Author: sys_anon

Developments behind the scenes of a new EPA proposal to regulate coal ash undermine several core tenets of the Obama presidency, conflict with pledges to reform the way government works, and expose the flaws in a regulatory process that too often does not do enough for the public.

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On May 3, the U.S. Environmental Protection Agency (EPA) released a proposed rule that would, for the first time, regulate the disposal of coal ash. Calls for regulation of coal ash, a byproduct of coal combustion that can contain arsenic, lead, chromium, and other heavy metals, began in earnest after an impoundment in Kingston, TN, failed, releasing 5.4 million cubic yards of coal ash. Reports have linked exposure to the toxic components in coal ash to cancer and other health problems.

EPA proposed two options for regulating coal ash under the Resource Conservation and Recovery Act (RCRA). The first proposal would list coal ash as a hazardous waste under subtitle C of RCRA, requiring federal monitoring and control of coal ash’s handling, transportation, disposal, and any potential reuse. (Coal ash can be recycled into other products, including cement and wallboard. Subtitle C regulation would continue to allow beneficial reuse, EPA says.) The other proposal would regulate coal ash under subtitle D, which has typically been used to control solid wastes such as household garbage. Under the subtitle D option, EPA would have little authority over coal ash management.

Environmentalists see a clear choice between the two options. The subtitle D option "treats this hazardous waste as if it were not loaded with high levels of arsenic and other toxic metals," Scott Slesinger, legislative director for the Natural Resources Defense Council, said in a statement. "We expect EPA to choose the option that adequately protects the public, particularly our precious groundwater, and treats this hazardous waste as a hazardous waste."

Just days after unveiling its proposed rule, EPA released other documents showing significant changes that were made to the proposal while under review at the White House Office of Information and Regulatory Affairs (OIRA). (See sidebar at right.) EPA’s original plans, prepared in 2009, did not include the subtitle D option.

One document, made available in EPA’s online rulemaking docket at Regulations.gov, shows all the edits that were made during the OIRA review. Large tracts of text were moved or deleted and hundreds of new paragraphs added. The document shows changes made at any time during the six-month review with no indication of when the edits were made or who made them.

Observers have assumed a cause-and-effect relationship: the proposal was changed while under OIRA review – OIRA must have made the changes. Of course, it is possible that EPA changed its mind in light of some new evidence or upon greater reflection, but that scenario is only plausible if EPA’s original draft was flawed or haphazardly crafted. Both EPA and OIRA have kept quiet about what happened during the review, but OIRA maintains that agencies remain in control of all decisions during the review process. However, neither EPA nor OIRA has offered any new factual evidence that would have led to the inclusion of the subtitle D option.

The original draft, sent to OIRA on Oct. 16, 2009, included language asking for public comment on possible subtitle D regulation. It did not, however, go so far as to include the subtitle D option as a co-proposal and clearly showed that EPA’s first preference was to regulate coal ash under subtitle C.

In the past, OIRA has said its review process – in which the office circulates throughout the executive branch drafts of agencies’ proposed and final rules before they are released to the public and makes edits or suggestions it deems appropriate – improves rules. The argument in favor of OIRA review says that the additional perspectives offered by OIRA and other agencies make rules more efficient and more defensible – legally, scientifically, or otherwise. OIRA maintains the same is true with the coal ash rule.

Yet from the perspective of many in the environmental and public health community, the coal ash proposal represents all that is wrong with the rulemaking process. The proposal came out worse, meaning the draft may lead to a less protective rule even before the public comment process begins. Even if some other agency or some other corner of the White House made the changes, both OIRA and EPA need to accept responsibility. OIRA Administrator Cass Sunstein has been part of President Obama’s team of officials attempting to bring more openness and accountability to government, but, for the coal ash rule, his office failed to live up to this administration’s lofty expectations.

The rule was not without controversy; unquestionably, powerful corporate interests opposed the focus on regulating coal ash under subtitle C. During the pre-public OIRA review, opposition to subtitle C regulation came from far and wide within the federal government, the documents also show. The Departments of Energy, Interior, Transportation, and Agriculture (USDA) all encouraged EPA to avoid designating coal ash a hazardous waste under subtitle C. The departments fear a hazardous designation will limit the amount of coal ash that can be beneficially reused, despite EPA’s attempt to carve out reuse in the proposed rule. Some, including USDA, objected to the stigma that the hazardous designation carries. The Agricultural Research Service asked, "What farmer would want to apply ‘hazardous waste’ to his fields?"

The White House Council on Environmental Quality (CEQ) also opposed subtitle C regulation, the document shows. Despite being an environmental office, CEQ cited economic concerns as a reason to avoid the hazardous designation.

In a truly perverse turn of events, OIRA allowed the Tennessee Valley Authority (TVA) to comment on the pre-public proposal. TVA, a government-owned corporation that was created by Congress as a public works program during the Great Depression, is the owner of the Kingston Fossil Plant responsible for the 2008 coal ash spill. Not surprisingly, TVA also opposed subtitle C regulation.

It’s almost as though the process is designed to create less protective rules. An agency spends months, sometimes years, writing regulations consistent with statute and responsive to some public need, only to be second-guessed by those without the substantive or technical expertise possessed by the agency that proposed the rule. It’s like replacing all the plumbing in your brand-new house after the walls are painted and the carpets installed – and your plumber is actually an electrician!

EPA’s coal ash rulemaking illustrates exactly how the public can get snookered in OIRA’s process. Issues were debated, alterations were made, and tones were set during a process that completely shuts out the public.

What’s so wrong with edits made during an OIRA review? That’s a valid question, especially in this instance, when a second regulatory option was added for the public to comment on. It’s not as though EPA’s original idea was supplanted by a weaker version; it was supplemented by another option. And in the face of political pressure from corporate interests, this seems like a reasonable compromise, especially since EPA still has to write the final rule.

However, the way the second option was added, and the impetus for its addition, should worry the public. In an opaque process that only Washington insiders can possibly access, changes were made, or at least encouraged, to an environmental protection rule that seem to weaken the overall regulation. Years of similar activity have left the public distrustful of its government’s ability to make decisions in the public interest, and even if the Obama administration’s motives in the coal ash case are pure, the controversy only feeds into a culture of mistrust born of years of decisions made in secret.

The time that elapsed during OIRA’s review impacts the public as well. The coal ash proposal’s review lasted more than six months. According to longstanding policy, OIRA reviews are to be completed within 90 days. If the rulemaking agency agrees, OIRA may extend the rule once by 30 days, for a total of 120 days. OIRA reviewed the coal ash rule for 200 days. By comparison, the public’s opportunity to comment in the formal process is only expected to last 90 days.

Ultimately, EPA will be free to finalize a rule fully protective of public health and the environment. Nothing occurring during the OIRA review, or even the public comment process, can force EPA to choose a certain option.

The changes can, however, alter the debate. The addition of a second, weaker regulatory option tilts the proposed rule away from public and environmental protection. Advocates at groups like the Natural Resources Defense Council, Earthjustice, and Ohio Citizen Action have a steeper hill to climb in making their case that coal ash ought to be regulated as hazardous waste. Opponents of the regulation now have a decided advantage.

Moreover, since these decisions are made in a black box, without transparency, what is to stop the same interests that changed the draft proposed rule from altering the final rule?

All of these issues are symptomatic of a faulty process that has survived for decades because those who operate it see too many risks to their power to reform it. On Jan. 30, 2009, President Obama issued a memo asking the Office of Management and Budget (OMB) for recommendations on a new executive order to replace the order that currently governs the OIRA review process (E.O. 12866, signed in 1993). OMB then asked the public for its views. More than 170 groups and individuals submitted comments.

OMB Watch and others called for an end to the myopic, rule-by-rule review OIRA currently engages in and instead encouraged the office to transform itself into a facilitator and a resource for agencies. Since the public comment period ended, Obama administration officials have given no indication as to the status of the recommendations or the replacement order. OIRA and others seem content to continue to operate the same old process.

While the process has remained the same, the regulatory landscape has changed in other ways. One of the starkest changes witnessed during the Obama administration has been in personnel, specifically, agency heads. Top agency posts are no longer filled with people who come through a revolving door, regulating the same interests they had been employed by for years. Strong and dedicated leaders like EPA’s Jackson have shown a willingness to make tough and sometimes unpopular choices when they believe the public’s interest would be well served.

The coal ash rulemaking has been an uncharacteristic turn of events for Jackson. After moving aggressively in the face of great anti-regulatory and industry pressure on issues like climate change and smog emissions, Jackson allowed the proposed coal ash rule to be co-opted by OIRA’s review process.

That begs the question of whether other officials in the White House were involved, officials with more clout than Cass Sunstein or even Lisa Jackson. Coal ash regulation is one element in a complex suite of legislative and regulatory issues the Obama administration faces in trying to reform energy policy in the United States. One of the Obama administration’s top priorities, climate change legislation, is bound to be an important consideration in any related decision making.

We may never know the answer because the OIRA review process offers little transparency. EPA is one of the few agencies to provide detailed information on the review of its rules. While disclosure of the changes made is helpful in promoting accountability, too many questions are left unanswered when OIRA and agencies fail to disclose who made what changes and for what reasons.

Determining the reasons for the changes made to EPA’s coal ash proposal, and assigning motive more broadly, is nearly impossible. Was the White House overly sensitive to the reactions of industry-friendly congressional Democrats whose support is necessary on climate change legislation? Was it a philosophical shift at the urging of Cass Sunstein, or was it something else entirely?

Many have pointed to industry’s potential influence on the coal ash rulemaking. While the rule was under review, OIRA and EPA met with outside stakeholders on at least 43 different occasions. 30 of those meetings were with representatives of a variety of industries opposed to or fearful of coal ash regulation. These included electric utilities, chemical companies, and many whose businesses rely on the beneficial reuse of coal ash. (The remaining meetings were with environmental groups and citizen advocates.)

Even if the changes to EPA’s coal ash proposal were made completely independent of industry opposition, the appearance of impropriety can be just as damaging, both to the administration’s credibility and public confidence. President Obama came into office pledging to stem the influence of special interest lobbyists and has taken steps toward that end. The coal ash rulemaking is a blemish on an otherwise positive record.

The OIRA review process clearly does not always comport with some of President Obama’s stated goals and priorities. It is time for Cass Sunstein and OIRA to come to this realization and urge Obama to recommit himself to regulatory reform. In the case of coal ash, if the rule is not legally or scientifically defensible, let the public see that debate through the notice and comment period. If other agencies have additional evidence about why the original EPA draft was unacceptable to them, that evidence and feedback should be part of the public record, not provided behind closed doors in what looks to the public like some cloak-and-dagger maneuver designed to evade accountability. Instead of providing an open and accountable exchange of data and ideas that would benefit all stakeholders, the current process makes it possible for special interests to influence a rule long before the public even has an opportunity to comment.

Let’s keep an eye on how the final rule is developed. If it runs counter to scientific information about the health dangers of coal ash and the substance remains unregulated under subtitle C, the public loses – and the Obama administration should be held accountable.

The federal agency responsible for regulating oil and gas extraction let oil companies like BP write their own safety regulations, ignored or downplayed the environmental threats from drilling, and issued drilling permits before fully consulting with other regulatory agencies. The Obama administration has launched an overhaul of the agency and has sent to Congress a legislative proposal to address the looming disaster in the Gulf Coast region.

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The Minerals Management Service (MMS), the Department of Interior (DOI) agency responsible for regulating energy and mineral resources, has badly mismanaged the oil and gas permitting process. The agency has abdicated its responsibility for ensuring that energy extraction is done safely, according to numerous sources investigating the BP oil spill in the Gulf of Mexico.

The April 20 BP Deepwater Horizon oil rig explosion left 11 workers missing and the subsequent oil spill continues to spew thousands of gallons of oil into the Gulf. Investigations of the explosion are beginning to show that BP and its partners in the Deepwater Horizon project did not implement safe oil drilling practices that are used in other areas of the world. MMS left decisions about drilling practices to the companies rather than issuing strong regulatory requirements that may have prevented the explosion.

On May 12, the Oversight and Investigations Subcommittee of the House Committee on Energy and Commerce held a hearing to begin assessing what committee chair Rep. Henry Waxman (D-CA) called "a calamitous series of equipment and operational failures." The hearing focused on the actions by BP; Transocean Limited, the operator of the oil rig; and Halliburton, an oil services company responsible for a critical seal designed to stop the flow of oil.

The Senate’s Energy and Natural Resources Committee and the Environment and Public Works Committee also held hearings on the spill in which executives associated with the Deepwater Horizon rig testified.

President Obama also named MMS as a culpable party in this disaster. On May 14, for example, after getting another briefing on the federal government’s response to the spill, Obama said, "For too long, for a decade or more, there has been a cozy relationship between the oil companies and the federal agency that permits them to drill. It seems as if permits were too often issued based on little more than assurances of safety from the oil companies. That cannot and will not happen anymore."

In a scathing August 2008 report by the agency’s inspector general, MMS employees were found to have accepted gifts from oil industry representatives, improperly socialized with lobbyists, engaged in unauthorized business activities, and flaunted the agency’s ethical standards. The report summarized MMS’s royalty-in-kind program personnel as lacking professional conduct standards and believing the rules of ethics did not apply to them.

Obama asked DOI Secretary Ken Salazar to reform MMS so that the part of the agency responsible for collecting oil and gas royalties is separated from an office with regulatory safety and enforcement. The separation is intended to reduce conflicts of interest within an agency responsible for both managing a revenue stream and developing and enforcing regulations.

On May 17, amid the criticism of MMS, associate director for offshore energy and minerals management Chris Oynes announced his retirement, effective May 31. Before being named associate director, Oynes oversaw oil and gas leasing in the Gulf of Mexico. A May 17 Washington Post article reported that Oynes had been criticized by former MMS officials as being too close to industry.

A May 13 New York Times article highlighted the importance of creating a new office with regulatory powers. According to the Times, MMS:

• Issued dozens of permits to oil companies to drill in the Gulf without the approval of the National Oceanic and Atmospheric Administration, which oversees dangers to endangered species;
• Ignored staff scientists who raised concerns about engineering and environmental impacts and threatened retaliation if the scientists continued to voice concerns;
• Gave BP and other oil companies exemptions from requirements to file environmental impact statements;
• Silenced agency scientists and changed reports that raised the specter of oil spills; and
• Issued at least five permits for new drilling projects since Salazar announced a moratorium on new permits May 5.

The article quotes one former MMS scientist as saying, "You simply are not allowed to conclude that the drilling will have an impact … If you find the risks of a spill are high or you conclude that a certain species will be affected, your report gets disappeared in a desk drawer and they find another scientist to redo it or they rewrite it for you."

Scientific integrity issues at DOI have been a concern for years. An April 29 report by the agency’s inspector general found that DOI has never had a scientific integrity policy despite a mandate from 2000 to produce one. The report documents a variety of problems the agency experienced during the Bush administration. The report recommends an agency-wide policy be established and a person assigned the primary responsibility for its implementation.

The Washington Post reported that MMS liberally applied “categorical exclusions” to reduce its NEPA workload and give companies a pass on the rigors of environmental review. MMS granted such a waiver to BP’s Deepwater Horizon operation. BP had appealed to the White House Council on Environmental Quality as recently as April 9 to use categorical exemptions more broadly, according to the Post.

On May 12, the administration also put forward a legislative proposal to enhance its ability to address the Deepwater Horizon spill. According to a White House fact sheet, the proposal calls for additional funding to several agencies to pay for current expenses resulting from the spill and to monitor the impacts. It would provide additional funding for DOI to conduct additional inspections and enforcement while slowing the pace of issuing permits so that relevant issues are explored more thoroughly. The proposal also calls for additional federal support to states to supplement unemployment assistance programs to those on the Gulf Coast who lose wages as a result of the spill. Additional assistance may be provided if Congress approves provisions for additional economic development efforts within affected communities. The proposal would also raise liability caps on those held responsible for the disaster and raises the tax on oil companies to fund the federal Oil Spill Liability Trust Fund.

Members of Congress have introduced numerous bills to address some of the issues contained in Obama’s more comprehensive legislative proposal. To date, there has been no progress on the bills as Congress awaits more information from different investigations into the causes of the explosion and spill.

Photo in teaser by the U.S. Coast Guard.

Sens. John Kerry (D-MA) and Joe Lieberman (I-CT) recently introduced long-awaited Senate climate change legislation. The bill seeks to reduce greenhouse gas emissions in the United States by 17 percent of 2005 levels by 2020 and 83 percent by 2050, matching targets set in a House bill passed in 2009. The bill includes several provisions calling for transparent and participatory policies, especially relating to measures that would create new financial markets for buying and selling the right to pollute. How well such transparency would be implemented is a major question, and the success of the emissions reductions may depend on the level of openness that is built into the nation’s climate change policy.

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A lack of transparency in key parts of the financial sector is considered to be a major contributing factor to the ongoing economic hardships now afflicting the U.S. and other nations. Numerous recent market crises, such as the 2008 petroleum price spike, the crash of the subprime mortgage and credit default swap markets, and the Bernard Madoff Ponzi scheme have raised significant concerns about the transparency and stability of financial markets. The proposed climate legislation would create enormous new financial markets in an attempt to reduce greenhouse gas emissions. Many are concerned that a lack of transparency in U.S. climate policies would undermine progress in reducing emissions, resulting in the loss of precious time.

The Kerry-Lieberman bill, known as the American Power Act (APA), calls for an expanded greenhouse gas registry to track emissions, public disclosure of key data sets related to emissions reductions, and stresses the need for transparent and participatory design and implementation of market-based programs, which provide greater flexibility to polluters seeking emissions reductions, among other transparency measures. Requiring openness and accountability from the early stages of climate policy development would help ensure the policies make real emissions reductions and would help identify poorly performing measures.

The APA includes market-based policies for reducing emissions, such as the creation of a carbon exchange that uses quarterly auctions to trade the right to emit decreasing "allowances" of greenhouse gases, and the use of "carbon offsets," which allow polluters to meet some of their required reductions by paying for emissions reduction projects elsewhere in the U.S. or in foreign countries. According to the Pew Center on Global Climate Change, "Congress has the opportunity to design the carbon trading market oversight framework at a point in time before long-standing carbon trading practices and systems have been fully established."

Greenhouse Gas Registry

One fundament of a transparent, accountable climate change program is a clear and accurate system for reporting who is emitting greenhouse gases and how much. As a result of language inserted into a 2008 appropriations bill, the U.S. Environmental Protection Agency (EPA) created a mandatory greenhouse gas reporting rule for thousands of large emitters across the U.S. economy. The first reports from facilities are due in 2011. The APA calls for EPA to build on this program to meet the bill’s expanded information needs.

The APA would amend the Clean Air Act to expand the existing registry by covering additional sources such as vehicle fleets, requiring reporting on the capture and sequestration of greenhouse gases, requiring more frequent reporting, and placing limits on what information can be withheld from the public by claiming it as a trade secret. The revised registry would also authorize EPA to collect data from 2007 forward, whereas the existing registry only collects emissions data from 2010 onward.

Carbon Offsets Transparency

Carbon offsets are a mechanism whereby a polluter can meet a portion of its required emissions reductions by investing in a project that reduces emissions or sequesters carbon elsewhere. For example, a cement factory could pay to have trees planted or a refinery could pay for citizens to install solar panels. Offsets theoretically allow more flexibility for polluters to comply with the law because paying others to reduce emissions can be cheaper than reducing the polluters’ own emissions.

Transparency is again critical to realizing real emissions reductions through offsets. The U.S. Forest Service advises that to be legitimate, offsets must be real, measurable, verifiable, and additional (meaning the offset would not have occurred under a business-as-usual scenario). In a 2008 study, the Government Accountability Office (GAO) determined that "any use of offsets for compliance that lack credibility would undermine the achievement of the program’s goals." GAO emphasized the need for transparency to ensure the offsets projects are creating reductions that are real, measurable, and would not have otherwise happened.

The Kerry-Lieberman bill establishes criteria to assure that offset credit is earned only for real and permanent actions that would not have occurred otherwise. The APA includes requirements for the public disclosure of the government’s approval or disapproval of specific offsets projects and the information relevant to making the decision. Additionally, the APA calls for audits of offsets projects; however, the results of the audits would be aggregated before being disclosed, likely denying the public information about specific projects.

The transparency of offsets projects in foreign countries receives special attention in the APA. There are many opportunities for offsets projects in developing countries, such as reforestation projects. Questionable practices surrounding past voluntary offsets programs have drawn criticism of their accountability and veracity. One section of the APA requires that "local communities (particularly the most vulnerable communities and populations in the communities and indigenous peoples in areas in which any activities or programs are planned) are engaged through adequate disclosure of information, public participation, and consultation, including full consideration of the interdependence of vulnerable communities and ecosystems to promote the resilience of local communities." Similar language calling for transparency and public participation appears elsewhere in the offsets provisions of the bill.

Scientific Review

The EPA and other relevant agencies are required to make periodic reports to Congress on new scientific information, on whether the U.S. program is meeting its goals, and on whether the nation’s efforts are sufficient to avoid the most devastating impacts of climate change. For example, a new technical advisory committee will be created to analyze carbon capture and sequestration technologies. All of this committee’s studies must be made public.

Auctions

The Kerry-Lieberman bill authorizes the U.S. Commodity Futures Trading Commission to create rules for the transparent operations of a carbon allowance market, including the public disclosure of carbon market participants. Bidders in auctions must disclose whom they are bidding for, and the identity of winning buyers and the final carbon price must be disclosed. The bill specifies that a greenhouse gas allowance tracking system must be available to the public on the Internet.

Other Transparency Provisions

One controversial feature of the APA calls for expedited and expanded licensing and construction of nuclear power plants. The bill calls on the Nuclear Regulatory Commission (NRC) to report to Congress on ways to move forward on this nuclear expansion. The bill states that the NRC’s recommendations must provide ways for "interested parties that have standing" to have their "legitimate concerns" heard.

Another significant measure in the APA is the requirement that companies drilling for natural gas that use a common yet controversial technique known as hydraulic fracturing must publicly disclose the identities of the chemicals used in the drilling process. Hydraulic fracturing has been linked to numerous cases of drinking water contamination, but the chemicals used in drilling, many of which are known to be toxic, are concealed from the public by drilling companies that claim the information is proprietary.

The prospects for the Senate bill are unclear. The House passed its bill in June 2009. Little time remains for the Senate to act on its bill, which technically is considered a "discussion draft." Climate change legislation must get through the Senate, conference committee, and a full congressional vote before the end of the session. Otherwise, a new Congress must take up the matter anew in 2011.

During the ongoing Senate debate on the financial reform bill, Federal Reserve transparency briefly took center stage. Sen. Bernie Sanders (I-VT) introduced an "Audit the Fed" amendment to the bill during the week of May 16, which the Senate approved in a 96-0 vote after the amendment was greatly scaled back. The amendment would instruct the Government Accountability Office to "conduct a one-time audit of all loans and other financial assistance provided during the period beginning on December 1, 2007 and ending on the date of enactment of this Act."

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Supporters of the Audit the Fed movement, led by Rep. Ron Paul (R-TX), are disappointed that the amendment would not require full, regular audits of the Fed, which would include audits of the setting and execution of monetary policy, communications among or between employees of the Fed, and transactions with foreign banks. Instead, the amendment the Senate passed is a narrowly focused accounting of the Fed’s actions during the financial crisis, specifically its use of so-called Section 13(3) powers.

Section 13(3) of the Federal Reserve Act gives the Fed broad powers. The important sentence in the statute reads, "In unusual and exigent circumstances, the Board of Governors of the Federal Reserve System" may provide discounted "notes, drafts, and bills of exchange," provided they are properly secured (collateralized), and the institution in question could not obtain credit from another bank. In other words, so long as the Fed believes there are "unusual and exigent circumstances," the Fed can decide to lend money to almost any financial institution, even non-depository institutions (not all of the Fed’s emergency actions were under Section 13(3), but the most controversial actions were).

Beginning in 2008, the Fed began to use these powers for the first time since the 1930s. The Fed set up several programs, with names such as the Asset-Backed Commercial Paper Money Market Mutual Fund Liquidity Facility, the Term Asset-Backed Securities Loan Facility (TALF), and the Commercial Paper Funding Facility, all of which were variations on the same theme: the programs were all designed to function as the lender of last resort. If no other institution will lend to a financial firm, it can turn to the Fed and receive loans. While the rates provided by the Fed through these programs were not very favorable compared to market rates, they provided important lifelines to struggling firms that rely on open market borrowing for their daily business.

However, there is virtually no oversight over these programs. The Fed can choose to declare "unusual and exigent circumstances" whenever it wants to, and it can lend as much money as it wants to almost any institution it wants, so long as the loans are collateralized. Congress has no oversight over these actions. Also significantly hindering oversight of the Fed’s actions is the fact that the Fed is not required to disclose which institutions receive aid from Section 13(3) programs. Outside of the Fed, no one knows who is receiving public funds through these programs. There is no guarantee, for instance, that firms receiving these loans were struggling because of liquidity problems and not because they were on the brink of collapse due to over-exposure to subprime loans. The Fed is supposed to be helping the former institutions, not the latter.

Supporters of the Audit the Fed movement were hoping to use the recent exercise of Section 13(3) powers to bring about a full audit of the Fed. Capitalizing on populist distrust of the Fed, Paul’s Audit the Fed bill, which mandates a full audit, had over 300 cosponsors in 2009 when it passed the House as part of that chamber’s financial reform package, far more than it has garnered in sessions past. That momentum died in the Senate, where Sanders’ companion bill had far fewer cosponsors, and Sanders eventually had to pare back his amendment in order to gain enough support. The Senate version is a step back from the House version; specifically, it would not audit the Fed’s monetary policy decisions, one of Paul’s main targets. Both chambers’ versions would, however, require an audit of the Fed’s international currency swaps, which are outside of the Fed’s Section 13(3) powers but have garnered criticism.

Importantly, the Senate amendment does include a provision the House version does not. It requires the Fed to publish information on recipients of Fed emergency support, such as name, amount of support, type of support, and rationale for providing the support. As noted earlier, who received the Fed’s support to troubled financial institutions is a closely held secret, as the Fed argues that releasing this information would constitute a black mark against the firms, hurting their ability to borrow in the open market. Only firms in danger of collapsing would need such help, the argument goes, so announcing which firms were receiving aid would be like announcing which firms are on the brink of collapse, making it even harder for them to recover.

Transparency advocates and members of the media have long fought for disclosure of the identities of these institutions, arguing that the public has a right to know how its money is being used. Bloomberg News is in the process of suing the Fed for these names.

While the House bill calls for an audit of the Fed’s emergency lending actions, it does not require publishing information on recipients of the aid. This addition will bring significant transparency to the Fed’s actions over the past several years and will help give a better picture of the financial crisis.

Observers say even this limited Audit the Fed amendment is meaningless if the Senate does not approve the larger financial reform package. Senate Majority Leader Harry Reid (D-NV) filed cloture on the bill late on May 17, setting up a final vote on May 19. It looks likely that the bill will pass the Senate, setting up a conference committee between the House and Senate. The recipient disclosure provisions from the Senate’s version will likely stay in, but it is unclear how broad the final audit will be. It seems that the president and Fed officials have been persuasive, at least in the Senate, where they have successfully lobbied for Sanders’ weaker amendment, and Rep. Barney Frank (D-MA), chair of the House Financial Services Committee, was initially reticent to support a wide-ranging audit. These factors make it more likely the Senate’s narrow audit will be the version that comes out of the conference committee later in 2010.

In the wake of the latest coal mining disaster that killed 29 miners at the Upper Big Branch Mine in West Virginia, calls for safety reforms and enhanced regulatory powers echo once again. While mine safety has improved since the recent high death toll of 2006, it remains to be seen if this incident will result in significant changes or if deaths and injuries will continue to be perceived as a cost of doing business.

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On April 5, an explosion at the mine killed 25 miners and filled the mine with toxic gases that prevented rescue teams from searching for four miners not immediately accounted for. In the days that followed, as the toxic gases were ventilated and rescue efforts resumed, evidence indicated that all 29 miners feared caught in the explosion at the Upper Big Branch mine had died. Two other miners were hospitalized as a result of the blast. It was the worst mine disaster since 1984.

Recent mine disasters have resulted in calls for new safety rules and enhanced powers for the Mine Safety and Health Administration (MSHA), the office within the Department of Labor responsible for regulating mine safety. MSHA has seen budget and staffing cuts over its lifetime and struggles to fulfill its mission as a result.

In 2006, 47 coal miners died in mining incidents. Congress passed the Mine Improvement and New Emergency Response Act (MINER Act) to respond to some of the immediate issues raised by the Sago, Aracoma Alma, and Darby mine disasters, for example. Many health and safety provisions discussed after those accidents were not included in the MINER Act. In 2008, Congress tried to pass additional legislation to provide improvements to safeguard miners’ health and safety. The legislation passed the House but died in the Senate.

In 2007, a mine collapse at the Crandall Canyon coal mine in Utah, which trapped six coal miners and led to the deaths of three rescue workers, again called into question MSHA’s ability and willingness to regulate mines and the questionable practices of mine owners. The Upper Big Branch explosion raises many of these same issues about safe mining practices and MSHA’s effectiveness.

Although the investigation into the causes of the explosion at the Upper Big Branch mine is just getting started, Labor Secretary Hilda Solis and MSHA’s two top officials, Joseph Main and Ken Stricklin, briefed President Obama April 15 on the disaster. In the briefing, the officials laid out the pattern of violations at the mine, owned by Massey Energy Company, including above-average numbers of violations and the failure to address significant violations. "Massey mines have been placed onto potential pattern of violation status, the first step in the pattern of violation process, 13 times," according to the briefing.

The pattern of violation program identifies the worst mining companies and invokes enhanced MSHA enforcement efforts. Companies can escape this status, however, by contesting citations to the independent Federal Mine Safety and Health Review Commission (FMSHRC), which has a backlog of approximately 16,000 cases. The briefing noted, "In short, this was a mine with a significant history of safety issues, a mine operated by a company with a history of violations, and a mine and company that MSHA was watching closely."

According to an April 10 Washington Post article, Massey challenged 34 percent of its citations in 2009, more than any other coal company. Filing challenges has been a normal business practice in recent years because the backlog at FMSHRC means companies will not pay fines for contested citations, or MSHA will choose to settle the proposed penalties.

The presidential briefing further explained gaps in MSHA’s regulatory authority and proposed reforms that could enhance the agency’s ability to deal with chronic violators and protect miners who disclose unsafe working conditions.

In a strongly worded statement after the briefing, Obama said the tragedy was a failure "first and foremost of management, but also a failure of oversight and a failure of laws so riddled with loopholes that they allow unsafe conditions to continue."

He directed Labor officials to continue the investigation into the disaster at Upper Big Branch, to give extra scrutiny to mines that have "troubling safety records," to work with Congress to improve enforcement and close loopholes in current laws, and to review MSHA’s policies and practices to "ensure that we’re pursuing mine safety as relentlessly as we responsibly can." Obama acknowledged that the industry and regulators know how to prevent these types of explosions, saying, "I refuse to accept any number of miner deaths as simply a cost of doing business."

On April 16, Solis requested an independent analysis of MSHA’s internal review of the disaster by the National Institute for Occupational Safety and Health (NIOSH) and announced that both MSHA’s review and NIOSH’s analysis would be made available to the public. The announcement came on the heels of criticism MSHA received for appointing MSHA personnel to lead the agency’s investigation instead of naming people independent of the agency to study the causes of the explosion. (The state of West Virginia is conducting its own independent evaluation of the disaster.)

On April 19, MSHA announced that it was immediately initiating a quality impact inspections program aimed at coal mine operators who are "frequent violators," according to an e-mail from Mine Safety and Health News editor Ellen Smith. MSHA defines a frequent violator as "an habitual violator of health and safety standards above the national average." A quality impact inspection will include monitoring conveyor belts, methane monitors, and ventilation controls, among other factors related to mine explosions. The inspections will be conducted by several inspectors at once depending on the size of the targeted mine.

Congress is also preparing to deal with mine safety again. On April 14, Rep. George Miller (D-CA), chair of the House Committee on Education and Labor and a vocal supporter of mine safety reform, released a list of the 48 mining companies MSHA targeted in 2009 for the pattern of violations program but which contested numerous violations in order to escape being listed in the program.

Sen. Tom Harkin (D-IA), chair of the Health, Education, Labor and Pensions Committee (HELP), said that the committee would hold a hearing April 27 to assess how to change a system that encourages mining companies to avoid penalties by contesting them. A future hearing will assess whether Labor’s mine safety agencies have sufficient resources to process appeals from operators and will discuss legislation to enhance MSHA’s enforcement capacity that the HELP committee let die in 2008.

That bill, H.R. 2768, the S-MINER Act, called for additional powers for MSHA. President Bush threatened to veto the legislation. The S-MINER bill would have:

• Expanded MSHA’s ability to deal with mine owners and operators who are in violation of federal regulations by allowing penalties to be imposed that could not be reduced by FMSHRC and would hold corporate officers and operators liable
• Allowed the Secretary of Labor to halt production at mines if operators refuse to pay civil penalties
• Provided MSHA with subpoena power
• Required MSHA to take interim steps to improve emergency response technologies while permanent regulations, required by the MINER Act, were being developed
• Required mine operators to use better technology for measuring coal dust exposure and cut in half the federal exposure limit for coal dust

Given the other items on the congressional agenda in an election year, it is unlikely that major mine safety reforms will be passed in 2010. A more likely scenario that could impact attitudes toward miner safety may be unfolding in the courts, where the first wrongful death suit against Massey was filed April 15, according to the Charleston Gazette.

In addition, a Raleigh County, WV, prosecutor said that a state homicide investigation was possible pending the results of the state’s investigation into the causes of the accident. West Virginia has an involuntary manslaughter statute that would allow such a prosecution.

Unfortunately, both of these legal scenarios require miners to die before companies are held accountable.

The U.S. Environmental Protection Agency (EPA) has released its plan for improving the agency’s transparency as part of the Obama administration’s Open Government Directive (OGD). The EPA was an early proponent of the new openness agenda, with EPA Administrator Lisa Jackson calling for the agency to operate "as if it were in a fishbowl." The agency’s new Open Government Plan documents numerous ongoing and future actions that should continue the agency’s advance toward transparency and accountability.

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The Dec. 8, 2009, OGD instructed federal agencies to create, among other things, "a public roadmap" detailing how each agency will incorporate the principles of openness laid out in President Obama’s Jan. 21, 2009, transparency memo. Each plan is required to address how the agency will improve transparency, public participation, and collaboration with the public and other governmental offices. Additionally, each plan must include at least one "flagship initiative" that describes a specific initiative being implemented to advance the openness principles.

The EPA Open Government Plan chronicles numerous openness actions the agency had taken prior to the Office of Management and Budget’s (OMB) release of the directive. The agency plan also lays out many additional actions planned for the next several months. Throughout the document, EPA affirms its intent to instill an agency-wide culture of openness and learn from these early actions, identify what works, and spread the best practices throughout the agency. Overall, the plan depicts an agency that is making transparency a true core value of its operations and supports this assertion with numerous examples and laudable plans for future community engagement.

Flagship Initiative

EPA has chosen to undertake as its flagship initiative a broad set of actions under the theme of community engagement. According to the plan, EPA chose this theme because of its "wide applicability – potentially influencing nearly every part of the Agency." The components of the initiative include plans to push out to the public information about environmental impacts to urban waterways; air and water test results; the pollution permitting process; and the rulemaking process. Two additional projects will use new technology to create mobile phone applications that provide human health advisories and product information. An agency work group will identify ways to inform and engage communities that lack electronic access to information, as well.

EPA’s approach to the flagship initiative is multifaceted, covering several agency programs, reaching different types of audiences, and addressing several aspects of agency operations. This is a prudent approach that should provide the agency with ample case studies with which to identify what works and what does not and why. It should also allow EPA to scale up the successful strategies across the agency.

OpenEPA Online Forum

In February 2010, EPA, in accordance with OMB instructions, launched a website, OpenEPA, an online forum designed to gather comments and ideas from the public on what should be included in the agency’s plan. EPA, as well as many other agencies, has decided not to close the forum now that the plan is released. Rather, the agency is keeping the forum open and will report on its progress in implementing the ideas on a quarterly basis. To date, the forum has received more than 200 ideas from the public.

The online forum channeled a large amount of public input to the agency, giving staff much to work with as they move ahead with greater transparency. One reason the forum functions as well as it does is the active involvement of the forum moderator. The moderator works to ensure postings are relevant to the agency’s open government activities and answers basic questions. The moderator can also serve the useful purpose of pushing information about the agency’s work out to the public, directing them to the new open government actions, data sets, and tools, and communicating what progress has been made so far. Such back-and-forth communication is crucial to building public trust in the forum. Including comments and responses from additional agency staff and senior officials may also improve the forum’s standing as a reliable tool for public engagement.

The agency plans to add to the OpenEPA website a section that asks the public to share innovative ways EPA data are being used. The posts will then be ranked by the public.

Measuring Success

The EPA is hoping to gather public comment on ways to judge how well its transparency initiatives are working. The agency’s Open Government Plan includes some ideas on what metrics may be used to evaluate the initiatives, such as the number of electronic town hall meetings, number of data sets and tools published, and the number of opportunities for public input on EPA actions. EPA recognizes that the criteria for measuring success will evolve as the initiatives advance. Many of the openness initiatives have never been tried before, and the tools for evaluating the implementation of government openness are neither fully developed nor tested.

Collaboration

EPA has included a number of ongoing and planned actions to expand its collaborations with other governmental offices and the public. One such action is the EPA’s work with the Securities and Exchange Commission (SEC) and the Occupational Safety and Health Administration (OSHA) to link datasets for facilities that are regulated by each of the agencies. Such connections will help the public see a broader picture of the environmental, economic, and social performance of companies.

Other collaborations include a wiki for watershed managers to share best practices and learn about grant opportunities; a new mobile phone application that provides threat information to emergency responders; and a project with regulators in Massachusetts that provides real-time air quality data.

Access to Experts

The EPA has long been criticized for limiting the public’s access to program staff, especially program scientists with the expertise to comment in depth on pressing issues, such as the hazards of specific toxic chemicals or the impacts of climate change. The agency’s public affairs office has been regarded as an obstacle to journalists and other members of the public getting the information needed to ensure accountability.

The EPA’s plan does not adequately address the degree of openness warranted to agency scientists. According to the advocacy organization Union of Concerned Scientists (UCS), the Open Government Plans "would not have prevented even the most flagrant examples of censorship of scientists during the previous administration." UCS’s criticism, which is not limited to EPA, further notes that "many federal scientists are still not protected by policies that would allow them to speak freely with the public and the press." The idea receiving the most votes on EPA’s forum calls for the development of a media policy that ensures EPA scientists can share their expertise with the public and not fear retaliation by their supervisors or political staff at the agency.

The EPA’s plan only proposes to develop a "formal network of EPA staff experts to connect and respond to public inquiries." Otherwise, there is no mention of an agency-wide communications policy that would provide greater access to staff scientists and encourage the freer exchange of ideas between staff scientists and the public.

Other Potential Weaknesses

The agency’s plan also does not mention how EPA will address the widely acknowledged problem of excessive trade secrets. Businesses submitting information to EPA frequently choose to hide all or part of the information under the label "confidential business information," which prompts the agency to conceal the data from the public. This privilege is overused by industry to inappropriately hide data, such as health risks from industrial products, from the public. Although EPA has taken important recent steps to address this, the agency should devise a plan to comprehend the scale of the problem and correct it.

Additionally, the agency recognizes the importance of informing stakeholders about its open government projects, but the plan’s strategy for disseminating information about the openness actions is sparse. The initiatives in the plan must be publicized throughout the agency, including regional offices, to state and local governments, and to the public, especially to those citizens who may not already have experience using EPA tools or participating in EPA programs. Many noteworthy initiatives either have commenced or are planned for the near future. Their success depends to a large degree on how well the abundant stakeholders become familiar with them. The EPA’s plan for the wide adoption of openness principles relies largely on the 2003 Public Involvement Policy. The addition of plans for more specific actions that mesh the 2003 policy with the 2010 Open Government Plan could prove useful.

EPA plans to review its Open Government Plan every six months, making revisions as necessary, which is far more frequently than the every two years called for by OMB. The public is encouraged to comment at www.epa.gov/open.

Photo in teaser by flickr user seagers, used under a Creative Commons license.

Of the $38.6 billion worth of contracts and grants obligated to Iraq and Afghanistan during fiscal year 2008 and the first half of fiscal year 2009 by the Department of Defense (DOD), the Department of State (State), and the U.S. Agency for International Development (USAID), roughly $1 billion went to contractors to help administer some of the contracts and grants. A recent Government Accountability Office (GAO) report finds that DOD, State, and USAID often enter into these administration contracts haphazardly without checking for potential conflicts of interest or ensuring adequate oversight.

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The government’s extensive reliance on contractors throughout the wars in Iraq and Afghanistan is nothing new. DOD, State, and USAID have used contractors for everything from reconstruction efforts to providing security for government officials, all with mixed success. As this most recent GAO report shows, sometimes the government even turns to contractors to help with administering other contracts and grants. This can include "on-site monitoring of other contractors’ activities, supporting contracting or program offices on contract-related matters, and awarding or administering grants."

Clearly, conflicts of interest could arise, as government decisions on contract and grant administration, which represent "the government’s primary mechanism for assessing whether it is getting the expected products or services from contractors or whether grantees are performing in accordance with grant programs," might be "inappropriately influenced by, rather than independent from," a contractor’s actions.

GAO found that these three agencies lacked any sort of overarching strategy in deciding when to use contractors to support contract and grant administration. It turns out that more often than not, "individual contracting or program offices within the agencies" made the decision "on a case-by-case basis." Moreover, contracting officials within DOD, State, and USAID often chose to outsource administration functions because they lacked a sufficient number of government personnel or in-house expertise to oversee the contract or grant.

Because none of the three agencies has a strategic workforce plan that incorporates how, when, or why they should outsource the administration of a contract or grant, GAO also found that DOD, State, and USAID often did not do enough to mitigate conflicts of interest or oversight risks. Although the three agencies "generally complied" with statutory and policy guidelines, they often did not utilize their broad discretionary powers to limit these risks as much as they could.

One example cited in the GAO report is illuminating:

Joint Contracting Command – Iraq/Afghanistan (JCC-I/A) awarded a $1 million contract to support the Armed Contractor Oversight Directorate in Afghanistan. The contractor, which itself was a private security contractor, was assigned a number of responsibilities related to oversight of private security contractors…[N]o clauses were included in the solicitation or contract that precluded the contractor from bidding on other contracts. After the support contract had been awarded and performance begun, the support contractor competed for and won a separate contract to provide armed guard services in Afghanistan.

Eventually, JCC-I/A counsel became aware of the situation – that a contractor would be responsible for its own oversight – and canceled the administration support contract, but the event sheds light on the lack of effort by the agencies to prevent conflicts of interest.

The other problem that GAO found with DOD, State, and USAID not employing a strategic workforce plan that reflects the outsourcing of contract and grant administration was a lack of sensitivity to contractors performing tasks closely related to inherently governmental functions. Without adequate oversight, administering contracts or grants can inappropriately influence the "government’s control over and accountability for decisions that may be based, in part, on contractor work." Not only can performing those functions present a conflict of interest for a contractor, but the government can easily lose control of critical decision making processes, as well.

GAO also found that the three agencies have made improvements to their lackluster policies on outsourcing administration duties. DOD is currently working on policies to better address both organizational and personal conflicts of interest for contractors. DOD acknowledged that the Army’s contracting workforce is 55 percent of what it was in the mid-1990s, while the amount of work outsourced has jumped from $11 billion to $165 billion. On April 19, DOD told the Commission on Wartime Contracting that it would hire more contracting specialists and increase training for those overseeing contracts. State is examining a better policy on organizational conflicts, and USAID already has a decent system for addressing a contractor’s personal conflicts. But the bigger question seems to be whether the government can ever adequately control accountability and oversight risks when outsourcing functions like this.

The Office of Federal Procurement Policy is currently reviewing a change to the inherently governmental policy. Good government groups like OMB Watch would like to see tasks so closely related to inherently governmental functions like contract and grant administration in-sourced by default, if not completely removed from the list of tasks the government can outsource. It seems that the government only perpetuates its inability to in-source a function by continuing to outsource it. Moreover, there is too fine a line between performing an inherently governmental action and one that is only closely associated. Bringing contract and grant administration under the "inherently governmental" umbrella would bring much-needed oversight to government contracting.

On April 15, the Institute for Justice (IJ) filed a lawsuit on behalf of two volunteer groups challenging part of Washington State’s grassroots lobbying disclosure law as a violation of their First Amendment rights to free speech, assembly, and petition. In Many Cultures, One Message v. Clements, the groups claim that having to register as grassroots lobbying organizations is burdensome, and revealing information about their financial supporters could leave donors open to threats from opponents.

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The groups challenging the law are Many Cultures, One Message, which opposes the use of eminent domain for redevelopment in southeast Seattle, and Conservative Enthusiasts, a 501(c)(3) nonprofit volunteer organization that promotes small government and opposes taxes. According to IJ, "Each face the dilemma of registering with the government or halting their efforts to urge their fellow Washingtonians into political action."

The defendants in the lawsuit are Jim Clements, chairman of the state’s Public Disclosure Commission, and several other members of the commission. The commission enforces disclosure and campaign finance laws.

Grassroots lobbying activities seek to encourage the public to take specific positions on legislative matters or public policies and typically feature forms of communication that request the recipients to contact their lawmakers regarding a specific issue. These communications are directed at the general public or at selected groups on organization mailing lists. Currently, federal law does not require the registration of people or groups that solely engage in grassroots lobbying, nor does it require disclosure of such activities.

The State of Washington is one of 36 states that have some sort of law addressing disclosure of grassroots lobbying. In Washington, the law requires that any person or entity that spends more than $500 in one month or $1,000 in three months making grassroots lobbying expenditures must file with the state’s Public Disclosure Commission and disclose his or her/its name, address, business, and occupation. The law also requires disclosure of the names and addresses of anyone or any group such a person or entity is working with, as well as anyone who contributes more than $25 to the group’s grassroots lobbying efforts.

Many Cultures, One Message and Conservative Enthusiasts sought an exemption from the law in December 2009. In March 2010, the Public Disclosure Commission ruled that the groups would still have to file disclosure reports as grassroots lobbying organizations if they made expenditures exceeding the amounts specified in the law. The commission’s response letter to IJ stated, "These statutes enable the voters to ‘follow the money’ in lobbying and campaigns, including grassroots lobbying." The letter asserted that the citizens of Washington State passed the law by initiative in 1972 to "maintain openness and transparency in lobbying and financial efforts to affect legislation."

The groups’ lawsuit claims that the state law creates "expensive, complex, and time-consuming administrative requirements that interfere with, and chill Plaintiffs’ ability to exercise, their right to engage in political speech and association." In addition, the registration and reporting rules are vague, and prohibit them from "exercising their right to engage in anonymous political speech," according to the suit. They further argue that grassroots lobbying disclosure laws and the cost for violating them may discourage small groups from becoming active in politics and public policy. In Washington State, the maximum penalty is $10,000 per violation.

An IJ press release on the case announced, "Washingtonians from both sides of the political spectrum filed a lawsuit today [April 15] to stop their state from monitoring, collecting and publicly disseminating information about the political activities of private citizens who do nothing more than urge their fellow citizens to take political action."

IJ’s lawsuit cites the recent U.S. Supreme Court decision in Citizens United v. Federal Election Commission as support for the finding that onerous rules can amount to a ban on speech. The Associated Press quoted IJ executive director Bill Maurer as being "encouraged" with the Court’s "less regulatory direction regarding campaign finance laws." However, in Citizens United, disclosure laws were upheld as constitutional, and the decision stated that "transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages."

The lawsuit also reveals the groups’ concern with the state gathering personal information and making it available on the Internet, which they charge may leave donors and others vulnerable to harassment. A case that will soon face the U.S. Supreme Court addresses similar issues.

In John Doe No. 1 v. Reed, petition signers challenged the constitutionality of Washington’s Public Records Act, which requires state and local governments to make public the identities of those who sign a referendum or initiative petition. Those challenging the law argue that petition signing is political speech subject to First Amendment protections, while Washington Secretary of State Sam Reed asserts that signing a referendum or initiative petition is a legislative act and that petitions to add measures to the ballot are public records. The Ninth Circuit has ruled that disclosure of such signatures serves an important government interest and promotes government accountability.

A Congressional Research Service (CRS) report notes that grassroots lobbying disclosure regulations have been deemed constitutional in the past. A 2008 report points out that the "Supreme Court of the State of Washington in 1974, for example, upheld very detailed lobbying disclosure provisions of State law concerning ‘grassroots’ lobbying activities in Young Americans for Freedom, Inc. v. Gorton." In that case, the court held, "To strike down this portion of the initiative would leave a loophole for indirect lobbying without allowing or providing the public with information and knowledge re the sponsorship of the lobbying and its financial magnitude."

A further suggestion in the CRS report hypothesizes that a law that only requires disclosure and reporting, only covers paid grassroots lobbying, and does not prohibit any activity, would stand up against court challenges. Such a law would exclude "volunteer organizations, volunteers, and individuals who engage in such activities on their own accord out of the coverage and sweep of the provisions." The law would have to be "drafted in such a manner so as not to be susceptible to an overly broad sweep bringing in groups, organizations and other citizens who do no more than advocate, analyze and discuss public policy issues and/or legislation."

Photo in teaser by Wikipedia user Tradnor, used under a Creative Commons license.

The U.S. Environmental Protection Agency (EPA) announced new guidance April 1 that should limit the impacts of mountaintop coal mining in Appalachia. The agency issued the guidance to clarify EPA’s expectations regarding legal and scientific interpretations when issuing permits for the destructive surface mining practice.

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The practice of mountaintop mining involves blasting off the tops of mountains to access coal seams hidden below. The debris from blasting is pushed down the mountainsides into the valleys below. This "valley fill" not only covers miles of streams but also damages rivers, water sources, and aquatic life downstream when the fill leaches pollutants.

A summary of EPA’s guidance describes the damage from this practice: "Since 1992, nearly 2,000 miles of Appalachian streams have been filled at a rate of 120 miles per year by surface mining practices. A recent EPA study found that nine out of every 10 streams downstream of surface mining operations exhibit significant impacts to aquatic life." Health impacts result from highly toxic pollutants such as selenium leaching into downstream water sources.

One of the "midnight regulations" completed by the George W. Bush administration made it legal for mining companies to dump this fill. The rule became effective on Jan. 11, 2009, just days before Barack Obama was inaugurated. The Obama administration has struggled with how to approach overturning or revising the rule. The agency conducted reviews of the permitting process and the scientific impacts of the mining practice before announcing the new policy.

EPA had been under pressure from environmentalists, coal companies, and even Sen. Robert Byrd (D-WV), who had met with EPA Administrator Lisa Jackson several times, to provide clarity on the permitting process. Byrd’s office released a press statement April 1 saying, "I am pleased that EPA Administrator Jackson took our concerns about the need to provide clarity very seriously and has responded with these guidelines."

In announcing the new guidance, Jackson noted the extensive scientific study and review the agency had conducted. She said that the agency would also begin focusing on the "emerging evidence of the potential health impacts" of mountaintop mining. "Let me be clear: this is not about ending coal mining. This is about ending coal mining pollution. Coal communities should not have to sacrifice their environment, or their health, or their economic future to mountaintop mining. They deserve the full protection of our Clean Water laws," Jackson said.

The policy change comes on the heels of an announcement March 26 that EPA was proposing to significantly reduce or stop mining at the Spruce No. 1 surface mine in Logan County, WV, one of the largest surface mining operations ever proposed, according to EPA’s press release. The mining proposal "would bury over 7 miles of headwater streams, directly impact 2,278 acres of forestland and degrade water quality in streams adjacent to the mine," EPA said. Spruce mine received a permit in 2007, but the permit was challenged in court, thus delaying any mining. EPA and the mine’s owners could not reach an agreement that would have significantly mitigated the environmental impacts of the mine.

The new guidance applies to all pending and new mountaintop mining permit requests and to permit renewals. The policy was sent to EPA’s regional administrators in regions 3, 4, and 5, covering Appalachian states from Pennsylvania south to Georgia, Alabama, and Mississippi. Under the Clean Water Act (CWA), states have the responsibility for issuing permits to discharge pollutants into waterways. The guidance is intended to provide the regional and state offices with a framework for evaluating individual permit applications consistently and in keeping with the requirements of the CWA, the National Environmental Policy Act, and the Environmental Justice Executive Order (E.O. 12898).

The guidance contains the latest scientific information important to determining compliance with the CWA, clarifies how the law applies to mountaintop mining and its debris to achieve water quality protection, and enhances opportunities for members of coal mining communities affected by potential mining activity to participate in reviewing proposed new actions.

The policy also calls for a greater emphasis on numerical standards to measure the electrical conductivity of streams, the first time EPA has used a conductivity standard. By measuring electrical conductivity, regulators can determine the extent of pollutants in water. Specifically, the conductivity measure is the amount of salt in the water which results from mine debris and runoff, essentially turning fresh water into salt water and damaging aquatic life.

Reaction to the new guidance by environmental groups was laudatory. Earthjustice, one of the environmental groups that sued on behalf of Appalachian conservation groups to overturn the Bush midnight regulation, issued a statement quoting its president Trip Van Noppen, saying, "We commend Administrator Jackson and the EPA for recognizing that the people of coal communities deserve the full protection of our clean water laws, and we’re glad to see that EPA is back on the job."

Rob Perks of the Natural Resources Defense Council said, "At long last, the EPA is committing to protecting Appalachian communities from the world’s worst coal mining. Today’s action to protect waterways from the impacts of mountaintop removal is restoring science to its rightful place and reinforcing the agency’s commitment to the Clean Water Act…. For every ton of coal extracted, another 20-25 tons of mining waste is disposed of in so-called valley fills. Strict enforcement of scientific requirements in the Clean Water Act is a much-needed step in the right direction."

Bruce Watzman of the National Mining Association expressed the displeasure of mining companies, saying, "America’s coal mining communities are deeply concerned by the impact of policy announced today by EPA on coal mining permits, employment and economic activity throughout Appalachia…. The policy was announced without the required transparency and opportunity for public comment that is afforded to policies of this magnitude."

EPA will take public comment on the guidance, which is effective on an interim basis pending completion of the comment process. According to EPA’s press release, the agency will consider revising the guidance after the comment process and after the agency’s Science Advisory Board completes its review of EPA’s scientific studies.

Photo in teaser by flickr user NRDC media, used under a Creative Commons license.

Several key requirements of the Open Government Directive are due on April 7, turning the day into a critical moment for government transparency. The main materials being released are specialized Open Government Plans that federal agencies are mandated to produce based on stakeholder input. There will also be a document to address federal spending transparency, as well as a review of policies that impede open government efforts.

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The plans will state the individual agency’s strategy for improving transparency, public participation, and collaboration. Meanwhile, open government groups are gearing up to evaluate the strategies. Expectations are that the plans will be quite substantive, both in scope of issues addressed and goals being set, at least for the major agencies. At the same time, it is also widely expected that there will be wide variations in the plans, with some being in an advanced state of implementation and others in very early stages. Numerous independent agencies are also developing Open Government Plans, though their obligation to do so under the directive is unclear.

Agencies across the federal government have been collecting input and ideas from the public for weeks through online discussions on their newly launched open government webpages, also required under the directive. The process has elicited hundreds of ideas from the public, with thousands of votes to help agencies prioritize the proposals. Many agencies have described their online discussions around open government as huge successes and announced intentions to keep the dialogue going beyond the launch of the agencies’ plans on April 7.

Chief Information Officer Vivek Kundra recently elaborated on the additional content of the upcoming plans during a Senate hearing on government secrecy. In his testimony, Kundra stated that the plans would include details of “internal controls implemented over information quality, including system and process changes, and the integration of these controls within the agency’s existing infrastructure.” Although the spirit of the directive is to make information useful to the public widely accessible, Kundra noted that information controls would also need to exist to protect personally identifiable and security-related information.

Open government organizations are poised to assess the plans as soon as they come out. Working together under the OpenTheGovernment.org coalition, these organizations are auditing individual agency plans based on preset criteria through a Google Wiki. The criteria for this initial assessment are basic and based on the Open Government Directive requirements, but also allow for additional points to be awarded for agencies that go above and beyond the call of duty.

The Office of Information and Regulatory Affairs (OIRA) will also produce materials from a review regarding policy impediments to open government. The Open Government Directive required that OIRA, along with the Federal Chief Information Officer and Federal Chief Technology Officer, review existing policies of the Office of Management and Budget (OMB). The overall purpose of this process is to create an improved policy framework that enables open government. The OIRA policy materials are expected to identify impediments to open government and either propose revisions to eliminate the impediments or clarify interpretation to reduce confusion.

Open government advocates have been calling for policy changes in several areas that would increase government transparency. Many of these recommendations are included in a November 2008 report, Moving Toward a 21st Century Right-to-Know Agenda. Such problems include the lack of resources and accountability for implementation.

Additionally, OMB’s Deputy Director for Management is required to release a long-term comprehensive strategy for federal spending transparency that includes requirements from the Federal Funding Accountability Transparency Act (FFATA) and the American Recovery and Reinvestment Act. The plan will require quarterly reports from agencies on their progress toward improving the quality of federal spending information.

Finally, the Open Government Dashboard on the White House website is also expected to be updated in the near future to include access to all agency Open Government Plans. Currently, the dashboard is only an assessment of whether an agency has completed a task required under the Open Government Directive, and that is likely to remain the case in this update. Ultimately, however, this dashboard is expected to be revised to include aggregate statistics and visualizations that provide an assessment of the state of openness within the federal government.

Photo in teaser by flickr user seagers, used under a Creative Commons license.

On March 26, the U.S. Court of Appeals for the District of Columbia issued a unanimous opinion in SpeechNow.org v. Federal Election Commission. The court decided that the Federal Election Commission (FEC) could not limit donations to independent political groups that will spend money to support or oppose candidates. This is the first major court ruling to apply the U.S. Supreme Court’s holding in Citizens United v. FEC.

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Organized under Section 527 of the tax code, SpeechNow.org can now receive unlimited contributions from individuals, but it must register as a political committee and disclose its financial information to the FEC. The appeals court found that because 527s operate independently of candidate campaigns, there is no chance for corruption. The opinion expands the impact of Citizens United by extending the rationale in that decision from campaign spending to campaign donations.

In November 2007, SpeechNow.org sought approval from the FEC for its plan to collect unlimited contributions from individuals to conduct "express advocacy." The group wants to air messages in support of federal candidates who favor free speech and oppose those who back legislation that restricts the rights to speech and association.

After the FEC informed the group that it would be deemed a political committee and could not accept unlimited contributions from individual donors, SpeechNow.org filed suit. The organization’s challenge charged that limits on annual contributions from individuals were an unconstitutional violation of free speech and association rights. Under the FEC rules, individual donations to 527s for express advocacy were limited to $5,000 a year.

The decision announced on March 26 concluded that the 527 can receive unlimited contributions from individuals but must register with the FEC as a political committee. The ruling follows the judgment of the Supreme Court’s January Citizens United decision, which found that corporations and unions can spend as much as they like in advocating for or against candidates as long as they disclose their activities and do not coordinate with candidates’ campaigns.

The ruling in SpeechNow.org, written by Chief Judge David Sentelle, said that since the Supreme Court ruled in Citizens United that political expenditures do not corrupt the political process, neither do contributions to groups that make such expenditures. According to the appeals court’s opinion, if there was no reason to limit independent spending, donations to groups that would be doing so should not be restricted. The appeals court said the government simply had no interest in limiting contributions to independent groups.

During oral argument, the FEC argued that large contributions to groups that broadcast such independent expenditures may "lead to preferential access for donors and undue influence over officeholders." The court responded that those arguments "plainly have no merit after Citizens United."

The FEC also maintained that the Citizens United case did not apply because that decision involved spending limits, not contribution limits. According to BNA Money and Politics (subscription required), during arguments, FEC attorney David Kolker noted that limits on contributions to political parties have not been changed. "Similar restrictions on non-party groups also should remain, the FEC lawyer said, because such groups can act as ‘shadow parties’ and be used to circumvent limits on contributions to candidates."

The appeals court did uphold disclosure requirements and decided that SpeechNow.org still has to organize as a political committee and fulfill financial reporting requirements. However, those restrictions were not heavily challenged; SpeechNow.org was primarily concerned with being able to collect unlimited donations for its political advocacy. The group also claimed that it had no objection to more limited reporting requirements the Internal Revenue Service (IRS) places on 527 organizations.

The court found that complying with reporting rules would only place a minimal burden on SpeechNow.org’s First Amendment rights. The opinion states that "the public has an interest in knowing who is speaking about a candidate and who is funding that speech, no matter whether the contributions were made towards administrative expenses or independent expenditures." Information on contributors, which candidate the expenditure supports or opposes, expenditures of $1,000 or more made in the 20 days before an election, and any expenditures of $10,000 or more made at any other time must be disclosed to the FEC.

SpeechNow.org, its president David Keating, and four potential contributors were represented by attorneys from the Center for Competitive Politics and the Institute for Justice. Supporters of the ruling consider this another boost to the free speech rights of Americans and those who join together to engage in advocacy. Steve Simpson, an attorney for the Institute for Justice, said, "This decision ensures that all Americans can band together to make their voices heard during elections."

SpeechNow.org emphasized the decision in EMILY’s List v. FEC as support for its challenge. In the EMILY’s List case, regulations were struck down that limited donations to nonprofit political action committees used for campaign activity. However, the D.C. Circuit Court questioned the constitutionality of limits on contributions to independent political committees, even though those issues were not directly challenged in the EMILY’s List lawsuit. After the EMILY’s List decision, many predicted that SpeechNow.org had a good chance of winning its appeal.

In another case, Republican National Committee v. FEC, the U.S. District Court for the District of Columbia upheld provisions of the Bipartisan Campaign Reform Act that limit "soft money" contributions to political parties. The law prohibits political parties from accepting unlimited contributions from individuals, companies, and unions. The court said it does not have the authority to overturn a Supreme Court ruling upholding the ban on soft money fundraising by national party committees. The Republican National Committee (RNC) wanted to raise soft money for state elections, congressional redistricting, and other activities outside of federal elections. On April 2, the RNC filed an appeal to the Supreme Court.

The result of this patchwork of rulings is that currently, political parties cannot seek unlimited contributions from donors, but independent groups can. This has created an environment that favors contributions toward largely unregulated "independent" political organizations, rather than to candidates or political parties. Some observers worry that this will have exactly the effect that the Supreme Court and the appeals court denied it would: an increase in corruption and a decrease in disclosure about the activities of these groups due to the lack of a 21st-century reporting infrastructure.

Photo in teaser by Wikimedia Commons user AgnosticPreachersKid, used under a Creative Commons license.

On March 22, the Office of Management and Budget (OMB) released new guidance for implementing President Obama’s recent Executive Order 13520, which instructs the federal government to reduce improper payments to individuals and businesses. The initiative attempts to use transparency, public participation, and executive branch accountability to reduce "payment errors" and eliminate "waste, fraud, and abuse" in major federal programs. The guidance, however, is incomplete, and OMB will have to work to fill out the program’s details.

An improper payment can consist of any funds wrongly disbursed by the federal government to an individual or business as a program beneficiary, grantee, or contractor. The government improperly distributes billions of dollars every year – it improperly expended nearly $100 billion in Fiscal Year 2009, according to the recently released guidance – for reasons ranging from a basic data entry mistake to a failure to verify a beneficiary’s qualification for funds. The administration’s initiative, which builds upon reforms made in 2002, targets "high-priority" programs, or those that repeatedly report improper payments above a certain percentile threshold. The guidance, however, fails to specify that threshold.

The Improper Payments Information Act of 2002 (H.R. 4878), along with the Recovery Auditing Act passed the same year, requires federal agencies to account for the root causes of error in programs susceptible to "significant improper payments" in their annual performance reports to OMB. The Obama administration’s program goes further by requiring all federal agencies with a "high-priority" program to set a goal to reduce improper payments to an acceptable percentage of disbursements or total disbursed funds and publically report on that goal semi-annually. Each agency is also to designate a Senate-confirmed official who will answer for the agency if it fails to meet its goal.

The Nov. 22, 2009, executive order lays out several new public disclosure requirements, greatly enhancing accountability in federal payments to private entities. By May 20, OMB, acting in conjunction with the Treasury and Justice departments, is required to begin publishing certain information online, including the names of the designated agency officials, the current and historical amounts of improper payments, their proportion to total agency payments, and the successful recovery rates and amounts of those payments. OMB will also have to publish the causes of the improper payments, each agency’s targets for reducing and recovering improper payments, and the entities that have received the greatest amount of outstanding improper payments.

Along with this catalog of information on the administration’s initiative, the head of each agency will have to make public a report submitted to the agency’s inspector general each quarter on any improper "high-dollar" disbursements. The guidance unfortunately fails to specify what constitutes a "high-dollar" disbursement, but the report will include any actions the agency has taken or plans to take to recover the funds, as well as what steps the agency will take in the future to prevent a similar occurrence. To further engage the public, OMB, again acting in conjunction with the Treasury and Justice departments, is required by the end of May to establish a central Internet database for collecting and sorting public tips on the suspected fraud, waste, or abuse of government-disbursed funds. Each agency will have to provide a clearly marked link on its homepage for the public to access this database.

With project due dates still a few months away, it is hard to tell whether OMB will be ready to implement the requirements in time. Indeed, the new guidance released in March is more of a skeletal structure for the implementation of E.O. 13520, with many details left to flesh out before the executive order’s full transparency measures can be put into place.

Photo in teaser by flickr user wintersoul1, used under a Creative Commons license.

Incidents of sudden acceleration that led to the recall of millions of Toyota vehicles have sparked a debate over whether the National Highway Traffic Safety Administration (NHTSA), the federal agency in charge of auto safety, needs enhanced powers and resources.

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Lawmakers and advocates have criticized NHTSA’s response to the acceleration defects in Toyotas. Since 2003, NHTSA has opened investigations into sudden acceleration in response to driver complaints but closed the cases without taking remedial action. Eventually, Toyota recalled floor mats from certain models, blaming the mats for sticking accelerator pedals, but as problems persisted, the company issued a larger recall.

The Toyota controversy has thrust auto safety onto Congress’s agenda. On March 11, the House Energy and Commerce Committee’s Subcommittee on Commerce, Trade, and Consumer Protection held a hearing to critique NHTSA and discuss ways to improve its performance in the future. Panel members signaled that they will consider new legislation modifying or increasing NHTSA’s authority, but they did not discuss specifics.

Though it already has the authority to do so, NHTSA has not ordered a recall in more than 30 years. NHTSA Administrator David Strickland told the committee that recalls are negotiated with automakers, who conduct them voluntarily, all but eliminating the need for NHTSA to use its mandatory recall authority.

Manufacturers also conduct recalls without any input from NHTSA. Of the 492 recalls announced in 2009, 340 were conducted entirely at manufacturers’ discretion, Dave McCurdy of the Alliance for Automobile Manufacturers testified. "The remaining 152 recalls were ‘influenced’ by NHTSA," he said.

NHTSA should be able to levy greater fines on delinquent automakers, witnesses said. The current statutorily imposed limit on civil penalties is $16.4 million. "This amount might be considered by a large, multi-billion dollar manufacturer as just the ‘cost of doing business,’" Amy Gadhia of Consumers Union, publisher of Consumer Reports, told the committee. "We recommend removing this cap on civil penalties to act as a deterrent for future violations of the law."

NHTSA has not come close to exercising the penalty authority it has now. A $1 million fine of General Motors in 2004 was the largest in NHTSA’s history. "The agency did not impose any penalties from 2004 to 2008," according to the testimony of Joan Claybrook, who served as NHTSA administrator under President Clinton.

Nor has NHTSA adequately tapped its rulemaking capabilities. According to the Unified Agenda, a listing of agencies’ pending and recently completed regulations, the agency has issued only four major auto safety regulations in the past five years: a rule requiring greater roof strength, a rule modifying side impact standards, a rule requiring electronic stability control, and a rule requiring warning lights for under-inflated tires.

During the hearing, panel members credited NHTSA and its regulations with improving auto safety. In 2009, traffic fatalities reached their lowest level since 1954, according to NHTSA. Still, almost 34,000 people died in traffic accidents in 2009.

Claybrook and Gadhia both listed new standards NHTSA could adopt to improve auto safety. A rule mandating brake override systems, the kind that could prevent sudden accelerations such as those in Toyotas, should be on NHTSA’s rulemaking agenda, they said. Secretary of Transportation Ray LaHood told lawmakers in a previous hearing that NHTSA will consider developing such a standard.

In addition to new authorities and stronger regulations, NHTSA needs corresponding increases in resources, witnesses said. President Obama’s FY 2011 budget plan requests $133 million for NHTSA’s vehicle safety program, a cut of more than $7 million from current levels.

Of the $133 million, $23 million would be dedicated to rulemaking, and $18 million would be directed to enforcement. According to the committee, NHTSA’s Office of Defects Investigation (ODI) would receive $10 million from the enforcement pot. The office maintains 57 employees responsible for reviewing 30,000 complaints per year.

During the hearing, Strickland defended his agency’s record and the FY 2011 budget request. He emphasized that the request will allow the agency to hire 66 new employees. A fraction of those employees will be assigned to ODI, but Strickland has yet to determine exactly how many.

Witnesses also criticized NHTSA’s Early Warning Reporting system, a database for manufacturer reports on production and safety information. The agency does not disclose the majority of information in the database.

Claybrook and Gadhia recommended the database be made public. "As the Toyota cases make clear, even excellent letters or defect investigation petitions from consumers that cause the agency to take a look at an issue can be dismissed by NHTSA, but without the early warning information the public cannot weigh in and be effective advocates in response," Claybrook said.

A recent proposal by the Occupational Safety and Health Administration (OSHA) would endanger workers by reducing the amount of information on chemical hazards provided to them, according to several public interest groups. OSHA’s proposal is part of its effort to make its Hazard Communication Standard conform to a United Nations system for classifying chemicals. The effort has been criticized by several public interest groups who view portions of it as an unnecessary contraction of workers’ right to know and as contrary to the rhetoric of transparency and movement toward greater disclosure seen elsewhere in the Obama administration.

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Considered to be a powerful tool for informing workers about chemical risks and safety measures, the Hazard Communication Standard (HazCom) is referred to as the "Workers’ Right to Know." OSHA’s HazCom standard requires chemical manufacturers and importers to evaluate chemicals they produce or import and determine if they are hazardous. Manufacturers must provide information on the hazards and safety measures to "downstream" users – employers, employees, and other chemical users – through Material Safety Data Sheets (MSDS).

According to the nonprofit government watchdog, Public Employees for Environmental Responsibility (PEER), "OSHA’s plan would be a reversal in the right-to-know approach to chemical handling that would also mislead workers about actual hazards."

As part of the agency’s effort to conform to the United Nations standard, OSHA has proposed to eliminate a longstanding requirement that chemical manufacturers include certain information on chemical hazards in the MSDS. Specifically, OSHA wants to remove the requirement to include chemicals’ Threshold Limit Values (TLVs), which are quantitative judgments of chemical exposure levels that are hazardous to humans and are developed by the American Conference of Governmental Industrial Hygienists (ACGIH), an independent, nonprofit scientific research group focusing on workplace safety issues. OSHA has also proposed removing a requirement that chemical manufacturers include in the MSDS cancer hazard evaluations by the International Agency for Research on Cancer (IARC). Critics likewise view the proposed elimination of the IARC information as detrimental to workers’ right to know.

In place of the TLV requirement, OSHA would require a different set of exposure limits developed by the agency. These OSHA hazard figures, called Permissible Exposure Limits (PELs), have been criticized as being decades out of date, biased by economic rather than scientific analyses, developed with little transparency, and less protective of worker safety. Moreover, there are no PELs developed by OSHA for thousands of chemicals handled by workers.

The proposal to reduce the required information on MSDS was originally proposed by the Bush administration in 2006 with strong industry support.

According to the Center for Progressive Reform, a nonprofit think tank, the proposed HazCom changes are not necessary to conform to the U.N. standard, called the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The GHS was designed to be flexible enough to allow authorities to adapt to their own nations’ needs. Moreover, the changes would not meet the requirements of the Occupational Safety and Health Act and could be challenged in court as being "arbitrary and capricious."

In testimony submitted at a public hearing on the issue, the Center for Progressive Reform determined that "the [MSDS] serve as a critical vehicle for conveying hazard information to workers. Accordingly, the protection of workers is best served by including more – not less – information in the [MSDS]."

The proposed changes to the HazCom standard would eliminate certain requirements to provide information to workers and others through the MSDS. However, the MSDS have long been regarded by many as ineffective for informing the public about the hazards of chemicals. MSDS have been criticized for containing incomplete, inaccurate, or contradictory information.

In 2004, the U.S. Chemical Safety and Hazard Investigation Board (CSB), an independent federal agency that investigates major industrial chemical accidents, found that deficient MSDS were a cause or contributing factor in 10 of 19 major accidents the board had investigated. The then-head of the CSB, Carolyn Merritt, testified before the Senate that, "Deficiencies in hazard communication and Material Safety Data Sheets are among the common causes of major chemical accidents that result in loss of life, serious injures, and damage to property and the environment."

OSHA originally planned three public hearings across the country to gather comments on its HazCom proposal. A hearing in California has been cancelled, and a hearing in Pittsburgh, PA, is scheduled for March 31.

With many families around the country facing financial hardship, fiscal hawks on Capitol Hill have begun ramping up their rhetoric: If America’s families are forced to make hard decisions and cut back, they argue, why shouldn’t their elected leaders do the same? During the week of March 15, Sens. Jeff Sessions (R-AL) and Claire McCaskill (D-MO) introduced an amendment to H.R. 1586 that aimed to give teeth to that rhetoric. The amendment’s effects on the nation’s long-term debt would have been minimal, while its impacts on millions of Americans would have been severe. The amendment ultimately failed on the Senate floor.

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The Sessions-McCaskill amendment would have capped discretionary spending for three fiscal years in an effort to reduce federal spending and lower the federal budget deficit. While the amendment would have had minimal effect on the country’s long-term debt, it would have cut funding for programs that are helping millions of Americans weather poor economic conditions and would have put a drag on the economic recovery. Though the amendment failed, the vote was very close; this will likely encourage its supporters to bring the amendment back at a later date.

The amendment would have enforced spending limits on both defense and non-defense discretionary spending. For fiscal year 2011, the amendment would have set a discretionary cap of $1.1 trillion – $564 billion for defense spending and $530 billion for non-defense. This limit would inch up to $1.125 trillion by FY 2013 – almost $150 billion lower than the budget President Obama proposed in February, which was criticized for failing to fully fund the public structures that are vital to the well-being of millions of Americans.

The caps would have severely limited the ability of Congress to pass any bill that would increase spending beyond the amount specified by the caps. If such a bill came to the floor, any member of Congress could object to it and effectively kill the bill. To override the cap, supporters in the Senate (and presumably the House, if it were to pass a similar bill) would need to muster an astonishing two-thirds supermajority, or 67 votes, virtually guaranteeing that the caps would stay unbroken. Alternatively, if a bill was declared "emergency" legislation, only three-fifths of each chamber would have to agree to the spending increase.

Although the caps were introduced in the name of "fiscal responsibility," they actually are the exact opposite. There is no economic or budgetary reason to limit spending at the levels called for in the bill, save the expressed desire by supporters to reduce the federal budget deficit. The caps grow at an average yearly rate of 1.8 percent, an amount not guided by economic growth, inflation, or program growth. This sort of arbitrary reduction in program funding limits the ability of Congress to respond to the constantly changing needs of the nation.

Program cuts are warranted in some cases. For example, if repeated attempts to improve an ineffective program fail, or if lawmakers deem the targeted problem solved, then funding reductions are viable budget options. Arbitrary spending limits disregard the many factors that congressional appropriators should consider when allocating funding to federal programs and agencies. By restricting the ability of Congress to fully fund all of the nation’s priorities, budget caps leave lawmakers faced with trading the welfare of one population for the good graces of supporters of another program, all the while ignoring the effectiveness of the programs under consideration.

The caps would also adversely affect the nation’s economic recovery. Many economists agree that immediately reducing the federal budget deficit would result in slowing – or even reversing – the recent trend in economic growth and reduction of the unemployment rate. A number of estimates, in fact, suggest that spending that raises the short-term deficit, such as the stimulus law, has raised the nation’s gross domestic product (GDP) by several points. Had discretionary budget caps been in place, the Recovery Act would likely not have passed, and the nation would be significantly worse off than it is today. And if budget caps were enacted now, the nascent recovery would be strangled before it could take hold, as federal spending would be slowed to a trickle.

Nor would the Sessions-McCaskill amendment address the long-term fiscal imbalances caused by the rapid growth of health care costs. As these costs outpace the growth of the economy, Medicare and Medicaid will continue to consume ever-larger portions of the federal budget. In 2013, Medicare and Medicaid spending will be about 5.1 percent of the size of the economy – a manageable sum. But in 2050, that number is projected to more than double to 12.7 percent. The massive growth of these programs (along with other factors) will cause the amount of debt held by the public to explode from 68 percent of GDP to 457 percent. By comparison, the Sessions-McCaskill amendment would reduce federal spending by an average of 1.2 percent of GDP annually over its three-year lifespan and would have a negligible impact on long-term debt.

There are many ways to address growing long-term fiscal imbalances, solutions which do not disproportionally affect the well-being of tens of thousands of families, the safety of our food supply, or the environment. While there may be a case for cuts in discretionary spending, increases in revenue will significantly improve the short- and medium-term fiscal outlooks. Two of the largest budget issues, according to the nonpartisan Congressional Budget Office and the Center on Budget and Policy Priorities, are the Bush-era tax cuts and the wars in Iraq and Afghanistan. Ending the wars and enacting progressive tax reform to make the tax code fairer would help balance the budget while protecting the nation’s citizens.

Fortunately for the millions of Americans impacted by the weak economy, the amendment failed to pass the Senate, 56-40 (the amendment needed 60 votes for procedural reasons). However, discretionary caps will likely come up again, as supporters recognize that that the amendment failed by such a small margin. While the growing budget deficit may eventually threaten economic prosperity, arbitrary discretionary caps are not the answer, especially now.

On March 16, the Federal Communications Commission (FCC) released its 376-page National Broadband Plan, setting forth a strategy to expand access to broadband Internet services to millions of people. Chapter 15 of the broadband plan is specifically intended to make it easier for Americans to actively participate in civil society and hold their government accountable.

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According to experts, broadband services for all Americans is “the” infrastructure challenge of the 21st century. Like the highway systems created more than 80 years ago, broadband is the next way to stimulate the economy, create jobs, and increase quality of life for the majority of citizens, advocates say.

More specifically, the Internet is an extremely valuable tool for individuals and groups to engage in advocacy, and ultimately, increased online access will strengthen the level of citizen participation in our democracy. High-speed access to the Internet enables more citizens to gain a magnitude of information, from the skills to use the information effectively to opportunities to engage with others in their community to solve problems. People can find information about government performance, services the government provides, and in some cases can even register to vote online.

In 2009, as part of the American Recovery and Reinvestment Act, Congress directed the FCC to develop a National Broadband Plan to ensure that every American has "access to broadband capability." The broadband plan recommendations include faster Internet speeds (up to 25 times the current average), freeing airwaves for mobile broadband services, and putting billions of dollars into subsidized service for poor and rural communities. The plan is rather broad and includes increased public education programs to narrow the digital divide, ways to improve energy efficiency and health care, and plans to integrate broadband to improve economic conditions.

Notably, the FCC sees the connection between Internet access as a vehicle for meaningful engagement with government officials and the many other opportunities it provides to improve Americans’ civic participation. The introduction to the chapter on civic engagement states, "Civic engagement is the lifeblood of any democracy and the bedrock of its legitimacy. Broadband holds the potential to strengthen our democracy by dramatically increasing the public’s access to information and by providing new tools for Americans to engage with this information, their government and one another."

Civic Engagement Recommendations

There are five recommendations within the civic engagement chapter:

1. Create an open and transparent government
2. Improve access to media and journalism, including increased funding to public media for broadband
3. Use social media to increase civic engagement
4. Increase innovation in government
5. Modernize the democratic process through such means as online voter registration.

Good government advocates say these recommendations are commendable because the availability of government data will allow the public and advocacy organizations to more easily and actively participate in their communities and our democracy. The Internet has already become one of the primary sources for learning about and communicating with the government and elected representatives in Congress.

In calling for a more open and transparent government, the FCC recommends that all public information, such as those responses given under the Freedom of Information Act, as well as all legal documents, should be available for free online in searchable formats, as well as machine-readable formats. The plan also calls on government to improve the quality and accuracy of information given to the public, and it urges government to embrace new ways of inviting public participation and collaboration, including broadcasting all town hall meetings.

The plan recognizes social media as a growing opportunity to engage with the government and others, with social networking sites and the user-generated videos on YouTube as just two examples. The FCC’s plan states, "Government must take advantage of these trends and adopt broadband-enabled tools to encourage citizens to communicate with government officials more often and in richer ways – and to hold these officials more accountable."

For example, a short YouTube video details some interesting statistics on social media and how it is shaping our society. It also compares other forms of media to demonstrate just how fast the social media sphere is growing. Consider that radio took 38 years to reach 50 million users, TV took 13 years to reach 50 million users, the Internet took four years to reach 50 million users, and Facebook added 100 million users in just nine months.

The broadband plan also recommends modernizing the election process. One of the simplest ways to be active in our democracy is through the ballot box. Nonprofit organizations have traditionally been active in ensuring the protection of Americans’ voting rights. If the system was improved, it might alleviate some of the burden these groups currently shoulder.

The FCC report states, "By bringing the elections process into the digital age, government can increase efficiency, promote greater civic participation and extend the ability to vote to more Americans." The FCC questions a paper-based system for voter registration and recommends modernizing the election process with electronic voter registration, portability of voting records, and automatic updates of voter files with the most current address information available. The agency also suggests that the Department of Defense develop a secure Internet-based project that allows members of the military serving overseas to vote online.

It is not clear when the broadband plan’s civic engagement recommendations will be addressed, but the FCC is scheduled to hold its next open meeting on April 22. Many of the recommendations will require action from the FCC, the communications industry, Congress, and other outside stakeholders.

The Need for Greater Broadband Access

Vigorous advocacy on the issue of broadband access and the FCC’s plan has already begun. For example, the Center for Media Justice (CMJ) and the Media Action Grassroots Network (MAG-Net) have launched a campaign that includes calling for universal broadband access.

Organizations have issued statements in support of the FCC’s broadband plan, but many also have critical questions that need to be answered. The American Library Association (ALA), for instance, "applauds the plan’s focus on a more open and transparent government. The use of the Internet to provide government information and services certainly enhances access to the government – for those who have ready Internet access from their homes or workplaces." However, the ALA notes a very important issue: "Access to government information and services is not as enhanced for those Americans without ready Internet access, especially for vulnerable populations. Many of these people come to libraries for broadband access and librarian assistance to enable them to obtain what they need from the government."

From raising awareness about important local issues to gathering people for community events, inexpensive and easy web tools are helpful ways to organize in communities. However, those without access do not benefit and are ultimately left out of the conversation. A survey by the Census Bureau for the National Telecommunications and Information Administration recently found that minorities, seniors, the less-educated, the unemployed, and low-income households are still much less likely to have broadband service in their homes. Universal broadband access would help to level the playing field for these communities.

A new report has found that foodborne illnesses take a $152 billion toll on the American economy each year. Other hazards that regulators keep tabs on, such as air pollution, can increase medical costs if the public is not adequately protected.

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A portion of the economic impact of foodborne illnesses, more than $9 billion, takes the form of health care costs, the report finds. The nation sees almost 82 million cases of foodborne illness annually, and the average cost of each case is $112, the report says. The report counts physician services, pharmaceutical costs, and costs associated with hospitalization.

The March 3 report, Health-Related Costs from Foodborne Illness in the United States, was sponsored by the Produce Safety Project at Georgetown University, an initiative of the Pew Charitable Trusts.

The remainder of the $152 billion economic impact is attributable to deaths and losses in quality of life. The report’s author, former Food and Drug Administration (FDA) economist and current Ohio State University professor Robert L. Sharff, used typical cost-benefit analysis methods to determine these values. The Make Our Food Safe Coalition, of which Pew Charitable Trusts is a member, said it "does not necessarily endorse any single method to develop such estimates, [but] coalition members agree that this study highlights the magnitude of the problem and the need for action to reduce foodborne disease."

Major food recalls have raised public awareness of food safety and foodborne illness risk. Peanuts, peppers, and ground beef are among the many foods that producers have recalled in recent months after consumers became ill. The Centers for Disease Control and Prevention (CDC) estimates that foodborne illnesses hospitalize more than 300,000 people every year and kill 5,000. An ongoing salmonella outbreak, traced back to a line of meats seasoned with red and black pepper, has sickened 245 people in 44 states and the District of Columbia, according to the CDC.

Calls for reform have grown louder, too, as the public has lost confidence in the ability of regulators, especially those at the FDA, to detect and solve foodborne illness outbreaks or prevent them in the first place. A December 2009 CBS News poll asked more than 1,000 Americans, "How would you grade the U.S. on ensuring the safety of the food supply in the U.S.?" 34 percent of respondents said "C." 33 percent said "B" while only seven percent said "A." 18 percent said "D" while six percent gave the U.S. an "F."

Pew Charitable Trusts seized on the findings of Sharff’s report to renew calls for reform. "This report makes it clear that the gaps in our food-safety system are causing significant health and economic impacts," Erik Olson, Pew’s director of food and consumer product safety, said in a statement. "Especially in challenging economic times we cannot afford to waste billions of dollars fighting preventable diseases after it is too late."

Olson called on the Senate to quickly consider and pass a food safety bill. In November 2009, a Senate panel approved the FDA Food Safety Modernization Act (S. 510), but the bill has yet to be taken up on the Senate floor. A similar bill passed the House in July 2009, 283 to 142.

In another study released March 2, the Rand Corporation determined that air pollution can have a significant impact on health care and health insurance industries, particularly when air pollution exceeds levels deemed safe by regulators.

"Meeting federal clean air standards would have prevented an estimated 29,808 hospital admissions and ER [emergency room] visits throughout California over 2005-2007," the report says. The admissions cost almost $200 million, leading Rand to conclude that "improved air quality would have reduced total spending on hospital care by $193,100,184 in total."

Rand studied air pollution and hospital admissions trends in California from 2005-2007. The report links air pollution levels that exceeded federal standards to hospital admissions for problems such as asthma attacks, pneumonia, and bronchitis. The admissions included in the report are attributable to violations of the U.S. Environmental Protection Agency’s (EPA) standards for particulate matter and ozone. The report acknowledges that exposure to particulate matter and ozone can also lead to heart attacks and premature mortality, but those health endpoints were not included in the study.

The majority of air pollution’s health effects are indirectly paid for by taxpayers, the report emphasizes. Medicare covered more than $100 million of the hospital care costs included in the report, and government-provided health care for low-income individuals (Medicaid at the federal level and Medi-Cal in California) covered more than $27 million, Rand said. Private insurers spent almost $56 million, according to the report.

Like the report on the costs of foodborne illness, the Rand report adds yet another dimension to the debate over health care policy and President Obama’s desire to reform the system. "Dirty air is the forgotten topic when it comes to health care reform," Clean Air Watch’s Frank O’Donnell told the EPA in 2009.

While the health care costs associated with regulatory failures are likely a small fraction of the more than $2 trillion spent on health care in the U.S., they remain significant. Preventable workplace injuries and illnesses, injuries and illnesses associated with consumer products, automobile crashes, and water quality degradation, to name a few, can lead to both short-term and long-term health care costs.

Image in teaser by flickr user Truthout.org, used under a Creative Commons license.

The Obama administration has proposed new guidance intended to increase transparency and public involvement in the implementation of one of the nation’s oldest and most important environmental laws. The 40-year-old National Environmental Policy Act (NEPA) creates a process where federal agencies must review the environmental impacts of their actions and evaluate alternatives while working to include public participation in the process.

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Recognizing the 40th anniversary of NEPA, the Council on Environmental Quality (CEQ) – the White House office in charge of monitoring federal NEPA compliance – issued draft guidance in February to all federal departments and agencies. The guidance is designed to ensure transparency and openness as agencies evaluate ways to mitigate the environmental impact of their proposed actions. The new guidance is available for public comment.

For many federal activities, the NEPA process provides for public participation in identifying potential alternative actions and commenting on environmental impacts. Under certain circumstances, agencies may proceed with their actions if they commit to steps that "minimize, rectify, reduce, or compensate" the adverse impacts resulting from their actions. However, in the past, these mitigation efforts have often lacked monitoring and frequently failed.

The CEQ draft guidance sets three goals for improving transparency: 1) consideration of mitigation efforts throughout the NEPA process and clear documentation of the mitigation commitments; 2) creation of monitoring plans for the mitigation actions; and 3) greater public participation through "proactive disclosure" of NEPA records.

Although these actions do not create any new regulations and the language still grants agencies much discretion, they regardless represent the first major enhancements of the NEPA process in years. As the office in charge of NEPA, CEQ wields considerable sway in determining how other agencies comply with the law and regulations. Increasing transparency and chipping away at the culture of government secrecy that has flourished over the years requires, among other actions, the reaffirmation of existing openness policies and commitment from the top to enforce these measures.

The draft guidance makes several valuable recommendations for transparency. It recognizes that public engagement is a key feature of NEPA and "should be fully integrated into agencies’ mitigation and monitoring processes." While recognizing the importance of the Freedom of Information Act (FOIA), the CEQ calls on agencies to make NEPA reports, documents, and responses to public questions "readily available to the public through online or print media, as opposed to being limited to [FOIA] requests made directly to the agency." The CEQ stresses the need to document important aspects of the NEPA process, such as goals, timelines, and funding, which improves accountability. Moreover, the draft guidance endorses the fundament that citizens have vital, substantive contributions to make to government decisions: "In addition to advancing accountability and transparency, public interest and input may also provide insight or perspective for improving any mitigation activities as well as providing actual monitoring assistance."

The new draft guidance from CEQ also includes a case study from the Department of the Army that showcases robust public involvement and monitoring in the NEPA process. By providing this example, CEQ shows other agencies that the goals they have set for NEPA can be achieved and highlights one way to do so.

Ensuring transparency is especially crucial in the NEPA process. NEPA places agencies in charge of preparing an impact assessment that could challenge their own proposed actions, creating strong potential for conflicts of interest that only transparency can counter. By forcing agencies into a transparent assessment process, the law empowers the public and the courts to demand sufficient environmental protections.

Other New Draft Guidance

In addition to the draft guidance on mitigation measures, CEQ also released draft guidance on how agencies should consider the impacts of climate change in their environmental assessments and on the use of "categorical exclusions." Categorical exclusions cover types of federal actions that are generally considered to "not individually or cumulatively have a significant effect on the human environment," and therefore, agencies need not assess their environmental impacts.

According to CEQ, "An inappropriate reliance on categorical exclusions may thwart the purposes of NEPA, compromising the quality and transparency of agency decisionmaking as well as the opportunity for meaningful public participation and review." Categorical exclusions are the most frequently employed method of complying with NEPA.

The draft guidance on categorical exclusions emphasizes the requirement to involve the public in the process, and although it creates no new requirements, the guidance encourages agencies to go beyond the customary Federal Register public-notice-and-comment practice. The CEQ suggests agencies use "public involvement techniques such as focus groups, e-mail exchanges, conference calls, and web-based forums [to] stimulate public involvement." Agency websites should be used to communicate proposed changes to the agency’s NEPA process because, according to CEQ, "Not only is this another method for involving the public, an agency website can serve as the centralized location for informing the public about agency NEPA implementing procedures and their use, and provide access to updates and supporting information."

Granddaddy of Environmental Laws

Before the law was signed by President Richard Nixon in 1970, the Senate passed NEPA on a unanimous vote, and the House of Representatives passed the bill by a wide and bipartisan margin of 372-15. The Clinton White House examined the effectiveness of NEPA in 1997 and concluded that:

Partly as a result of NEPA, public knowledge of and sophistication on environmental issues have significantly increased over the last 25 years. So too have public demands for effective and timely involvement in the agency decision-making processes. The success of a NEPA process heavily depends on whether an agency has systematically reached out to those who will be most affected by a proposal, gathered information and ideas from them, and responded to the input by modifying or adding alternatives, throughout the entire course of a planning process.

During the administration of George W. Bush, NEPA came under increasing attack by the White House, Congress, and even the courts. The current administration has presented a very different take on the law.

In a New Year’s Eve proclamation recognizing the 40th anniversary of NEPA’s enactment, President Obama affirmed that, "my Administration will recognize NEPA’s enactment by recommitting to environmental quality through open, accountable, and responsible decision making that involves the American public." The president also called upon executive branch agencies "to promote public involvement and transparency in their implementation of the National Environmental Policy Act. I also encourage every American to learn more about the National Environmental Policy Act and how we can all contribute to protecting and enhancing our environment."

The People Speak

As part of the Obama administration’s Open Government Directive, agencies are accepting public comments through website forums dedicated to generating ideas for increasing government openness. A number of individuals have suggested ways to improve the NEPA process, including calls to address the monitoring of mitigation efforts. Other ideas from the public include using new technology to improve public participation and making the scientific data mappable.

The public may comment on the draft guidance until May 24.

Later in March, the Obama administration plans to release new guidance to federal agencies on which jobs the government can and cannot outsource to the private sector. The federal government’s latest effort to better define what qualifies as an inherently governmental function should theoretically have significant consequences for reconstruction efforts in Iraq and Afghanistan, specifically regarding security contracting. However, change is unlikely.

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The Federal Acquisition Regulation, the body of rules that regulate government contracting, defines an inherently governmental function as one "that is so intimately related to the public interest as to mandate performance by Government employees." Application of the definition, however, is extremely complicated.

Introduced in 1992 and revised in 1998, the inherently governmental standards describe five broad areas where the government should not outsource its work. The law states that any function is inherently governmental if it involves "the interpretation and execution of laws of the [U.S.] so as to:

• "Bind the [U.S.] to take or not to take some action by contract, policy, regulation, authorization, order, or otherwise;
• "Determine, protect, and advance [U.S.] economic, political, territorial, property, or other interests by military or diplomatic action, civil or criminal judicial proceedings, contract management, or otherwise;
• "Significantly affect the life, liberty, or property of private persons;
• "Commission, appoint, direct, or control officers or employees of the [U.S.]; or
• "Exert ultimate control over the acquisition, use, or disposition of the property, real or personal, tangible or intangible, of the [U.S.], including the collection, control, or disbursement of Federal funds."

The guidelines also describe what falls outside of the inherently governmental category. In addition to the general tasks of "gathering information for or providing advice, opinions, recommendations, or ideas to Government officials," the standards specifically delineate tasks such as "building security, mail operations, operation of cafeterias, housekeeping, facilities operations and maintenance, warehouse operations, motor vehicle fleet management operations, or other routine electrical or mechanical services."

These guidelines would seem to ban many of the jobs the federal government has controversially outsourced in Iraq and Afghanistan, including security detail work, military and police training, interrogation, and intelligence. A loophole in the standards that prevents them from applying to overseas conflicts, however, has allowed contingency contracting to become a morass of private military and security contractors handling everything from reconstruction to intelligence. Even if the standards were applicable, though, they would produce a "squishy" middle where one agency’s inherently governmental task is another’s viable option for outsourcing, just as they do domestically.

Recent reports have suggested the Obama administration intends to improve upon the current problematic guidelines by breaking down inherently governmental functions into three categories: those that are inherently governmental, those that are closely associated with inherently governmental, and those that are critical in nature. The reports also note that the White House will provide an expanded list of tasks that fall within the inherently governmental framework. These improvements, however, will likely not apply to contingency contracting, as the Office of Management and Budget (OMB) will probably not scrap the current loophole regarding overseas conflicts.

The government created the loophole to prevent the vast array of contracting bureaucracies from hindering the Department of Defense while utilizing the private sector to carry out military actions. The length and complexity of the wars in Iraq and Afghanistan, however, will necessitate for the foreseeable future a continued reliance on contractors for security and reconstruction efforts. In the case of reconstruction, the government should continue to improve oversight and hold contractors accountable for their work. But there are some functions performed in overseas wars that the government must make a determined effort to move away from outsourcing entirely.

Companion bills recently reintroduced by Rep. Jan Schakowsky (D-IL) and Sen. Bernie Sanders (I-VT), entitled Stop Outsourcing Security, would address this issue. The legislation seeks to delineate "mission critical or emergency essential functions" performed in a war zone. The legislation defines "mission critical or emergency essential functions" as "activities for which continued performance is considered essential to support combat systems and operational activities," or "activities whose delay, absence, or failure of performance would significantly affect the broader success or failure of a military operation."

The bill’s most valuable component is the list of specific tasks that the government would not be able to outsource, including "the provision of protective services; the provision of security advice and planning; military and police training; repair and maintenance for weapons systems; prison administration; interrogation; and intelligence." Without better guidance from the federal government, or even the determination to apply existing standards to overseas contingency contracting, the only option seems to be legislative.

Some analysts argue that the current mix of security contractors in overseas environments is here to stay and that any attempts to better define an inherently governmental function ignores "the far greater number of people and money in logistics or reconstruction efforts" compared to "the relatively minor number of security contractors." This seems to be a false dichotomy at best. The former demands increased oversight where the latter calls for a better attempt by government to control its resources. Neither of these has to be achieved at the expense of the other.

Image in teaser by flickr user munir, used under a Creative Commons license.

On Feb. 23, the U.S. Supreme Court heard arguments in Humanitarian Law Project v. Holder, a case challenging parts of the USA PATRIOT Act (Patriot Act). The Humanitarian Law Project (HLP) and other charities allege that sections of the law violate the First Amendment.

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Under federal law, it is a crime to provide money and weapons to an organization designated as a terrorist group by the United States, but the definition of such "material support" is broad enough to include activities such as providing advice on fostering peace. HLP and others argue that the material support statute is unconstitutionally vague and that American citizens or nonprofit organizations can be convicted of crimes for engaging in lawful activity.

The law barring material support to designated terrorist organizations was first adopted in 1996 and was subsequently strengthened by the Patriot Act. It prohibits providing money and weapons to designated terrorist groups, and it also bans U.S. organizations from providing any "training," "personnel," "service," or "expert advice or assistance," including advice on facilitating peace-building programs. The only exemptions are for medicine and religious materials.

HLP works to mediate international conflicts. Specifically, HLP wanted to provide human rights and conflict resolution training to the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE), both designated terrorist organizations. The Patriot Act’s broadening of the definition of material support significantly expanded prospects to prosecute anyone deemed to have provided assistance to a designated organization. Subsequently, HLP stopped working with these groups out of fear it would be considered criminal under the material support statute.

Georgetown University professor David Cole, the attorney representing HLP, argues that the human rights advocates are only interested in supporting lawful activities, urging foreign groups to avoid violence and to take their disputes to the United Nations. Cole’s brief states that the material support statute "imposes criminal liability on speech and association without any showing that the speaker intended to incite or promote terrorist activity in any way." He argued that the First Amendment protects those who speak out on behalf of or advise foreign terrorist organizations, as long as they advocate only peace and nonviolence. Cole makes a distinction between aid that is intended to further lawful activity and aid that is intended to further illegal activity.

Meanwhile, during oral argument at the Supreme Court, Solicitor General Elena Kagan stressed that the material support statute is one of the most valuable tools in the fight against international terrorism. Kagan gave examples of prohibited conduct, including helping designated groups by petitioning international bodies or filing a friend-of-the-court brief.

Advocates for change note that the legal regime is broader than Kagan made it sound, allowing prosecutors to target individuals and charities for doing nothing more than providing humanitarian assistance in an area where a designated terrorist organization operates. Ahilan Arulanantham of the American Civil Liberties Union (ACLU) has first-hand knowledge of how the law affects human rights activity. He worked in Sri Lanka after the 2004 tsunami and witnessed humanitarian organizations that could not help victims because they lived in areas controlled by the LTTE.

The ACLU filed an amicus brief on behalf of nine humanitarian groups who teach conflict resolution, provide aid, and engage in various activities that require them to work with designated groups or in areas controlled by such groups. The brief explained that they may be forced to severely limit their nonviolent work because of the material support law.

The Court could either rule to uphold the law or create an exception for peaceful activity. A decision is expected by June or July.

Prior to the oral argument, the Charity and Security Network, along with the Constitution Project, held an informative briefing on the case; the event can be viewed online.

For more on the case, including briefs and information on the issue of material support, visit the Charity and Security Network’s website.

Image in teaser by flickr user laura padgett, used under a Creative Commons license