“April showers bring May flowers.” To that well-known spring-related proverb one might soon add “the Spring Regulatory Agenda brings new groundless complaints from corporate interests and their anti-regulatory allies in Congress about so-called regulatory overreach.” Last Wednesday, the Obama Administration issued the 2013 edition of the Spring Regulatory Agenda, one of two documents the President must issue every year (the other is published in the fall) that compiles and summarizes the various regulatory actions that the Administration expects to take in the near future. Over the past few years, regulatory opponents have grown fond of pointing to the Spring and Fall Regulatory Agendas as still further evidence of the so-called “regulatory tsunami” that is allegedly hindering the economy and to support their campaign to “reform” our regulatory system. I expect that these same groups will waste little time in the coming days to misrepresent the latest regulatory agenda to bolster their attacks on our system of regulatory safeguards.
In fact, a careful comparison of one Regulatory Agenda to the next reveals just the opposite of what regulatory opponents claim: progress on needed safeguards has all but stalled, as new rules have become subject to new delay upon new delay. Rather than documenting a flurry rulemaking activity, the semiannual Regulatory Agenda has become more of a litany of the latest delays of and extensions to expected timelines for issuing proposals or final rules.
The EPA’s stormwater rule clearly illustrates this phenomenon. Compare the following timetables the stormwater rulemaking included in past regulatory agendas:
I have been following the EPA’s stormwater rule for over three years now; it is one of the first rules I check whenever a new Regulatory Agenda is released. With each new Regulatory Agenda, I’ve watched as the Obama Administration has kicked the rule down the road little by little. As of the 2012 Regulatory Agenda, this critical rulemaking—which is essential to tackling the problem of nonpoint source water pollution, perhaps the leading cause of degraded water quality in this country—was at least two years behind schedule. With this latest twist in the Spring 2012 Regulatory Agenda, it’s not clear when—or even if—this rulemaking will ever see the light of day.
Of course, opponents of regulation like to pretend that these delays in regulation are at worst “cost-free.” Nothing could be further from the truth. Each month of delay for these safeguards inflicts real harm on real people—lives lost, illnesses and injuries suffered, ecosystems irrepealably damaged, and money wasted. And because these costs are the result of delay, they are all by definition preventable.
Using the agencies’ analyses of regulatory benefits for just a few pending rules we can get a tiny glimpse of how costly the latest round of delays announced in the Spring 2013 Regulatory Agenda will be for public health, safety, and the environment:
New Delay (Comparison of 2012 Regulatory Agenda to Spring 2013 Regulatory Agenda)
Costs to the Public
Occupational Safety and Health Administration’s (OSHA) Silica rule
2 months at least
At least 10 premature deaths
(OSHA estimates that the rule will prevent at least 60 deaths every year)
National Highway Traffic Safety Administration’s (NHTSA) Rearview Mirror Rule
18 months at least
[Note: The rule is now categorized as a long-term action indicating that NHTSA will not issue a final rule in at least the next 12 months; separately the head of NHTSA recently informed Congress that a final rule would likely not be complete until January of 2015 at the latest]
At least 300 premature deaths (roughly half of which will be children under the age five)
(NHTSA estimates that the rule will prevent at least 202 deaths every year)
Environmental Protection Agency’s (EPA) Ozone National Ambient Air Quality Standard Update
8 months at least
[Note: The rule is now categorized as a long-term action indicating that the EPA will not issue a proposal in at least the next 12 months; separately the EPA has announced that it will not undertake key preliminary steps to issuing the proposal until at least March of 2014]
· 1000 – 2867 premature deaths
· 1467 non-fatal heart attacks
· 113,333 lost work days
· 400,000 missed school days
[Note: these calculations are based on benefits estimates that the EPA developed for its abandoned 2011 ozone update (see page 7); the current update is likely to set a similar standard and produce similar benefits]
Several other rules are subject to new delays according to the new Regulatory Agenda, but there are no data with which to calculate what the costs of these delays will be. Some of these other rules include the EPA’s coal ash rule (at least 6 months more delay) the Mining Safety and Health Administration’s (MSHA) rule to protect miners from black lung disease (at least 3 months more delay), and OSHA’s rule to strengthen protections for workers against exposure to beryllium, a known human carcinogen.
The cause of these repeated delays are many. Throughout the rulemaking process, agencies are subjected to near-constant political interference, most notably through the centralized regulatory review process superintended by the White House Office of Information and Regulatory Affairs (OIRA). To complete a rulemaking, agencies must negotiate an expanding universe of regulatory and analytical requirements. Some, such as OIRA’s review process, offer powerful conduits for political interference; others simply tie up agencies with time-consuming and resource-intensive analyses. These analyses do little—if anything—to improve the quality of individuals. Rather, they succeed only in adding months if not years to the rulemaking process. Finally, agencies must overcome all these obstacles while facing constant or even shrinking budgets, essentially forcing them to do more with less. Taking all these factors into account, it’s clear why repeated delays are the rule and not the exception.
What’s not clear is how—in the face of all this evidence of persistent and sweeping delay—that regulatory opponents can, with a straight face, claim that the United States is in the midst of a “regulatory tsunami.”
Rather, these delays demonstrate clearly that agencies are being prevented from implementing the statutory missions that Congress has assigned to them in a timely manner. The resulting delays impose unconscionable costs on the American public. Congress and the White House need to take responsibility for their contribution to this unacceptable state of affairs, and they must begin finding ways to affirmatively support—rather than obstruct—agency efforts to protect people and the environment.