When the Unelected Rule: Ten Case Studies in Regulatory Abuse
by Joseph Knollenberg, Susan E. Dudley, Bonner R. Cohen, Christopher H. Foreman, Robert Holland, Jim Lucier, Merrill Matthews, Bartlett Cleland, Timothy Heitman, Jim Harper on 12/10/2000
24 Pages
Introduction
More often than not, the Environmental Protection Agency fails to rely on proven science
in formulating its policies and rules. The way EPA has handled such issues as chloroform,
MTBE, TMDL, NOx and a slew of other acronyms adds up to a troubling picture. An-other
area of concern is the Kyoto Protocol, the global warming treaty the administration
has never sent to the Senate for ratification. The Knollenberg provision is a bipartisan effort
to protect both the Constitution and the taxpayer by restricting any federal spending aimed
at implementation of the flawed Kyoto Protocol.
EPA’s Ill-Conceived Vehicle and Gasoline Standards Will Hurt
Consumers and Air Quality
In December 1999, EPA issued its "Tier 2" vehicle emissions and gasoline regulations.
EPA's action sets new emissions standards for passenger cars and light trucks and limits the
amount of sulfur in gasoline. Congress, through the Clean Air Act Amendments of 1990,
had instructed EPA to consider tightening new vehicle emissions standards beginning with
the 2004 model year. EPA's decision was to be based on need, availability of technology,
and cost-effectiveness. Yet EPA has not justified its Tier 2 rule on any of the three criteria
required by Congress. In fact, EPA admits that air quality will not improve significantly,
and will actually worsen in some parts of the country.
TMDL: EPA Muddies the Nation’s Waters
EPA's Total Maximum Daily Load (TMDL) rule, proposed in August 1999 and promul-gated
in July 2000, dramatically alters existing practices for controlling levels of pollution in
bodies of water throughout the country. Created in 1972, when the Clean Water Act
(CWA) was enacted, the TMDL program identifies how much pollution a body of water
can receive and still meet state environmental standards. The CWA established a federal,
state, and local partnership for stewardship of the nation's waters, with states given the pri-mary
responsibility. EPA's TMDL rule federalizes the program, expanding the agency's reg-ulatory
reach and enabling it to intervene in decisions the CWA left to the states.
Environmental Justice: The False Promise of Title VI
The question of how to provide for greater environmental equity for communities of color
has led to a debate over what has come to be known as environmental justice. This intersec-tion
of civil rights and environmental consciousness has thus far provided no clear answers
to such questions as where industrial facilities should be located or how to foster environ-mental
health in low-income communities. EPA's approach is to wed Title VI of the Civil
Rights Act of 1964 to federal environmental policy. One potentially ironic effect of the pol-icy
is to further complicate the already daunting challenge facing economic development in
low-income, job-hungry minority communities.
Bilingual Education: Where’s the English?
The Bilingual Education Act of 1968 has allowed federal education bureaucrats to adopt
policies that undermine the academic performance of the children they are supposed to
help. The practice has become the equivalent of consigning them to a linguistic ghetto. Stu-dents
often remain in these non-English programs for seven to eight years, or even longer.
Dismal academic results are the bottom-line indicator of bilingual education. In state after
state, politicians of both parties are joining to reverse three decades of failed regulatory pol-icy
that hurt children and fostered separation.
CAFE: Putting Highway Safety at Risk
Corporate Average Fuel Economy (CAFE) is the federal program to promote fuel efficiency
on the nation's roads and highways and reduce U.S dependence on foreign oil. The law es-tablished
a scheme for regulating the average fuel economy for cars and light trucks sold in
the U.S. To meet the new requirements, automakers were forced to downsize their models.
Studies show that thousands of Americans have met premature death in automobile acci-dents
they would have survived in larger, heavier cars. Confronted with mounting evidence of the human costs of CAFE, Congress has extended a freeze on the standards to 2003 and
instructed the National Academy of Sciences to conduct a thorough review of the program.
Dial “0” for Outmoded
The FBI is the lead agency in the Justice Department's little-noticed quest to become a pri-mary
economic regulator of the information economy. Today's FBI has not come to terms
with changing technology. For years, the FBI has been trying to turn the clock back to a
time before its traditional surveillance techniques became wholly obsolete. In passing the
Communications Assistance for Law Enforcement Act (CALEA), Congress said the FBI was
to have no role in setting telecommunications design, technology requirements, or in dictat-ing
the precise method by which it would get the limited surveillance data to which it was
entitled. Ignoring Congress, the FBI immediately presented industry with a “punch list” of
demands that went far beyond anything envisioned by even the most expansive reading of
the statute.
But Is the FDA Safe and Efficacious?
The enactment of the Kefauver-Harris Drug Amendments in 1962 may prove to be the
most costly piece of regulatory legislation in the nation's history. Under that law, drug com-panies
not only have to prove that new drugs are safe, they have to prove they work. Cur-rently,
moving a new drug from inception to the approval process takes eight to ten years
and costs $500 million to $600 million. If safety were the only thing the FDA monitored, it
could take only $50 million and perhaps one or two years to get a new drug to patients.
The current lengthy approval process guarantees neither safety nor effectiveness.
The Futility of Internet Regulation
The Internet has been a spectacular success, one which has changed economic life as few
other recent technological innovations. This has made it a tempting target for government
regulation. Yet government efforts to regulate the Internet are inherently self-defeating. The
Internet is not a telephone system — no central control point exists. Indeed, the Internet
was specifically designed not to have a central control point. Power rests in the hands of the
Internet user, not in the system itself.
Small-Business Employees Face Roadblock to the Investor Class
Stock ownership has expanded from 15 percent of the American population in 1980 to a
level of 50 percent today. One group, however, has been left behind — the over 50 percent
of all Americans employed by small business. Congress should move quickly to remove the
federally enacted barriers that limit the ability of small businesses to offer their employees
meaningful retirement programs. Burdensome regulations on small-business retirement pro-grams
have effectively frozen out untold numbers of employees from the nation's 401(k)
and IRA savings systems. Congress should either exempt companies with 50 or fewer em-ployees
from the required employer matching contributions in the Simple IRA and 401(k)s
or exempt these same companies from testing requirements of 401(k)s.
The Children’s Online Privacy Protection Act
Enacted in 1998, the Children's Online Privacy Protection Act has created a set of regula-tions
that do little to protect children, that mislead parents, that burden the new Internet
economy, and that reduce the availability of interesting and educational content for children
— especially children on the margin. Congress was mistaken to assume that commercial
Web sites pose a significant threat to children's privacy on the Internet.
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