Capture, accountability, and regulatory metrics

Texas Law Review

Volumn 86, Issue 7, 2008, Pages 1741-1785

  Shapiro, Sidney A ^a   Steinzor, Rena ^b  

^a WAKE FOREST UNIVERSITY   (United States)

^b UNIVERSITY OF MARYLAND   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 50049132064     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (244)

1. See MICHAEL W. MCCANN, TAKING REFORM SERIOUSLY: PERSPECTIVES ON PUBLIC INTEREST LIBERALISM 29-30 (1986) (linking the expansion of regulatory government to the Civil Rights and Vietnam protest movements).
2. See RICHARD J. PIERCE ET AL., ADMINISTRATIVE LAW AND PROCESS 32-33 (4th ed. 2004) (documenting PDA's expansion and the creation of new agencies).
3. President William J. Clinton, Radio Address (Jan. 27, 1996) (transcript available at http://www.cnn.com/US/9601/budget/01-27/clinton_radio).
4. For an elaboration of these views, see generally A NEW PROGRESSIVE AGENDA FOR PUBLIC HEALTH AND THE ENVIRONMENT: A PROJECT OF THE CENTER FOR PROGRESSIVE REGULATION (Christopher H. Schroeder & Rena Steinzor eds., 2005) [hereinafter NEW PROGRESSIVE AGENDA], which sets forth a progressive agenda. We are member scholars of the Center.
5. Richard B. Stewart, The Reformation of Administrative Law, 88 HARV. L. REV. 1669, 1669 (1975).
6. See NEW PROGRESSIVE AGENDA, supra note 4, at 11-14 (describing regulatory achievements).
7. See generally Sidney A. Shapiro, Administrative Law After the Counter-Reformation: Restoring Faith in Pragmatic Government, 48 U. KAN. L. REV. 689, 706-20 (2000) (describing the counterreformation).
8. See generally id. at 692-720 (contrasting the two movements).
9. Special Message to the Congress About Reorganization Plans to Establish the Environmental Protection Agency and the National Oceanic and Atmospheric Administration, 1 PUB. PAPERS 586 (July 9, 1970).
10. 139 CONG. REC. 17,974 (1993) (statement of Sen. Roth).
11. See Shapiro, supra note 7, at 706-14 (noting that counterreformation initiatives such as impact statements require agencies to get expert cost-benefit analysis prior to taking public action).
12. Pub. L. No. 103-62, 107 Stat. 285 (codified in scattered sections of 5 U.S.C. and 31 U.S.C.).
13. Remarks on Signing the Government Performance and Results Act of 1993 and an Exchange with Reporters, 2 PUB. PAPERS 1310 (Aug. 3, 1993) [hereinafter Remarks on Signing GPRA].
14. See generally, e.g., DAVID G. FREDERICKSON & H. GEORGE FREDERICKSON, MEASURING THE PERFORMANCE OF THE HOLLOW STATE (2006) (evaluating and discussing several aspects of GPRA, including, among other things, its implementation and impact on confidence in government).
15. Government Performance and Results Act of 1993 § 2.
16. See, e.g., infra notes 138-45 and accompanying text (discussing how EPA's self-assessment completely ignored a major shortcoming of the agency: its inadequate funding of Superfund projects).
17. Shapiro, supra note 7, at 696.
18. See id. at 693 ("[R]eformers attributed the failure of what regulatory programs did exist to their 'capture' by the business community.").
19. See JAMES MARTIN, NADER: CRUSADER, SPOILER, ICON 81-84 (2002) (recounting the optimism and ambitious reform plans of Nader and his supporters).
20. See, e.g., infra section I(A)(2) and accompanying text (explaining that while proponents of stringent regulations initially favored hard look review, today opponents of strict regulation have capitalized on hard look review to prevent agencies from adopting more stringent regulations that the rulemaking record justifies).
21. See infra subpart I(B) and accompanying text (documenting the advantage of business over public interest groups in their abilities to participate in environmental lobbying, rulemaking, and rule commenting).
22. Cf. infra notes 57-69 and accompanying text (arguing that businesses can organize much more easily than private individuals).
23. See infra notes 32-44 and accompanying text.
24. See infra notes 45-54 and accompanying text.
25. See Shapiro, supra note 7, at 694-95 (documenting these developments).
26. Pub. L. No. 89-487, 80 Stat. 250 (1966) (codified as amended at 5 U.S.C. § 552 (2000)).
27. Pub. L. No. 92-463, 86 Stat. 770 (1972) (codified as amended at 5 U.S.C. app. §§ 1-16 (2000)).
28. Pub L. No. 91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. §§ 4321-4370f (2000)). NEPA requires agencies to analyze and disclose to the public the potential environmental impacts of their actions, and authorizes the courts to review agency compliance with these requirements. Id. § 4332(2)(C). Like the open-government laws, NEPA made it easier for environmental advocates to monitor agencies that were perceived by them to be hostile to their interests because the agencies were excessively friendly to corporate and business interests.
29. See Shapiro, supra note 7, at 695-96 (noting that open-government legislation made it easier for public interest groups to monitor agencies they perceive as excessively friendly to industry interests).
30. See, e.g., New Jersey v. EPA, 517 F.3d 574, 583 (D.C. Cir. 2008) (vacating an EPA rule that delisted "mercury" as a hazardous air pollutant under § 112 of the Clean Air Act without following statutory prerequisites for such a decision). See generally Sidney A. Shapiro, Pragmatic Administrative Law, ISSUES IN LEGAL SCHOLARSHIP, Mar. 2005, art. 1, at 6-7 (2005), available at http://www.bepress.com/ils/iss6/art1 (establishing that procedural innovations have assisted public interest groups in holding agencies accountable).
31. See Shapiro, supra note 7, at 697 (arguing that the counterreformation was in full bloom when Reagan took office and declared that "government is not the solution to our problem... [g]overnment is the problem").
32. See, e.g., Heckler v. Chaney, 470 U.S. 821, 837-38 (1985) (limiting judicial review of agency decisions not to engage in enforcement actions).
33. See, e.g., Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 738 (1998) (holding that legal challenges to overall land-planning decisions must await the agency's issuance of a permit to conduct specific activities).
34. See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 105 (1998) (holding that the environmental group's complaint failed the third test of standing - redressability - because the violations had already ceased before commencement of the suit); Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992) (holding that an environmental organization whose members had visited an area prior to the commencement of an agency's project there, and had indefinite plans to return, lacked standing to challenge the agency's action); Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889 (1990) (holding that an affidavit offered by a member of an environmental group, claiming occasional use of unspecified portions of an immense tract of territory on which mining activity could occur by virtue of government action, was not sufficient to confer standing and survive a motion for summary judgment). However, standing doctrine is in flux, as some recent Supreme Court cases have adopted a more liberal position on standing. See, e.g., Massachusetts v. EPA, 127 S. Ct. 1438, 1454-55 (2007) (conferring standing because Massachusetts has a "well-founded desire to preserve its sovereign territory"); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 187-88 (2000) (rejecting the application of Steel Co. to deny standing when a complaint seeks penalties for actions that are ongoing at time of the complaint).
35. See Sidney A. Shapiro & Rena I. Steinzor, The People's Agent: Executive Branch Secrecy and Accountability in an Age of Terrorism, 69 LAW & CONTEMP. PROBS. 99, 117, 119-21 (2006) (describing cases restricting the open-government provisions of FOIA and FACA).
36. See Thomas O. McGarity, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 TEXAS L. REV. 525, 529 (1997) (offering explanations for the phenomenon of agency inaction).
37. See, e.g., Nat'l Customs Brokers & Forwarders Ass'n of Am., Inc. v. United States, 883 F.2d 93, 96 (D.C. Cir. 1989) (noting that while failure by an agency to promulgate a rule is subject to judicial review, such review should be extremely limited and highly deferential); WWHT, Inc. v. FCC, 656 F.2d 807, 818 (D.C. Cir. 1981) (contrasting the broad discretionary power that agencies possess when deciding whether to promulgate rules with the narrow scope of judicial review of such decisions).
38. The APA requires agencies to give "prompt notice" of the denial of a petition to commence a rulemaking, accompanied by a "brief statement of the grounds for denial." 5 U.S.C. § 555(e) (2000). The courts are authorized to "compel agency action unlawfully withheld or unreasonably delayed." Id. § 706(1).
39. See PIERCE ET AL., supra note 2, at 218 ("A court can know only a small fraction of elements that must enter into an agency's process of setting its agenda and allocating its resources among competing tasks.").
40. See, e.g., Pub. Citizen Health Research Group v. Chao, 314 F.3d 143, 151-59 (3d Cir. 2002) (finding OSHA's nine-year delay in responding to a rulemaking request to be excessive).
41. See Sidney A. Shapiro & Robert L. Glicksman, Congress, the Supreme Court, and the Quiet Revolution in Administrative Law, 1988 DUKE L.J. 819, 834-35 (discussing and providing examples of timetable solicitation and deadline enforcement by courts).
42. The phrase "hard look" review originated in 1970 with Judge Harold Leventhal, who observed that a judge's supervisory function required a court to determine whether an "agency has not really taken a 'hard look' at the salient problems, and has not generally engaged in reasoned decisionmaking." Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970). In a law-review article, Leventhal explained that the function of hard look review was to ensure that agencies did not shirk their statutory responsibilities to protect the environment, particularly in cases where the agency had to balance environmental concerns with other social and economic objectives. Harold Leventhal, Environmental Decisionmaking and the Role of the Courts, 122 U. PA. L. REV. 509, 555 (1974).
43. See, e.g., Corrosion Proof Fittings, Inc. v. EPA, 947 F.2d 1201, 1216-17 (5th Cir. 1991) (rejecting EPA's methodology in calculating risks associated with asbestos); Int'l Union, UAW v. OSHA, 938 F.2d 1310, 1322 (D.C. Cir. 1991) (finding fault with OSHA's logic and risk-assessment in promulgating a lockout regulation); Gulf S. Insulation v. Consumer Prod. Safety Comm'n, 701 F.2d 1137, 1146-47 (5th Cir. 1983) (revisiting a Consumer Product Safety Commission ban on urea-formaldehyde foam insulation in schools, and criticizing the agency's data collection for, among other things, using too few rats in its cancer studies); CPC Int'l, Inc. v. Train, 515 F.2d 1032, 1047-49 (8th Cir. 1975) (analyzing in detail the factual record and finding it insufficient to support an EPA Administrator's determination that deep-bed filtration technology would be efficient in the corn wet-milling industry).
44. See McGarity, supra note 36, at 557 ("[E]valuative substantive review can chew up agency resources as the agencies attempt to fill rulemaking records with studies and to rebut all of the criticisms that blunderbuss attacks produce. This inevitably reduces the agency's capacity to issue rules, and... effectively reduces the scope of federal regulation."). Administrative-law scholars have debated whether hard look review also has a benefit of stimulating agencies to think more carefully about proposed rules. See, e.g., Mark Seidenfeld, Demystifying Ossification: Rethinking Recent Proposals to Modify Judicial Review of Notice and Comment Rulemaking, 75 TEXAS L. REV. 483, 486 (1997) ("[Hard look] review encourages an agency to perform more thorough analyses than it otherwise might."). This Article is not the place to enter into this debate. We note only that hard look review is implicated in the failure of agencies to be more effective in carrying out their statutory missions.
45. See Shapiro, supra note 7, at 707-08 (documenting these developments). President Bush initially adopted the executive order on OMB review promulgated by President Clinton, but he later extended the requirement of assessing cost and benefits to significant agency guidance documents. Exec. Order No. 13,422, 72 Fed. Reg. 2763 (Jan. 18, 2007).
46. See generally, e.g., John D. Graham, The Evolving Role of the U.S. Office of Management and Budget in Regulatory Policy, 1 REV. ENVTL. ECON. & POL'Y 171 (2007), available at http://reep.oxfordjournals.org/cgi/content/short/1/2/171 (explaining the application of neutral economic analysis to regulatory proposals).
47. See Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 MICH. L. REV. 47, 49-50, 75 (2006) (finding that, based on interviews of top political officials at EPA during the George H. W. Bush and Clinton Administrations, the Office of Information and Regulatory Policy (OIRA) "regularly skew[ed] rulemaking in a deregulatory direction" and that OIRA "may [have used] cost-benefit analysis to impose its own normative preference for deregulation"); Steven Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U. CHI. L. REV. 821, 858-60, 877 (2003) (finding no statistical correlation between whether a rule was changed - or approved by OIRA without change - and written submissions by various types of interest groups, but finding that politically controversial rules are usually changed in the OMB review process, and arguing that this contradicts the claim that OMB review is purely technocratic). See generally David M. Driesen, Is Cost-Benefit Neutral?, 77 COLO. L. REV. 335, 354-64 (2006) (discussing how OMB sought changes that would have reduced regulatory protections in twenty-four of twenty-five proposed significant rules between June 2001 and July 2002, and that the remaining changes had a neutral impact).
48. See, e.g., Richard D. Morgenstern & Marc K. Landy, Economic Analysis: Benefits, Costs, and Implications, in ECONOMIC ANALYSIS AT EPA: ASSESSING REGULATORY IMPACT 458 (Richard D. Morgenstern ed., 1997) (noting instances where OMB has prompted agencies to take action).
49. See, e.g., Driesen, supra note 47, at 365 (rebutting the claim that OMB's influence promotes regulatory intervention).
50. See Mark Seidenfeld, A Table of Requirements for Administrative Rulemaking, 27 FLA. ST. U. L. REV. 533, 536-37 (2000) (establishing that agencies are subject to 111 potential analytical steps before proposing a regulation).
51. See Thomas O. McGarity & Sidney A. Shapiro, OSHA's Critics and Regulatory Reform, 31 WAKE FOREST L. REV. 587, 626 (1996) (discussing "paralysis by analysis").
52. Shapiro, supra note 30, at 16.
53. For a discussion of such reforms, see NEW PROGRESSIVE AGENDA, supra note 4, at 98-99, which argues that Congress should simplify and reduce regulatory analysis requirements faced by agencies.
54. See id. at 99-100 (stating that courts should defer to congressional choice when reviewing the level of precaution in agency regulations rather than taking a hard look approach).
55. See supra text accompanying note 20.
56. See Scott R. Furlong, Businesses and the Environment: Influencing Agency Policymaking, in BUSINESSES AND ENVIRONMENTAL POLICY: CORPORATE INTERESTS IN THE AMERICAN POLITICAL SYSTEM 155, 167 (Michael E. Kraft & Sheldon Kamieniecki eds., 2007) ("Many of these studies comment on the role of business interests and what appears to be their advantage in the rulemaking process.").
57. See generally, e.g., Mancur Olson Jr., THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 16-33 (1965) (presenting the traditional theory on group formation and noting the difficulties encountered in small-group formation).
58. See, e.g., Sam Peltzman, Toward A More General Theory of Regulation, 19 J.L. & ECON. 211, 211 (1976) ("The creeping recognition that regulation seemed seldom to actually work this way, and that it may have even engendered more resource misallocation than it cured, forced attention to the influence [that] regulatory powers... could have... on allocative efficiency."); Richard A. Posner, The Social Costs of Monopoly & Regulation, 83 J. POL. ECON. 807, 809-12 (1975) (asserting that obtaining a monopoly from a regulatory agency is a competitive activity in which vast amounts of resources are spent by the competing firms); George J. Stigler, The Theory of Economic Regulation, 1 BELL J. ECON. & MGMT. SCI. 3, 3 (1971) ("A central thesis of this paper is that, as a rule, regulation is acquired by the industry and is designed and operated primarily for its benefit.").
59. Jack L. Walker, The Origins and Maintenance of Interest Groups in America, 77 AM. POL. SCI. REV. 390, 398 (1983).
60. James Q. Wilson, The Politics of Regulation, in THE POLITICS OF REGULATION 357, 370 (James Q. Wilson ed., 1980). Solidarity benefits are socially derived, intangible benefits that arise from association with other people, such as fun, status, camaraderie, or prestige. Allan J. Cigler & Burdett A. Loomis, Introduction: The Changing Nature of Interest Group Politics, in INTEREST GROUP POLITICS 1, 8 (Allan J. Cigler & Burdett A. Loomis eds., 7th ed. 2007). Expressive or purposive benefits are the intangible rewards someone gets from contributing to a group because of its stated goals. Id. Moreover, some people will simply join an organization out of altruistic motivations.
61. After his movie on climate change, An Inconvenient Truth, received an Academy Award, Vice President Gore was awarded the Nobel Peace Prize. Sarah Lyall, Gore Urges Bold Moves in Nobel Speech, N.Y. TIMES, Dec. 11, 2007, at A1.
62. STAFF OF S. COMM. ON GOVERNMENTAL AFFAIRS, 96TH CONG., PRINCIPAL RECOMMENDATIONS AND FINDINGS OF THE STUDY ON FEDERAL REGULATION 25 (Comm. Print 1979).
63. See Steven P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98 COLUM. L. REV. 1, 129 (1998) (finding that more recent evidence has reached "comparable conclusions").
64. Scott R. Furlong, Exploring Interest Group Participation in Executive Branch Policymaking, in THE INTEREST GROUP CONNECTION 282, 290-91 (Paul S. Herrnson et al. eds., 2d ed. 2005).
65. Furlong, supra note 56, at 174.
66. Id.
67. Id. at 175.
68. Scott R. Furlong & Cornelius M. Kerwin, Interest Group Participation in Rulemaking: A Decade of Change, 15 J. PUB. ADMIN. RES. & THEORY 353, 361 (2005).
69. Furlong, supra note 64, at 289.
70. Jason Webb Yackee & Susan Webb Yackee, A Bias Towards Business? Assessing Interest Group Influence on the U.S. Bureaucracy, 68 J. POL. 128, 133 (2006). The four agencies were OSHA, the Employment Standards Administration (ESA), the Federal Railroad Administration (FRA), and the Federal Highway Administration (FHA). Id. at 131. The study selected all rules receiving fewer than two hundred comments but more than one comment. Id.; see infra note 80 and accompanying text (discussing the impact of this methodological choice).
71. Yackee & Yackee, supra note 70, at 133.
72. Marissa Martino Golden, Interest Groups in the Rulemaking Process: Who Participates? Whose Voices Get Heard?, 8 J. PUB. ADMIN. RES. & THEORY 245, 250, 252 (1998). The three agencies were EPA, NHTSA, and the Department of Housing and Urban Development (HUD). Id. at 250.
73. Id. at 252-53.
74. Croley, supra note 63, at 129 (citing Cary Coglianese, Challenging the Rules: Litigation and Bargaining in the Administrative Process 46-47 tbl.2-x (1994) (unpublished Ph.D. dissertation, University of Michigan)).
75. Id.
76. See JEFFREY M. BERRY, THE NEW LIBERALISM: THE RISING POWER OF CITIZEN GROUPS 144-45 (1999) (describing the increasingly broad and large memberships of various environmental advocacy groups).
77. See Croley, supra note 63, at 127-29 (referencing low participation rates in the FDA rulemaking process by public interest groups relative to large regulated parties); Golden, supra note 72, at 254 (illustrating the low level of participation by consumer organizations in NHTSA rulemaking by comparing the number of comments submitted by consumer organizations to those submitted by business interests).
78. See Cynthia Estlund, Rebuilding the Law of the Workplace in an Era of Self-Regulation, 105 COLUM. L. REV. 319, 321-22 (2005) (arguing that employers have achieved increasing freedom to self-regulate from agencies like OSHA since the decline of the collective-bargaining system).
79. See Golden, supra note 72, at 260-61 (finding no evidence of "agency capture" in the changes made to ten proposed rules at EPA, NHTSA, and HUD); see also WESLEY A. MAGAT ET AL., RULES IN THE MAKING: A STATISTICAL ANALYSIS OF REGULATORY AGENCY BEHAVIOR 143-45, 157 (1986) (finding no statistically significant empirical support for the hypothesis that active participation in federal rulemaking by firms results in weaker regulatory standards for those firms); Maureen L. Cropper et al., The Determinants of Pesticide Regulation: A Statistical Analysis of EPA Decision Making, 100 J. POL. ECON. 175, 192, 194-95 (1992) (finding rulemaking input from environmental groups on the cancellation of federal pesticide-use registration to have twice the impact on the likelihood of cancellation as input from commercial growers).
80. Yackee & Yackee, supra note 70, at 135-36. The study was limited to low-saliency rules and does not indicate whether business interests have the same disproportionate influence concerning high-saliency rules. Id. at 137.
81. See Michael E. Levine & Jennifer L. Forrence, Regulatory Capture, Public Interest, and the Public Agenda: Toward a Synthesis, 6 J.L. ECON. & ORG. (SPECIAL ISSUE) 167, 173-74 (1990) (observing that monitoring costs influence the likelihood that agencies will act in the public interest).
82. SIDNEY A. SHAPIRO & ROBERT L. GLICKSMAN, RISK REGULATION AT RISK: RESTORING A PRAGMATIC APPROACH 3-4 (2003).
83. See generally DAVID BOLLIER, THOMAS MCGARITY & SIDNEY A. SHAPIRO, SOPHISTICATED SABOTAGE: THE INTELLECTUAL GAMES THAT INDUSTRIES PLAY TO SUBVERT RESPONSIBLE REGULATION (2004) (identifying and explaining low-visibility ways the business community has been able to subvert regulation).
84. In this situation, legislators understand that voters are likely to hold them accountable for a failure to act. This visibility also makes it easier for a legislator's election opponent to point out that the legislator failed to act in the constituents' best interest. See Wilson, supra note 60, at 370-71 (describing visible scandals leading to the passage of drug and safety laws).
85. See infra subpart II(C).
86. See, e.g., CPSC Reform Act of 2007, S. 2045, 110th Cong. § 23 (2007) (reforming prohibitions on the sale of toys containing lead); Consumer Product Safety Modernization Act, H.R. 4040, 110th Cong. § 107 (2007) (requiring CPSC to conduct a study on the effectiveness of safety standards for toys).
87. See JOAN CLAYBROOK & THE STAFF OF PUB. CITIZEN, RETREAT FROM SAFETY: REAGAN'S ATTACK ON AMERICA'S HEALTH, at xxii-xxv (1984) (describing the budget cuts instituted by the Reagan Administration's deregulators).
88. See id. at xxxi (describing President Reagan's election on a platform of "getting the government off our backs").
89. See id. at 117-19 (noting that the Reagan Administration began cutting EPA resources just as the Agency was beginning to institute the Clean Water Act and the amended Clean Ak Act).
90. See, e.g., id. at 120-21 (listing top-level EPA appointees with anti-environmental records).
91. See JONATHAN LASH ET AL., A SEASON OF SPOILS: THE REAGAN ADMINISTRATION'S ATTACK ON THE ENVIRONMENT 67 (1984) (describing the perjury conviction of Rita Lavelle, an assistant administrator and Reagan appointee).
92. See id. at 79-81 (describing how EPA Administrator Anne Gorsuch invoked executive privilege despite her belief that it had no legal basis, leading to her resignation).
93. See RENA I. STEINZOR, MOTHER EARTH AND UNCLE SAM: HOW POLLUTION AND HOLLOW GOVERNMENT HURT OUR KIDS 177-78, 182-83 (2008) (discussing public-opinion polling showing strong support for environmental protection and strong distrust of government).
94. Spencer Michels, What's Next for the EPA?, ONLINE NEWSHOUR, Dec. 21, 1995, http://www.pbs.org/newshour/bb/environment/ epa_12-21.html (quoting DeLay as saying, "The critical promise we made to the American people was to get the government off their backs, and the EPA, the gestapo of government, pure and simply has been one of the major 'clawhose' that the government has maintained on the backs of our constituents.").
95. See, e.g., SHAPIRO & GLICKSMAN, supra note 82, at 42 (explaining that Congress amended the Clean Air Act due to EPA's inability to regulate hazardous air pollutants under a health-based standard).
96. See JOHN S. APPLEGATE & KATHERINE BAER, CTR. FOR PROGRESSIVE REFORM, WHITE PAPER NO. 602, STRATEGIES FOR CLOSING THE CHEMICAL DATA GAP 1 (2006), available at http://www.progressivereform.org/articles/ Closing_Data_Gaps_602.pdf (pointing out a data gap between the amount of information agencies have and the amount they require in order to justify protective action).
97. See supra notes 50-51 and accompanying text.
98. See, e.g., Governor George W. Bush, Acceptance Speech at the Republican National Convention (Aug. 3, 2000) (transcript available at http://www.cnn.com/ELECTION/2000/ conventions/republican/transcripts/bush.html) (arguing that "[b]ig government is not the answer"); Clinton, supra note 3 ("The era of big government is over.").
99. See supra note 52 and accompanying text.
100. See, e.g., STEINZOR, supra note 93, at 51 (presenting a graph indicating that EPA in 2004 had substantially less funding than it had in 1980 in constant dollars); Product Safety Regulator Hobbled by Decades of Negligence, OMB WATCH, Feb. 5, 2008, at graph 1, http://www.omb watch.org/article/articleview/4154 (indicating that CPSC currently has substantially less funding than it had in 1977 in constant dollars).
101. See, e.g., STEINZOR, supra note 93, at 50-54 (discussing legislation in the 1980s that greatly expanded EPA's responsibilities, despite the Agency's chronic underfunding).
102. For example, Stephen L. Johnson, EPA's current Administrator, has sought to justify a 4.4% cut proposed by the Bush Administration in the Agency's budget on the grounds that the proposed budget "meets our environmental goals while being responsible stewards of taxpayers' dollars." Jeff Kinney, President Proposes 4.4 Percent Budget Cut for EPA, Targets Grants for State Projects, [2008] Daily Env't Rep. (BNA) 23 (Feb. 5, 2008), available at http://ehscenter. bna.com/pic2/ehs.nsf/id/BNAP-7BJGR27OpenDocument.
103. OFFICE OF MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, BUDGET AUTHORITY HISTORICAL SPREADSHEET FISCAL YEAR 2008 (2008), available at http://www.white house.gov/omb/budget/fy2008/sheets/budauth.xls (reporting that the U.S. government allocated a total of $6,512,188,000 for FY 1990 to the five agencies - EPA ($5.379 billion), FDA ($601 million), OSHA ($267 million), CPSC ($35 million), and NHTSA ($229 million). In FY 2005, budgets for the agencies totaled $10,340,000,000 - EPA ($7.959 billion), FDA ($1.427 billion), OSHA ($464 million), CPSC ($62 million), and the NHTSA ($428 million)). See Government Spending in United States 1902-2013 - Federal State Local Charts, http://www.us government spending.com/index.php#usgs302a (listing the FY 1990 total federal budget as $1,253,000,000,000 and the FY 2005 total federal budget as $2,472,000,000,000).
104. The term "hollow government" is attributed to Edward Meyer, Army Chief of Staff, who used the phrase in the 1970s to describe the impact of insufficient funding on the nation's armed forces. PEG MCGLINCH & PETER BARTON HUTT, HOLLOW GOVERNMENT: RESOURCE CONSTRAINTS AND WORKLOAD EXPANSION AT FDA (2001), http://leda.law.harvard.edu/ leda/data/ 742/McGlinch01_redacted.html. The term was appropriated by the editors of Government Executive to describe the decay of the government's capacities during the Reagan Administration. Id. (citing Timothy B. Clark, Editor's Notebook, GOV'T EXECUTIVE, May 1999, at 4).
105. Cf. supra text accompanying note 20.
106. See FREDERICKSON & FREDERICKSON, supra note 14, at 1 (asserting that both the practice and the study of public administration are "uniquely associated with questions of government performance").
107. Id.
108. Id. (citing Government Performance and Results Act, Pub. L. No. 103-62, 107 Stat. 285 (codified in scattered sections of 5 U.S.C. and 31 U.S.C.)).
109. Id. ("For much of the twentieth century, most scholars thought that the key to improved government performance was a politically neutral, merit-based civil service and a well-managed government of expert public administrators.... Simply put, in the classic public administration ethos, well-managed governments will perform well.").
110. Id. at 37.
111. Id.
112. Id.
113. 31 U.S.C. § 1115 note (2000).
114. 5 U.S.C. § 306 (2000).
115. Id. § 306(a)(1)-(2).
116. Id. § 306(a)(3).
117. Id. § 306(a)(5).
118. Id. § 306(d).
119. 31 U.S.C. § 1115(2000).
120. Id. § 1115(a)(2) (emphasis added).
121. Id. § 1115(a)(4),(6).
122. Id. § 1116.
123. Id. § 1116(d).
124. Pub. L. No. 96-510, 94 Stat. 2767 (1980) (codified as amended at 42 U.S.C. §§ 9601-9675 (2000)).
125. 42 U.S.C. §§ 9606, 9607.
126. Id. § 9611.
127. RENA STEINZOR & MARGARET CLUNE, CTR. FOR AM. PROGRESS & CTR. FOR PROGRESSIVE REFORM, THE TOLL OF SUPERFUND NEGLECT: TOXIC WASTE DUMPS & COMMUNITIES AT RISK 18 (2006), available at http://images1.americanprogress.org/il80web20037/ cap/superfund_neglect.pdf.
128. See generally id. (explaining the funding process for Superfund).
129. MARK REISCH, ENVT'L PROT. SECTION, CONG. RESEARCH SERV., SUMMARIES OF ENVIRONMENTAL LAWS ADMINISTERED BY THE EPA: SUPERFUND (2001), http://www.ncse online.org/NLE/CRSreports/ BriefingBooks/Laws/j.cfm.
130. See generally JAMES E. MCCARTHY, RES., SCI., & INDUS. DIV., CONG. RESEARCH SERV., SUPERFUND TAXES OR GENERAL REVENUES: FUTURE FUNDING OPTIONS FOR THE SUPERFUND PROGRAM (2005) (discussing the controversy over extending Superfund taxes).
131. Oversight Hearing on the Federal Superfund Program's Activities to Protect Public Health: Oversight Hearing Before Subcomm. on Superfund and Envtl. Health of the S. Comm. on Env't & Pub. Works, 110th Cong. 5 (2007) (statement of Rena Steinzor, Professor, University of Maryland School of Law; Member Scholar and Board Member, Center for Progressive Reform).
132. The term "construction completion" refers to a stage in the cleanup of a site when any necessary physical construction and engineering work is complete, even if final cleanup goals have not been achieved. OFFICE OF ENVTL. & EMERGENCY RESPONSE, EPA, OSWER DIRECTIVE 9320.2-09A-P, CLOSE OUT PROCEDURES FOR NATIONAL PRIORITIES LIST SITES 3-1 (2000). According to EPA, measuring success by simply looking at the ratio of deleted NPL sites to total sites on the NPL fails to "recognize the substantial construction and reduction of risk to human health and the environment that has occurred at NPL sites not yet eligible for deletion." Id. So, in 1990, to "communicate more clearly to the public the status of cleanup progress" among NPL sites, EPA established the new category of "construction complete" as its main indicator of program success. National Oil and Hazardous Substances Pollution Contingency Plan, 55 Fed. Reg. 8666, 8699 (Mar. 8, 1990) (codified at 40 C.F.R. pt. 300 (2008)).
133. EPA, Number of NPL Site Actions and Milestones by Fiscal Year, http://www.epa.gov/superfiind/sites/query/queryhtm/nplfy.htm (last updated May 8, 2008).
134. National Oil and Hazardous Substances Pollution Contingency Plan, 55 Fed. Reg. at 8699.
135. KATHERINE N. PROBST ET AL., SUPERFUND'S FUTURE: WHAT WILL IT COST? 2-3 (2001), available at http://www.rff.org/rff/rff_press//CustomBookPages/ Superfunds-Future.cfm.
136. RFF estimated that the total cost of the Superfimd program from FY 2000 through FY 2009 would be between $14 billion and $16.4 billion, in constant dollars. Id. at 156-57, 159 fig. 7-11. In 2005, Katherine Probst found that Superfimd appropriations for the previous few years had been a little less than $1.3 billion per year. Katherine N. Probst, Superfund at 25: What Remains To Be Done, RESOURCES, Fall 2005, at 20, 21, available at http://www.rff.org/documents/RFF-Resources-159- Superfund.pdf. Assuming that EPA had received $1.3 billion in appropriations from FY 2000 to FY 2009, it would have received a total of $13 billion in funding. As compared to RPF's estimate of the total cost of the program, this leaves a funding gap of between $1.0 billion and $3.4 billion.
137. Probst, supra note 136, at 20.
138. STEINZOR & CLUNE, supra note 127, at 2.
139. Id. at 1.
140. Id. at 3.
141. Id.
142. EPA, 2006-2011 EPA STRATEGIC PLAN: CHARTING OUR COURSE (2006) [hereinafter EPA 2006-2011 STRATEGIC PLAN], available at http://www.epa.gov/ocfo/ plan/2006/entire _report.pdf.
143. EPA, PERFORMANCE AND ACCOUNTABILITY REPORT, FISCAL YEAR 2007: ENVIRONMENTAL AND FINANCIAL PROGRESS (2007) [hereinafter 2007 EPA PERFORMANCE PLAN], available at http://www.epa.gov/ ocfo/par/2007par/par07report.pdf.
144. EPA 2006-2011 STRATEGIC PLAN, supra note 142, at 67.
145. Id. A "removal action" is a short-term, relatively inexpensive cleanup. See 42 U.S.C. § 9601(23) (2000) ("The term includes... security fencing or other measures to limit access, provision of alternative water supply, temporary evacuation... and any emergency assistance which may be provided....").
146. RENA STEINZOR & MARGARET CLUNE, CTR. FOR PROGRESSIVE REFORM, WHITE PAPER NO. 514, THE HIDDEN LESSON OF THE VIOXX FIASCO: REVIVING A HOLLOW FDA 2 (2005), available at http://www.progressiveregulation.org/articles/ Vioxx_514.pdf.
147. Id. at 5.
148. FDA, Merck, and Vioxx: Putting Safety First?: Hearing Before the S. Comm. on Finance, 108th Cong. 125 (statement of David J. Graham, Associate Director, Food and Drug Administration).
149. See id. at 124-25 ("I believe such a ban [on the high-dose formulation of Vioxx] should have been implemented.").
150. See infra notes 164-71 and accompanying text.
151. Pub. L. No. 102-571, 106 Stat. 4491 (codified as amended at 21 U.S.C. § 379 (2000)). Congress extended PDUFA in the Food and Drug Administration Modernization Act of 1997, Pub. L. No. 105-115, § 103, 111 Stat. 2296, 2299-2304 (codified as amended at 21 U.S.C. § 379), and again in the Prescription Drug User Fee Amendments of 2002, Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub. L. No. 107-188, §§ 501-531, 116 Stat. 594, 687-97 (codified as amended at 21 U.S.C. §§ 356b, 379g-379h).
152. Barbara Ann Binzak, How Pharmacogenomics Will Impact the Federal Regulation of Clinical Trials and the New Drug Approval Process, 58 FOOD & DRUG L.J. 103, 112 n.58 (2003) (noting that the industry agreed to the fees "to improve the speed of the drug approval process").
153. See 21 U.S.C. § 379h(g)(1) (explicitly limiting the collection and availability of the user fees to the extent provided in the Act).
154. See id. § 379h(g)(2)(A)(ii) (mandating that user fees "shall only be collected and available to defray increases in the costs of the resources allocated for the process for the review of human drug applications" and that relevant calculations shall be adjusted for inflation).
155. U.S. GEN. ACCOUNTING OFFICE, GAO-02-958, FOOD AND DRUG ADMINISTRATION: EFFECT OF USER FEES ON DRUG APPROVAL TIMES, WITHDRAWALS, AND OTHER AGENCY ACTIVITIES 17 (2002), available at http://www.gao.gov/new.items/d02958.pdf.
156. Id. at 18.
157. STEINZOR & CLUNE, supra note 146, at 22.
158. Id. at 2.
159. Id.
160. Id.
161. Id. at 20.
162. See id. at 4 (explaining that FDA eventually yielded and allowed Merck to list the risk in the "precautions" section of the label instead of the "warnings" section).
163. See id. at 5 (describing the impact of pressure from FDA senior management on the conclusions and recommendations of an FDA scientist who studied Merck).
164. FDA, STRATEGIC ACTION PLAN, FOOD AND DRUG ADMINISTRATION: PROTECTING AND ADVANCING AMERICA'S HEALTH (2003), available at http://www.fda.gov/oc/mcclellan/FDA StrategicPlan.pdf.
165. For example, a message from PDA's administrator, Mark B. McClellan, declared: [G]etting a new drug, medical device, or food technology into use with the needed confidence that it is safe and effective has grown harder, as new scientific breakthroughs seem to be adding to the time, cost, and uncertainty of developing safe and effective new products.... ... The combination of unprecedented challenges with unprecedented opportunities is why a key element of the PDA's new strategic plan is what we call "efficient risk management."... We need to make the process for developing new technology less costly. Id. at 4-5.
166. See id. at 11 ("Steps to reduce the time, cost, and uncertainty of developing new drugs and devices are thus important public health priorities.... Making the process of translating new discoveries into safe and effective treatments more efficient and quick is thus a high priority for the FDA.").
167. Id. at 12.
168. OFFICE OF PLANNING, FDA, FOOD AND DRUG ADMINISTRATION: FY 2000 PERFORMANCE PLAN AND REVISED FINAL FY 1999 PERFORMANCE PLAN (1999), http://www.fda.gov/ope/FY00 plan/intro00.htm [hereinafter FDA FY 2000 PLAN].
169. See FDA, FY 2002 ANNUAL PERFORMANCE PLAN AND SUMMARY (2001), http://www. fda.gov ope/fy02plan/default.htm [hereinafter FDA FY 2002 PLAN].
170. STEINZOR & CLUNE, supra note 146, at 3-4.
171. See, e.g., FDA FY 2002 PLAN, supra note 169, at § 2.2 (containing no mention of PDUFA fees in its discussion of human drugs); FDA FY 2000 PLAN, supra note 168 (containing only a single, passing mention of PDUFA fees).
172. Gardiner Harris, House Passes Bill Giving More Power to the F.D.A., N.Y. TIMES, Sept. 20, 2007, at A18.
173. See id. (reporting on the increase in funding to be paid by drug makers and PDA's expanded discretion in using the funds); Drew Armstrong, Bill Clears After Intense Negotiation, CQ WEEKLY, Sept. 24, 2007, at 2766 (reporting the increase in user fees to be paid by drug companies).
174. See supra note 148 and accompanying text.
175. See, e.g., 42 U.S.C. § 300i-2 (2000) (providing for the safeguard of public water supplies against terrorist threats).
176. Compare, e.g., Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub. L. No. 107-188, § 401, 116 Stat. 682 (codified as amended at 42 U.S.C. § 300i-2) (adding provisions to protect public drinking-water systems from "terrorist acts and other intentional acts"), with 42 U.S.C. § 300h-300h-3 (containing general provisions for the protection of underground drinking-water sources that have remained unchanged since 1986).
177. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 1424 (3d ed. 1993).
178. Id. at 2223.
179. The statutory mandates for the five agencies we have discussed differ substantially. Compare Clean Air Act, 42 U.S.C. §§ 7401-7671 (2000) (spanning 270 pages), with Occupational Safety and Health Act (OSHA) of 1970, 29 U.S.C. §§ 651-678 (2000) (spanning a mere twenty-five pages).
180. EPA, EPA-841-R-02-001, NATIONAL WATER QUALITY INVENTORY: 2000 REPORT (2000), available at http://www.epa.gov/ 305b/2000report.
181. EPA, EPA-841-R-07-001, NATIONAL WATER QUALITY INVENTORY: REPORT TO CONGRESS, 2002 REPORTING CYCLE (2007) [hereinafter WATER QUALITY INVENTORY 2002], available at http://www.epa.gov/305b/2002report. The Inventory reports are required by § 305(b) of the Clean Water Act, which is codified at 33 U.S.C. § 1315 (2000).
182. Id.
183. See 33 U.S.C. § 1313(d)(1) (requiring states to identify impaired waters).
184. WATER QUALITY INVENTORY 2002, supra note 181, at 9 fig. 1, 11 fig.2.
185. At the time, this institution was called the General Accounting Office.
186. U.S. GEN. ACCOUNTING OFFICE, GAO-02-186, WATER QUALITY: INCONSISTENT STATE APPROACHES COMPLICATE NATION'S EFFORTS TO IDENTIFY ITS MOST POLLUTED WATERS 3 (2002) [hereinafter INCONSISTENT EFFORTS].
187. Id.
188. TMDL requirements are set forth in 33 U.S.C. § 1313(d)(1).
189. Id. § 1313(d)(1)(C).
190. See id. § 1313(d)(2) (explaining the method by which states are to proceed once TMDLs are established).
191. See generally OLIVER A. HOUCK, THE CLEAN WATER ACT TMDL PROGRAM: LAW, POLICY, AND IMPLEMENTATION 49-108 (2d ed. 2002) (describing the states' delays in implementing these requirements and how litigation forced them to act).
192. Id. at 104-08.
193. EPA 2006-2011 STRATEGIC PLAN, supra note 142, at 43.
194. EPA has made rudimentary efforts to build this kind of tool, although most examples of "enviromaps" on the Agency's website do not work well and are missing the layers of data we suggest. See, e.g., EPA, EnviroMapper Storefront, http://www.epa.gov/enviro/html/em.
195. See 42 U.S.C. § 7408 (2000) (requiring EPA to publish a list of air pollutants); id. § 7409 (requiring EPA to establish primary and secondary ambient-air-quality standards). A primary standard protects human health, id. § 7409(b)(1), while a secondary standard is based on potential environmental and property damage, id. § 7409(b)(2).
196. Id. § 7410.
197. Id. § 7501(2).
198. NAT'L SAFETY COUNCIL, SECTION 1: BACKGROUND ON AIR POLLUTION (2006), http:// www.nsc.org/ehc/mobile/acback.htm.
199. 29 U.S.C. § 651(b) (2000).
200. The section that follows describes more fully how positive metrics could accomplish this.
201. See supra subparts II(B)-(C).
202. We omit OMB because of its strong reputation as a critic of regulation, sustained across several administrations.
203. See, e.g., Defense Base Closure and Realignment Act of 1990, 10 U.S.C. § 2687 note (2000) (describing the process of appointments to the Base Realignment and Closure Commission, whose members are nominated by the president and appointed by the Senate).
204. See supra section III(B)(1).
205. HOUCK, supra note 191, at 142-47 (describing the challenges that have confronted EPA and the states as they try to implement these provisions).
206. See generally Rena I. Steinzor, EPA and Its Sisters at 30: Devolution, Revolution, or Reform?, 31 Envtl. L. Rep. (Envtl. Law Inst.) 11,086 (2001) (explaining the causes of regulatory failure at the state level); Rena I. Steinzor, Devolution and the Public Health, 24 HARV. ENVTL. L. REV. 351 (2000) (exploring the ramifications of devolving more responsibility to the states for the protection of public health and the environment); Rena I. Steinzor, Reinventing Environmental Regulation Through the Government Performance and Results Act: Are the States Ready for the Devolution?, 29 Envtl. L. Rep. (Envtl. Law Inst.) 10,074 (1999) (describing the historical battles between EPA and the states over GPRA implementation); Rena I. Steinzor, Unfunded Environmental Mandates and the "New (New) Federalism ": Devolution, Revolution, or Reform, 81 MINN. L. REV. 97 (1996) (tracing the states' rebellion against unfunded mandates that caused a major erosion in the federal-state relationship).
207. Senator Roth, lead sponsor of the legislation, said in his floor statement: "The Federal Government today is primarily process-oriented. Its focus is on following detailed procedural rules within rigidly structured programs.... [Under GPRA, agencies will] publish annual performance reports showing the actual outcomes." 139 CONG. REC. 17,973 (1993).
208. JAMES Q. WILSON, BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT 373-74 (1989).
209. Remarks on Signing GPRA, supra note 13, at 1310-11.
210. U.S. GEN. ACCOUNTING OFFICE, GAO-04-38, RESULTS-ORIENTED GOVERNMENT: GPRA HAS ESTABLISHED A SOLID FOUNDATION FOR ACHIEVING GREATER RESULTS 9 (2004), available at http://www.gao.gov/new.items/d04594t.pdf; U.S. GEN. ACCOUNTING OFFICE, GAO/GGD-98-44, MANAGING FOR RESULTS: AGENCIES' ANNUAL PERFORMANCE PLANS CAN HELP ADDRESS STRATEGIC PLANNING CHALLENGES 7 (1998), available at http://www.gao.gov/archive/ 1998/gg98044.pdf; U.S. GEN. ACCOUNTING OFFICE, GAO/GGD-97-83, MANAGING FOR RESULTS: REGULATORY AGENCIES IDENTIFIED SIGNIFICANT BARRIERS TO FOCUSING ON RESULTS 1 (1997), available at http://www.gao.gov/archive/1997/gg97083.pdf; U.S. GEN. ACCOUNTING OFFICE, GAO/HEHS/GGD-97-138, MANAGING FOR RESULTS: ANALYTIC CHALLENGES IN MEASURING PERFORMANCE 1 (1997), available at http://www.gao.gov/archive/ 1997/h297138.pdf; U.S. GEN. ACCOUNTING OFFICE, GAO/AIMD-97-46, PERFORMANCE BUDGETING: PAST INITIATIVES OFFER INSIGHTS FOR GPRA IMPLEMENTATION 2 (1997), available at http://www.gao.gov/ archive/ 1997/ai97046.pdf; U.S. GEN. ACCOUNTING OFFICE, GAO/GGD-96-118, EXECUTIVE GUIDE: EFFECTIVELY IMPLEMENTING THE GOVERNMENT PERFORMANCE AND RESULTS ACT 1 (1996), available at http://www.gao.gov/archive/1996/gg96118.pdf; see U.S. GEN. ACCOUNTING OFFICE, GAO/GGD-97-36, GPRA: MANAGERIAL ACCOUNTABILITY AND FLEXIBILITY PILOT DID NOT WORK AS INTENDED 3 (1997), available at http://www.gao.gov/archive/1997/gg97036.pdf (explaining why the GPRA managerial accountability and flexibility pilot program was unsuccessful).
211. See, e.g., J. Paul Leigh et al., An Estimate of the U.S. Government's Undercount of Nonfatal Occupational Injuries, 46 J. OCCUPATIONAL ENVTL. MED. 10, 10 (2004) (estimating that BLS statistics miss between 33% and 69% of all injuries); Kenneth D. Rosenman et al., How Much Work-Related Injury and Illness Is Missed by the Current National Surveillance System?, 48 J. OCCUPATIONAL ENVTL. MED. 357, 357 (2006) (estimating that BLS statistics account for only approximately one-third of all work-related injuries and illnesses in Michigan).
212. Phillip J. Landrigan & Dean B. Baker, The Recognition and Control of Occupational Disease, 266 J. AM. MED. ASS'N 676, 676 (1991).
213. Is OSHA Working for Working People?: Hearing Before the Subcomm. on Employment and Workplace Safety, S. Comm. on Health, Educ., Labor & Pensions, 110th Cong. 3 (2007) [hereinafter OSHA Hearing] (statement of David Michaels, Research Professor, George Washington University).
214. Id.
215. All of OSHA's other emissions limitations, called permissible exposure limits (PELs), were adopted in 1970 based on the recommendations of private standard-setting groups, primarily the American Conference of Governmental Industrial Hygienists (ACGIH). Many of these PELs are out of date because ACGIH has updated their recommendations and OSHA has not been able to update its PELs in response. OSHA's 1992 attempt to update the PELs was blocked by a court. Am. Fed'n of Labor & Cong. of Indus. Orgs. v. OSHA, 965 F.2d 962, 968-69 (11th Cir. 1992). A second problem is that the PELs adopted in 1970 are not comprehensive standards - the regulations are only exposure limitations and they do not provide for other employee protections, such as requirements for employers to conduct exposure monitoring, provide medical surveillance, or provide worker training.
216. OSHA Hearing, supra note 213, at 3.
217. See 29 C.F.R. § 1910.1051-.1052 (2007) (setting standards for 1,3-butadiene and methylene chloride).
218. Experience suggests that a failure to review and revise the compliance status of any interim goals for programs dooms such efforts to failure. See, e.g., Thomas McGarity, Missing Milestones: A Critical Look at the Clean Air Act's VOC Emissions Reduction Program in Nonattainment Areas, 18 VA. ENVTL. L.J. 41, 84-85 (1999) (arguing that EPA's failure to penalize states that did not meet interim milestones under the Clean Air Act undercut its efforts to get them to attain the Act's standards).
219. U.S. Environmental Protection Agency, http://www.epa.gov (last updated May 16, 2008).
220. EPA, Air, http://www.epa.gov/ebtpages/air.html (last updated May 16, 2008).
221. EPA, Air Trends, http://www.epa.gov/oar/airtrends (last updated Apr. 28, 2008).
222. EPA, Air Quality Status and Trends Through 2006, http://www.epa.gov/oar/ airtrends/ 2007/index.html (last updated Jan. 22, 2008).
223. EPA, Basic Information, Air Trends, http://www.epa.gov/oar/airtrends/ sixpoll.html (last updated May 8, 2008).
224. EPA, Reports and Data, Air Trends, http://www.epa.gov/oar/airtrends/ reports.html (last updated Apr. 28, 2008). Two of these reports contain detailed information about EPA's regulatory successes and shortfalls. See generally, AIR QUALITY STRATEGIES AND STANDARDS DIV., EPA, EPA 454/R-03-005, NATIONAL AIR QUALITY AND EMISSIONS TRENDS REPORT: 2003 SPECIAL STUDIES EDITION (2003), available at http://www.epa.gov/air/airtrends/aqtrnd03 (explaining positive air quality trends for different criteria pollutants and regions in great detail, providing information on all nonattainment regions, and providing summaries of selected academic studies of policy relevance); AIR QUALITY STRATEGIES AND STANDARDS DIV., EPA, 454/K-03-001, LATEST FINDINGS ON NATIONAL AIR QUALITY: 2002 STATUS AND TRENDS (2003), available at http://www.epa.gov/air/airtrends/aqtrnd02/ 2002_airtrends_final.pdf (detailing the trends towards higher air quality for many criteria pollutants and tying these successes to various EPA regulatory initiatives).
225. The reader must click on Air Quality Monitoring Information, a link that leads to a page with the same name. EPA, Air Quality Monitoring Information, Air Trends, http://www.epa.gov/ air/airtrends/factbook.html (last updated Oct. 7, 2007). One of the choices on this page is Air Quality Statistics by County, 2006, which leads to the EPA report EPA, AIR QUALITY STATISTICS BY COUNTY (2006), available at http://www.epa.gov/air/airtrends/pdfs/ctyfactbook2006.pdf.
226. OSHA is not alone in forcing researchers to go on a treasure hunt for data. For example, NASA recently released raw performance data in a manner that did not permit independent researchers to interpret the data. NASA, National Aviation Operational Monitoring Service (NAOMS) Information Release, http://www.nasa.gov/news/reports/NAOMS.html (last updated May 13, 2008). The agency surveyed more than 25,000 pilots from 2001 to 2004, and the results seem to suggest that flying is less safe than other statistics indicate. Thomas Claburn, NASA Report on Air Safety Draws Criticism, INFO. WEEK, Jan. 2, 2008, http://www.informationweek.com/news/ security/showArticle.jhtml?articleID=205207258. NASA originally kept the report secret on the grounds that its release would needlessly scare the public about the safety of flying. Id. Under pressure from Congress, it made the results available to the public on December 30, 2007, in an apparent attempt to deflect news coverage. Id. The released data did not enable independent assessment. See id. (quoting Congressman Brad Miller, who complained that NASA simply "dumped... unanalyzed data"). NASA has asked the National Academy of Sciences to review the data, which will eventually produce an independent assessment of the data, but apparently there will be no independent assessment of NASA's data in the meantime. See Telephone Media Briefing on the Release of Aviation Safety Data with Michael Griffin, Administrator, NASA (Dec. 31, 2007) (transcript available at www.nasa.gov/pdf/ 207317main_NAOMS_Media_Telecon_Transcript.pdf).
227. OSHA Home Page, http://www.osha.gov; OSHA, Statistics & Data, http://www.osha.gov/ oshstats/index.html.
228. OSHA, Injury/Illness Incidence Rates, http://www.osha.gov/oshstats/work. html.
229. JOHN W. KINGDON, AGENDAS, ALTERNATIVES AND PUBLIC POLICIES 3 (1984).
230. See id. at 20-21, 61 (discussing the roles of advocacy groups, policy entrepreneurs, and the media as "agenda setters").
231. Id. at 20-21.
232. Id. at 129-31.
233. See Karen Tumulty, The Scariest Guy in Town, TIME, Dec. 4, 2006, at 47, 47 available at http://www.time.com/time/magazine/ article/0,9171,1562974,00.html (describing Waxman's legislative successes).
234. KINGDON, supra note 229, at 174-76.
235. Id. at 94.
236. Id. at 176.
237. See id. at 174-75 (explaining that the decision agenda is composed of a small subset of issues on the government agenda that are ripe for legislative or executive action, and noting that the opening of a policy window is a key opportunity to obtain such legislative or executive action).
238. Id. at 175-76.
239. Id. at 187.
240. See supra notes 62-80 and accompanying text.
241. See Michael E. Kraft & Diana Wuertz, Environmental Advocacy in the Corridors of Government, in THE SYMBOLIC EARTH: DISCOURSE & OUR CREATION OF THE ENVIRONMENT 95, 97 (James G. Cantrill & Christine L. Oravec eds., 1996) (observing that the "communications strategies of environmental organizations are tied intimately to the larger process of agenda setting and policy change").
242. See generally, e.g., DIANE BAILEY ET AL., NATURAL RES. DEF. COUNCIL, HARBORING POLLUTION: THE DIRTY TRUTH ABOUT U.S. PORTS (2004), available at http://environment now.org/pdf/cca-reports-harboring-pollution-the-dirty-truth- about-US-ports.pdf (documenting the failure to effectively reduce air and water pollution in and near U.S. ports); James Parks, Millions of Workers Lack Even Most Basic Safety Protections, AFL-CIO NOW BLOG: NEWS, Apr. 26, 2007, http://blog.aflcio.org/2007/04/26/millions-of-workers-lack-even- most-basic-safety-protections (noting the undercounting of injuries and illnesses by BLA and linking that undercounting to lack of effective regulation).
243. 128 S. Ct. 999 (2008).
244. Id. at 1001.