The Truth About Regulation in America
Harvard Law & Policy Review, Vol. 5, pp. 323-346, 2011
25 Pages Posted: 29 Oct 2011 Last revised: 28 Jul 2013
Date Written: October 28, 2011
The special interests leading the accelerating crusade against regulation have re-ignited a potent coalition of industry lobbyists, traditional conservatives, and grassroots Tea Party activists. The politicians speak in generic terms for public consumption: “the nation is broke,” “big government is bad,” “regulation costs trillions.” Behind the scenes, industry lobbyists target for repeal dozens of regulations that are designed to control pollution, ensure drug, product, and food safety, and eliminate workplace hazards. In an effort to bring light and air to an often misleading and always opportunistic national debate, this essay presents five truths about the state of health, safety, and environmental regulation in America: First, regulatory dysfunction hurts many people. At the same time, big, bad government and powerful, protective regulation are two different things. The current system is sufficiently weak, especially with respect to enforcement, that even scoundrels are not stopped. Fourth, regulated industries understand the benefits of regulation and could negotiate compromises with agencies and public interest representatives if deregulatory opportunists would back off. Finally, if left alone, health, safety, and environmental agencies could accomplish great things.
Six “protector agencies” with the mission to safeguard people and natural resources from the hazards of the industrial age are the focus of the essay. In the descending order of size include the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), the Mine Safety and Health Administration (MSHA), the Occupational Safety and Health Administration (OSHA), the National Highway Traffic and Safety Administration, and the Consumer Product Safety Commission (CPSC).
In a nutshell, I argue that stringent regulation has enabled this country to achieve a remarkable level of industrialization while maintaining its natural environment to a remarkable degree, with the admittedly huge exception of the eroding ozone layer that is causing severe climate change. For verification of this observation, we have only to consider China, where a break-neck pace toward industrial development has left the environment in shambles, causing as many as 2.4 million deaths annually as a direct result of contaminated water and air (adjusted for population, the American equivalent would be 558,000 deaths).
The truth about regulation in America is that we cannot prosper without it, as many corporate executives will admit when they are standing outside the herd. The agencies that protect health, safety, and the environment cost less than one percent of the federal budget and projected benefits exceed costs by at least two to one. But the agencies are growing weaker and less able to enforce the law effectively. Further, as happened on Wall Street, even egregious violators continue business as usual until disaster strikes (and, in some painfully notorious cases, even afterwards — see, for example, British Petroleum’s chronic violations of worker safety and environmental laws that were left undeterred over the decade leading up to the Gulf oil spill).
Keywords: regulation, deregulation, health, safety, environment
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