Obama’s Fall 2016 Versus Trump’s Spring 2017 Unified Agendas
On July 20, 2017, the Trump administration announced that it was going to kill hundreds of rules considered by previous administrations to protect public health, worker and consumer safety, the environment, and working people navigating the financial services marketplace. The Trump Spring 2017 “regulatory agenda” was lengthy and complicated. To understand its full implications, you needed to compare it to the last regulatory agenda issued by the Obama administration in the fall of 2016. No one could achieve that detailed analysis within the news cycle spanning the president’s announcement, although Matthew Shudtz, CPR’s executive director, said accurately that “we are watching the American safety net unravel before our eyes.”
We have now completed a comparison of the Obama and Trump agendas, as reflected in two charts that list the rules contained in:
- The last Obama administration Unified Regulatory Agenda issued in Fall 2016
- The first Trump administration Unified Agenda issued in Spring 2017
We evaluated the entries for the Environmental Protection Agency (EPA); the Food and Drug Administration (FDA); the Department of Labor (DOL) Wage and Hour Division (W&H) and Occupational Safety and Health Administration (OSHA); the National Highway Traffic Safety Administration (NHTSA); the Consumer Product Safety Commission (CPSC); and the Consumer Financial Protection Bureau (CFPB).
The first part of the chart lists Obama administration agenda items. It includes a significant number of rules that appear against a green background, indicating that the Trump administration has abandoned them. No discernible public policy explains the drastic number and content of rules dropped from the Trump agenda. Instead, the Trump administration seems to have relied on its general mantra that ditching rules somehow saves jobs – a mantra that is unsupported by economic analysis and that ignores the fact that people need to be healthy and financially secure in order to get and keep their jobs. People also miss work when their children are sick because, for example, they have an asthma attack on a Code Orange or Red (dirty air) day.
The rules dropped by the Trump administration were not abandoned because they had greater costs than benefits, nor do they have benefits that are so small they can be ignored. Instead, looking at the spreadsheets from an objective perspective, we find among the abandoned rules notable winners for public health, consumers, workers, and the environment.
Furthermore, the Trump administration does not appear to have considered whether the market could address the problems raised by the abandoned rules, a favorite rationale of conservative deregulators. Under this rationale, government intervention is unnecessary because members of the public can band together to exert pocketbook pressure that inspires polluting industries or manufacturers of dangerous products to stop engaging in these practices.
Likewise, the eliminated rules do not represent circumstances where effective voluntary industry programs have emerged to address the problems that prompted the rules’ formulation. Such self-regulation, if it actually occurred, might make government action unnecessary, saving the day with less industry resistance. However, the most significant abandoned rules address very difficult problems that have persisted for years without any operational industry response. These threats are only getting worse with time and are not being adequately addressed by industry-driven initiatives.
Finally, the Trump administration does not claim that state governments are addressing these problems, allowing the federal government to step back so that the states can tailor solutions more suitable for their populations. Indeed, some of the abandoned rules concern difficult circumstances involving “cross-boundary” pollution that result from activities in one state causing harm in a second state. In such cases, the second state has difficulty persuading the polluting state to take action because the originating state’s economy is enhanced by the industrial activity or, alternatively, the originating state may be fearful that if it cracks down on the offending facilities, they will move to a state with weaker rules.
What, then, might explain the assembly of this universe of abandoned and continued initiatives?
Clearly, the administration had some kind of quota in mind and was slashing as many rules in both the proposed and final stages of development as possible. President Trump wanted to brag that he had cut hundreds of regulations. As devoid of a coherent policy explanation as this approach may be, we suspect something even more disturbing was going on.
We envision conference rooms at the Chamber of Commerce, the Business Roundtable, the American Petroleum Institute, the American Chemistry Council, the Heritage Foundation, and law firms along the K Street corridor. Occupants of these rooms are compiling lists of the rules that their constituents find irritating and unduly expensive in response to the White House siren song that anything and everything could get moved to the chopping block. Some of these organizations have released very public complaints against many of the abandoned rules, although no one has bragged about transmitting lists to the White House that were cut and pasted into the Trump regulatory agenda. President Trump, though, constantly extols his efforts to help business “thrive again” and even sent “landing teams” to the agencies soon after his inauguration to make sure they were brought under control. We cannot prove definitively that the cuts resulted from industry lists because participants aren’t talking, but we are confident that’s what happened.
This impression that potentially regulated industries played a central role in compiling the Trump regulatory agenda is underscored by the new initiatives the administration intends to pursue. “New” projects to be undertaken by EPA include the rewriting of the “waters of the United States” rule produced after laborious intra-agency, federal-state, and stakeholder collaboration by the Obama administration that extended over several years, yet real estate developers, the oil and gas industry, and the Farm Bureaus were still unhappy with it and the administration promised to address their concerns. EPA Administrator Scott Pruitt has also pledged to take a second look at the Obama administration’s limits on the levels of toxic “fly ash transport water, bottom ash transport water, flue gas desulfurization wastewater, flue gas mercury control wastewater, and gasification wastewater” dumped into the nation’s rivers by coal-fired power plants. At the behest of industry owners and operators, Pruitt has stayed final rules promulgated in August 2016 that govern municipal solid waste landfills. Most ominous of all is the pledge to consider revocation of National Ambient Air Quality Standards for ozone (smog), wording that implies that Pruitt might decide to raise the amount of ozone tolerated in the country despite the extensive adverse health effects such pollution causes.
No one voted for – or for that matter, against – Donald Trump thinking that he would embrace health, safety, environmental, and financial security rules with enthusiasm. But only a minority – hopefully a small minority – thought he would descend to the status of an autocratic monarch. Setting up a transmission line from well-heeled special interests straight to the White House, and ignoring the legal, social, economic, and practical implications of catering to those interests in the real world, is the very definition of operating outside the rule of law. It’s happened before in America, but not to this extent and with this degree of entitlement harbored by the man who would be king.
The following examples illustrate the lack of rationality of the Trump administration’s decisions, unless one considers their apparent industry-friendly motivations. These examples are not intended to be a comprehensive assembly of the many troubling aspects of the rules that were abandoned.
Environmental Protection Agency
The Trump regulatory agenda postpones until at least 2018 a long overdue proposed rule to update a 1991 standard limiting levels of lead in drinking water, stating that the agency needs more data to ensure the rule “can be effectively implemented.” This language suggests that affordability, as opposed to public health, has become a central concern for the administration. Flint, Michigan, is not the only city plagued by neglect of this critical problem. Baltimore, St. Louis, and scores of other cities have elevated lead levels in their drinking water because of old pipes.
And this dangerous situation is not limited to urban areas that the Trump administration may not believe is part of its political base. An investigation by USA Today involving the inspection of millions of records discovered that four million people living in rural America (definitely a part of that base) get their drinking water from very small operators that skipped testing or conducted it improperly. In fact, more than 2,000 utilities skipped lead testing more than once. An additional 100,000 people get their drinking water from systems that discovered unsafe levels of lead but failed to treat it.
State and federal regulators told USA Today that they are lenient with such small systems because they lack the “money, expertise, and motivation” to run the system properly, but this fails to acknowledge the toll that repeated lead exposure takes on children. Lead-poisoned children suffer from significant cognitive and developmental problems, which can lead to difficulties in education and eventually employment. If a child is brain-damaged enough, she may never be able to get or hold down a job once she reaches working age.
For more on the Trump regulatory agenda for EPA, particularly for rules on toxic substances, see a recent blog post by Center for Progressive Reform Executive Director Matthew Shudtz.
Food and Drug Administration
Compounding pharmacies in theory make special mixtures of drugs for individual patients. This practice may be necessary because the dose of a certain medication must be smaller or larger than is contained in a manufactured product or because the dose must contain ingredients that are not combined in a manufactured product. Over the past decade, lax oversight by state pharmacy boards has resulted in the award of multiple licenses to individual pharmacies that then shipped compounded drugs in bulk. Because these drugs are often cheaper than manufactured products, medical care facilities bought them without first submitting an individual prescription.
In the fall of 2012, tragedy struck. The New England Compounding Center (NECC) outside Boston shipped 17,000 vials of steroid injections to facilities in 23 states. The NECC “clean” room was run in a grossly slipshod manner, and many of these vials were contaminated with fungal meningitis. When the dust settled, 64 people had died and more than 700 were seriously ill. Subsequently, and largely because compounders are an exceptionally relentless lobby, Congress passed a statute that gives compounders the option of registering with the FDA, in effect leaving oversight to state pharmacy boards that failed so abysmally in the NECC case.
The Trump administration delayed until (at least) 2018 a proposed rule that would prohibit compounders from making and selling three specific drugs. The drugs have already been removed from the manufactured drug market on the grounds that they either are not safe or not effective.
National Highway Traffic Safety Administration
The Trump administration killed a rule proposed by the Obama administration that would have required any truck weighing more than 26,000 pounds to install a “speed limiting device” that controls the speed the truck is traveling on the nation’s highways. In addition to saving $1.1 billion in fuel and associated emissions, the rule would have saved lives because, as every high school physics student knows, the faster trucks (or any vehicles) are traveling, the greater the damage upon impact. Similarly, the faster the speed, the greater the stopping distance for heavy trucks, and this reality can have grave consequences as the nation’s highways become more and more congested. Indeed, based on an extensive analysis of fatal crashes involving trucks, the agency estimated that such accidents cause 1,044 deaths annually.
One major reason the “free” market cannot take care of this problem is the unremittingly difficult life of a truck driver. According to exemplary investigative reporting, again from USA Today, truck drivers hauling cargo from the Port of Los Angeles to warehouses owned by such household names as Target, Walmart, and “dozens of other Fortune 500 companies” are forced to sign contracts that require them to buy a truck from the company that hires them. At the end of a week, after driving as many as 20 hours daily (a violation of a federal rule limiting drivers to 11 hours a day), they sometimes end up owing the company money. If they default, they lose the truck and everything they have paid toward it. One man’s truck broke down and when he could not afford the repairs, he lost the vehicle, his job, and the $78,000 he had paid toward the truck. The drivers are often immigrants who do not speak English very well, so the Trump administration may not consider them part of its “base,” but Trump voters, along with the rest of us, definitely spend lots of time on the road with these abused and overtired drivers.
Occupational Safety and Health Administration
At first glance, a possible rule entitled “Revocation of Obsolete Permissible Exposure Limits” would seem like a perfectly acceptable, even commendable, regulatory item to retain in a Trump regulatory agenda. Instead, it was deleted. Why?
The standards limiting chemical exposures are outdated because OSHA has not revised them in decades. These old standards allow considerably more toxic chemicals to be present in the workplace than are present in modern facilities. Or, in other words, factories have reduced the level of toxic emissions below the old OSHA numbers and those numbers have therefore become obsolete. The Obama administration’s OSHA thought these obsolete standards might as well be taken off the books so workers would not feel a false sense of security when employers reduced exposure below the old numbers but perhaps still allowed exposures above any safe level of the chemical.
The hitch here is that in certain circumstances, workers can get around the strictures of workers’ compensation systems and file a private lawsuit seeking damages for illnesses caused by exposure to excessive levels of chemicals at a badly run plant. In defense, companies could use OSHA’s old standards in the case, arguing they were following prevailing federal law. This possibility may at least partially explain why the Trump administration seems to have no problem leaving the old standards on the books despite saying it would be scrutinizing the Code of Federal Regulations for obsolete rules to eliminate.
For a fuller discussion of the Trump regulatory agenda for OSHA, see a recent blog post by Center for Progressive Reform Policy Analyst Katie Tracy.