Some investigative journalism at the Federal Times shows just how little rulemaking federal agencies have engaged in during the Bush administration:

Many regulatory agencies have submitted fewer rules during the current Bush administration's two terms than during Bill Clinton's tenure, or even during George H.W. Bush's single term.

The Food Safety and Inspection Service (FSIS), for example, submitted 91 new rules to the Office of Management and Budget during the first President Bush's term, and 83 during the Clinton administration. But during the current administration, when U.S. meat and poultry production has increased by nearly 10 percent, FSIS has proposed just 16 new rules.

And that pattern has been mirrored at other agencies. Compared with the Clinton administration, rulemaking is down more than 50 percent at the Food and Drug Administration (FDA); down 57 percent at the Environmental Protection Agency; and down almost 20 percent at the Federal Aviation Administration.

The article ties the administration's anti-regulatory attitude to a host of health and safety scandals that have dominated headlines:

Failures by [FSIS] led to the nation's largest-ever beef recall. A wave of imported "toxic toys," containing everything from lead paint to the date-rape drug, spooked consumers during the holiday season. And high-profile industrial accidents, like the explosion at a sugar plant in Georgia last month, raised questions about the Occupational Safety and Health Administration's effectiveness.

It's hard to pinpoint why agencies are submitting fewer rules to OMB, but Reg•Watch has two theories. Maybe the delay and politicization associated with the OMB review process has created a chilling effect in federal agencies. OMB's constant efforts to dismiss scientific conclusions (i.e. EPA's recent ozone standard), or the stall tactics the office uses to delay action (i.e. the rule to protect the North Atlantic right whale), may have depressed expectations that public protection standards can quickly move through the regulatory gauntlet unscathed.

Another theory is that political appointees inside federal agencies are nipping regulations in the bud. Throughout his administration, Bush has installed men and women with close ties to the industries they regulate who may not look favorably upon rules they believe would hurt corporate bottom lines. Considering the lack of transparency in most federal agencies, it would be relatively easy for one of these officials to kill a proposed regulation before the public is notified.

Maybe it's both, maybe neither, but one thing is for sure: when the book is closed on the Bush administration, there will be a lot of catching up to do and countless messes to clean up.

The Environmental Protection Agency (EPA) and the White House Office of Management and Budget (OMB) have put the freeze on the agency's budding efforts to regulate greenhouse gas emissions.

As Reg•Watch recently reported, EPA staff had drafted preliminary documents describing the dangers associated with greenhouse gas emissions. This so-called endangerment finding would set in motion a series of regulatory actions.

Staff also drafted a regulatory proposal that called for limits on vehicle emissions. In a letter to EPA Administrator Stephen Johnson, Rep. Henry Waxman (D-CA) wrote, "According to EPA staff, the proposal to regulate CO2 emissions from motor vehicles was 'about 300 pages;' and had 'extensive analysis about ... the costs and benefits.' "

According to Waxman, Johnson was "personally involved in the decision making." He signed off on the document finding greenhouse gas emissions endanger public welfare and endorsed his staff's proposal for a reduction in vehicle emissions.

Unfortunately, before releasing said information to the public, EPA had to send its draft documents to OMB. According to EPA staff, all work on the proposed regulations stopped.

Yesterday, Johnson announced his intent to publish an Advanced Notice of Proposed Rulemaking, which will do nothing more than gather comments on the issue of greenhouse gas regulation.

Critics are calling the move a stall tactic. Indeed, it appears as though the White House pressured EPA to abandon its draft regulation, despite the diligent efforts of EPA staff. Instead, the Advanced Notice will provide all interested parties an opportunity to rehash arguments which are already well-documented and which EPA fully understands.

But there is no proof of OMB interference, leaving Johnson holding the bag. Johnson continues to martyr himself in the name of the White House's anti-regulatory doctrine. According to The Los Angeles Times, an EPA spokesman said Johnson made the decision to abandon the draft regulations of his own accord.

The announcement of the Advanced Notice of Proposed Rulemaking appears to cater to the demands of some in the anti-regulatory community. "Johnson's action came after Edwin Meese III and fellow attorneys at the Heritage Foundation, a Washington-based think tank, spent months sending detailed legal analyses and memos to 'everyone we could think of' at the White House and in Congress, said Michael Franc, the foundation's vice president of government relations," according to the LA Times.

The House Energy and Commerce Committee's investigation into the use of Bisphenol-A — a chemical substance common in plastics and in the lining of food cans — continues to turn up startling information. The Food and Drug Administration (FDA) says Bisphenol-A is safe, but studies have shown the chemical is associated with a host of adverse health effects including breast and prostate cancer, according to the Environmental Working Group.

The committee wrote to FDA in January asking the agency to identify the studies it used to make its determination that Bisphenol-A does not pose a "safety concern at the current exposure level." In response, FDA identified two studies. Both studies were funded by industry and were absent the usual scientific rigor characteristic of regulatory decision making, according to The Milwaukee Journal-Sentinel.

The Journal-Sentinel has the full story:

In response to a congressional inquiry, Stephen Mason, the FDA's acting assistant commissioner for legislation, wrote in a letter that his agency's claim relied on two pivotal studies sponsored by the Society of the Plastics Industry, a subsidiary of the American Chemistry Council.

One of the studies has never been published, and therefore never subjected to peer review; the second has been heavily criticized by researchers who say the results are inconclusive because of flawed experimental methods….

According to the letter, the FDA based its claim that there is no "safety concern at the current exposure level" on its own studies, conducted in the 1990s, which indicated that people were exposed to small amounts of the chemical.

They gathered that information by testing products such as aluminum cans and baby bottles to see how much of the chemical was leaching. Then they looked to the two chemical industry studies to see if those exposure levels could cause harm.

The two studies said the chemical caused no harm to rodents at low doses.

Wall Street Journal reporter Joseph Pereira writes today about state government efforts to limit the presence of certain substances in children's toys, particularly lead. Both the U.S. Congress and U.S. Consumer Product Safety Commission (CPSC) have been unable to quickly enact policies to respond to public concern over toy safety.

Numerous past congresses and presidents have allowed CPSC's budget and staffing levels to whither. As a result, the agency is unable to handle the rising tide of imported products on our store shelves. In the light of last year's record number of toy recalls and growing public concern, state legislatures and administrations have grown impatient:

Many state lawmakers are upset that Congress and federal regulators haven't done more since the recalls. "If the federal government would do something I would gladly defer to them, but they aren't, so we have to," says Illinois Rep. Elaine Nekritz…

The article breaks down toy standards in a handful of states that have chosen to pursue legislation or regulation stricter than federal requirements. Two notable substances which have become the target of regulation are lead and phthalates, a chemical used to soften plastics which studies have associated with developmental abnormalities.

Because of the differences among state standards, industry lobbyists are now complaining about the multiple requirements toy makers will have to meet. In the article, Carter Keithley, the president of the Toy Industry Association (TIA), the national lobbying arm for toy makers, says, "Having different standards for different states is just going to create complete chaos." The article also reports, "The TIA says it has hired lobbyists to battle legislative proposals in 10 states."

However, regardless of states' efforts, toy makers will find it harder and harder to sell their products to major retailers if those products contain phthalates or more than trace amounts of lead. Toys "R" Us has announced it will enforce a standard for lead in toys sold at its stores that will be stronger than the federal standard. The retailer has also announced it will phase out phthalates in its products by the end of the year. Target Corp. told The Wall Street Journal it will eliminate the use of phthalates in Target brand toys.

The TIA supports bills in both the U.S. House and Senate that would tighten the federal standard for lead and provide more resources for CPSC. TIA does not support standards for phthalates, claiming there is "no solid, scientific evidence that any person has ever been harmed by the presence of phthalates in toys." (Click here for TIA statements.)

Ultimately, getting lead, phthalates, and other harmful substances out of toys will be a great victory for consumers. But we should also take note as to who guided us on that path to victory. Instead of the federal government leading the way, strong action by concerned states and responsible retailers has relegated Congress and CPSC to mere followers.

Partially lost in all the mishagas surrounding OMB and President Bush's intervention into EPA's efforts to tighten the national standard for smog has been a new policy proposal the agency floated alongside the new rule. In a surprise move, EPA Administrator Johnson also announced his intent to seek legislative changes to the Clean Air Act.

Johnson wants Congress to amend the Clean Air Act to allow his EPA — and all future EPAs — to consider compliance costs when setting air pollution standards. For the six air pollutants under the National Ambient Air Quality Standards program, EPA must base its decision on the latest scientific evidence and may not consider compliance costs. (The six pollutants are ozone, lead, particulate matter, nitrogen oxides, sulfur dioxide, and carbon monoxide.)

Legislative changes would be necessary because the Act is explicit in prohibiting the consideration of costs, a notion the U.S. Supreme Court upheld in 2001 (Whitman v. American Trucking Association).

Environmentalists and public health advocates immediately assailed Johnson's proposal. Frank O'Donnell, president of the nonprofit Clean Air Watch, said the changes "would be a radical attack on the Clean Air Act" and said Johnson's proposal "is taking a page directly from the playbook of polluters and their most ardent supporters in Congress."

In a statement, Sen. Barbara Boxer (D-CA), chair of the Senate Environment and Public Works Committee, also criticized the proposal: "It is outrageous that the Bush Administration would call for changes that would gut the Clean Air Act, which has saved countless lives and protected the health of millions of Americans for more than 35 years."

A recent OMB Watch report found that economic analyses in environmental rulemaking often overstate compliance costs. Cost assessments do not, and cannot, account for technological improvements that may be developed to control pollution more efficiently, the report found.

More importantly, economic analyses do not adequately account for many intangible or invaluable benefits associated with environmental regulations. Regulations can preserve environmental majesty, reduce health risks, or even save lives. How do you put a price tag on that?

While the proposal could be disastrous if adopted, the Clean Air Act is probably safe for now. A March 17 New York Times editorial predicted Congress would dismiss the proposal: "Since this would permanently devalue the role of science while strengthening the hand of industry, the proposal has no chance of success in a Democratic Congress."

Read this OMB Watch analysis for the full scoop on EPA's revision to the national standard for ozone: "White House Interferes in Smog Rule"

Researchers are investigating the Potomac River's most unusual inhabitants: Male fish that grow eggs like female fish. According to an article in today's Washington Post by reporter David A. Fahrenthold, "Along the Potomac, researchers have long suspected that hormone-mimicking chemicals were the cause of the 'intersex' fish. The first of these creatures, male fish with eggs growing in their sex organs, were noticed in a rural West Virginia tributary in 2003."

Scientists suspect a class of compounds called endocrine disruptors may be to blame for the intersex fish. According to the Natural Resources Defense Council, "An endocrine disruptor is a synthetic chemical that when absorbed into the body either mimics or blocks hormones and disrupts the body's normal functions." Exposure to endocrine disruptors may lead to developmental abnormalities, like those the intersex fish exhibit.

The effects and identity of many endocrine disrupting chemicals are still largely a mystery to scientists and the public. Chemicals such as dioxin and DDT are known endocrine disruptors; but most chemicals are not tested for their effects on the endocrine system. Suspected endocrine disruptors can be found in pesticides, plastics, and fragrances.

The Environmental Protection Agency should already have a handle on the endocrine disruptor mystery, but the agency has been dismal in researching or testing suspected chemicals. In 1996, Congress passed the Food Quality Protection Act requiring EPA test suspected substances for their effects on the endocrine system. In 2007, 11 years later, EPA finally unveiled the list of chemicals it intends to test.

This is one of the most egregious examples of regulatory delay in recent memory.

A scientific consulting group posted material on its website bragging about some of the accomplishments it had made on behalf of its clients, including the delay of a ban on a potentially harmful drug, according to a House investigation. ABC News reports:

The firm's efforts "led to an extensive process" and eventually "10 additional years of sales prior to the ultimate cancellation of the drug," according to a printout of the page provided to ABC News by the committee.

The consultant, the Weinberg Group, has since removed the material from its website. But the House Energy and Commerce Committee is demanding information related to the drug delay and ten other potential incidents of regulatory delay or scientific suppression. Currently, the committee does not know the name of the drug mentioned in the Weinberg Group's material or the name of the client Weinberg was working for.

The discovery of these scientific shenanigans is the latest development in an ongoing congressional investigation into the use of Bisphenol-A, a common chemical which has been linked to adverse health effects, in children's products. Rep. John Dingell (D-MI), chairman of the committee, has accused the Weinberg Group of using questionable scientific practices to downplay Bisphenol-A's effects.

(Thanks to the Center for Science in the Public Interest for pointing out this story.)

The White House's interference in EPA's revision to the national standard for ozone, a.k.a. smog, which the agency announced Wednesday, ignores public health and welfare. OIRA Administrator Susan Dudley, with President Bush in her corner, pushed forward with her industry friendly, anti-regulatory ideology in the face of overwhelming scientific evidence and in violation of the law.

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Posted by Matt Madia, 02:51:26 PM

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