Comments on Docket EPA-HQ-OA-2017-0190
It is easy to claim that regulation is bad. It is much more difficult to defend that statement. Regulatory reform is not a matter to be taken lightly.
EPA was established by Republican Richard M. Nixon, during whose administration the National Environmental Policy Act was passed. NEPA came as a result of several significant events or conditions, including the Santa Barbara oil spill, the conditions in the Love Canal neighborhood of Niagara Falls NY, the acid content of rain, particularly on the East Coast, the dangerous condition of the air in the Los Angeles basin, and other such conditions as well as the social engineering associated with freeway construction. As well, in that era, Rachel Carson’s work, published as Silent Spring, made clear the extensive problems caused by poison pesticides.
Regulation has subsequently eliminated or substantially mitigated most of the conditions that led to the passing of NEPA, the Wilderness Act, Clean Air Act and Clean Water Act.
The environmental concerns that brought about NEPA predate the general awareness of Global Warming / Climate Change. Whether one chooses to believe that well-supported concept or not, the behavior and conditions that brought about the various environmental acts will continue to exist unless limited or eliminated by regulation.
In general, the prevalence of unhealthy air quality, the erosion of structures in the eastern US, and poisonous ground water that cannot be used for domestic purposes or food production has been eliminated or substantially reduced by the environmental laws and the regulations that enforce them. Some may deny the potential effects of human-induced global climate change, but no one can deny the environmental effects that brought about the laws and enforcing regulations in the first place.
One cannot easily determine with accuracy the answer to the general question of whether a regulation eliminates jobs or inhibits job creation. The executive order is vague in that regard. Perhaps a regulation that inhibits employment in one field encourages or generates employment in another field. For example, a substantial reason for the decline of the use of coal as fuel in the US is not due to regulation but rather to market forces. Natural gas has become less expensive than coal for use in power plants. No reduction in the regulation of mining coal will change that. The reduction will result only in returning to the ground water and air quality conditions that brought about the environmental regulations in the first place.
On the other hand, there is substantial employment to be generated in developing new energy sources that are sustainable and non-destructive. We are allowing China to become the world leader in renewable energy and technology. That is inconsistent with the claim that America will be made great again. If we are to be a great nation, we must be a healthy, well educated, innovative nation. Our competitors are. Eliminating environmental regulations in an attempt to bolster industries in decline is contrary to that principle.
As well, there is extensive employment available in the sciences, or there was until the US government decided to eliminate such positions en masse. Such sciences allowed the US to catch and surpass the Soviet Union in the space race. Such sciences brought us, for example, medical advances, communication advances, data processing advances, and automobiles that are less deadly for the occupants when involved in a collision.
There is also substantial employment in environmental cleanup services. There are two elements involved. First is the cleanup of pollution that occurred before regulation brought the practices causing it to stop. There are over 1,300 such sites in the US. The second is employment in preventing, mitigating, and cleanup of spills that occur in the era of environmental regulation.
The question is then, in answer to this vague statement, whether the purpose of this point the preservation of industries that are in decline, regardless of regulations, and the associated jobs rather than the promotion of jobs in other fields. If the purpose is to promote industries that are in decline, the purpose of the action is invalid.
Determination of whether a regulation is outdated, unnecessary, or ineffective is a vague requirement. The absence or limited incidence of behavior or activity prohibited by a regulation does not render the regulation outdated or unnecessary. That absence demonstrates the effectiveness of the regulation. No one would consider locking a building or vehicle to be unnecessary because there has been no unauthorized access to the building or the vehicle. The behavior that caused the regulation, or in the instant example, the securing of the building or vehicle, has been eliminated only by the action taken to prevent it. That behavior will return, given the opportunity.
The determination of whether a regulation is outdated or ineffective should be based upon whether it results in the effect specified or intended in the law that the regulation enforces or implements. For example, if a regulation specifies a procedure that was best practice at the time of writing but is now not, the regulation should be revised, probably to a performance rather than procedural specification. Discontinuing the pursuit of the condition that the law states or intends to address is inappropriate. If a regulation is ineffective, the proper action is not to eliminate the regulation, but rather to determine in what manner and why the regulation fails to implement the underlying law, then implement an effective regulation.
Determination of whether costs exceed benefits is vague inasmuch as there is no indication that this determination must be objective. If the cost of a regulation is measured only against the profits of a polluting industry, the determination is inappropriate. A great many public works in the US had enormous cost that cannot be directly associated with benefits. However, no one can deny that the interstate highway system and the air traffic control system have enormous benefits that cannot be directly related to the cost of implementation.
Determination of cost and benefit must be objective and universal. For example, the cost of health care in the US is generating substantial controversy both in the costs themselves and in how to effectively provide the care underlying the cost. Determining the benefit of regulations that limit or eliminate the pollution that has in the past caused extensive disease must include the cost of the loss of productivity due to disease and the cost of health care for those effected. The benefit calculation must also include the employment of those whose livelihood is related to enforcement of the regulation or mitigation of the result of violation, and the profit of industries that are involved.
As well, the secondary industries enabled or supported by environmental regulation must be considered in the cost benefit determination. Elimination of land, water, and air pollution provides a substantial benefit to the outdoor recreation and tourism industries. Those industries also generate secondary employment in the production of recreational vehicles and equipment and in the transportation associated with travel to the recreational areas that might be affected by the elimination of environmental regulations.
The calculation of cost and benefit must be objective and subject to public comment as part of the proposed rulemaking.
Determination of whether a regulation creates a serious inconsistency or otherwise interferes with regulatory reform initiatives and policies is also vague. The appropriate question is straightforward. Does the regulation implement or enforce law as determined by an objective examination of the letter and intent of the law? If policies are contrary to the law the regulation implements or enforces, the policy is irrelevant. If initiatives and policies are inconsistent with law, the Congress, not the executive branch must act.
All government data and activity, whether conducted by or for the government, must be publicly available (with the exception of matters of national security), so that part of the order is irrelevant. Properly conducted scientific research must clearly state the methods and must be reproducible. It seems that eliminating scientific positions in government is already inconsistent with this portion of the order. As well, elimination of public access to the data is inconsistent with this part of the order. The public, which includes those competent in the sciences, must not need to rely on the Freedom Of Information Act to obtain data produced by or for the government, but a substantial number of people are prepared to do so if necessary.
If an executive order relates to implementation or enforcement of the letter or intent of law, it cannot simply be eliminated by executive order. That is the domain of Congress. Therefore, the last element of the order is also vague and potentially inconsistent with law.
The agency must bear in mind that those who are affected by environmental regulation are the entire US population. US environmental regulations also affect other countries, particularly those what share a border with the US: Canada and Mexico. Air and water pollution in the US is not and cannot be contained by borders.