February 24, 2014, 06:00 am
Obama's rush to regulate
By Ben Goad
President Obama has ordered his officials to step on the gas and clear as much of his regulatory agenda as possible during the twilight of his time in office.
The clock is ticking, creating a sense of urgency in the administration to crank out his new rules without delay.
Just a year into the president’s second term, experts and former administration officials say it is do-or-die time for scores of regulatory initiatives across the federal government that could shape his legacy. So Obama is spurring agencies on.
“He has directed his entire administration to move as quickly as possible in identifying and acting on steps they can take to make progress on behalf of the American people,” White House spokesman Matt Lehrich said.
Prominent Republicans such as House Majority Leader Eric Cantor (Va.) complain that Obama’s approach has already produced rules that are overly “burdensome” and serve to slow economic growth.
But, even so, the biggest obstacle facing Obama’s regulatory agenda isn’t the Republican House, or the opposition of business groups, it’s the calendar.
A single federal rule can take years to develop and put in place, consuming significant resources and political capital along the way.
Regulators involved in the painstaking process try to use language strong enough to both accomplish the administration’s goals and withstand future legal challenges.
“Three years may look like a long time, but when it comes to the rulemaking process it’s a blink of the eye,” said Amit Narang, a regulatory policy advocate at the nonprofit group Public Citizen. “I think they’re realizing they’re up against tight deadlines.”
Topping the administration’s to-do list is Obama’s climate initiative, which includes higher emissions standards for power plants. The president has set strict deadlines to ensure the regulations are put in place by the summer of 2016.
A related rule imposing new fuel efficiency and greenhouse gas standards for big rigs and semi-trucks was put in motion last week. Observers say the timing of that announcement reflects concern that any delay would jeopardize chances of putting the rules in place before Obama is out of office.
“There’s a narrow amount of time where you can begin the process for complex, significant rulemaking,” said Daniel J. Weiss, director of climate strategy at the Center for American Progress.
The group’s former president, John Podesta, recently joined the White House as a senior advisor to Obama and is helping oversee the completion of the climate rules. He is reprising a role he played as White House chief of staff late in the Clinton administration — a period that saw significant regulatory action.
“Certainly John has a lot of experience in moving complicated public safeguards though the regulatory system in the second term of a presidential administration, and I think he’ll bring that experience to bear,” Weiss said.
Businesses mostly oppose the rules and have launched efforts to influence their final language. Their release in 2016 is certain to be accompanied by major battles, both inside and outside of the Beltway, said David Goldston, director of governmental affairs at the Natural Resources Defense Council. Goldston said the administration has long factored each phase of the rule-making process into its planning.
“Like any administration they are aware that their time in office is finite,” he said.
“Nobody’s ever thought these were just going to pass unnoticed into the Federal Register.”
Throughout the Obama administration, the president’s regulatory agenda has been the subject of intense debate between business interests that accuse Obama of overstepping his authority with a deluge of new rules and public interest groups that charge the administration with dragging its feet on crucial protections.
There is data to support both arguments. The nonpartisan Congressional Research Service issued a report last year showing that the number of final rules promulgated in Obama’s first term was fewer than those issued during the first four years of the George W. Bush administration.
The same report concluded, however, that more “major rules,” those with an annual economic impact exceeding $100 million, were enacted in 2010 than in any year dating back to at least 1997.
At the same time, recent years have seen a dramatic uptick in the time it takes the administration to clear rules, according to new figures issued by the Administrative Conference of the United States, an independent federal agency charged with monitoring the government’s rule-making process.
In the mid-1990s and early 2000s, it took the White House’s Office of Information and Regulatory Affairs (OIRA) an average of 50 days to complete reviews of regulations drafted at agencies.
That number swelled to roughly 80 days in 2012 and more than 130 last year, according to the data. The logjam has been attributed, at least in part, to political concerns surrounding the 2012 election cycle.
Similar pressures are expected in advance of this year’s midterms and the 2016 White House race, two more reasons Obama wants to act swiftly.
“I don’t think the public can afford any more time-outs on the rulemaking process,” Narang said. “Election or not, the pace has to pick up.”
Each rule must pass through an exhaustive process, often including public hearings, comment periods and economic analyses before draft regulations are replaced with final language, which is then subject to additional review.
The administration has only so much bandwidth to draft the new rules and see them through the entire process, said Stuart Shapiro, a Rutgers University public policy professor who worked at OIRA for five years in the late 1990s and early 2000s.
“At the end of the day, the biggest factor may be the time constraints of the people that are working on it,” Shapiro said.
That means rules, and their proponents, must jockey for position among the throngs of other regulations in the pipeline. Decisions about which move forward and which are left to die on the vine are typically made by officials in the upper echelons of agencies and the White House, Shapiro said.
More than 100 proposed rules are under review at OIRA, and the administration lists hundreds more regulatory proposals on its most recent Unified Agenda, a rulemaking roadmap released twice a year.
Most recently issued in late November, the agenda gives an agency-by-agency account of the government’s planned regulations.
For instance, the Securities and Exchange Commission is working on roughly 40 measures, including unfinished rules in support of the 2010 Dodd-Frank financial reform law.
There are more than 130 rules on the docket at the Department of Health and Human Services, including some required by ObamaCare.
The administration is also pushing forward on several other fronts. The Food and Drug Administration agreed last week to new deadlines for a massive overhaul of the nation’s food safety regulations, putting the effort on track to be completed by spring of 2016.
Agencies are working on numerous other health and safety rules — including long sought standards for workers’ exposure to silica dust. They are hustling to put forth new regulations in response to last year’s West, Texas, fertilizer plant explosion, along with last month’ s devastating chemical spill in West Virginia and a recent spate of train wrecks involving crude oil shipments in the northwest and Canada.
Republicans are pushing back with a slew of bills designed to tamp down on the executive branch’s rulemaking authority, giving Congress more sway over regulations they view as too costly.
Cantor touted the effort, pointing to research showing that federal rules cost businesses thousands of dollars a year for each person in their employ.
“The cost of excessive and burdensome Washington regulations means fewer jobs and reduced salaries for those with a job,” he said in a statement.
Observers say the legislation, expected to hit the House floor this week, is little more than a distraction, since the bills face an uphill fight in the Senate and Obama would almost certainly veto them.
However, Congress does have at its disposal the Congressional Review Act (CRA). The statute empowers Congress to overturn regulations through a joint resolution, which must be signed by the president.
That has only happened once before. However, the 1995 CRA gives lawmakers 60 days of formal congressional business after a rule is finalized to pass the resolution to strike it down. That means that rules passed in late 2016 could be overturned by Obama’s successor, Shapiro said, a prospect that would become far more likely if Republicans seize control of the Senate and the White House.