Center for Progressive Reform

  • May 31, 2013
    Guest Post

    by Lisa Heinzerling, Professor of Law, Georgetown Law. Heinzerling is also a Center for Progressive Reform (CPR) Member Scholar. This piece is crossposted at CPRBlog.

    A panel of the Second Circuit Court of Appeals in New York has just taken under consideration the Food and Drug Administration’s motion for a stay of a district court order directing the agency to make levonorgestrel-based emergency contraceptives available to women and girls of any age without a prescription and without other point-of-sale restrictions. In deliberating on this motion, the panel of judges should not, I am sorry to say, take anything the FDA has said in its briefs at face value. The government’s opening and reply briefs on the motion to stay are so full of misstatements and omissions that the court could badly err if it did not take everything the government says with a shaker full of salt.

    One of the factors in deciding whether to grant a stay pending appeal is the likelihood that the moving party will succeed on the merits. The government devotes most of its briefs to this factor. It makes two arguments as to why the court of appeals should find that the government is likely to win on appeal and should thus stay the district court’s order on emergency contraception. Both arguments depend crucially on incomplete and inaccurate renderings of the law and facts of the case.

    Before turning to these arguments, a bit of context is necessary. The levonorgestrel-based emergency contraception at the center of this legal dispute takes two forms. One, Plan B and its generic versions, requires two pills. The other, Plan B One-Step and its generic versions, requires one pill. Both involve the same total dose of levonorgestrel. Despite these obvious similarities, the FDA has worked very hard to treat these drugs very differently; it has made Plan B One-Step available without a prescription to all women and girls over the age of 15, it has apparently blocked nonprescription market access to generic versions of Plan B One-Step for girls under 17, and it has resisted requests to make Plan B and its generic versions available without a prescription to girls under age 17. The district court’s order would make all of these drugs (except Plan B, which is no longer marketed) available without a prescription; the FDA would like to keep treating them differently.

  • December 10, 2012
    Guest Post

    by Rena Steinzor, Professor of Law, University of Maryland, Francis King Carey School of Law; Steinzor is also president of the Center for Progressive Reform (CPR).

    After the last of the applause lines has been delivered, and while the crowd that gathered for his historic second inauguration is still filing out of town, President Obama will once again sit at his desk in the Oval Office and begin the tough policy work that will define his second term in office and shape the legacy he will leave behind.

    Among the many challenges he'll face over the next four years will be an urgent agenda of addressing critical threats to public health, safety, and the environment that the Administration let languish during the first term. But good luck to him if he decides to attack the problems with legislation. The election made the numbers in both chambers of Congress somewhat more favorable to the President's cause. But it'd take an earth-shattering event or at least another election to get protective legislation out of the House of Representatives, which vacillates between being sullen and defiant and will undoubtedly return to its anti-regulatory drum-beating as soon as the fiscal “crisis” is over.

    So what's a President to do? Use every bit of executive power he can marshal, in this case, by directing the regulatory agencies to move with dispatch to regulate and enforce in a number of vital areas. In Protecting People and the Environment by the Stroke of a Presidential Pen: Seven New Executive Orders for President Obama’s Second Term, released today, my colleagues and I at the Center for Progressive Reform explain how the President can take the first vital step by making full use of his authority to manage executive agencies -- including the Environmental Protection Agency, the Food and Drug Administration and the Occupational Safety and Health Administration -- by issuing a series of Executive Orders.

  • October 12, 2012
    Guest Post

    By William Andreen, Clarkson Professor of Law, University of Alabama School of Law, Member Scholar, Center for Progressive Reform

    On October 18, the nation will celebrate the 40th anniversary of the Clean Water Act. This landmark piece of legislation has proven remarkably successful. Water pollution discharges from both industry and municipal sewer systems have declined sharply, the loss of wetlands has been cut decisively, and water quality has broadly improved across the country. The Clean Water Act is, in short, a real success story.  It stands as a tribute to the foresight of those in Congress who passed it, as well as to the men and women in both state and federal regulatory agencies who have worked so hard, and for so long, to restore the integrity of our nation’s waters.

    The Act, however, is showing its age. Twenty-five years have passed since it was last amended in comprehensive fashion, and more than a little fine-tuning is necessary to finish the task that began in 1972. The most significant problem involves nonpoint source pollution – the indirect discharge of polluted runoff from fields and roads, clear cuts, and parking lots.  The Act never addressed nonpoint source pollution in a straightforward way.  Instead, it was treated as something of an afterthought left primarily in the hands of state and local government, and they have primarily relied upon voluntary management practices to control polluted runoff.  As a result, nonpoint source pollution has evolved into the largest single source of water quality impairment in the country. These diffuse sources of water pollution are, furthermore, much more diverse than we once thought.  In addition to obvious sources such as polluted runoff from agriculture, urban areas, logging operations, and mines, nonpoint source pollution also includes cross-media transfers, including the deposition of air pollutants such as mercury and nitrogen, into our waters.

  • July 19, 2012
    Guest Post

    By Thomas McGarity, the Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law, University of Texas School of Law; McGarity is also a Member Scholar of the Center for Progressive Reform

    The Occupational Safety and Health Act of 1970 is one of the surviving monuments of the era of progressive social legislation (extending from the mid-1960s through the mid-1970s) during which Congress enacted the nation’s foundational health, safety and environmental laws. That statute empowered the Occupational Safety and Health Administration (OSHA) to write safety and health standards designed “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” A separate “general duty clause” required every employer to provide a workplace that was “free from recognized hazards” that were likely to cause “death or serious physical harm.”

    During the ensuing four decades, OSHA’s efforts to implement that statute have brought about substantial reductions in workplace injuries and illnesses, but far too many workers are still hurt or killed.

    According to the Bureau of Labor Statistics, U.S. private sector employers in 2010 reported nearly 2.9 million injuries and around 200,000 workplace illnesses. The actual numbers are likely much higher because some employers underreport workplace injuries, and doctors frequently fail to inquire into the likelihood that particular diseases, like cancer, have a workplace origin. A total of 4,690 workers died on the job, which represents a fatality rate of about 3.6 deaths per 100,000 full-time employees. These rates declined slightly during the recession of 2009, but were on their way back up in 2010

    The sad fact of occupational life in the United States is that OSHA has not lived up to its potential, primarily because for the 30 of the past 40 years, OSHA has been the subject of unrelenting attacks by the business community. These attacks have rendered OSHA largely incapable of promulgating new occupational safety and health standards and only barely able to enforce existing standards the general duty clause. In 2010, the Center for Progressive Reform published a report detailing serious regulatory dysfunction in OSHA due primarily to a lack of resources, a weakened regulatory process, intrusive review by the White House, and an outmoded statute.

    Today we publish The Next OSHA: Progressive Reforms to Empower Workers,offering a wide variety of suggestions for how Congress, OSHA, and workers themselves can make the nation’s workplaces safer and healthier. I co-authored the report with fellow CPRMember Scholars Martha McCluskey, Sidney Shapiro and Rena Steinzor, and CPR Senior Policy Analyst Matthew Shudtz.

  • March 17, 2011
    Guest Post

    By Sidney Shapiro, Associate Dean for Research and Development, University Distinguished Chair in Law, Wake Forest University School of Law. Shapiro is a member of the Board of Directors of the Center for Progressive Reform (CPR).
    It's been nearly a year since crude oil from deep beneath the Deepwater Horizon drilling rig, under lease to BP, began to surge into the Gulf of Mexico, in what would turn out to be the beginning of a three-month polluta-polluza. Rather like the unfolding nuclear disaster in Japan, the prospect of such an oil well blowout in the Gulf was regarded by industry and regulators as extremely unlikely. At least in the Gulf, that meant that planning for such a catastrophe was given low priority - too often a mere paper-pushing exercise. When the all-but-impossible turned out to be all too possible, it laid bare a string of failures that helped make the disaster happen, complicated clean-up, and now, 11 months later, is making it difficult for the victims and their surviving family members to recover damages from BP and its contractors.

    For the 126 workers on the Deepwater Horizon that night, the sounds and images of those failures must have been terrifying beyond imagining. Eleven of them didn't make it home alive, and another 17 were severely injured. The rest escaped in lifeboats or by jumping into oily seawater while a fire raged overhead. Nearly three months later, after an estimated 4.9 million barrels of oil had spewed into the Gulf of Mexico, the damage spanned hundreds of miles of shoreline and thousands of square miles in the Gulf. Clean-up efforts continue to this day, and will for some time, although oil along the bottom of the ocean is unreachable.

    The BP Oil Spill was not just a really unlucky break, as the oil industry would like us to think it was, but was the product of corner-cutting by industry, with the tacit approval of government. If the agency then called the Minerals Management Service (MMS) had been serious about its job of reviewing safety plans to make sure they would work, BP might never have gotten approval to drill. But that wasn't how MMS worked. It saw its role as helping to keep the oil flowing, not making sure that BP and the rest of the industry took their safety obligations seriously.

    There were other regulatory failures, as well, and a number of Member Scholars from the Center for Progressive Reform meticulously documented them in our October 2010 report, Regulatory Blowout: How Regulatory Failures Made the BP Disaster Possible, and How the System Can Be Fixed to Avoid a Recurrence. But there's another failure, an ongoing failure, at work in the Gulf as well, one that's making it harder for the victims of the BP Spill - the survivors, the relatives of those killed, businesses and employees who lost their livelihoods as a result of the damage, and others - to recover.