Obama’s regulatory flurry: Opportunity, not calamity

“2,224 new regulations”

That phrase leaps out of the news stories and opinion pieces about the Obama administration’s recent rulemaking activity.

{mosads}Before those with a stake in these rules push their panic buttons, they should remember that this move is not unexpected or unprecedented.

Having worked in a two-term administration and a presidential transition, I’ve seen presidents try to tie up loose ends and lock in their legacies as their second terms come to a close. This includes regulatory activities, especially when the opposing party controls Congress, as with presidents Obama, Bush II and Clinton. Since they can’t run for third terms and have weathered their final midterm elections, these presidents are more preoccupied with their places in history than with short-term politics.

I’ve seen this from both sides. Serving on the Agency Review Working Group for Obama’s transition team, my colleagues and I were concerned that the Bush administration had issued last-minute regulations easing protections for endangered species and permitting concealed weapons in some national parks.

We shouldn’t have been surprised. Eight years earlier, the Clinton administration (in which I reviewed regulations), translated its environmental priorities into restrictions on road-building and commercial development in national forests and its concern with worker safety into an ergonomics rule. Both administrations knew that newly inaugurated presidents can have a hard time reversing rules that are already in effect (although the incoming administration was successful in undoing the ergonomics rule).

By heading into its final year with a robust regulatory agenda, the Obama administration is following its predecessors’ precedents. The “Unified Agenda” issued in November should be viewed less as a “shot across the bow” than a roadmap for stakeholders and Congress to focus their own activities in the regulatory world over the next 13 months.

So how should stakeholders respond? Three suggestions:

First, “Keep your eyes on the prize.” Concentrate on the regulations that matter most, not the blizzard of administrative minutiae. Stakeholders should drill beyond the thousands of proposed rules, understanding that some are unlikely to be completed, and still others will have little impact. Focus specifically on those that most directly affect how you live, work and do business. There are some very significant proposals, such as new overtime rules and limits on carbon dioxide emissions for coal-fired power plants, which have already received a lot of news coverage

To individuals and institutions who want to weigh in, my second advice is: Participate in the rulemaking process. Having headed the Office of Information and Regulatory Affairs (OIRA), the White House’s focal point for regulatory policy, I have seen how rulemaking benefits from expanded public engagement.

Debates and decisions are more informed when more participants, viewpoints and information are represented. When aired in public, good ideas eventually prevail over bad ones. To paraphrase a point that has been variously attributed to the legendary Supreme Court Justices Louis Brandeis and William O. Douglas, the best answer to bad speech is more speech.

Now, my third piece of advice: That speech should be specific and constructive.

If a proposal presents a real problem or is likely to have serious unintended consequences, spell it out and support your critique with facts or data, not hyperbole or broad but unsupported claims of regulatory overreach. If you believe that what the agency suggests is objectionable, suggest an alternative that minimizes the costs or burdens but achieves the stated objectives. You can’t “beat something with nothing.”

Those who travel this route often achieve positive results. For example, the final rule for new sources under the Clean Power Plan may still be objectionable to many, but the emissions limits increased significantly from those in the proposed rule (from 1100 to 1400 lbs. per megawatt hours) as a result of constructive engagement during the rulemaking process. 

On another issue where the stakeholders suggested improvements, rather than responding with reflexive opposition, the railroad standards for crude oil transport were ultimately coordinated with Canada and included an extended phase-in period.

That’s how the system is supposed to work. Balancing social, environmental and economic considerations, agencies draft and OIRA reviews rules, considering cost-effectiveness and possible alternatives. The White House, cabinet departments and independent agencies should welcome suggestions for making regulations more flexible, effective and efficient.

Keeping these concepts in mind, stakeholders can be participants, not just naysayers, in writing and revising regulations. That’s good for these stakeholders’ concerns, good for the process, good for the final product, and good for the American people.

So go for it.

Katzen served as administrator in the Office of Information and Regulatory Affairs (OIRA) from 1993 to 1998. She is a senior adviser at the Podesta Group and a professor of Practice and Distinguished Scholar in Residence at New York University School of Law.