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Peeling Back the ‘Cover of Darkness’ on Obama’s Regulatory Agenda

Red tape that could cost the public $123.2 billion was a (late) Christmas gift to lawmakers leaving town.

by
Bill Straub

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January 9, 2013 - 12:08 pm
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WASHINGTON – The Obama administration’s long-delayed laundry list of the federal regulations it intends to pursue this year, released under what one lawmaker described as the “cover of darkness,” looks to contain proposals that are more costly than those offered by the president’s immediate predecessors.

If fully implemented, the regulatory agenda as it is popularly known could wind up costing the public $123.2 billion, according to an analysis by the American Action Forum, a conservative, Washington-based think tank. The 2,387 tenders also are projected to result in at least 13 million paperwork burden hours.

“The totals are higher than those found in other administrations,” said Sen. Rob Portman (R-Ohio), a critic of the federal government’s regulatory system. “Generally speaking, there are more economically significant rules than were offered not just in the (George W.) Bush administration but also in the Clinton administration.”

The White House has not commented on the agenda. One administration official noted that the list contains rules that are being studied and that most will never be implemented. Executive agencies have finalized only 43 out of the 132 economically significant active rulemakings contained in the fall 2011 agenda.

Regulations, which carry the force of law, are created by the executive branch to implement the laws adopted by the legislative branch. Regulations essentially detail how the administration intends to interpret the law, a process that frequently leads to conflict with lawmakers who maintain proposed rules differ with legislative intent.

Beginning in 1994, as part of the Regulatory Flexibility Act, the executive branch was required to issue two reports annually, traditionally in April and October, outlining the “economically significant” regulations it intends to develop — generally defined as those having an annual economic impact of $100 million or more. Subsequent changes now require notification of all regulations under consideration by about 60 departments, agencies and commissions.

The Environmental Protection Agency usually provides the thickest – and most expensive – folder. The departments of Health and Human Services, Labor, Energy and Transportation also usually contribute a substantial number.

Portman said release of the agenda helps the public and regulated parties understand new rules under development, including their potential compliance costs and effect on small businesses. Yet in 2012 the Obama administration all but ignored the law, snubbing the April report altogether and delaying the release of the October report until Dec. 21 – the Friday preceding the four-day Christmas holiday when few were around the nation’s capital to notice. The release came little more than a month after the successful conclusion of President Obama’s re-election campaign.

The administration has offered no rationale for its fast-and-loose treatment of the Regulatory Flexibility Act. The closest it came was a letter last summer to Rep. Fred Upton (R-Mich.), chairman of the House Energy & Commerce Committee, explaining that it was waiting for several agencies to forward their proposed regulations.

Sen. James Inhofe (R-Okla.), ranking member on the Senate Environment & Public Works Committee, said Obama refused to issue the agenda in a timely fashion “because he doesn’t want the American public to know the terrible cost of the regulatory barrage he plans to unleash in a second term.”

Inhofe accused the administration of intending to “move forward with a slew of rules that will destroy hundreds of thousands of jobs and dramatically raise the cost of energy on American families” as the result of clean air initiatives. He cited a report from the National Economic Research Associates projecting that new regulations under development by the Environmental Protection Agency could lead to the elimination of 887,000 jobs, mostly in the nation’s coal fields.

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