Thursday, August 25, 2011

The Obama Administration's Regulatory Reform Initiative

Last January, the Obama Administration announced a major regulatory review initiative.  In its executive order, the administration directed federal agencies, among other things, to “consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.”  The announcement caused some consternation among progressives, including many environmental law professors.   Many wondered why, at a time when regulatory gaps are a huge problem (see, e.g., climate change or regulation of toxic substances), the president was echoing some of the anti-regulatory rhetoric more commonly associated with his Republican critics.

This week, the White House announced the initial results of that effort.  Cass Sunstein’s White House Blog post describing the effort is available here, and more detailed reports from individual agencies are available herePress coverage has not been extensive; apparently, real-world regulatory reform does not grab the attention of newspaper editors.  However, the press reports do tell us, to no one’s great surprise, that Eric Cantor and the Chamber of Commerce are not impressed.

The agency reports contain quite a lot of information, and a comprehensive summary is well beyond the scope of a blog post.  But a quick review of the environmental agencies’ reports supports a few preliminary observations:

- From reading the AP’s story, one could easily form the impression that this effort doesn’t have significant environmental implications.  In fact, the reports describe dozens of initiatives potentially affecting environmental protection.  EPA alone highlights thirty-five different initiatives ostensibly taken in response to this Administrative directive.  USDA, DOI, Commerce, DOE, and the CEQ also all describe initiatives with potentially significant environmental consequences.  I have not reviewed the reports of other agencies—DOT, for example—whose work has significant environmental implications, but there may be environmentally-relevant initiatives described there as well.

- Discerning which agency initiatives were triggered by Obama’s order and which would have happened anyway isn’t easy.  Most of the agency reports purport to distinguish efforts previously underway from new efforts.  But, as EPA’s report explicitly points out, regulatory review already was a major part of agencies’ agendas even before Obama spoke up.  It’s not hard to imagine that many agencies, in an effort to seem responsive to the Administration’s call and to make the Administration’s initiative look consequential, credited Obama’s order for actions they would have taken anyway.

- With most agencies, the proposed actions can be roughly divided into two categories: first, fairly specific actions that agencies are proposing to take in the relatively short term; and second, broader regulatory initiatives with still-highly-uncertain results.  The former category includes actions like transitioning from paper to electronic reporting of chemical health and safety data; the latter would include the ongoing effort to rewrite the joint NMFS/FWS regulations for implementing section 7 of the ESA. 

Within the former category, I did not see anything that jumped out as a major regulatory retrenchment.  Instead, many of the efforts appeared to involve streamlining reporting processes, usually in sensible ways, and some (for example, reducing NEPA reporting requirements when USDA approves the removal of logging roads, or protecting renewable energy projects on BLM lands from competing mining claims) seem likely to provide environmental benefits.  Of course, many of the proposed initiatives touch on areas of environmental law in which I’m no expert, and the agencies of course are trying to put their initiatives in the best possible light, so don’t take my word for it.  Nevertheless, in the initial phase, this looks a lot more like sensible regulatory adjustment than ill-advised regulatory gutting.

For the long-term actions, the story may get a little more complicated.  Many of the longer-term initiatives involve potentially major rule changes.  The section 7 effort is just one example; changing the section 7 regulations could have big consequences, positive or negative, for endangered species protection.   That agencies are contemplating such rulemaking processes shouldn’t really be surprising, however.  Every administration undertakes major regulatory initiatives, with or without a Presidential impetus like Obama’s January order, and with every administration the outcomes of those rulemaking processes have important environmental implications.  The reports are just a reminder that the Obama Administration has been, and will continue to be, no different.

- Agencies are showing a lot of interest in NEPA.  Not surprisingly, it’s the primary focus of the CEQ, and DOI, USDA, and Commerce all describe efforts to look at their NEPA compliance processes. 

 - What’s most prominently (and happily, in my view) missing from these reports is evidence that the Administration is backing off on climate regulation.  In this report, at least, EPA appears to be sticking to its guns.  Other agencies, if they address the subject at all, are identifying measures to streamline approvals for renewable energy projects.  So while legislative efforts to address climate change seem dormant for the foreseeable future, EPA’s embattled administrative efforts will continue.

- Dave Owen

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