regulatory capture

Written by Lisa R. Pruitt In addition to being acronyms most of us had never heard before two different disasters brought them to our attention in April, the Minerals Management Service (MMS) and the Mine Safety and Health Administration (MSHA) are both examples of apparent regulatory failure. The MSHA and its failings attracted public scrutiny in the wake of the Upper Big Branch mine explosion on April 5, an accident that took the lives of 29 miners.  Turns out, the Upper Big Branch Mine (UBB) had long been on MSHA's radar screen as a bad actor.  In December 2007, the MSHA, a division of the Dept. of Labor, noted that the mine had been cited for 204 serious and significant violations in the past two years, a rate about twice the national average.  MSHA warned the mine's owner, Massey Energy, that  it had a potential "pattern of violations," a designation that would have permitted MSHA to close the mine each time it found a significant violation.  While Massey cleaned up its act enough in the months following that warning letter to avoid the "pattern of violations" scrutiny and consequences, it nevertheless continued to accumulate violations.  After the rate of violations decreased in 2008, they again accelerated.  One news report indicates that, in March 2010 alone, the MSHA cited the UBB mine 53 times.  Another indicates 515 citations at UBB in 2009.  Analysis by New York Times reporters indicates that one of the problems with the MSHA was not its failure to watch Massey, but rather a huge backlog of appeals by mining companies challenging citations.  According to the NYT, one in four MSHA citations are now appealed, which has resulted in a 18,000 pending appeals and $210 million in contested penalties.  Massey alone appealed 37 of the 50 citations it received for serious violations in 2009.  Read more here, here and here.