Faceless bureaucrats? Think Again.
Republicans on the campaign trail are quick to decry “job-killing regulations” imposed by a bunch of “unelected bureaucrats.” When talking about the down-side of regulation, they speak in terms of “costs to the economy,” but really all they ever talk about is the cost to the businesses that have to meet those regulations. Republicans’ anti-regulatory framing seriously distorts the truth, both about the origins of regulation and their costs! There is a much bigger picture here.
Federal regulations often arise because Congress wants to balance costs and benefits in situations where one party, say a group of manufacturers, benefits from an activity that imposes costs on another party. For example, consider the problem of PFAS, PFOS, Gen-X, and related compounds released into water supplies by certain manufacturers. If manufacturers have to remove those compounds from their factories’ effluent, it will cost some extra money. BUT, if they don’t, then folks downstream must either suffer the health effects of exposure or spend their own money cleaning up the water before they use it. This is where the federal government steps in and makes a rule that sets legal limits on the concentration of these compounds in drinking water. Let’s continue to follow the PFAS example to see how this works.
Congress passed the Safe Drinking Water Act (SDWA) in 1974 to ensure that the water we drink is safe, and they delegated the responsibility for assessing drinking water safety to the U.S. Environmental Protection Agency (US EPA). Regulators and scientists at US EPA, career civil servants from entry level to middle managers, routinely monitor chemicals in drinking water and their potential health effects. When a problem is detected, they work to quantify the relationship between the concentration in drinking water and the intensity of health effects. The SDWA requires that the US EPA consider both risks and costs in developing standards, so US EPA evaluates and compares approaches to limiting concentrations in drinking water and their relative costs, as well as quantifies the expected benefits of the regulation.
Once a policy decision has been made, an agency, in this case US EPA, develops and ultimately issues a Notice of Proposed Rulemaking (NPRM) in the Federal Register (FR) and invites the public to comment. The NPRM for PFAS was published on March 29, 2023, and received 121,955 comments within the two-month comment period. Subsequently, US EPA staff read and respond to all the comments, possibly modifying the NPRM to account for information or arguments from the comments. Then, if it is a significant rule, it goes to the Office of Information and Regulatory Affairs (OIRA) for a detailed review. The PFAS final rule was released about a year after the proposed rule was published in the FR. After an Agency finalizes a rule, under the Congressional Review Act, Congress has 60 days to introduce a joint resolution disapproving of the rule.
Regulations in other areas — workplace safety, drug safety, financial regulation, etc. — go through a similar process. The main points are that:
Regulations originate from a mandate from Congress or a current event leads to a collective desire for a policy change.
Federal agencies follow their Congressional authority to develop a regulation that responds to the issue.
The development of the regulation is driven by a mix of career civil servants and political appointees with the assistance of relevant experts, both from within and outside government.
The public, including all the stakeholders affected by the regulation, have an opportunity to make substantive comments, effectively reviewing the rule from balanced viewpoints.
Once public comments have been received and responded to and the proposed rule possibly modified, if it is a significant rule, it must be reviewed by OIRA.
After the rule is final, Congress has 60 days in which it can act to disapprove the rule through the Congressional Review Act.
Far from being autocratic demands by faceless government bureaucrats, government regulations have their origins and ultimate fate determined by elected officials. They are crafted by hard-working civil servants at multiple levels of experience and expertise, with input and correction by the public.
Republican anti-regulation rants ignore the benefits of such regulations, benefits which can overwhelmingly exceed the overall costs. For example, in 2020, a white paper prepared by Industrial Economics, Inc. for the Natural Resources Defense Council estimated that the ratio of benefits to costs of the Clean Air Act policies was between 16 to 1 and 32 to 1, that is, the benefits of regulations under the Clean Air Act amounted to 16 to 32 times the overall costs of those regulations. Furthermore, a 2014 study showed that pre-regulation estimates of cost exceeded the actual costs of regulation in about 80% of the regulations studied. The final cost-benefit analysis for the PFAS rule has not been published yet.
Republican leaders are quick to loosen business regulations but seem pretty willing to increase regulations that abridge the freedoms of ordinary people and increase burdens on people seeking relief from poverty or disability. Think restrictions on abortion or adding the burden of work requirements for Medicaid and other benefits, which reduce access to those benefits. Republicans talk about “job-killing” when they want to block a rule that would benefit society as a whole but display little concern when the private sector kills jobs, when, for example, private equity firms buy businesses, strip them of their profitable parts, and fire most or all of the workers to realize fat profits for their share-holders. Republican concern about jobs is simply a screen behind which they hide their real concern: that businesses and the wealthy maintain their positions of wealth and power, regardless of what that may cost the rest of us.
What We are Reading:
Why Is the Biden Administration Completing So Many Regulations? More on the Congressional Review Act.