A specific governing failure
NOW THAT THE Democratic takeover of Congress has blocked one route for weakening the federal government's regulatory role, the Bush administration has found another. Under an executive order signed by President Bush last month, federal agencies will have to establish offices staffed with political appointees to make sure that any new rules or guidance documents are in line with the administration's anti regulation agenda.
Agencies issue rules to flesh out the broadly worded laws that Congress passes to ensure clean air and water, safe food and drugs, and hazard-free workplaces. The rule makers are agency scientists and civil servants whom the White House cannot always count on to favor special interests over the public interest. The new regulatory oversight offices will make sure that agencies keep an aggregate account of the costs and benefits of all their regulations, not just new ones. They will be involved in the framing of regulations from the beginning, not just overseeing the final product.
Even during the Bush administration, agencies have occasionally come up with rules that had real teeth. In Bush's first term, for instance, the Environmental Protection Agency approved a tough regulation on emissions from off-road diesel vehicles. Would that have seen the light of day if it had to pass muster with the new political kibitzers embedded in the EPA?
Rick Melberth, director of regulatory policy at a liberal advocacy group, OMB Watch, is concerned about the impact of the executive order on the guidance that the EPA is preparing for state governments on water quality standards for mercury pollution. Food preparation advisories by the Department of Agriculture could also be affected, he said.
The person nominated by Bush to oversee agency regulations throughout government is economist Susan Dudley, who wrote in 2005 that government regulation is not justified "in the absence of a significant market failure." Only an undue faith in the ability of the market to correct problems created by industry could have led Dudley to oppose, as she did, EPA's efforts to keep arsenic out of drinking water. She has also questioned auto air-bag regulations and the Department of Transportation's hours-of-service rules to keep truck drivers from falling asleep at the wheel.
Echoing Dudley, Bush's executive order says no agency can take new actions without spelling out in writing the "specific market failure" that warrants a new regulation. With this as a standard, Bush's anti regulatory second-guessers in the agencies will be well-placed to prevent conscientious federal employees from protecting Americans from insufficiently tested drugs, carelessly handled food, and unsafe drinking water. It could be a long two years.
