Editor’s Note: The following article is written by Steve Bergstein, Planet Waves’ in-house civil rights lawyer and blogger for ourВ PsychsoundВ area. Today, he writes about the Bush administration’s last-minute rules that will affect public health and safety. –RA
Dear Friend and Reader,
A FEW WEEKS AGO I wrote about the Bush administration’s efforts to pass new rules on its way out the door that would serve as gifts to American industry.
These rules govern public health and safety, the kind of rules which truly affect all of us, as opposed to high profile matters like the death penalty, which have strong moral implications but which also affect relatively few people (unless you kill someone in a state that recognizes the death penalty).
There is a secret government which affects all of us. This secret government may very well determine who lives and who dies, and who stays healthy and who suffers for years to come. This is not the secret government of conspiracy theorists, but the real branch of government known as the administrative state. In many ways, the administrative agencies which regulate American industry affect our lives more closely than any other branch of government. And we know very little about it, not because it operates in secret, but because no one knows to pay attention.
Here’s the story, on the front page of The New York Times over the weekend. It was news in the Times, but it will be pushed aside very quickly. It’s not sexy enough.
The Labor Department is racing to complete a new rule, strenuously opposed by President-elect Barack Obama, that would make it much harder for the government to regulate toxic substances and hazardous chemicals to which workers are exposed on the job.
The rule, which has strong support from business groups, says that in assessing the risk from a particular substance, federal agencies should gather and analyze “industry-by-industry evidence” of employees’ exposure to it during their working lives. The proposal would, in many cases, add a step to the lengthy process of developing standards to protect workers’ health.
Public health officials and labor unions said the rule would delay needed protections for workers, resulting in additional deaths and illnesses.
. . .
The Labor Department proposal is one of about 20 highly contentious rules the Bush administration is planning to issue in its final weeks. The rules deal with issues as diverse as abortion, auto safety and the environment.
One rule would make it easier to build power plants near national parks and wilderness areas. Another would reduce the role of federal wildlife scientists in deciding whether dams, highways and other projects pose a threat to endangered species.
. . .
A new president can unilaterally reverse executive orders issued by his predecessors, as Mr. Bush and President Bill Clinton did in selected cases. But it is much more difficult for a new president to revoke or alter final regulations put in place by a predecessor. A new administration must solicit public comment and supply “a reasoned analysis” for such changes, as if it were issuing a new rule, the Supreme Court has said.
Here’s how it all works. The Congress passes laws, and the President signs those bills into law. We all learned this in school. But who enforces the laws? The President does. But not him personally. The administration enforces the laws. The President is too busy giving speeches and focusing on two or three policy matters at a time. That’s where the federal agencies come into play. They enforce the laws. There are many such agencies, like the Environmental Protection Agency and the Department of Education. The laws they have to implement are often vague and open-ended, and the agencies therefore issue rules that allow the agency employees (bureaucrats) to actually do their work in enforcing the laws.
With me so far? The agencies issue rules that are supposed to be consistent with the laws they have to enforce. But the Supreme Court has given these agencies substantial leeway in drafting rules so long as they are not totally inconsistent with the plain language of the laws. This is because we assume that the people drafting the rules and regulations are experts and they know what they are doing.
None of this is done in secret. The agencies propose new rules by publishing them in something called the Federal Register, a booklet that the government issues regularly. Few of us care about the Federal Register, but lobbyists care. This includes the business lobby, the environmental lobby and other interest groups. They look forward to the next Federal Register the same way that everyone else looks forward to the morning paper. Once a proposed regulation is listed in the Federal Register, the government accepts public comment on the rule, but again, it’s the lobbyists who provide that comment.
The agencies are not required to actually listen to the public comments. But in theory they could, and that is why the comments are solicited. Then the government can say that it took into consideration the views of the Sierra Club when it proceeds to build a power plan near a river with endangered species. After the public comment period closes, the agency can adopt the proposed rule and it goes into the Code of Federal Regulations. At that point, the regulations have the force of law.
In early 2007, The New York Times reported that, for the first time, a Presidential administration would have political appointees supervise the regulatory process in the federal agencies. This should have been big news. Politics should not have any place in neutral rule-making on health and safety issues. But the story came and went.
What this all means is that while we scream and yell about social issues like abortion and the Pledge of Allegience, regulations are being issued which govern clean air, clean water and workplace safety. The Bush administration knows that once regulations are enacted, they are difficult to overturn, because the next administration has to undergo a lengthy process to that end. It’s a hell of a way to enact your policies, but it’s Christmas shopping season and everyone’s excited about the incoming Obama administration so, really, who gives a damn if the new regulations make it more difficult to ensure workplace safety?
–Steve Bergstein