The Costs of Regulatory Delay

Halting Pace of Regulation Takes Lives, Wastes Billions of Dollars

The United States Congress is known for many things, but a galloping pace of legislative action is not one of them. And yet, by comparison to the hesitant gait maintained by the Executive Branch when it comes to drawing up regulations to enforce those laws, Congress is a virtual thoroughbred racehorse.

In The Hidden Human and Environmental Costs of Regulatory Delay (CPR White Paper 907), Member Scholars Catherine O’Neill, Amy Sinden, and Rena Steinzor, together with Policy Analysts James Goodwin and Yee Huang, explore a commonly ignored issue in Washington: the costs of regulatory delay. Many regulations take years, even decades to promulgate – for the most part not for lack of effort by the regulatory agencies doing the drafting, but largely because opponents of regulation have found ways to slow down the process in hopes that an opportunity to kill a regulation comes along, or, failing that, in hopes of weakening the eventual regulation while avoiding regulation for as long as possible. 

For industries interested only in the bottom line, that strategy makes some sense. So much sense, in fact, that most of Washington has simply accepted that regulations take forever to emerge from the thicket of administrative and legal challenges that opponents of safeguards for health, safety and the environment have carefully seeded over the years. But Americans pay a price for that delay, with their pocketbooks, their health, and even their lives. 

Those costs remain largely unnoticed, incurred not in the bright lights of congressional debate or at press conferences in front of the national media, but rather in cities and towns across the nation where water is fouled, air is polluted, food is unsafe, medications cause harm, and more. The authors of The Costs of Regulatory Delay bring these costs to light, focusing on three case studies.  

• Mercury Pollution. In 1990, Congress passed legislation requiring the Environmental Protection Agency to regulate emissions of mercury from power plants. Nineteen years later, the job is not done. Industry objections slowed EPA during the Clinton years; the Bush Administration wasted most of the next eight. When the Bush Administration finally issued a regulation that simply did not follow the law, it was, quite predictably, struck down in court. More time passed. Now the Obama EPA is redrafting, with a regulation hoped for by 2011 – 21 years after Congress mandated it. The cost of delay? One study concluded that 231 U.S. babies are born each year with mental retardation that would have been prevented if mercury emissions from power plants had been strictly regulated. In addition, the delay also may contribute to hundreds of cases of preventable heart disease in adults every year and untold environmental harms.

• Zebra Mussels. EPA has for decades abdicated a clear duty under the Clean Water Act to control the spread of invasive species from ships’ ballast water discharges.  A federal court has ordered EPA to begin regulating such discharges, but invasive species have already done considerable damage.  The cost of delay? One example: Since it was first introduced in the 1980s by way of ballast water released in the United States by ships from Eastern Europe, the zebra mussel has spread to hundreds of U.S. waterbodies, clogging water intake pipes at power plants and other industrial facilities and contributing to an estimated $1 billion in damages every year, as well as permanent harm to the fragile ecosystems of lakes and rivers across the country.

• Cranes and Derricks. The Occupational Safety and Health Administration is charged with keeping the nation’s workplaces safe. But a much-needed new rule updating regulatory standards for the use of cranes, derricks, and other heavy machinery at construction sites has remained stalled at OSHA for the last five years.  The existing standards, now 40 years old, are in dire need of updating to account for changes in tech­nology and construction practices.  The cost of delay? OSHA estimates that a regulation would save dozens of lives and prevent well over 100 injuries every year. And the financial costs of delay are profound as well. Construction delays resulting from heavy machinery accidents also cost money. The opening of the Milwaukee Brewers baseball stadium was delayed a year and costs skyrocketed after a crane accident during construction.

Fixing the delay-friendly regulatory system in Washington will require a variety of reforms. One that the white paper’s authors point to is intended to raise the profile of the costs of delay, no longer allowing worker injuries, grave harm to ecosystems, and billions of wasted dollars to go unnoticed simply because they escape the notice of the media. The authors propose that the Office of Management and Budget track and report on the costs of regulatory delay in their annual reports to Congress on the costs and benefits of regulation – thereby beginning to account for the costs of regulatory delay. 

• Read The Hidden Human and Environmental Costs of Regulatory Delay (CPR White Paper 907), by Catherine O’Neill, Amy Sinden, Rena Steinzor, James Goodwin, and Yee Huang. Read the news release.  Read the day-of-release blog entry.
• Read about the companion CPR White Papers, Regulatory Dysfunction: How Insufficient Resources, Outdated Laws, and Political Interference Cripple the "Protector Agencies,"  by CPR Member Scholars Sidney Shapiro and Rena Steinzor, and CPR Policy Analyst Matthew Shudtz; and A Return to Common Sense: Protecting Health, Safety, and the Environment Through "Pragmatic Regulatory Impact Analysis," by CPR Member Scholars Rena Steinzor, Amy Sinden, and Sidney Shapiro, and CPR Policy Analyst James Goodwin.
• Read the letter of transmittal from Rena Steinzor to OIRA Administrator Cass Sunstein over the three reports.