By the Numbers: The Costs of New Regulatory Delays Announced in the Spring 2013 Regulatory Agenda

  “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:

• Spring 2010 Regulatory Agenda (first time listed in an Agenda; rule categorized as a “long-term action,” which means that the agency responsible for the rule doesn’t expect to take any significant rulemaking action within the next year or so).
• Fall 2010 and Spring 2011 Regulatory Agendas (now rule is categorized as being at the “proposed rule stage,” which means that the agency responsible for the rule expects to issue a proposal within the next year or so).
• Fall 2011 Regulatory Agenda (rule still categorized as in the “proposed rulemaking stage,” but the expected completion date for the notice of proposed rulemaking (NRPM) has been pushed by four months).
• 2012 Regulatory Agenda (note that the Obama Administration issued only one Regulatory Agenda in 2012; rule still categorized as in the “proposed rulemaking stage,” but the expected completion date for NRPM has been pushed by another 17 months and the expected completion date for the final rule has been pushed back by 25 months).
• Spring 2013 Regulatory Agenda (the rule has been re-categorized as a “long-term action,” and now there are no expected completion dates for the NPRM and final rule).

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:

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.