The Regulatory Czar's Recent Blog on Truck Driver Paperwork and the West, Texas, Tragedy

Last week, Regulatory Czar Howard Shelanski embarked on his maiden voyage into the glamorous world of White House blogging, penning a post that touts the latest burden-reducing accomplishment of President Obama’s dubious regulatory “look-back” initiative.   On this auspicious occasion, he trumpets the Department of Transportation’s (DOT) proposed rulemaking to reduce the number of inspection reports that commercial truck drivers have to file, resulting in reduced paperwork burden costs to the tune of $1.7 billion annually.

Shelanski makes clear in the post that this DOT rulemaking is not an isolated incident, but is in fact part of the regulatory look-back initiative’s broader antiregulatory project. He explains that the initiative is necessary because “some regulations that were well crafted when first issued can become unnecessary over time as conditions change—and regulations that aren’t providing real benefits to society need to be streamlined, modified, or repealed.” (Emphasis mine) In case the look-back’s antiregulatory objective wasn’t clear enough the first time around, Shelanski states emphatically at the end of the post: “This Administration will expand and further institutionalize our regulatory look-back efforts to ensure that we continue to identify rules that need to be modified, streamlined, or repealed.” (Emphasis mine again)

I’ve got a serious bone to pick with Shelansk’s three-part formulation of the look-back initiative’s goals (“streamline,” “modify,” “repeal”), and it’s this: The clear language of Executive Order 13563—which lays the initiative’s groundwork—reveals that Shelanski is deliberately overlooking a fourth stated goal—to “expand” existing rules where appropriate—which, not incidentally, is all that provides the look-back process with any semblance of balance. It’s right there in Section 6 of the order: “. . . agencies shall 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.” (Emphasis mine yet again) See for yourself. I’ll wait.

As has been noted in this space before, the Administration has been overlooking the “expand” part of the look-back initiative almost from the beginning. It quickly followed up Executive Order 13563 with Executive Order 13610 on “Identifying and Reducing Regulatory Burdens,” which stated in no uncertain terms that the lookback would prioritize deregulatory actions. Other public statements from the White House regarding the look-back have also conspicuously omitted the word “expand.” Shelanski’s recent blog post merely continues this long trend.

I get why “streamline,” “modify,” and “repeal” would receive all the attention from special interests and antiregulatory Republicans, but the Obama Administration should know better. And it does.   Just last week, President Obama signed Executive Order 13650 on “Improving Chemical Facility Safety and Security,” which, among other things, directs several agencies—including the Environmental Protection Agency (EPA), the Department of Homeland Security (DHS), and the Department of Labor (DOL)—to review and “modernize” their existing regulations governing the safety and security of chemical facilities. Notably, Section 6(c) of the order directs the EPA and the DOL to determine if the Risk Management Program (RMP) and the Process Safety Management Standard (PSM) “should be expanded to address additional regulated substances and types of hazards.” (emphasis still mine) It goes on to direct those agencies to “develop a plan, including a timeline and resource requirements, to expand, implement, and enforce the RMP and PSM in a manner that addresses the additional regulated substances and types of hazards.” (once again, emphasis mine)

Executive Order 13650 was issued in response to April’s West, Texas, disaster, when a poorly managed fertilizer storage facility exploded, killing at least 14 (the devastation was such, we still don’t know how many people died) and literally leveling much of the adjacent town. In the weeks since the explosion, investigators have found that inadequate regulation of chemical facilities was a major contributing cause. At the time of the disaster, the safety and security of the facilities was governed by a patchwork of regulatory programs. The facility in West, Texas, managed to slip through the safety net, and tragedy was the inevitable result. A review of these programs would have revealed that applicable regulations needed to be expanded in order to eliminate any gaps in coverage, such as those that contributed to the West, Texas disaster. But no such review took place, even though the Obama Administration nominally had a program in place to seek out areas were existing regulations might need to be “expanded.”

So, what does all this mean? It means that instead of undertaking a comprehensive effort to identify gaps in our regulatory safety net before disaster occurs, the Obama Administration appears satisfied with responding after the fact with the ad hoc, reactive approach exemplified by Executive Order 13650.   It also means that instead of making a concerted effort to protect the public interest, the Obama Administration appears only to regard protection of corporate bottom lines as worthy of a comprehensive regulatory review process. This double standard is as misguided as it is contemptible.

It’s long past time for the Obama Administration to take a look-back at its look-back. Though I harbor no illusions that one will ever take place, a thorough and honest review will clearly demonstrate that the goal of “expanding” regulations should not only take its rightful place among the initiative’s other stated goals, but, indeed, that it should be accorded the highest priority of them all.