July, 12 2010, 02:33pm EDT
For Immediate Release
Contact:
Caitlin MacNeal,COMMUNICATIONS MANAGER,(202) 347-1122,cmacneal@pogo.org
POGO Recommendations for Improvements to the CLEAR Act, H.R. 3534, 1to Strengthen Oversight and Accountability and End the Cozy Relationship between Interior and Industry
The Revolving Door: The
Deepwater Horizon disaster dramatically illustrates the enormity of the
risk to our safety, the environment, the economy, and the general public
interest by the capture of government agencies by private industry. The
revolving door between the oil and gas industry and its regulator is at
the rotten core of the lax oversight that led to oil spilling into the
Gulf of Mexico.2
While S.
WASHINGTON
The Revolving Door: The
Deepwater Horizon disaster dramatically illustrates the enormity of the
risk to our safety, the environment, the economy, and the general public
interest by the capture of government agencies by private industry. The
revolving door between the oil and gas industry and its regulator is at
the rotten core of the lax oversight that led to oil spilling into the
Gulf of Mexico.2
While S. 3516, the Outer Continental Shelf Reform Act of 2010, includes
measures to slow the revolving door between the oil and gas industry
and its regulator, the House's CLEAR Act does not yet include such
measures.
POGO Recommends:
The CLEAR Act should include the Senate
language, but increase the cooling-off period to two years and add civil
and criminal penalties. Existing restrictions should be expanded and
strengthened so that all employees of the Department of the Interior
with responsibilities under the Outer Continental Shelf Lands Act - not
just the highest-ranking employees - would be banned from lobbying for
industry for two years after leaving Interior, and also from making
lobbying contact with Interior for at least one year. In addition, there
should be a two-year cooling-off period that bans former Interior
employees from employment with any party that had interests pending
before them in their previous year of civil service. The
fox-in-the-henhouse phenomenon created by the reverse revolving door can
be addressed by ensuring that Interior employees cannot oversee matters
relating to their former industry employer or client for two years.
Both civil and criminal penalties for violations should be included.3
Training Academies (Sec. 102): The CLEAR Act
authorizes the Secretary to enter into cooperative educational and
training agreements with oil and gas operators and related industries.
POGO supports improved training, but no entity or industry being
regulated should be involved in the training of the federal inspectors
who will regulate them. In any regulatory agency, inspection is a core
function of the agency, and the agency must keep organic in-house
expertise in the laws and regulations enforced. That in-house expertise
is generally embodied in the federal employees who train the inspectors.
In addition, the cooperative educational and training agreements and
the programs should be more transparent.
POGO Recommends:
- Removing "oil and gas operators and related industries" from this
section. - Making information about the training academies public, including
the programs, and the individuals in charge of training. (Though POGO
would not advocate putting the training manuals online since this might
help industry to circumvent inspections.)
Whistleblower Protections and Incentives:
Whistleblowers are on the front lines of oversight and are the first
best defense against waste, fraud, abuse and other wrongdoing. If oil
and gas industry employees had had adequate protections against
retaliation and incentives for warning regulators, perhaps the Deepwater
Horizon disaster could have been averted. The CLEAR Act does not yet
provide for the whistleblower protections and incentives required for
adequate oversight and accountability.
POGO Recommends:
The CLEAR Act must provide oil and gas
industry employees with best-practices whistleblower protections such as
those included in the financial reform legislation for financial
industry employees, and the protections established for manufacturing
and transportation employees, Department of Defense contractors, and
others. Important disclosures to a supervisor, employer, law
enforcement, Interior and other regulators, Congress and others must be
protected. Real protections when retaliation occurs include adequate due
process rights, an administrative review at the Department of Labor,
and jury trial access. In addition, an incentive program to encourage
whistleblowers to come forward and disclose wrongdoing to the Department
of the Interior should be established. Such a program would allow for
an award to whistleblowers whose information leads to the federal
government pursuing successful sanctions on those regulated under the
OCS Act. Similar incentive programs exist at the IRS, and are included
in the financial reform legislation to encourage disclosures to the SEC
and CFTC.4
Conflicts of Interest: Investigations conducted by
the Department of the Interior's Inspector General and POGO revealed
gross misconduct at multiple Minerals Management Service (MMS) offices.
Instances of misconduct included reports of MMS personnel receiving
inappropriate gifts from industry, performing outside work that clearly
conflicted with the ethical performance of their duties, and in at least
one instance, negotiating for a job with a company that they were
inspecting. These findings are all indicative of an agency that is
inappropriately close to industry. While S. 3516, the Outer Continental
Shelf Reform Act of 2010, clarifies that gift bans and conflicts of
interest rules apply to all employees at Interior with responsibilities
under the OSC Act, the House's CLEAR Act does not yet include such
measures.
POGO Recommends:
Including the Senate language, but
including both civil and criminal penalties for violators of the gift
ban or conflicts of interest rules.
Federal Advisory Committees (Secs. 109 and 605):
The CLEAR Act rightly establishes that the OCS Safety and Environmental
Advisory Board is subject to the Federal Advisory Committee Act (FACA),
but FACA is only the floor for ethics and transparency in these bodies.
In 2004, the Government Accountability Office thoroughly examined the
FACA process and raised serious concerns about the ways agencies select
and designate members. The Government Accountability Office (GAO)
recommended greater transparency for the member selection process such
as "providing information on how the members of the committees are
identified and screened, and indicating whether the committee members
are providing independent or stakeholder advice."5 In
order to ensure that the advisory board fulfills its requirement to
provide the agency with "independent scientific and technical advice,"
strengthening language is needed. In addition, any body that includes
non-federal employees and is providing information or guidance to the
federal government should be under FACA, and then have additional
disclosure requirements and safeguards against conflicts of interest.
This is particularly important given the role in grant making given to
the Ocean, Coastal, and Great Lakes Review Panel in the bill.
POGO recommends:
- Specifying that the Ocean, Coastal, and Great Lakes Review Panel is
subject to FACA and including the other measures below (Sec. 605(c)(2)). - Requiring that the chairman and members of the OCS Safety and
Environmental Advisory Board and the Ocean, Coastal and Great Lakes
Review Panel have no financial interests in the exploration,
development, and production of energy and mineral resources, or
designate the board members as special government employees (SGEs),
making them subject to conflict of interest statutes. - Requiring that the agency make public and disclose on its website a
list of the Advisory Board and Review Panel members with their
designation and affiliation, the committee charter (which should be made
public when the formation of the committee is announced), all experts
who are consulted, and resources from board meetings (minutes,
transcripts, and audio/video recordings), as well as the public
nominations.
Regional Citizens' Advisory Council: The CLEAR Act
does not provide for adequate public participation in oversight of the
regional oil and gas operations and its impacts. A Regional Citizens'
Advisory Council would provide a forum for public participation to
generate recommendations for exploration, development, production,
refining, and transportation of oil and gas in the Gulf of Mexico and of
prevention, response and restoration measures related to the social,
economic and environmental impacts of an oil spill, drilling disaster or
gas release.
POGO Recommends:
The CLEAR Act should establish a Gulf of
Mexico Regional Citizens Advisory Council to increase public
participation in oversight. The Council should include representatives
of groups disproportionately impacted by risks of energy production from
each of the five Gulf States selected by their peers to conduct
citizens' oversight. The Council should be modeled after successful
citizens advisory councils in Alaska authorized in the Oil Pollution Act
of 1990 after the Exxon Valdez disaster.6
Improving Natural Gas Reporting (Sec. 314): The
CLEAR Act requires the Secretary of the Interior to provide long-overdue
reforms to ensure accurate determination and reporting of BTU values,
but more could and should be done to improve standards.
POGO Recommends:
Incorporating Rep. Carolyn Maloney's
(D-NY) Study of Ways to Improve the Accuracy of the Collection of
Federal Oil, Condensate, and Natural Gas Royalties Act of 2009 (H.R.
1462), which would require a more comprehensive assessment to ensure
that taxpayer get their fair share for natural gas royalties.
Developing Innovations and Technology and Awards for Industry
(Sec. 219): POGO supports efforts to encourage the development of oil
spill and containment and response technologies, but we're concerned
about cash-prize award programs for industry and that current
technologies are not sufficiently evaluated. The cash-prize award
program is subject to conflicts of interest and also is unnecessary. The
grants offered and the exploration requirements in the CLEAR Act
provide sufficient incentives for the development of new technology.
POGO Recommends:
- Removing the awards program (Sec. 219 (d)).
- Adding the evaluation of current technology to the grant program.
Measuring the Effectiveness of Reforms: The CLEAR
Act contains many important reforms, and yet there are not enough
measures to determine the effectiveness and impact of the reforms in the
bill.
POGO Recommends:
The bill should require a GAO evaluation
as to whether the reorganization addresses previous GAO and IG concerns,
whether the increased hiring authority for the Secretary made Interior
more effective at addressing their oversight missions, and if there has
been a sufficient reduction in the conflicts of mission and interest.
Inspector General Reports: The Inspector General
has conducted many investigations tracking the problems at the Minerals
Management Service. The public must continue to have to access to their
work to hold Interior accountable for being effective custodians of
taxpayer resources.
POGO Recommends:
The CLEAR Act should make all Interior
Inspector General reports and investigations public.
___________________________
Endnotes
1 These recommendations are based upon the
Discussion Draft of the Amendment in the Nature of a Substitute to H.R.
3534, the Consolidated Land, Energy, and Aquatic Resources Act of 2010,
dated June 22, 2010, and which was under consideration in the House
Natural Resources Committee Hearing on June 30, 2010.
2 The revolving door problem is well documented,
including in POGO's report Drilling
the Taxpayer.
3 POGO and 12 other organizations sent a
letter of support for the Wyden Revolving Door Amendment to S. 3516,
the Outer Continental Shelf Reform Act of 2010.
4 POGO can provide detailed recommendations for
best-practice legislation.
5 "Federal Advisory Committees: Additional Guidance
Could Help Agencies Better Ensure Independence and Balance," GAO, April
2004.
6 The Citizens' Advisory Commission also is
supported by the Publish What You Pay coalition, as referenced in their
recommendations on July 7, 2010.
The Project On Government Oversight (POGO) is an independent nonprofit that investigates and exposes corruption and other misconduct in order to achieve a more effective, accountable, open and honest federal government.
LATEST NEWS
Critics Blast 'Reckless and Impossible' Bid to Start Operating Mountain Valley Pipeline
"The time to build more dirty and dangerous pipelines is over," said one environmental campaigner.
Apr 23, 2024
Environmental defenders on Tuesday ripped the company behind the Mountain Valley Pipeline for asking the federal government—on Earth Day—for permission to start sending methane gas through the 303-mile conduit despite a worsening climate emergency caused largely by burning fossil fuels.
Mountain Valley Pipeline LLC sent a letter Monday to Federal Energy Regulatory Commission (FERC) Acting Secretary Debbie-Anne Reese seeking final permission to begin operation on the MVP next month, even while acknowledging that much of the Virginia portion of the pipeline route remains unfinished and developers have yet to fully comply with safety requirements.
"In a manner typical of its ongoing disrespect for the environment, Mountain Valley Pipeline marked Earth Day by asking FERC for authorization to place its dangerous, unnecessary pipeline into service in late May," said Jessica Sims, the Virginia field coordinator for Appalachian Voices.
"MVP brazenly asks for this authorization while simultaneously notifying FERC that the company has completed less than two-thirds of the project to final restoration and with the mere promise that it will notify the commission when it fully complies with the requirements of a consent decree it entered into with the Pipeline and Hazardous Materials Safety Administration last fall," she continued.
"Requesting an in-service decision by May 23 leaves the company very little time to implement the safety measures required by its agreement with PHMSA," Sims added. "There is no rush, other than to satisfy MVP's capacity customers' contracts—a situation of the company's own making. We remain deeply concerned about the construction methods and the safety of communities along the route of MVP."
Russell Chisholm, co-director of the Protect Our Water, Heritage, Rights (POWHR) Coalition—which called MVP's request "reckless and impossible"—said in a statement that "we are watching our worst nightmare unfold in real-time: The reckless MVP is barreling towards completion."
"During construction, MVP has contaminated our water sources, destroyed our streams, and split the earth beneath our homes. Now they want to run methane gas through their degraded pipes and shoddy work," Chisholm added. "The MVP is a glaring human rights violation that is indicative of the widespread failures of our government to act on the climate crisis in service of the fossil fuel industry."
POWHR and activists representing frontline communities affected by the pipeline are set to take part in a May 8 demonstration outside project financier Bank of America's headquarters in Charlotte, North Carolina.
Appalachian Voices noted that MVP's request comes days before pipeline developer Equitrans Midstream is set to release its 2024 first-quarter earnings information on April 30.
MVP is set to traverse much of Virginia and West Virginia, with the Southgate extension running into North Carolina. Outgoing U.S. Sen. Joe Manchin (D-W.Va.) and other pipeline proponents fought to include expedited construction of the project in the debt ceiling deal negotiated between President Joe Biden and congressional Republicans last year.
On Monday, climate and environmental defenders also petitioned the U.S. Court of Appeals for the D.C. Circuit, challenging FERC's approval of the MVP's planned Southgate extension, contending that the project is so different from original plans that the government's previous assent is now irrelevant.
"Federal, state, and local elected officials have spoken out against this unneeded proposal to ship more methane gas into North Carolina," said Sierra Club senior field organizer Caroline Hansley. "The time to build more dirty and dangerous pipelines is over. After MVP Southgate requested a time extension for a project that it no longer plans to construct, it should be sent back to the drawing board for this newly proposed project."
David Sligh, conservation director at Wild Virginia, said: "Approving the Southgate project is irresponsible. This project will pose the same kinds of threats of damage to the environment and the people along its path as we have seen caused by the Mountain Valley Pipeline during the last six years."
"FERC has again failed to protect the public interest, instead favoring a profit-making corporation," Sligh added.
Others renewed warnings about the dangers MVP poses to wildlife.
"The endangered bats, fish, mussels, and plants in this boondoggle's path of destruction deserve to be protected from killing and habitat destruction by a project that never received proper approvals in the first place," Center for Biological Diversity attorney Perrin de Jong said. "Our organization will continue fighting this terrible idea to the bitter end."
Keep ReadingShow Less
'Seismic Win for Workers': FTC Bans Noncompete Clauses
Advocates praised the FTC "for taking a strong stance against this egregious use of corporate power, thereby empowering workers to switch jobs and launch new ventures, and unlocking billions of dollars in worker earnings."
Apr 23, 2024
U.S. workers' rights advocates and groups celebrated on Tuesday after the Federal Trade Commission voted 3-2 along party lines to approve a ban on most noncompete clauses, which Democratic FTC Chair Lina Khansaid "keep wages low, suppress new ideas, and rob the American economy of dynamism."
"The FTC's final rule to ban noncompetes will ensure Americans have the freedom to pursue a new job, start a new business, or bring a new idea to market," Khan added, pointing to the commission's estimates that the policy could mean another $524 for the average worker, over 8,500 new startups, and 17,000 to 29,000 more patents each year.
As Economic Policy Institute (EPI) president Heidi Shierholz explained, "Noncompete agreements are employment provisions that ban workers at one company from working for, or starting, a competing business within a certain period of time after leaving a job."
"These agreements are ubiquitous," she noted, applauding the ban. "EPI research finds that more than 1 out of every 4 private-sector workers—including low-wage workers—are required to enter noncompete agreements as a condition of employment."
The U.S. Chamber of Commerce has suggested it plans to file a lawsuit that, as The American Prospectdetailed, "could more broadly threaten the rulemaking authority the FTC cited when proposing to ban noncompetes."
Already, the tax services and software provider Ryan has filed a legal challenge in federal court in Texas, arguing that the FTC is unconstitutionally structured.
Still, the Democratic commissioners' vote was still heralded as a "seismic win for workers." Echoing Khan's critiques of such noncompetes, Public Citizen executive vice president Lisa Gilbert declared that such clauses "inflict devastating harms on tens of millions of workers across the economy."
"The pervasive use of noncompete clauses limits worker mobility, drives down wages, keeps Americans from pursuing entrepreneurial dreams and creating new businesses, causes more concentrated markets, and keeps workers stuck in unsafe or hostile workplaces," she said. "Noncompete clauses are both an unfair method of competition and aggressively harmful to regular people. The FTC was right to tackle this issue and to finalize this strong rule."
Morgan Harper, director of policy and advocacy at the American Economic Liberties Project, praised the FTC for "listening to the comments of thousands of entrepreneurs and workers of all income levels across industries" and finalizing a rule that "is a clear-cut win."
Demand Progress' Emily Peterson-Cassin similarly commended the commission "for taking a strong stance against this egregious use of corporate power, thereby empowering workers to switch jobs and launch new ventures, and unlocking billions of dollars in worker earnings."
While such agreements are common across various industries, Teófilo Reyes, chief of staff at the Restaurant Opportunities Centers United, said that "many restaurant workers have been stuck at their job, earning as low as $2.13 per hour, because of the noncompete clause that they agreed to have in their contract."
"They didn't know that it would affect their wages and livelihood," Reyes stressed. "Most workers cannot negotiate their way out of a noncompete clause because noncompetes are buried in the fine print of employment contracts. A full third of noncompete clauses are presented after a worker has accepted a job."
Student Borrower Protection Center (SBPC) executive director Mike Pierce pointed out that the FTC on Tuesday "recognized the harmful role debt plays in the workplace, including the growing use of training repayment agreement provisions, or TRAPs, and took action to outlaw TRAPs and all other employer-driven debt that serve the same functions as noncompete agreements."
Sandeep Vaheesan, legal director at Open Markets Institute, highlighted that the addition came after his group, SBPC, and others submitted comments on the "significant gap" in the commission's initial January 2023 proposal, and also welcomed that "the final rule prohibits both conventional noncompete clauses and newfangled versions like TRAPs."
Jonathan Harris, a Loyola Marymount University law professor and SBPC senior fellow, said that "by also banning functional noncompetes, the rule stays one step ahead of employers who use 'stay-or-pay' contracts as workarounds to existing restrictions on traditional noncompetes. The FTC has decided to try to avoid a game of whack-a-mole with employers and their creative attorneys, which worker advocates will applaud."
Among those applauding was Jean Ross, president of National Nurses United, who said that "the new FTC rule will limit the ability of employers to use debt to lock nurses into unsafe jobs and will protect their role as patient advocates."
Angela Huffman, president of Farm Action, also cheered the effort to stop corporations from holding employees "hostage," saying that "this rule is a critical step for protecting our nation's workers and making labor markets fairer and more competitive."
Keep ReadingShow Less
'Discriminatory' North Carolina Law Criminalizing Felon Voting Struck Down
One plaintiffs' attorney said the ruling "makes our democracy better and ensures that North Carolina is not able to unjustly criminalize innocent individuals with felony convictions who are valued members of our society."
Apr 23, 2024
Democracy defenders on Tuesday hailed a ruling from a U.S. federal judge striking down a 19th-century North Carolina law criminalizing people who vote while on parole, probation, or post-release supervision due to a felony conviction.
In Monday's decision, U.S. District Judge Loretta C. Biggs—an appointee of former Democratic President Barack Obama—sided with the North Carolina A. Philip Randolph Institute and Action NC, who argued that the 1877 law discriminated against Black people.
"The challenged statute was enacted with discriminatory intent, has not been cleansed of its discriminatory taint, and continues to disproportionately impact Black voters," Biggs wrote in her 25-page ruling.
Therefore, according to the judge, the 1877 law violates the U.S. Constitution's equal protection clause.
"We are ecstatic that the court found in our favor and struck down this racially discriminatory law that has been arbitrarily enforced over time," Action NC executive director Pat McCoy said in a statement. "We will now be able to help more people become civically engaged without fear of prosecution for innocent mistakes. Democracy truly won today!"
Voting rights tracker Democracy Docket noted that Monday's ruling "does not have any bearing on North Carolina's strict felony disenfranchisement law, which denies the right to vote for those with felony convictions who remain on probation, parole, or a suspended sentence—often leaving individuals without voting rights for many years after release from incarceration."
However, Mitchell Brown, an attorney for one of the plaintiffs, said that "Judge Biggs' decision will help ensure that voters who mistakenly think they are eligible to cast a ballot will not be criminalized for simply trying to reengage in the political process and perform their civic duty."
"It also makes our democracy better and ensures that North Carolina is not able to unjustly criminalize innocent individuals with felony convictions who are valued members of our society, specifically Black voters who were the target of this law," Brown added.
North Carolina officials have not said whether they will appeal Biggs' ruling. The state Department of Justice said it was reviewing the decision.
According to Forward Justice—a nonpartisan law, policy, and strategy center dedicated to advancing racial, social, and economic justice in the U.S. South, "Although Black people constitute 21% of the voting-age population in North Carolina, they represent 42% of the people disenfranchised while on probation, parole, or post-release supervision."
The group notes that in 44 North Carolina counties, "the disenfranchisement rate for Black people is more than three times the rate of the white population."
"Judge Biggs' decision will help ensure that voters who mistakenly think they are eligible to cast a ballot will not be criminalized for simply trying to re-engage in the political process and perform their civic duty."
In what one civil rights leader called "the largest expansion of voting rights in this state since the 1965 Voting Rights Act," a three-judge state court panel voted 2-1 in 2021 to restore voting rights to approximately 55,000 formerly incarcerated felons. The decision made North Carolina the only Southern state to automatically restore former felons' voting rights.
Republican state legislators appealed that ruling to the North Carolina Court of Appeals, which in 2022 granted their request for a stay—but only temporarily, as the court allowed a previous injunction against any felony disenfranchisement based on fees or fines to stand.
However, last April the North Carolina Supreme Court reversed the three-judge panel decision, stripping voting rights from thousands of North Carolinians previously convicted of felonies. Dissenting Justice Anita Earls opined that "the majority's decision in this case will one day be repudiated on two grounds."
"First, because it seeks to justify the denial of a basic human right to citizens and thereby perpetuates a vestige of slavery, and second, because the majority violates a basic tenant of appellate review by ignoring the facts as found by the trial court and substituting its own," she wrote.
As similar battles play out in other states, Democratic U.S. lawmakers led by Rep. Ayanna Pressley of Massachusetts and Sen. Peter Welch of Vermont in December introduced legislation to end former felon disenfranchisement in federal elections and guarantee incarcerated people the right to vote.
Currently, only Maine, Vermont, and the District of Columbia allow all incarcerated people to vote behind bars.
Keep ReadingShow Less
Most Popular