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.

The Article uses the Administration’s decision to kill a proposed rule updating “hazardous orders” under the Fair Labor Standards Act for children as young as twelve who work in agriculture. The proposal was issued in the context of a series of gruesome incidents involving teenagers as young as fourteen who were smothered in grain elevators or lost legs to giant augers used to remove crops from elevators and silos. The Department of Labor terminated the rulemaking without even reading the thousands of comments it had received, in part because the American Farm Bureau Federation and its congressional allies grossly distorted the substance of the rule.

The long-term implications of this and similar decisions to subject rulemaking to short-term political calculations will be remembered long after the President leaves office. In the maddening, heavily politicized scrum where regulatory decisions are up for grabs these days, the long-standing tradition of expertise-driven administrative decision making is hanging by a thread, dooming Executive Branch agencies to shy away from controversial rulemaking regarding public health, worker and consumer safety, and the environment in the absence of a statutory mandate, no matter how pressing the problem. Or, as Professor Thomas McGarity rightly warns us, the era of “blood sport rulemaking” is now upon us, with the inevitable result that even the resolution of business-on-business disputes will become far more expensive and unpredictable.

OIRA has adopted perhaps the most extreme open-door policy in Washington with respect to rulemaking proposals, agreeing to meet with anyone who asks for such an audience, whether or not the originating agency has officially submitted the matter for review. Equal access to OIRA does not produce balanced participation. Over the last decade, 65 percent of the people who met with OIRA represented industry interests — about five times the number appearing on behalf of public interest groups. President Obama’s OIRA did only somewhat better than President George W. Bush’s, with a 62 percent industry participation rate to Bush’s 68 percent, and a 16 percent public interest group participation level to Bush’s 10 percent. Even under this ostensibly transformative president, who pledged to rid his administration of the undue influence of well-heeled lobbyists and conduct government in the open, industry visits outnumbered public interest visits by a ratio of almost four to one.

OIRA’s early interference in the formulation of regulatory policy is especially troubling. Forty-three percent of these meetings took place before the agency’s proposal was even released to the public. The percentage of meetings that occurred at this pre-proposal stage has actually been greater during the Obama administration (47 percent) than it was during the Bush II administration (39 percent). Early interference frustrates transparency and maintenance of a level playing field because the public sees the agency’s proposal only after it has been reshaped by lobbyists and OIRA economists. It also exposes agencies to White House political pressure before they have even had the opportunity to seek public comment on more stringent proposals.

If trading programs are not carefully designed and monitored, trading can cause localized concentrations of nutrients and accompanying contaminants in local waters, posing a significant threat to human health and aquatic ecosystems. For example, a sewage treatment plant could address its additional pollution by either purchasing reductions elsewhere or by installing control measures onsite. If the plant purchases credits, it will be able to discharge more sewage. These additional discharges may create “hot spots” or high concentrations of pollution in adjacent waterways that could expose residents of nearby communities, especially local fishermen and their families, to pathogens and other harmful co-pollutants.

Effective trading programs also rely on ample credit-generating activities. Municipalities may generate credits by implementing stormwater best management practices (BMPs) such as urban revegetation, bioswale construction, and greenspace expansion. These practices have secondary benefits for the communities in which those BMPs are implemented, including flood control, enhanced opportunities for exercise and recreation, increased property values, and aesthetic value. Such benefits should be enjoyed equally, throughout the watershed.

Each year, agricultural producers in the United States receive billions of dollars in federal payments: crop subsidies, crop insurance, conservation payments, disaster payments, loans, grants, and other benefits. Section 1619 authorizes USDA to keep secret much of the basic information that these producers provide to the agency in order to participate in these payment programs. This information includes the geographic coordinates of the agricultural operation, types of crops grown and animals raised, acreage, and land use types and features, among other key pieces of information.

Agricultural secrecy contradicts the fundamental principles of open government and transparency in a democracy and causes inefficiencies for how other federal agencies operate. For example, the public cannot examine how USDA distributes billions of dollars of federal funding and whether the agency is following the law. EPA, charged with protecting public health and the environment, is handicapped in its ability to implement the Clean Water Act and in particular to regulate water pollution from the large confined animal feeding operations that generate three times as much manure as the human population in the U.S. annually. This paper recommends that Congress abolish section 1619 to restore transparency and accountability in USDA payment programs.

This briefing paper identifies four key steps that Maryland should take to affirm its reputation as a regional and national leader in protecting the environment. The General Assembly should (1) increase permit fees to accurately reflect the cost of developing permits, monitoring and regulating facilities with permits, and managing pollutant discharges; (2) ensure that the statutory penalty maximum for a violation of the Clean Water Act keeps pace with inflation and the federal maximum; (3) restore the full deterrent effect of a penalty by adopting a statutory mandate to recover any economic benefit from noncompliance that a violator receives; and (4) establish a clear, mandatory minimum penalty requirement for violations of the environmental laws that protect the land, water, air, and other natural resources of Maryland.

In this white paper, CPR's Chesapeake Bay experts warn that such an approach has largely failed elsewhere, and that the success or failure of a Bay trading regime rests on whether Bay states can meet a number of several threshold criteria, including: Broad participation in the program, including from "nonpoint" pollution sources; Genuine accountability, so that credit trades actual translate into pollution reductions, not simply paper savings; Resources from the states sufficient to operate an accountable trading regime in all its complexity; Rules that avoid pollution hot spots; A continuation of traditional regulatory controls that would create an incentive for participation in the program; Transparency from EPA and the Bay states, so that compliance can be monitored by all.

In the United States, the romantic image of the Jeffersonian farmer tending the field has long given way to industrial production of food. Nowhere is this more evident than in the animal agriculture sector, where the decline of the family farm and the subsequent rise of large-scale animal operations and the manure they generate have been dramatic. In the badly impaired Chesapeake Bay watershed, animal manure contributes around 19 percent of the total nitrogen and 26 percent of the total phosphorus to the Bay, or 53 million pounds and 5 million pounds, respectively. Manure also contains an unappetizing slurry of pathogens, antibiotics, and other pollutants such as cleaning fluids, heavy metals, synthetic fertilizers, and pesticides. In the United States, EPA estimates that the largest of these concentrated animal feeding operations (CAFOs) generate three times the amount of waste generated by humans annually. Unlike human waste, which is subject to extensive biological and chemical treatment, animal waste is most frequently spread onto land without treatment.

Congress specifically identified the CAFO sector as a source of pollution to be regulated decades ago, but only in the past few years has EPA focused on these massive operations and the pollution they cause. States across the country have been slow to embrace these programs. Not surprisingly, the states that most urgently needed to implement regulations were the ones most dominated by agricultural interests. In most states, CAFO programs are only now starting to implement minimum federal standards.

One central reason for the systemic failure of effective health and safety regulation is the fact that many regulatory matters enter and exit the White House through the Office of Management and Budget’s (OMB) little-known but extraordinarily powerful Office of Information and Regulatory Affairs (OIRA). Centralized White House regulatory review began in the Nixon administration and OIRA was created in 1980. Over four decades, the process has evolved into a relentless gauntlet for public health, worker safety, and environmental protection initiatives, subjecting the agencies’ efforts to implement their demanding statutory mandates to withering rule-by-rule review. Analogous to examining the roots of individual trees without realizing that they are part of a dying forest, this myopia has obscured the causes and effects of regulatory failure for five presidents from both parties.

Steinzor states that, as a society, we are neglecting our children's health to an extent that we would find unthinkable as individual parents, primarily due to the erosion of the government's role in protecting public health and the environment. At this pace, she asserts, our children will inherit a planet under grave threat. We can arrest these developments if a critical mass of Americans become convinced that these problems are urgent and the solutions are near at hand.

By focusing on three specific case studies—mercury contamination through the human food chain, perchlorate (rocket fuel) in drinking water, and the effects of ozone (smog) on children playing outdoors—Steinzor creates an analysis grounded in law, economics, and science to prove her assertions about the existing dysfunctional system.

Steinzor then recommends a concise and realistic series of reforms that could reverse these detrimental trends and serve as a blueprint for restoring effective governmental intervention. She argues that these recommendations offer enough material to guide government officials and advocacy groups toward prompt implementation, for the sake of America's—and the world's—future generations.