The Issa Letters: Republicans Go Hunting for Regulations

by Rena Steinzor

February 10, 2011

GOP leaders in the House of Representatives will push a resolution today directing the various committees of the House to “inventory and review existing, pending, and proposed regulations and orders from agencies of the federal government, particularly with respect to their effect on jobs and economic growth.” Thus begins what Republicans and their industry friends hope will be a productive hunting season in the rich woods of regulatory safeguards that protect public health, worker and consumer safety, and the environment. Not content to leave the agencies alone to eliminate gratuitous and outmoded rules, as President Obama has directed them to do, House Republicans are in search of far bigger game.

They’ll have plenty of help. Also this week, House Government Oversight and Government Affairs Committee Chairman Darrel Issa released a passel of letters (57 megs and 1,947 pages in all) from a variety of corporate interests targeting virtually every conceivable kind of regulation. (If you’d like to cut to the chase and see the letters without their voluminous attachments, go to the OMBWatch site for a searchable, workable 606-page version.) In a move certain to attract lots of campaign cash for Republicans during next election cycle, Issa wrote to some 150 trade associations soliciting their nominations for a “job-killing” rules hall of fame.

Although most of the proposed targets from industry are quite specific, and many attach dozens of pages of past technical comments to agencies complaining about their every move, the spirit of the enterprise is best expressed by someone named Steve Towe, otherwise unidentified, who writes on page 1,820:

Bottom Line: Government has become massive, meddling, and for the most part useless. It's a parasite that takes and takes and gives next to nothing back. 90% of what government tries to do, it does so poorly, inefficiently, and at far too great of an expense. The Constitution limits government for that reason, and I contend that most of what government is trying to do today is patently unconstitutional.

The fact that the letters are specific, technical and very inside-the-Beltway does not mean that they lack unintentional humor. Consider the letter from the National Marine Manufacturers Association busting a gut over the proposal by the Army Corps of Engineers to require adult boaters to wear life jackets on federally owned lakes: “[T]he nation’s largest provider of recreation on federal public lands has taken it upon itself to take boaters’ choice away,” huffs and puffs Cindy Squires, chief counsel for the association, adding that the group has long believed that “adult boaters can best determine if their boating situation warrants the use of a life jacket.” (With great difficulty, I resist the temptation to analogize these principles to other leading issues of the day.) 

In other notable entries, rural pharmacies object to rules requiring competitive bidding for suppliers of diabetes testing kits, arguing that they should be entitled to charge higher prices because, after all, they operate in rural landscapes where it is hard to get around.  The only silver lining in this tsunami of overreaction is that pursuing this kind of minutiae could keep House Republicans out of other trouble, if they actually intend to deliver.

But, unfortunately, we can have little hope that the hunting party will get distracted so easily. The resolution the GOP is moving this week is remarkably one-sided, instructing the committees to consider whether rules “hurt economic growth and investment” or “create additional economic uncertainty.”  Nowhere are the benefits of rules mentioned—lives saved, injuries avoided, finite natural resources preserved. By this risible standard, which worries only about costs to polluters and ignores benefits to people,  the EPA’s widely applauded 1975 decision to force petroleum refiners to get the lead out of gas, which went a long way to eliminating brain-mangling blood lead levels among the nation’s children, would probably never have happened. EPA, you see, did not know the full and precise scope of benefits and costs of the proposal when it began its rulemaking. It only knew that scientific research was showing the precipitous loss of IQ points and neurological function among children most exposed to lead deposits from gasoline in the nation’s cities. In retrospect, we learned that the benefits of this protective, highly cost-effective action far exceeded its costs. Even if we only consider dollars we did not have to spend on medical treatment of severely poisoned children and the bad effects that lead additives have on smooth running of car engines, benefits dwarfed the costs of unleaded gas, and those calculations don’t even count the amazing gains in IQ points and neurological function for the hundreds of millions of children protected since 1980. 

The new health care law, implementation of Dodd-Frank financial reform, and virtually every activity of EPA and OSHA are at the top of the hit parade in the Issa letters. Fundamental principles of democracy are clearly at stake. With the ink barely dry on these new laws, and EPA and other agencies promulgating rules in accordance with laws that have been on the books for decades without congressional amendment, Issa and his fellow committee chairman are seeking backdoor ways to re-fight battles they lost last year or are afraid to begin explicitly. Simply by harassing the agencies to withdraw regulations to implement the laws, and continuing to low-ball the money they need to implement these crystal clear statutory mandates, they can accomplish the goals they were unable to achieve under that same Constitution Steve Towe urges us to reaffirm. 

As for EPA and OSHA, the list of demands is huge, but some central targets emerge with discouraging clarity. New technology-based standards for boilers are not likely to be finalized until well after the 2012 election, and greenhouse gas rules are in even more serious trouble, if that’s possible, than they were in last week and the week before (about 40 of the letters list GHG controls as top priorities). The letters say EPA should not implement rules to reduce nutrients that cause “dead zones” in the Chesapeake Bay, back off even ground-level research on the human health effects of methanol and formaldehyde, cancel efforts to keep airplane de-icing fluid from running off into storm drains that lead to fragile surface waters, relax requirements  requiring that site owners clean up dioxin too carefully, and stop trying to tighten rules on fine particulate matter that causes severe respiratory disease and cancer. As troubling, the letters ask Congress to intervene in enforcement by EPA and other agencies of existing, long-established laws that control harmful activities in the oil, gas, and mining industries.

OSHA’s effort to ask employers to record musculoskeletal injuries, for a total estimated cost of $1.7 million annually (an infinitesimal sum in comparison to, say, congressional earmarks), was shredded in seven letters (see, for example, the demands of the American Iron and Steel Institute). Even fundamental safety problems like combustible dust, which has a way of exploding and tearing workers to pieces, or a proposal asking employers to write their own “safety plans” to prevent accidents, come in for withering criticism.        

What’s really going on here is that Republicans are hoping to win by indirection a whole range of battles they lost in the last few decades over the environment, worker safety, food safety, consumer protections, public health and more. After all, the regulations under fire simply implement laws Congress has already passed. And every one of the regulations already on the books, many adopted under Republican presidents, went through a vetting process that allowed for ample input from industry and others, not to mention extended court review in many instances. Rules still in the pipeline will face equally vigorous analysis and comment.  The resulting regulations, taken as a whole, contribute more to the economy than they take away, which is to say that the economic benefits of regulations vastly exceed the costs. Of course industry doesn’t like some of them. It’s cheaper to package things unsafely, let hazards fester in workplaces, dump pollution into the air and water, sell food that’s unsafe, and in a variety of ways harm consumers for the sake of turning a profit. But we’ve passed laws to prevent those things, and they should stay in effect until their opponents have the votes to defeat them, constitutionally, once and for all. 

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Also from Rena Steinzor

Rena Steinzor is a Professor of Law at the University of Maryland Francis King Carey School of Law, and a past president of the Center for Progressive Reform. She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

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