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From the lead front page article in Tuesday’s NYT:

WASHINGTON, Jan. 29 — President Bush has signed a directive that gives the White House much greater control over the rules and policy statements that the government develops to protect public health, safety, the environment, civil rights and privacy.

In an executive order published last week in the Federal Register, Mr. Bush said that each agency must have a regulatory policy office run by a political appointee, to supervise the development of rules and documents providing guidance to regulated industries. The White House will thus have a gatekeeper in each agency to analyze the costs and the benefits of new rules and to make sure the agencies carry out the president’s priorities.

True to form, the White House explanation applies as much lipstick as it can to this very ugly pig:

In an interview on Monday, Jeffrey A. Rosen, general counsel at the White House Office of Management and Budget, said, “This is a classic good-government measure that will make federal agencies more open and accountable.”

And we have this assurance:

The White House said the executive order was not meant to rein in any one agency. But business executives and consumer advocates said the administration was particularly concerned about rules and guidance issued by the Environmental Protection Agency and the Occupational Safety and Health Administration.

Oh, well if that’s all they’re doing, we shouldn’t worry, because the only responsibility EPA has is to protect the environment and the public by identifying and mitigating the harmful effects of human activities on the planet and its inhabitants. And OSHA’s function is merely to make sure that America’s workplaces are relatively free of unshielded, toxic and hazardous materials and dangerous equipment and working conditions. No big deal.

Beyond the lipstick applied by the President’s men, we have a distraction: the increasing use by federal agencies of non-binding “guidance documents.” The Administration spin suggests that some agencies have been abusing the “guidance” process by issuing the documents without hearings or public notice, then allowing the documents to have the effect of binding regulations, while avoiding public scrutiny. Maybe, but I find the suggestion that the Bush Administration has been spending the last six years over-regulating the business community through “guidance documents” issued in the dead of night rather laughable. On which planet without global warming did that occur?

The Times article cites business leaders who are pleased and public interest advocates who are appalled at the President’s Executive Order, but I think Henry Waxman sums up what this is about:

Representative Henry A. Waxman, Democrat of California and chairman of the Committee on Oversight and Government Reform, said: “The executive order allows the political staff at the White House to dictate decisions on health and safety issues, even if the government’s own impartial experts disagree. This is a terrible way to govern, but great news for special interests.”

To understand why Waxman is right, here’s a personal anecdote. Many years/decades ago, I was the senior counsel at a state agency in California dealing with energy. The agency had a statutory mandate to adopt many types of regulations, such as procedural rules for ensuring public notices and meetings for power plant licensing and rules for how the agency examined and mitigated health, safety and environmental features of each plant. We were also charged with adopting regulations for how energy efficient new appliances (air conditioners, furnaces, refrigerators, etc), homes and office buildings (insulation, glazing, shading, thermal mass, setback thermostats, etc) had to be. The energy efficiency rules were designed to wean California off traditional fossil fuels and technologies, a goal considered extremely important back in the Carter years following the first and second oil embargoes.

Despite their importance to the nation, these regulations were always extremely controversial, with regulatory staff often strongly opposed by affected industries, Chambers of Commerce and powerful Republican legislators who could affect the agency’s budgets and appointments. Every time we tried to update these rules to reflect new technologies or new cost/benefit analyses, we met political opposition at every turn. But we had one powerful weapon: a statutory mandate adopted by the State Legislature and signed by the Governor. And our statute was clear: our job was to vigorously pursue energy efficiency and alternative fuels/technologies and adopt mandatory standards so that California’s economy and its people would be less vulnerable to foreign oil cartels, declining fossil fuels and environmentally damaging technologies. Sound familiar? Relevant?

Our main legal constraint was that we had to prove that the standards we proposed were technically feasible (e.g, that the materials/devices and/or techniques required by the rules were commercially available) and that the standards were cost-effective. The value of the energy savings had to pay for the costs of the materials/devices and their installation. We had to document everything and respond in writing to every single adverse comment — usually hundreds of them — then get our own Commissioners to agree and run the standards and the record through one or two other agencies designed to weed out unsupported (or unpopular) regulations. So this process was exhausting, but with the help of a handful of technical experts, economists and scientists, we met the statutory requirements, and usually in spades.

The remaining hurdle was political – convincing the appointed Commissioners, and the folks they had to answer to, that they and the agency could withstand the enormous political opposition to changing the way powerful industries (and their campaign donors) build appliances and homes and office buildings. I won’t tell you how we did this, but I want to tell the citizens of California that their government had a lot of very politically courageous and intellectually honest appointees, Commissioners willing to listen to the evidence, take the political heat and get the job done. And the result is that California adopted, beginning in the late 1970s, some of the most advanced standards for energy efficiency of any state or country in the world, and the pattern of California standards became the national model both for other states and for the federal government.

Some of my old friends/colleagues have continued to upgrade these standards every few years and they've forced the US Department of Energy, through repeated lawsuits, to continue to upgrade the federal appliance efficiency standards. These folks are my heroes. The efficiency standards they adopted are the reason that you can walk into any Sears and find efficiency labels on every major appliance you shop for, and why the models you choose from are all substantially more energy efficient than comparable models a decade ago, and why there are national standards for the efficiency of windows/glazing and so on, and why new homes have much more insulation and other energy-saving features than homes built just a few years back. And they are the principal reason that California consumers in their homes and offices use less electricity and natural gas per capita today than they used 30 years ago. That’s right, they use less.

Now let’s put the White House and the President’s Executive Order in the middle of this rule-making process. First, there will be a lot more paperwork, costs and delays for agencies trying to adopt new regulations:

. . . each federal agency must estimate “the combined aggregate costs and benefits of all its regulations” each year. . . . [I]n deciding whether to issue regulations, federal agencies must identify “the specific market failure” or problem that justifies government intervention. [And there are other paperwork requirements that invite delays, costs and litigation.]

Okay, we could do that, and maybe the costs and delays might not matter in the long run if we were persistent enough. But can I just point out that these executive "rules" add de facto requirements to rulemaking that are not authorized by Congress? This isn’t about a unitary executive; it’s about a unilateral executive that ignores the legislature and separation of powers. But this is the killer:

Mr. Bush said that each agency must have a regulatory policy office run by a political appointee, to supervise the development of rules and documents providing guidance to regulated industries.

There is no doubt in my mind that if we had had to contend with this degree of political interference, California would never have adopted most the regulations for improving energy efficiency. We were young, dedicated, determined, on a mission connected to national security and with strong public support — but we would have failed. And if folks like us had failed, that failure would have been multiplied across dozens of agencies like ours at the state and federal levels. And not just in energy fields, but also fields dealing with worker safety at OSHA, and federal mine safety, and the Highway Traffic Safety Commission, and federal fuel standards, and standards under the Clean Air Act, and the Water Pollution Control Act, and environmental limits of logging and misuse of federal lands and protections of endangered species, and . . . and every other government agency that has a statutory mandate to protect the American public and the environment we live in.

No matter how much they dress up this pig, it is not about better government or providing sunshine on secretive agencies; it is worse than putting the fox in charge of the henhouse. In the hands of the kinds of appointees we’ve come to expect from this regime, which has no qualms about distorting or suppressing science to serve its political ends, the President’s directive is a direct challenge to the notion that government exists to protect the public and enhance the public interest; it is an assault on responsive government itself. And it is the antithesis of this:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

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