Peeling Back the 'Cover of Darkness' on Obama's Regulatory Agenda

Portman said he also has been seeking an explanation from the administration to no avail. He believes the White House was hoping to avoid news about the administration approaching “the regulatory cliff” of higher costs and more red tape leading up to the November election.

A lot of rule-making was put off until after the election and we now starting to see some of those,” Portman told PJM. “It was irresponsible of the administration not to follow the law and follow previous practice. They chose not to do a regulatory agenda for spring at all and in the fall they put it off as long as possible, under cover of darkness right before Christmas. It’s pretty obvious they were trying to hide the agenda.”

Over the last four years the president has consistently voiced support for limiting the number of regulations emanating from the administration. In a letter to House Speaker John Boehner (R-Ohio), dated Aug. 30, 2011, Obama said that “it is extremely important to minimize regulatory burdens and to avoid unjustified regulatory costs, particularly in this difficult economic period.” The president listed several initiatives taken by the administration to reduce the regulatory burden and he has occasionally boasted that his White House has adopted fewer new rules than his predecessors.

Portman countered by asserting the Obama administration has imposed more economically significant rules from 2009 through 2012 than during the first three years of any other presidency since such records were kept.  The more than 160 economically significant rules issued from February 2009 through February 2012 marked a 40 percent increase over the same three-year period in the George W. Bush administration and a 20 percent increase over the Clinton Administration.

Several of the 2,387 proposed regulations listed in the December 2012 agenda have already drawn scrutiny:

-       The EPA has proposed a water intake rule that would affect manufacturing and power plants that draw significant amounts of water to negate the overheating of equipment. Opposed by the utility industry, the regulation would require industries to use the best technology available to minimize the environmental impact of withdrawal. Portman said implementation of the regulation could cost energy consumers $4.5 billion per year. The administration’s estimate is considerably less.

-       The EPA also is proceeding with a controversial regulation regarding emissions of ozone, which combines with other pollutants to form smog, contributing to a variety of health issues ranging from asthma to heart problems. Outgoing EPA Administrator Lisa Jackson attempted to implement the rule, lowering the regulation of 75 parts per billion set during the Bush administration to a stricter 60 to 70 parts per billion standard, in 2011. That effort was nixed by the White House under pressure from industrial interests before the 2012 election. Portman said the proposal carries “a massive price tag” and will particularly affect Midwestern states like Ohio that rely on coal-fired power plants.

-       The Department of Labor wants to redefine the term “fiduciary” to include stock appraisers in privately held companies who are involved in employee stock ownership plans and trusts. Portman said the proposal tightens restrictions and extends risk to anyone who offers investment advice performed on a commission basis.

-       The Department of Health and Human Services is looking to adopt rules on the administration of the Independent Payment Advisory Board (IPAB) created as part of the Patient Protection and Affordable Care Act, popularly known as Obamacare. The goal of the 15-member panel is to implement savings in the Medicare program without affecting coverage or quality. These rules are receiving special scrutiny because IPAB is the commission that some opponents of the healthcare reform law refer to as the “death panel” that will decide who is worthy of medical care. The claim has been debunked but the regulations are in for close scrutiny.

The White House has issued an executive order announcing its intention to offer regulations that "protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation."