Paterson’s Executive Order: Win for Industry, Loss for Public Health and Safety

This is one of two posts today by CPR member scholars evaluating NY Gov. David Paterson's recent executive order on regulations; see also Sid Shapiro's post, "New York Governor Channels Ronald Reagan: Governor Paterson’s Flawed Plan to Review Regulations."

It is open season on environmental, health, and safety regulations in New York. Last Friday, August 7, Governor Paterson issued an Executive Order directing his public safety agencies to review all of their regulations with an eye toward eliminating any that are “unnecessary, unbalanced, unwise, duplicative or unduly burdensome.”

This language could have been lifted directly from anti-regulation lobbying groups. The Governor's press release actually touts: "Streamlined Regulations Will Better Protect the Health, Safety and Welfare of all New Yorkers." Nothing could be further from the truth.

The Order requires each agency to conduct a 60 day comment period and then select at least two regulations to designate for further review, the selection to be based on which regulations have generated the most widespread or substantive criticism and opposition.

Think about what this means.

Paterson’s Executive Order gives well-financed, well-organized business groups a second bite at the apple on a host of regulatory battles that they have already lost. Regulations that protect the people and the state of New York already go through extensive public comment and review. Now regulations that that have been duly enacted, sometimes after much struggle, will be on the chopping block. This process ensures that the most controversial regulations, often those dedicating resources to protecting the most vulnerable among us, will be cherry-picked for review.

When a draft version of the Executive Order surfaced last year, Governor Paterson hinted that it might derail New York’s participation in the Regional Greenhouse Gas Initiative. Business and industry groups confirmed that their top target would be the climate change regulations. While we can all agree that unnecessary regulations should be eliminated, this is not the way to ferret them out. Rather than targeting the truly trivial or the outdated, we can expect to see a flood of industry comments trying to derail critical environmental and health regulations. Tellingly, among the first agencies subject to this Order are those that directly protect human health and the environment.

These agencies must designate regulations to consider eliminating, and must do so based solely on the comments of those who oppose the regulations. Because this regulatory order solicits objections, there is no way for the public, as the beneficiary of health and safety regulation, to make sure its perspective is considered during this initial review process. Agencies will collect a one-sided set of comments, all targeted at reducing regulation. Only after regulations have been identified for further review will supporters of the regulation be invited into the process, or even know that their interests are in jeopardy.

If the Governor’s goal is really better regulation, he should solicit 60 days worth of comments about what new regulations would enhance the public’s safety and welfare in New York, and which existing regulations are successful. That way, at least the agencies would collect the wish lists of a wide range of organized groups, instead of just those dedicated to minimizing regulatory oversight on business. In selecting two to ten proposals to pursue, the agency could have the choice of developing needed new regulations, recommitting to effective existing ones, or eliminating regulations that are no longer needed.

As written, however, the Executive Order creates a unidirectional, deregulatory pressure. If regulators decide not to revise or eliminate a targeted regulation, perhaps because investigation led to a conclusion that the regulation was not “outdated, inadvisable or unwise,” that doesn’t end the matter. The Order also creates an Executive Review Committee that can overrule the regulators’ judgment and direct the agency to repeal the regulation.

With this order, Paterson has dramatically expanded his reach into New York’s administrative system by giving his political allies an executive veto over all existing regulations in the State of New York. Vital regulatory decisions will now be made by people whose only qualification is that they are close to the Governor, rather than by those with expertise in health and safety regulation. That is a dramatic transfer of power away from the agencies, and it exposes every New York State regulation to political maneuvering.

Experience from centralized regulatory review on the federal level ought to signal caution here. Time and again, agencies with specialized expertise, like the EPA and FDA, have identified regulatory priorities for protecting public health and safety, but centralized review has hindered their ability to carry out those priorities. OIRA, an office in the White House staffed largely by economists, has repeatedly weakened or killed regulations deemed necessary by the health and safety agencies charged with protecting the public, all in the name of “reducing the regulatory burden.”

At a time when agency budgets are being cut, this Executive Order forces health and safety regulators to divert attention from their task of protecting the public in order to re-fight regulatory battles that the public thought had been safely won.