful comments on an earlier draft of this Article and to Janice Jacobs, Class of 1981, University of Kansas School of Law for her research assistance.

Workers at Risk: Regulatory Dysfunction at OSHA

The Occupational Safety and Health Administration was born with a heavy load to bear – the obligation of ensuring that every worker in America has a safe and healthful workplace for his or her entire working life. In its early years, OSHA acted with great vigor, establishing important standards for occupational health and safety that have prevented hundreds of thousands of injuries and illnesses. But the agency has not aged gracefully. Today its enforcement staff is stretched thin and the rulemaking staff struggle to produce health and safety standards that can withstand industry legal challenges. In short, OSHA is a picture of regulatory dysfunction.This white paper explores the causes of OSHA’s regulatory dysfunctions and describes their negative impacts on OSHA and America’s workers. With the decreasing power of unions to organize and press employers to implement strong health and safety programs, employees in every occupation rely on OSHA to protect them from occupational hazards. Yet, in the last decade, OSHA has dropped more standards from its regulatory agenda than it has finalized, largely due to insufficient budget authority. And the agency’s enforcement program has assessed such paltry fines for even fatality-related violations of the law that many employers see no incentive in addressing hazards, much less developing precautionary health and safety programs. After describing OSHA’s problems in detail, this paper outlines a number of reforms that could enhance the agency’s performance. Although certain aspects of the Occupational Safety and Health Act could use improvement, the recommendations in this paper focus on regulatory reform – that is, administrative actions that OSHA could implement in the short term. A subsequent white paper will address legislative reform.

The End Game of Deregulation: Myopic Risk Management and the Next Catastrophe

On December 22, 2008, the contents of an enormous impoundment containing coal-ash slurry from the Tennessee Valley Authority’s (TVA) Kingston Fossil Fuel Plant poured into the Emory River. The proximate cause of the spill was the bursting of a poorly reinforced dike holding back a pit of sludge that towered 80 feet above the river and 40 feet above an adjacent road. The volume and force of the spill were so large that 1.1 billion gallons of the inky mess flowed across the river, inundating 300 acres of land in a layer four to five feet deep, uprooting trees, destroying three homes, and damaging dozens of others. Miraculously, no one was killed. In the aftermath, EPA Administrator Lisa Jackson promised to reevaluate by the end of 2009 the agency’s decades-old reluctance to regulate the disposal of some 129 million tons of coal ash generated annually, a startling large figure when compared to the 250 million tons of every category of household garbage that Americans generated in 2010. Jackson met this deadline. But her efforts were thwarted when an intensive industry lobbying campaign provoked the White House to rewrite the EPA proposal, adding two significantly weaker options and derailing the momentum of Jackson’s proposal. Historically, events like the Kingston disaster resulted in dramatic governmental reforms, pushing the law forward to meet new challenges and provide expanded protection for public health and the environment. Congress enacted most of the regulatory statutes of the Progressive Era, the New Deal, and the Public Interest Era after widely publicized tragedies or abuses stirred public opinion to levels sufficient to overcome the inertia that otherwise overwhelms Congress and the regulatory agencies. But more recently, the passive response to the Kingston spill was not an outlier. The past decade has witnessed a confluence of crises across a broad array of federal regulatory programs. The response by Congress and the regulatory agencies to most of them has been tepid at best. This trend raises the question of why the twentieth century dynamic of crisis and reform has apparently disappeared in the early twenty-first century. Using the Kingston disaster as a case study, this article offers several explanations for this unfortunate trend. We argue that regulated industries dominate regulatory debates on Capitol Hill and at the federal agencies to an unprecedented extent. Rather than stressing the importance of science-based rulemaking, the White House has engaged in its own intemperate interventions, upping the ante for flexing raw political muscle at both ends of Pennsylvania Avenue. The growing weakness of the media’s investigative reporting has exacerbated both trends.These factors have sparked the deeply disturbing evolution of the administrative process into a kind of blood sport. This degeneration’s most obvious and immediate threat is to our shared commons, but over the long run it is equally likely to cause irrevocable harm to individual businesses and to the efficient functioning of regulated markets.

‘Fifty FDAs’: An Argument for Federal Preemption of State Tort Law that is Less than Meets the Eye

This white paper offers a comprehensive refutation of the “50 FDAs” argument in favor of federal regulatory preemption of state tort law in cases involving unreasonably dangerous drugs and medical devices. The 50 FDAs argument posits that federal regulation of drugs and medical devices ought to preempt state tort law, because state tort law subjects manufacturers of these products to a wide range of inconsistent and unpredictable regulatory standards – the effective equivalent of having to comply with the regulations of 50 different FDAs. They contend that a better approach would be for FDA to adopt regulations imposing unitary federal standards that would supplant the entire state tort law system. This white paper shows the 50 FDAs argument for what it really is: an attempt by drug and medical device manufacturers to limit citizen access to the courts so that they can avoid their civil law responsibilities, while at the same time trying to get a weak set of federal regulations that impose only minimal compliance costs. In this way, the 50 FDAs argument is part of the larger effort by regulated industry to preempt state tort law with weak regulations. The authors of the white paper contend that the 50 FDAs argument should be rejected for the following reasons: 1. Despite industry assertions to the contrary, state tort laws are both uniform and predictable, and so are their application. If anything, the application of a unitary federal standard is more unpredictable than the application of state tort laws. 2. State tort law is an essential part of the way government in the United States functions, making good on the Constitution’s promise of jury trials in common law suits – thus giving citizens a chance to recover damages when they are harmed. 3. State tort laws help keep products safe. Fear of litigation makes a difference, as industry’s ongoing campaign to shield themselves from lawsuits demonstrates.

Texas Water Will Suffer Under Plan to Lower Standards

This is an excerpt from the published online post to statesman.com by Thomas O. McGarity: “The recent proposal by the Texas Commission on Environmental Quality [TCEQ] to downgrade the state’s water quality standards for most of the surface water in the state should trouble all who believe they have a right to swim, fish or simply wade in a cool Texas stream without the risk of contracting a gruesome waterborne disease. As recently reported in the American-Statesman, TCEQ plans to change the standards for the vast majority of Texas rivers and streams from the current “contract recreation” designation, which allows only 126 colonies of E. coli bacteria, to new designations that would allow 206 colonies in some “swimmable” waters and up to 630 colonies in waters used primarily for fishing and boating. The move is supported by the Texas dairy industry and by some cities that are having difficulties controlling their sewage discharges. The Texas Association of Dairymen argues that without the changes dairy farmers might have to build fences to keep their cattle away from rivers, thereby losing valuable acreage. The cities warn that they might have to charge higher rates for sewage treatment.”

Workers at Risk: The Failed Promise of the Occupational Safety and Health Administration

OSHAs Failed Promise The Plight of Americas Workers Regulatory Failure and Reform OSHAs History The Nixon/Ford Years: Inauspicious Beginnings The Carter Years: OSHA on the Move The Reagan Years: Going Backward The Reagan Years: Inching Forward The Reagan Years: Killing Time The Reagan Years: Tying Up Loose Ends The Reagan Years: New Initiatives The Reagan Years: Weakening Enforcement The Bush Years: An Identity Crisis Internal Reforms: Better Management for OSHA Making OSHA More Efficient: Setting Priorities and Eliminating Bottlenecks More Bang for the Buck: Alternative Methods of Regulation and Implementation Ensuring Compliance: The Puzzle of Enforcement External Reforms: Who Is in Charge? The Presidents Role: OSHA OSHRCs Role: The Failure of the Split-Enforcement Arrangement The Courts Role: Judicial Review and OSHA External Reforms: Changing OSHAs Mandate OSHA and Overregulation: Should Cost-Benefit Analysis Apply? Economics and OSHA: Cost-Benefit Analysis and Underregulation Modeling EPA: A New Mandate for OSHA External Reforms: Empowering Workers Lighting a Fire: When OSHA Is a Reluctant Regulator Empowering Workers: Enforcing the OSH Act Empowering Workers: Rethinking Employment Relationships Selected Bibliography Index