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Obama 2.0 and Regulation: Looking Forward, Mindful of the Past

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President Obama’s reelection holds the possibility of great progress for public health, safety, and the environment — if, and only if, he recognizes the importance of these issues and stops trying to placate his most implacable opponents.

The weeks leading up to the election brought powerful reminders of two of the challenges at hand:  rising sea levels and more severe storms that scientists say we should expect as a result of unchecked climate change, and a meningitis outbreak that sickened hundreds, thanks to an obscure compounding pharmacy that escaped regulators’ reach. And let’s not forget that we are recovering from an economic downturn in which under-regulation of giant financial institutions played no small part. This is the context, the starting point.

Taking a progressive stance on health, safety, and environmental threats has never been easy politically because the industries most affected by these protections have powerful allies in Washington, a small army of lobbyists, and plenty of money to contribute to politicians who support their opposition to regulation.  So if the president chooses to take the lead on air and water pollution, food and drug safety, and dangerous conditions in the workplace, for example, he will face extraordinary pressure to do the wrong thing.  And, sadly, he did not cover himself with glory during his first term in this area.  Particularly as the campaign drew closer, the president tried to burnish his business-friendly credentials at the expense of needed protections.  Now he has four more years to leave a legacy of leadership on these vital, life-and-death issues.

The stark choices are perhaps best exemplified by climate change.  One path is tragically easy, the other extremely hard. The easy path is to only poke at the edges of greenhouse gas emissions reduction. The hard path is to take aggressive action, using the full powers of the Clean Air Act, to put the country on the path to dramatically reduced greenhouse gas emissions. In not so many years, this choice will be looked back on as one of the key measures of the president’s legacy.  Without any question, history will condemn inaction in no uncertain terms.  But a strong legacy will not depend just on climate. If the president does not act to make government protections stronger and more effective, we will face more tragedies, from fatal foodborne illness to refinery explosions to oil spills that kill people and cost billions.

What are some of the first signs we’ll look for to determine which way the president is headed in the second term? Look for who the president appoints to head the Office of Information and Regulatory Affairs, the little office that has regularly served as a killing ground for rules proposed by federal agencies, in Republican and Democratic administrations alike. The office needs to stop seeing itself as the defender of regulated industries, and the back channel through which politicos in the White House supplant agency expertise with cold, hard politics.  The president should appoint an OIRA administrator with a strong background in environmental and health protections, and a record of concern for the public’s interest.  The appointee should recognize that the benefits of protecting the public go beyond those that can be simply put in a dollar figure. If the appointee is someone who sees his or her job as tamping down regulatory agencies' determination to protect health, safety and the environment when doing so would inconvenience powerful political interests, we will be heading down the wrong road.

Look for who the president appoints to fill cabinet positions, of course. And look to whether the president stops trying to triangulate with Hill Republicans. The biggest industries have incredibly savvy agents in Congress, and they are not appeasable. Sometimes making a deal is the right thing to do.  But attempting to win over the other side with free concessions on policy or rhetoric is ineffective.  Note that most recently, after months hammering the administration for supposedly issuing too many rules, Congressional Republicans abruptly reversed their message, saying that the administration was in fact not issuing many rules, because it was storing them up for after the election. Heads I win, tails you lose.

The administration’s regulatory performance in the first term provides some lessons for the second. The first term featured a few notable victories for public protection. For example, the EPA finalized a rule limiting mercury and other toxic pollutants from coal power plants, which will literally save thousands of lives every year and prevent half a million lost work sick days each year.  The EPA and NHTSA jointly finalize a fuel economy rule, requiring significant improvements in auto efficiency that will greatly reduce greenhouse gasses and other pollutants (and save consumers money).

But I won’t mince words: the administration failed to complete countless rules that it could and should have finished in the first term. An April 2011 CPR White Paper outlined twelve crucial environmental, health and safety rules that the Administration should complete before this fall. Most have not been completed. The final version of a key EPA rule to reduce hazardous air pollutants from industrial boilers has been stalled at the White House since May. The Injury and Illness Prevention Program from OSHA is still somewhere in the works. While some of the rules were stalled in the lead-up to the election, others were blocked or killed much earlier in the administration. The White House famously killed EPA’s ozone rule in the summer of 2011, and relentlessly attacked EPA’s coal ash rule in the first year of the administration, sidelining it by May of 2010. The lesson for the future is that the pressure on the White House from industry is relentless, no matter the stage in the electoral cycle.

The unfinished rules from the first term provide much of the agenda. The administration needs to finish rules on coal ash, mining safety, food safety, ozone, soot, and backup cameras for cars.  It needs to issue its long-stalled chemicals of concern list and get working again on updating the hazardous occupation orders that protect children who work on farms.  The list is long and I’m not going to reach the end here.  Should these rules be completed, everyone who breathes the air and drinks the water, or who eats food and needs medicine, will reap huge benefits.

Industry lobbyists will surely howl if and when the administration moves on these issues.  But years after rules are implemented without causing the sky to fall, they will abandon those fights, and howl about new issues. Today there are very, very few examples of an industry making a big push against an existing regulation.  No one thinks we should put lead back in gas or take seatbelts and airbags out of cars.

Beyond completing specific rulemakings, the president must turn around his rhetoric on public protections and embrace a positive vision for government. The Administration’s attempts to adopt anti-regulatory rhetoric failed to appease industry, and will do damage to public opinion if they continue. The downward rhetorical spiral started in January of 2011, when the president wrote of regulations that are “just plain dumb.” It continued with the president citing a series of examples of supposed bureaucratic buffoonery – each of which turned out to be conservative myths. And it continued with the president saying that regulations “stifle job creation” – a right-wring claim that several of the president’s own top economic advisors had previously disputed. If regulators are such clowns, why should the public support them? The agencies' efforts to implement overwhelmingly popular laws like the Clean Air Act, Clean Water Act, the Occupational Safety and Health Act were undercut every time the president repeated these kinds of talking points.

What the president says matters, and promoting a positive vision of government is a reasonable thing to ask of this president. Indeed, the political battle ahead for these needed rules demands nothing less than a broad rhetorical campaign for why they are needed.

President Obama’s reelection brings a huge opportunity for progress on public protections, but not a guarantee. The goal in the second term must not be to try to go half way in the middle between industry and public interest advocates. That’s neither good policy, nor good politics. Rather, the goal must be to protect the public by following the law. The opportunity for progress in the next four years is immense.