August 23, 2011

Regulatory Look-Back Plans: No One Celebrates

The final agency regulatory “look-back” plans, released by the White House this morning, don’t appear to satisfy anyone. They fall far short of their obvious goal: to placate greedy and intemperate industry demands that major rules be cancelled. And they distress public interest advocates, who fear they will preoccupy agencies with make-work at the expense of crucial life-saving initiatives.

The plans themselves, at first look, are largely well-intentioned given the assignment the agencies were given. The EPA plan discusses, for instance, how the internet could be better used to facilitate on-line reporting by polluting plants.  In some instances, though, the changes, if done as planned, would have real-life negative consequences: the planned axing of “clearance testing” under EPA’s renovation, repair and painting rule will save money, yes, but run the risk of leaving lead dust behind to poison children when they move back into renovated buildings. The EPA’s final plan dutifully calculates the cost savings of its regulatory changes, but it all but ignores foregone regulatory benefits, such as these.

The plans won’t placate big business or Republicans in Congress. Eric Cantor reliably called them “underwhelming,” while the  Chamber of Commerce complained that the administration has made a “ a worthy effort at making technical changes to the regulatory process, but the results of this lookback will not have a material impact on the real regulatory burdens facing businesses today.”

Give a few inches, and you don’t get anything in return.  So what is the White House doing, then?

It’d be one thing to engage in this exercise if the agencies had lots of free time on their hands and there wasn’t anything more important to work on. But that’s not the case.  In constant (adjusted for inflation) dollars, agencies like EPA have the same purchasing power that they had in the mid-1980’s.

Our current economic situation comes largely thanks to under regulation of financial markets. We’re in an era of “too big to fail,” the BP oil spill, the West Virginia mine collapse and a series of food safety emergencies that hospitalize hundreds or thousands. Agencies have little money to fix these problems, and are about to have even less. Rather than support them in their missions and let them prioritize what needs to be done in terms of the lives saved, public health preserved, and natural resources protected, the Administration diverts money to pandering to the forces that cannot be placated and will never support the President when the chips are down. 

The White House has thankfully stepped back from its worst anti-regulatory rhetoric from January. But it does not seem to understand the big-picture situation: under-regulation is the problem of the day, and the agencies need help, not the unfunded mandate that is regulatory look-back. Meanwhile, OMB recently asked the agencies to prepare for 5 or 10 percent budget cuts.

The full reviews of existing rules will be time-consuming to do, and it’s troubling that OIRA, supposedly the kings and queens of cost-benefit analysis, doesn’t seem to care this time about trade-offs—that is, what the agencies won’t get done while they are doing these plans. Meanwhile, the latest regulatory agendas from the agencies, from July, show more delays. These are not agencies with free time on their hands. It’s unhelpful for the White House to flatly state, over and over again, that the agencies will simply get the look-back done with no other work lost.

The White House touts the transparency of the look-back process, and they are opening the rule changes to public comment. Transparency in rulemaking shouldn’t be an optional thing that you implement when you like, though. OMB recently held a worker safety rule, for young workers in grain elevators, for nine months. After getting bad press, OMB is apparently releasing the rule. Will OMB release the original version of the rule from the Department of Labor, so the public can see what was changed? This is the transparency that’s needed – transparency that may not make you always look good.

Ironically, this look-back process will make strict new rules harder to adopt – because the clear message to agencies from the White House is to back off, and because the look-back uses their resources. But the White House won’t get political credit for that from their target audience – just disappointment from progressives, disappointed at the whole exercise.


Rena Steinzor, Professor of Law, University of Maryland Carey School of Law. Bio.

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