Regulatory Tools to Protect People & the Environment
Middle school civics texts tell us that Congress writes the laws and the executive branch enforces them. In practice, of course, it’s a good deal more complicated than that.
When it comes to health, safety and the environment – the Center for Progressive Reform’s core issue areas – executive branch enforcement of the law has become yet another arena to fight and re-fight policy battles presumably settled in Congress. In particular, regulated entities – including companies that pollute or that make potentially dangerous products – have become especially savvy at leveraging their relationships in Washington. During the Bush years, their efforts helped them secure enfeebled regulatory policy – regulations that often undercut the very laws they were meant to effect, and enforcement approaches that rendered meaningful regulations all but toothless.
In the view of CPR Member Scholars, the federal regulatory system has fallen – or perhaps more accurately – been pushed into a state of disrepair. Much needed health and safety regulations have been delayed for years, weakened to the point of ineffectiveness, and then sporadically enforced. Federal agencies charged with protecting Americans from various hazards in our food, consumer products, chemicals in commerce, the air and water, and in the workplace have been drastically underfunded, and until recently, their agendas diverted.
For many Americans, the term "small business" conjures up images of mom-and-pop grocery stores, garage-based Internet start-ups and the like. They're out there, creating jobs and inventing tomorrow's commerce, but Washington lobbyists have a different idea of "small."
The Office of Information and Regulatory Affairs in the White House may be the most important group of bureaucrats you've never heard of. But CPR's Member Scholars and staff are keeping tabs on the office of the so-called "regulatory czar," tracking what goes in and out. Check out our "Eye on OIRA" project.
President Obama's White House Office of Information and Regulatory Affairs is politicizing the regulatory process, and the data on who it meets with when reviewing regulations tell the tale. Read CPR's 2011 report on the topic, and check out the database of OIRA's meetings with lobbyists that we built for the study.
Politicians are convinced that Americans hate regulation. In fact, Americans approve of sensible safeguards to protect health, safety, the environment, the economy and more. CPR Member Scholars are firm believers in well-crafted regulations that help protect Americans from a range of hazards. But the attacks on regulation persist.
The consequences of our failed system of regulation are the stuff of national headlines – the BP oil spill in the Gulf of Mexico, the Upper Big Branch mine disaster, the West, Texas, fertilizer plant explosion, as well as poisonous children's jewelry and toys, contaminated cantaloupe and other produce, drugs with fatal side effects, and more. The agencies established to protect Americans from these hazards need to be reinvigorated, and their efforts to protect Americans given higher priority.
The Obama Administration did not create the regulatory mess, but it falls to the Administration to fix it. But it has not made nearly as much progress as many CPR Member Scholars had hoped or expected, and now it’s facing plenty of opposition from industry allies in Congress and elsewhere.
Bad Facts, Worse 'Solutions'
Much of the opposition to regulatory safeguards for health, safety and the environment relies on trumped-up "data," and the supposed solutions offered by regulatory opponents are thinly veiled efforts to relieve polluters and others from the obligation to clean up the mess they make and the hazards they create. CPR Member Scholars have addressed both the bad facts -- like the much-repeated fabrication that regulation imposes $1.75 trillion in costs to the economy -- and the bad "solutions" like "regulatory pay-go," the REINS Act, and various other pieces of legislation aimed at hampering the enforcement of laws duly enacted by Congress and the President. Read more about the bad facts and worse solutions that drive the anti-regulation campaign on our Attacks on Regulation page.
SBA's Advocacy Office Loses Its Way
One source of opposition to sensible safeguards for health, safety and the environment comes from within the Administration itself: the Small Business Administration Office of Advocacy. Established to look out for the interests of small businesses in regulatory and other matters, the Office has morphed into an anti-regulatory beachhead within the federal government, working in concert with special interest lobbyists to delay, water down and defeat sensible safeguards. Moreover, the Advocacy Office often acts on behalf of businesses that no one could accurately describe as "small" -- 1,000-employee chemical plants and 1,500-employee petroleum refineries, for example.
The Office exercises…authority by superintending agency compliance with an expanding universe of analytical and procedural requirements—imposed by a steady stream of statutes and executive orders issued during the past three decades—that purportedly seek to ensure that agencies account for small business interests in their regulatory decision-making. Controversial rules can quickly become mired in this procedural muck, and an agency’s failure to carry out every last required analysis with sufficient detail and documentation can spell doom for even the most important safeguards. This system provides the Office of Advocacy with a powerful lever for slowing down rules or dictating their substance.
Since the day he was inaugurated, the clock has been ticking on President Obama's window of opportunity to reinvigorate the regulatory system protecting health, safety, the environment, the economy, worker safety and more. Regulations take time -- years, often -- and the Administration had much to do, after eight years of industry dominance of the regulatory process. But the necessary sense of urgency never seemed to take root in the Obama Administration.
Had he been defeated in his bid for reelection, his record in this regard would have reflected a series of lost opportunities. Indeed, in an apparent effort to tamp down right-wing opposition to the President's comparatively modest regulatory accomplishments, the Administration began bottling up regulatory activity long before November 2012. Taking note of that dynamic, in April 2011, with the reelection campaign gathering steam, the Center for Progressive Reform released a white paper identifying a dozen key health, safety, and environmental regulatory actions slowly working their way through the Obama Administration’s pipeline. In the white paper, Twelve Crucial Health, Safety, and Environmental Regulations: Will the Obama Administration Finish in Time?, the authors warned that the Administration’s failure to adopt a sense of urgency with respect to completing its work had opened the door to the very real prospect that nine of the twelve regulatory actions might get caught up in the backwash of the 2012 presidential campaign, and might never be completed by the current Administration.
After his reelection, the President appointed a new Administrator for the Office of Information and Regulatory Affairs, thus creating another opportunity to move on badly needed regulatory reforms. Facing a backlog of long-overdue regulations, OIRA's docket began at last to clear -- but not because OIRA began moving regulations through the pipeline. Rather, at the apparent instigation of OIRA, regulatory agencies began withdrawing regulations from OIRA's review -- back to square one, for many. Read more on CPR's Eye on OIRA page.
Twenty Years of 12866
Executive Order 12866 -- the order underpinning OIRA's grip on the regulatory process -- turned 20 in October 2013, and nine CPR Member Scholars marked the occasion with a blog carnival. Here's a summary of who said what with links to each of the individual posts.
Read about the Member Scholars’ efforts on regulatory issues on these pages: