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CRE Regulatory Action of the Week
Watchdog Watch: NRDC Expresses Views on CRE's Regulatory Watchdog Role
CRE is launching a new feature entitled "Watchdog Watch" to review the activities of organizations whose primary activity is to either participate directly in a wide range of regulatory proceedings or, through their website, to significantly influence the participation of other persons in such rulemakings. To this end, the Center has reviewed comments submitted by the Natural Resources Defense Council (NRDC) to EPA on the agency's proposed Data Quality Act guidelines, spelling out in some detail the document's strengths and areas of potential improvement. However, of comparable concern to NRDC was CRE's emerging preeminence as a "Regulatory Watchdog," which not only tracks the regulatory activities of federal agencies, but also monitors the regulatory activities of special interest groups. In future Watchdog Watch articles, CRE will present an analysis of statements and positions taken by such groups.
Click to review excerpts from NRDC's comments related to CRE
Click to review NRDC's comments to EPA on the agency's proposed Data Quality guidelines
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NRDC COMMENTS ON CRE'S DATA QUALITY WATCHDOG ACTIVITIES
In its comments to EPA on the agency's proposed Data Quality Act guidelines, the Natural Resources Defense Council (NRDC) made numerous statements concerning the Center for Regulatory Effectiveness (CRE) and its emerging preeminence as a "Regulatory Watchdog," which not only tracks the regulatory activities of federal agencies, but also monitors the regulatory activities of special interest groups. Numerous references were also made to Jim Tozzi, a Member of the CRE Board of Advisors. Consider the following statements that NRDC made about CRE:
"The simple fact that EPA engages in activities that upset powerful industries should not make it a poster child for continual scrutiny and interference with respect to its implementation of the Data Quality Act, as has been threatened by the Center for Regulatory Effectiveness ("CRE"), a right-wing think tank spearheaded by Jim Tozzi, a self-proclaimed architect of the Act.
CRE has already submitted a petition that includes a veiled threat to drag EPA to court if the Agency does not reverse a decision that it will wait for recommendations from the National Academies of Science regarding the ethics of human testing before considering such test results under the Federal Insecticide, Fungicide, and Rodenticide Act." (NRDC comments at p.7)
"The Administration will do great damage to its duty to faithfully execute the laws and to the credibility of the Data Quality Act as an expression of public policy if it supports or encourages the activities of Mr. Tozzi and his colleagues, activities that distort the Act and would render it nothing more than a tool to obstruct timely government decision-making." (NRDC comments at p. 8)
"While efficient administration of the Data Quality Act is essential and will provide the best outcome for public health and the environment, NRDC cannot forego the opportunity to point out the double-edged nature of the sword now being brandished with such enthusiasm by Jim Tozzi and his allies. Tozzi's web site, http://www.thecre.com/quality, contains three revealing examples of how this campaign could so easily backfire on industry - and on OMB, if it is not careful.
"First, in an extraordinary attempt to make a proverbial silk purse out of a sow's ear, Tozzi extols the possibilities represented by the adverse decision in Tozzi v. HHS, 271 F.3d 301 (D.C. Cir. 2001) where the Court upheld a decision by the National Toxicology Program to upgrade the status of dioxin from a "reasonably anticipated" to a "known" human carcinogen. Brushing aside the Court's embrace of traditionally deferential standard that applies to such technical decisions, Tozzi and his allies claim that the decision will open the flood gates to judicial review of similar decisions by EPA and other agencies.
"Ironically, NRDC agrees with Tozzi that EPA has made fatal missteps in writing toxicological profiles by embracing and relying upon fatally flawed and, in some notable cases, "proprietary" (or secret) industry data concerning the chemicals' toxicological effects or exposures." (NRDC comments at pp. 12-13)
"Obviously, if Tozzi and his allies are correct that the Data Quality Act contains a new cause of action giving aggrieved citizens the right to challenge data quality outside the context of review of the underlying final action, NRDC or others could present the vinyl chloride matter to a judge before the toxicological profile was written." (NRDC comments at pp. 13-14)
"And, once again, under Tozzi's theories, pending decisions to set tolerance limits on the basis of such secret information should not escape what would almost certainly be very skeptical judicial review." (NRDC comments at pp. 14-15)
"Once again, if the Tozzi theory is right, both the interlocutory decision refusing to compel EPA to disclose the data, as well as the final decision to uphold the rule, could be appealed directly to court, perhaps delaying the effluent guidelines but also removing - correctly in our view - any possibility that EPA would give credence to confidential business information submitted in support of any rule or other final agency action." (NRDC comments at p. 15)
"As the Center for Regulatory Effectiveness prepares for battle, we hope that EPA and the constituencies that are directly affected by its decisions resist these efforts to use the law to wreak chaos that may tie up rulemaking, but will also destabilize government processes that responsible business interests rely upon to conduct their affairs." (NRDC comments at pp. 15-16)
Click to review NRDC's comments to EPA on the agency's proposed Data Quality guidelines
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