Apr. 14, 2005 – In the coming months, the rules that govern industrial pollution, workplace safety, and other public interest issues may be headed for roadblocks from Congress and the White House.
As the White House Office of Management and Budget (OMB) advances its "Management Agenda" for overhauling or extinguishing public programs it has deemed unproductive, members of Congress are introducing complimentary legislation to "streamline" regulatory agencies.
While conservatives tend to describe such overhaul initiatives as "regulatory relief" -- implying that reducing regulation will eliminate cumbersome barriers to commerce -- public interest groups warn that subordinating public health and safety to financial concerns in the name of improving government only threatens long-standing protections for consumers, workers and the environment.
OMBâ€™s â€˜Hit-Listâ€™ Backs Industry against Regulators
Agencies tasked with monitoring corporations are feeling heightened pressure from the executive branch. The OMBâ€™s Office of Information and Regulatory Affairs published a report last month that activists have dubbed the "anti-regulatory hit-list." It targets 76 federal regulations for "reform." The list is derived from the OMBâ€™s annual "Report to Congress on the Costs and Benefits of Federal Regulation," which provides a financial analysis of how various regulations impact economic growth.
When the OMB solicited advice from the public, industry groups seized the opportunity to critique "excessive" regulations.
Last year, the OMBâ€™s Office of Information and Regulatory Affairs solicited advice from the public on which of the rules under OMB review were especially in need of reform.
Industry groups seized the opportunity to critique "excessive" regulations.
The Motor and Equipment Manufacturers Association requested lower standards for the clean-up of Polychlorinated Biphenyls, toxic chemicals identified by the EPA to cause cancer, immunological and neurological disorders.
A metal industry lobbying group advocated for allowing "more flexibility" in compliance with regulations on the emission of chromium, a toxin associated with lung cancer and ulcers.
The National Association of Manufacturers and other industry groups demanded "burden-reduction reforms" of the Environmental Protection Agencyâ€™s pollution reporting requirements -- namely, loosening standards for "the amount of [polluting] material that can be used without triggering a report."
The Small Business Administration sought to revise limits on the number of hours truck drivers can work without a break, in order to "save costs for businesses." The OMB estimated that the current regulation costs approximately $600 million more per year than the reported monetary value of the benefits associated with the rule, including preventing thousands of accidental deaths and injuries.
In public comments submitted to the OMB, the government watchdog group Public Citizen decried the White Houseâ€™s cost-benefit analysis as "useless for any purpose other than lending a false appearance of technical objectivity to a political decision." The group contended that the OMB employs a flawed and biased methodology that ignores significant, yet less direct, benefits of regulation, such as higher productivity from healthier workers who are protected from air pollution or chemical hazards.
Under the Sunset Act, an agency would have a lifetime of approximately twelve years before automatically expiring and could only be renewed if a twelve-member commission comprised of representatives from Congress and the private sector believed a "public need" for the agency still existed.
Public Citizen also pointed out that for all the efforts to analyze the financial burden of existing regulations unpopular with industry, the OMB has not attempted to calculate the costs of various deregulatory actions that have weakened protections for the environment and public health and safety.
The organization cited more than twenty deregulatory initiatives since 2002 as detrimental to the public, including revisions to rules on occupational injury reporting, industrial emissions control policies, mining regulations for public lands, and government requirements for food labeling.
OMB Watch, a DC-based public policy research group, pointed to rules on the list that seemed haphazardly inserted at the behest of industry. For instance, the administration recently endorsed a regulation to prevent Listeria food poisoning, which causes dangerous infections in pregnant women, only to blacklist it a short while later.
Robert Shull, a senior regulatory policy analyst at OMB Watch, called this political wavering proof that government officials "donâ€™t have a consistent position unless industry writes it for them."
Downgrading Regulations in Favor of â€˜Resultsâ€™
Meanwhile conservative members of Congress are backing the Bush administration by promoting unprecedented changes to regulatory policy.
In the name of boosting government "performance," Senator Sam Brownback (R-Kansas) will introduce the Commission on the Accountability and Review of Federal Agencies Act (CARFA), which would establish a presidentially-appointed commission to conduct yearly evaluations the programs of all federal agencies other than the Department of Defense. The Commission would then submit to congress a list of "agencies and programs that should be realigned or eliminated."
Another potential legislative hurdle for regulatory agencies is the Federal Sunset Act, to be introduced by Representative Kevin Brady (R-Texas) with the strong backing of the Bush administration. Modeled after a similar law in Texas, the bill would apply "sunsets," or expiration dates, to all federal agencies, ostensibly to ensure greater government accountability.
Under the Sunset Act, an agency would have a lifetime of approximately twelve years before automatically expiring. It could then only be renewed if a twelve-member commission found that a "public need" for the agency still existed. That body would be comprised of eight members of Congress and four appointees chosen by the speaker of the house and the Senate majority leader.
Additionally, tucked into the Senate budget resolution is an obscure amendment to the Unfunded Mandates Reform Act that would make it more difficult for the Senate to implement federal rules. The act was originally designed to ensure adequate federal program funding, but public interest advocates fear that by raising the number of votes required to approve certain joint state-federal initiatives, the amendment could impact the funding streams of some environmental regulatory programs.
White House Combats â€˜Excessiveâ€™ Oversight with Economic Report Cards
The movement to revamp the regulatory system on Capitol Hill dovetails with the presidentâ€™s broad plan for "making government more effective," outlined in the 2006 executive budget proposal. The administration announced it would work to overhaul or even purge federal programs failing to demonstrate what it considers good performance.
While the White House claims it strives to boost accountability, reduce waste and ensure "that taxpayers get more for their money," critics say Bush has defined "effectiveness" as centralizing executive power and accommodating narrow interests.
A controversial cornerstone of the administrationâ€™s regulatory reform arsenal is the Program Assessment Rating Tool (PART), an accounting mechanism used to evaluate program "effectiveness" and to plan budget allocations for federal agencies.
Shull said that although PART is glossed with an "unimpeachable" stated purpose of making the government work better, in reality, "the devilâ€™s in the details."
Detractors believe that PART is inherently biased toward industry because many of the benefits of public programs, such as long-term improvements in public health, are ignored in the efficiency-minded calculus of so-called "regulatory accounting."
"We donâ€™t think that government should spend its time trying to monetize the value of human life," said Rena Steinzor, an environmental lawyer and board member of the Center for Progressive Regulation, a nonprofit think tank.
Critics note that the PART methodology quietly threatens health- and science-based regulatory programs that are by law barred from using cost-benefit analysis in major policy decisions.
The Supreme Court ruled in 1997 that for the EPA, cost should not be a determinant in setting health-based air quality standards. But this year, the OMB gave the EPAâ€™s Ecological Research Program a paltry 20 percent score for "results." In its explanation of the grade, OMB report did not directly address the quality of the EPAâ€™s scientific research, but rather stated that in terms of cost-efficiency and performance, the Agency "cannot demonstrate results at this time" and "lacks ambitious goals." The Presidentâ€™s 2006 budget proposal decreased the agencyâ€™s funding by more than $200 million.
Similarly, in 1993, a federal court ruled that the Department of Laborâ€™s Occupational Safety and Health Administrationâ€™s (OSHA) standards, designed to protect worker health and safety, should not be subject to considerations of financial cost. Yet OSHA received a lackluster "results" grade of 47 percent from OMB, partly because it has so far failed to report "the monetary costs, benefits, and net benefits" of its policies.
OMB Watch argues that the OMB lacks even the authority to conduct such analyses, suggesting that Congress, not the executive branch, should ultimately be responsible for using federal resources to conduct balanced program evaluations.
But rather than reaffirming its independent oversight powers, the House of Representatives is currently considering a proposal to expand the presidentâ€™s influence by entrenching PART in the legislative process. The Program Assessment and Results Act (PARA), introduced in January by Representative Todd Platts (R-Pennsylvania) and already passed by the Committee on Government Reform, would mandate that the OMB review all federal agencies on a five-year rotation, supposedly to ensure a more "results-oriented" government. The Committee opted to give the White House full control over the evaluations, striking down amendments to allow agencies to conduct their own reviews and to mandate a public comment period.
Analysts skeptical of this type of regulatory reform believe that by hampering the work of agencies with abstract economic benchmarks, PART threatens to induce "paralysis by analysis."
Drawing on the Center for Progressive Regulationâ€™s study of federal funding for scientific research, Steinzor observed that the OMBâ€™s cumbersome analysis requirements are eating away at the EPAâ€™s resources at the expense of vital science-based work. In the Air Toxics program, said Steinzor, CPR found that EPA staff was "spending so much time reviewing their budget priorities that they had very little time to do actual science."
Shull believes initiatives like PART and PARA contribute to the very problem they strive to eliminate: an overwrought, inefficient government.
"Maybe whatâ€™s â€˜overwroughtâ€™ isnâ€™t so much the number of agencies," said Shull, "but the number of analytical requirements and all the hoops that the agencies have to jump through before they can issue a regulatory protection."
Resetting the Regulatory Agenda
As policy-focused advocacy groups, OMB Watch and the Center for Progressive Regulation have aimed to recast the debate on federal regulatory reform, so that citizens do not feel they must choose between a drastically weakened oversight structure and a burdensome litany of useless rules and oversight bodies.
Steinzor, who views the Bush administration as "one of the worst periods for this type of protection in the countryâ€™s history," believes the proposed regulatory changes are a stealth attack that enables conservative policymakers to avoid the political backlash of opposing regulation outright. As the public is preoccupied with other domestic issues, she said, conservative policymakers can wield "these supposedly neutral, bookkeeping analytical requirements that have the same effect but cannot be easily translated â€¦ into the context of dirty water, dirty air."
To counterbalance conservative calls for regulatory reform, the CPR has devised an "affirmative agenda" that advocates a more open government, aggressive and objective regulatory enforcement, and laws mandating transparency for corporations.
To raise public awareness, OMB Watch has pulled together a coalition of environmental, labor and advocacy groups called Citizens for Sensible Safeguards, with the aim of uniting diverse organizations to oppose the downsizing of the federal regulatory regime.
Proposing a counterpoint to the concept of economic efficiency in government, Shull reflected that for the emerging grassroots alliance on regulatory issues, "the bottom line is the public interest."