Regulatory Tsunami? What Regulatory Tsunami?

Sometime last Friday—the Friday before the Memorial Day holiday weekend—the Obama Administration quietly issued the Spring 2014 Regulatory Agenda.  It’s becoming something of a tradition for the Administration to release this semiannual document on classic “take out the trash” news days in this fashion.  The Fall 2013 Regulatory Agenda was similarly released to whatever the opposite of fanfare is on the day before Thanksgiving, while the Spring 2013 Agenda came out the day before Independence Day.

It’s hard to blame Obama’s political folks for resorting to these kinds of tricks to bury the news about the release of the regulatory agenda, since it always elicits the same “the sky is falling” panic from corporate interests and their allies in Congress and conservative think tanks.  They issue their press releases and reports—indignant outrage on full display—about how the regulatory agenda supplies the latest evidence of the Obama Administration’s so-called “regulatory tsunami” or “flood” or “avalanche” or whatever overblown meteorological metaphor happens to strike their fancy on that particular day.

And then several members of Washington, DC, press corps dutifully and uncritically regurgitate these press releases into “news” stories, usually with a main take-home message along the lines of “hundreds of new regulations are in the pipeline” or “Obama’s regulators working at full tilt.”  In the interest of fairness and balance, they’ll pull a quote or two from a public interest group representative.  This is not to say that these journalists necessarily intend to write a biased story, but in adopting industry’s frame—“look at all the regulations under development!”—they are propagating and reinforcing a political talking point.  The damage has been done.

In this manner, twice a year, for many years, regulatory agendas have been released, irate press releases have been issued, and new stories have been published.   And yet, industry is still raking in record profits while the concentration of wealth continues unabated.  At what cost?  Workers continue to die horrible deaths on the job from preventable accidents, poisoned food keeps ending up on families’ dinner tables, and irreversible environmental degradation marches on.  In other words, for corporate interests and ideological conservatives, the sky is still where it should be.  And for the rest of us?  Well, that’s a different story.

So, what’s really going on here?  Now is a particularly good time to ponder this question, because a partial answer can be found in the regulatory agendas themselves.  In theory, the regulatory agenda is supposed to be a compendium of all the rules that the administration is working on, or expects to work on, over a relatively short time horizon (roughly, the next 12 months or so).   As part of each individual rule’s entry, the agenda is supposed to provide some basic information about the rule and a timeline for what progress the administration expects to make on developing the rule over that short time horizon.

The reality, however, is much different.  In practice, the regulatory agenda has become a means for agencies to catalog all of the new delays to which most of their rulemakings have been subject since the last regulatory agenda was published.   No one, of course, expects agencies to get all of their predicted timelines correct all of the time; agencies encounter too much interference from forces beyond their control for that to happen.  But the pattern of delays is both widespread and persistent enough that it should raise serious questions about how well regulatory agencies are able to carry out their missions of protecting people and the environment.  And for more immediate purposes, these delays should all but put to rest the self-serving, conclusory claims about so-called “regulatory tsunamis.”

A quick scan of the Spring 2014 Regulatory Agenda reveals that dozens of critical rulemakings have been subjected to new delays of at least several months since the Fall 2013 Regulatory Agenda was issued (for perspective, the Fall 2013 Regulatory Agenda was issued almost exactly six months ago):

• The Department of Energy has delayed by seven months to July of 2014 issuing its final rule to improve energy conservation standards for “residential furnace fans” (according to Fall 2013 Regulatory Agenda, the final rule was supposed to come out in December of 2013; note that the statutory deadline for the final rule was also December of 2013).

• The Department of the Interior has delayed by five months to August of 2014 issuing its proposal to strengthen the agency’s oversight of air pollution from offshore oil and gas drilling operations off of the North Slope of Alaska (according to Fall 2013 Regulatory Agenda, the final rule was supposed to come out in March of 2014).

• The Department of Labor has delayed by eight months to December of 2014 initiating the Small Business Regulatory Enforcement Fairness Act (SBREFA) panel prior to beginning work on its proposal to control dangerous combustible dust in industrial worksites (according to Fall 2013 Regulatory Agenda, the SBREFA panel was supposed to be initiated in April of 2014).

I don’t know what a regulatory tsunami looks like, but it’s not that.  A better meteorological metaphor for a regulatory system that is afflicted by such widespread and persistent delays would be a drought.

Once one starts to recognize the reality about the regulatory agendas, other questions inevitably emerge.  For starters, what is causing all of these delays?  Congress passes laws and assigns agencies the task of implementing them, often through regulations.  These rulemaking delays mean that the public will, as reflected in those laws, is not being carried out, and that should be of grave concern to all of those who care about good governance.  In the worst cases, these delays are so great that the agency fails to issue a rule in compliance with a statutory or judicial deadline—take, for example, the Department of Energy rule noted above.  There are dozens of rules in the Spring 2014 Regulatory Agenda that are passed their statutory or judicial deadlines—in some cases by several years.  Through these kinds of delays, agencies are affirmatively violating the law.

One should also begin to wonder about the consequences of these delays.  From the examples above, we see that these delays mean that households will keep losing money in their energy bills (and more climate-disrupting greenhouse gases will be released in the process), air quality in Alaska’s North Slope region will continue to degrade, and workers will continue to be injured and killed in preventable workplace explosions.  In other words, industry will keep shifting the costs of its harmful activities on to the public at large.

Pulling all of this together, the costly delays that every regulatory agenda announces should be of great concern to us all.  They suggest there is a real problem with our regulatory system—one that leaves the public and the environment inadequately protected against unreasonable risks.  These regulatory agendas should serve as an impetus for the public to push our lawmakers to fix the regulatory system so that agencies are better able to carry out in a timely fashion their missions of safeguarding us and the environment on which we depend.

Instead, perversely, antiregulatory opponents have somehow twisted these documents into supporting their false narrative that we’re being afflicted by overzealous regulatory agencies that are running amok.  The clear evidence to the contrary is there for us all to see—all it requires is a closer, more honest look for us to break this counterproductive cycle.