Putting Regulatory Tools to Work Protecting People and 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.
The consequences of this failed system of regulation are the stuff of national headlines – the BP oil spill in the Gulf of Mexico, construction crane collapses, toxic drywall, poisonous children's jewelry and toys, contaminated peanut butter and 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.
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.
In a January 2013 white paper CPR Member Scholar Sidney Shapiro and Policy Analyst James Goodwin explain:
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.
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 and the bad "solutions."
One proposed "solution" to the imagined problem of over-regulation is to put regulation on a sort of budget, allowing safeguards for only so many hazards. Known as "Regulatory Pay-Go," the proposal was even embraced by Republican Presidential nominee Mitt Romney. The idea behind the proposal is to cap the total cost of regulation, regardless of the benefits those regulations produce, and the gimmick backing it up would be a requirement that whenever a new regulation is adopted, a regulation or set of regulations imposing equal or greater costs would be removed from the books. The plan would thus force regulatory agencies to choose which hazards the public should be exposed to, rather than focusing on the straightforward task with which they are charged by statute: protecting the public from such hazards.
Injecting More Politics into Regulation: The REINS Act, Legislation to Prevent Regulating Greenhouse Gas Emissions
Another proposal intended to gum up the regulatory system is the proposed REINS Act. It would prevent new health, safety, environmental and other regulations from going into effect unless both houses of Congress vote within 70 days of promulgation to approve them, by means of a joint congressional resolution. Congress can already vote to block regulations, but the proposed approach would stack the deck against much-needed regulations, by harnessing the power of congressional delay and gridlock in service of an anti-regulatory agenda, and allowing a single house of Congress to block enforcement of federal law simply by failing to vote. In December 2010, CPR's Sidney Shapiro penned an editorial memorandum on the subject. And several Member Scholars published op-eds in papers across the nation. (See David Driesen in the Syracuse Post-Standard,Noah Sachs in the New Republic, and Joe Tomain in the Cincinnati Enquirer.)
Another GOP proposal, embodied in the TRAIN Act, would establish an inter-agency panel to review EPA's Clean Air Act and coal ash regulations, including those addressing greenhouse gas emissions, to assess their cumulative economic impact. As CPR's Rena Steinzor said in testimony about the bill before a subcommittee of the House Energy and Commerce Committee, the real effect of the bill would be to take decisions about environmental regulation out of the hands of environmental regulators. Moreover, the bill completely ignores the benefits of regulation, which have been calculated and found to be much greater than the costs. Read a blog post on the bill and Steinzor's testimony.
A $1.75 Trillion Fiction
In all these battles, regulatory opponents have relied on a dramatically overstated estimate of the cost to industry of regulation, based on a report commissioned by the Small Busines Administration’s Office of Advocacy that fixed the one-year cost of regulation at $1.75 trillion. In February 2011, CPR Member Scholar Sidney Shapiro, together with Ruth Ruttenberg, Ph.D., Professor of Economics, National Labor College, and CPR Policy Analyst James Goodwin, published a report debunking this most conspicuous bit of rhetoric in the anti-regulatory arsenal. Their white paper examined the SBA’s report (called the Crain and Crain report, for its authors), and concluded that it was based on flimsy evidence and fuzzy math. Most conspicuously, it made no effort to account for the economic benefits of regulation – which according to the Office of Management and Budget are larger than the costs – rather like asserting that buying a car is a drain on the economy because it costs the purchaser money, without accounting for jobs created, profit made, etc.
12 Rules, Endangered
In April 2011, the Center for Progressive Reform released a white paper identifying 12 key health, safety, and environmental regulatory actions slowly working their way through the Obama Administration’s regulatory 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 indeed might never be completed by the current Administration. In January 2012, the Administration released its regulatory agenda for the year (several month late), laying out anticipated major regulatory activity for the year. Judging from it, all or part of nine of the actions identified in the CPR report will not go into effect during this presidential term. Indeed, a March 2011 CPR Issue Alert updating the status of the 12 rules, notes that the Administration appears to have shut down its regulatory work about a year in advance of the November 2012 elections, thus endangering prospects for adopting the rules.
In August 2011, CPR Member Scholars published a report making the case for reinvigorating the nation’s regulatory system. “Saving Lives, Preserving the Environment, Growing the Economy: The Truth About Regulation,” by CPR Member Scholar Sidney Shapiro, National Labor College economics professor Ruth Ruttenberg, and CPR Policy Analyst James Goodwin, assembles powerful evidence of the value of regulation to society, countering with facts and data regulatory opponents’ fact-free description of regulation as job-killing and economy-wrecking. From unleaded gasoline, to saving the bald eagle, to banning thalidomide, to fighting meat-borne pathogens, to a host of worker safety measures, regulation has made Americans safer, healthier, and longer-lived, while protecting against a variety of economic and environmental hazards. (Also see an editorial memo and blog post on the subject, both from Sidney Shapiro.)
Read about the Member Scholars’ efforts on regulatory issues on these pages: