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 to weaken and delay regulations necessary to enforcing laws duly enacted by Congress and the President.
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.
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.
As its name suggests, the Small Business Administration Office of Advocacy is there to represent the interests of small businesses. But in many ways, it functions as a tool of large industry, as in the case of its efforts to undermine an OSHA standard to protect workers from deadly silica dust. Read CPR's Issue Alert.
Many methodological and conceptual deficiencies are built into the way cost-benefit analysis is applied to regulations aimed at protecting the health, safety and the environment. The problem is just one of several problems with the way the White House Office of Information and Regulatory Affairs exercises stifles the federal regulatory process.
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 fell to the Administration to fix it. Unfortunately, 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.
CPR's Presidential Transition Project
In 2016, months before the presidential election, CPR launched a project aimed at helping the next administration identify key regulatory needs and opportunities. The project began with the publication of a Memo to the Next President A Progressive Vision of Government and Protective Safeguards, in August of 2016, calling on the next President to present a positive vision of government, and to be ready to make a full-throated argument for the benefits of protective safeguards. In the run-up to the election and the transition, CPR scholars and staff also wrote a number of blog posts on the topic.
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.
After the 2014 midterm elections left the President facing a Republican Congress, President Obama's opportunities for progress on domestic issues dwindled. In November 2014, the Center for Progressive Reform offered Barack Obama’s Path to Progress in 2015-16: Thirteen Essential Regulatory Actions. The Issue Alert puts forward an affirmative agenda for the President that could help save thousands of American lives, promote worker safety, combat global climate change, help the environment and more, all without the need to persuade a single Republican Member of Congress to come on board. As the report points out, at least with respect to the regulatory steps cited in this report, the only real challenge to the President's ability to get the rules adopted and in place before his term ends is whether he has the will to push them through.
Read about the Member Scholars’ efforts on regulatory issues on these pages: