Regulatory Year in Review: 2011

The Privatization of Regulation in the World Economy

Tim Büthe | May 24

An ever-increasing share of economic activity is governed by international rather than domestic rules or standards, often developed by private bodies.  Frequently, such global private regulation entails no market competition among multiple rulemakers. Instead, a single organization serves as the clear institutional focal point in its area of expertise and is largely uncontested in making the rules for global markets.  As a result, once such a private-sector body develops a standard, it becomes the global rule.

“Open government” is one of those bumper sticker phrases with which nearly everyone agrees.  But what does open government really mean? And what difference does it actually make?

The U.S. Chamber of Commerce has warned of an impending “regulatory tsunami” that “poses … the single biggest challenge to jobs, our global competitiveness, and the future of American enterprise.” But how many new regulations do federal agencies actually have in the works?

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 Amendment to Clean Water Act Helps Philadelphias Plan to Comply with Stormwater Regulations

Steven Gillard | February 14

On January 4, 2011, Congress amended the Clean Water Act (CWA) in an attempt to improve water quality in American cities.  The new law clarifies that federally owned property, such as post offices and government buildings, are not exempt from reasonable fees that localities charge all landowners as part of their stormwater pollution control programs. These fees help fund CWA-mandated stormwater improvements.  The law is a response to the claim, made by Lynn Gibson, the General Accountability Office’s Acting General Counsel, in September 2010, that such fees are a local tax on the federal government, violating its sovereign immunity.

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Agency Calculations of the Value of Statistical Lives Saved

Robert Jackel | May 27

As the Obama Administration seeks to reduce the regulatory burden on businesses (see related The Regulatory Review essay), the dollar value its regulatory agencies place on human life has garnered considerable attention.

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Obama’s Order: Equity and Regulatory Analysis

Penn Program on Regulation | February 8

In his speech before the US Chamber of Commerce yesterday, President Obama reminded his audience that he has ordered federal agencies to fix or repeal any “regulations that are needlessly stifling job creation and economic growth.”  But Obama’s order – officially known as Executive Order 13,563 – did more than order a government-wide review of existing regulations.  It also contained language reiterating that federal agencies can consider the values of “equity” and “distributive impacts” when developing new regulations.

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Senate Bill Would Codify Benefit-Cost Analysis and Add Guidance Procedures

Penn Program on Regulation | March 25

Last week, Senator Susan Collins (R-ME) introduced the Clearing Unnecessary Regulatory Burdens Act (S. 602), a bill that would require agencies undertaking significant regulatory actions to submit cost-benefit analyses of those actions.

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Preemption of Vaccine Injury Lawsuits Upheld

Theodore Ruger | April 5

Few issues of medical science and tort liability have riled public disagreement like that of vaccine safety in the past two decades.   Despite an overwhelming scientific and medical consensus that common childhood vaccines are safe and effective, and that their public health benefits far outweigh their incremental risks, many members of the public and the news media have perpetuated the notion that various dire diseases – most notably autism – are caused by vaccines.

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Could a Future President Reinstate the Military’s “Don’t Ask, Don’t Tell” Policy?

Sam Saylor | September 14

Next Tuesday, the U.S. military ban on openly gay personnel will come to an end. Or will it?  With at least one Republican presidential candidate – Michele Bachmann – campaigning to reinstate the military’s repealed “Don’t Ask, Don’t Tell” (DADT) policy on gay personnel, could a future President bring back the policy through regulations that would not require congressional approval?

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The EPA Transport Rule’s Positive Net Benefits

Richard Schmalensee and Robert N. Stavins | April 22

The U.S. Environmental Protection Ag
ency (EPA) is developing new rules to regulate the interstate transport of sulfur dioxide(SO2) and nitrogen oxides (NOX) emitted from electric power generation facilities. EPA’s regulatory proposal – the Clean Air Transport Rule (Transport Rule) – is designed to help communities that are generally downwind of major emissions sources comply with air quality standards and, in the process, provide health and environmental benefits to upwind and downwind communities alike.

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Obama’s Ozone Decision Shows Clearly Who’s in Charge

Stuart Shapiro | September 8

Last week’s decision by the Obama Administration to withdraw consideration of new ozone standards has rightly received much attention for its policy and political implications. Overlooked in the furor that has surrounded the decision, though, has been a notable acknowledgement by the Obama Administration that will undoubtedly have implications for administrative law.

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FTC Loses Bid to Block Labcorp-Westcliff Merger

Abigail Slater | April 5

On February 22, 2011, Judge Andrew Guilford, of the District Court for the Central District of California, denied the Federal Trade Commission (FTC)’s motion to enjoin a merger of rival clinical laboratory testing companies. The FTC sought to prevent Laboratory Corporation of America (LabCorp) from acquiring Westcliff Medical Laboratories, Inc. (Westcliff) pending an FTC administrative hearing on the merits.

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FTC Issues Pay-for-Delay Report

Abigail Slater| May 17

The Federal Trade Commission (FTC) recently released its annual report on pay-for-delay agreements. Under the Medicare Prescription Drug and Modernization Act of 2003 (MMA), pharmaceutical companies must notify the FTC of such agreements, and the agency must report on them. The FTC argues that these agreements violate the antitrust laws because they restrict competition and increase drug prices.