What, you want more?

Friends, I didn’t want to do this. I turned off my computer and stood up. I danced around to Wyclef. I did two full sinks of dishes and pulled out all the vegetables in my fridge. Two different gratins later, my jaw is still clenched. Earlier today I critiqued Bush’s executive order on procedure. Now I want to respond to Justin’s link to the Agitator. I started with some sympathy to it. It is absolutely true that agencies are the arms of the executive branch. If the President’s will should be expressed anywhere, it should be in the agencies. There’s a reason I’m working for the state now, and not the feds. But here’s the part that’s got me worked up:

Given that federal regulations carry the force of law, and that violations of the Federal Register can increasingly trigger criminal charges, I'd rather an elected, accountable politician be holding the buck at the end of the line than a sea of faceless, unelected, nearly unfireable bureaucrats.
If Henry Waxman is really is terribly concerned about all of this, the answer isn't to make executive agencies less answerable to the executive. It's to make them more accountable to the Congress. Congress needs to stop delegating so much lawmaking power to regulatory agencies. In fact, I don't think it would be such a bad idea to force Congress to vote on every measly federal regulation it expects the rest of us to abide by.
Doing so would serve several purposes: One, it would open their eyes to just how massive, contradictory, and Byzantine federal regulatory law really is, and perhaps inspire them to do something to reign it in. Two, as a matter of principle, people shouldn't be going to jail for violating laws Congress never expressly voted on. And three, by the time Congress had worked its way through the Federal Register, they'd have a hell of a lot less time to pass other laws.

Qualifiers:
I am going to elide some distinctions. Bush’s Executive Order address was for guidance documents, which, from my hour of reading, are strongly persuasive but not legally binding on their subjects. No one is going to jail for violating them. But I am willing for my arguments to apply to environmental regulations carrying criminal penalties. I am going to draw my examples from both state and federal bureaucracies and regulations and assume that they are similar. I’m using examples I’ve read in the paper, ones that I’ve worked on, and ones that my friends are working on. If I am vague, some of it is so I get less fired when my bosses find this, and some of it is because they weren’t all my projects, so I don’t know details. I’ll also say up front, that what makes me mad when I read the Agitator, and even angrier when I read the Times article is the motive I ascribe to the supporters of the Executive Order: that regulations are too complicated and burdensome, that fewer regulations are better, that it is OK, even good, to rein in OSHA and the EPA.

Labor and health advocates, you guys are on your own. I don’t know your systems at all. But I do know how and why environmental regulations come about. So let’s do this.

Elected, accountable politician vs. faceless, unelected, nearly unfireable bureaucrat:
Civil servants range from deadwood to brilliant thinkers. Mostly, the ones I’ve met have been reasonably competent. I’m not going to say that they’re all impressive. But I will say that all of them have been paid to learn some part of the public’s business. Bureaucrats spend careers addressing particular problems, learning some system all the way through. They accumulate a lot of local knowledge and familiarity with the players. The fish passage office at Fish and Game has a stunning amount of knowledge about what fish passages structures work and which ones are expensive failures. No one else, not professors or consultants, has seen as many fish ladder installations over such a wide geographic range as these bureaucrats. Certainly, no one else is offering this expertise to the public for free. (Well, free considering they’re already hired.) I like the idea that the person who sets broad policy and direction should be accountable. But for the real work? The details? A political appointee cannot possibly know enough about all the things an agency does to have meaningful opinions at the level of regulations. You want a twenty-year bureaucrat to set specifications for paint quality for road markings.

There is too much regulation already! Anything that slows regulation is better! No new, complicated regulations!
My friend is working on a set of regulations for agricultural diesel engines in the San Joaquin Valley, which has some of the worst air quality in the state. It also has the highest incidence of childhood asthma in the state. Phasing out old engines will cost growers money. New engines will be more expensive for them. My friend is working to find a regulation that balances those costs against incidences of asthma. There were studies a while back, linking trihalomethanes, which occur naturally in water with lots of organic matter but get concentrated when water is chlorinated, to miscarriages. The EPA lowered the allowable concentrations of THM in drinking water; water providers switched from chlorination to alternate treatments. Both changes cost money. I have no doubt the THM regulations are everything you imagine regulation to be: complicated, picky, boring, expensive. There are hundreds of situations like that, and hundreds of sets of regulations to incrementally address them.

You know, there are only two times a regulation is going to matter to you. It’ll matter if it annoys you, keeps you from doing something you want or costs you money. It’ll matter if it works. If my friend’s work means your kid breathes easy through the night, if changing THM thresholds saves your pregnancy, it’ll matter to you. But you’ll never know. You won’t know that some bureaucrat spent six years on that. Even if you read the regs, you wouldn’t know that damage to you was averted. If you drink clean water and breathe air that doesn’t sicken you and give birth to whole children, and can take them to see salmon in a river or to a beach that doesn’t froth with sewage, you are the ungrateful recipient of the results of thousands of regulations. You think that living un-assaulted by poisons you can’t see or trace to a source just happens, naturally. That isn’t the case, and hasn’t been since the Industrial Revolution. You are constantly guarded by environmental regulations that you resent as an abstraction, as somehow “too much.”

Federal regulatory law is massive, contradictory, and Byzantine.
Oh hell yeah it is. I’m sure it is awful to negotiate it. I wish it weren’t. It just happened that way, over time. Pieces accrete, written by different departments in response to the problems the legislature and president assigned them. I bet that nearly every piece made sense for the conditions at the time, considering what those people were trying to do. Conditions have changed, but the regulations remain; I am a huge fan of sunset clauses on laws. The people writing them were trying to solve a particular problem, and if they had known other bureaucrats were writing a different and contradictory solution to a closely linked problem, they would have coordinated. If they had known, or were allowed to work with the other department, or had the budget for it, or if their bosses weren't in petty turf battles.

I wish I could overhaul all those governmental regulations, start from scratch. Come up with a clean, internally consistent system of laws. If I were Empress, I would do that second. You know what I would do first? I would overhaul all the entrenched power systems and expectations and incentives that those environmental regulations are trying to correct. I know growers feel frantic, hemmed in by unending, complicated, contradictory regulations. What motors they can choose! Which pesticides they can use! When they can use pesticides! How much sediment can be in their tailwater! How much water they can use on their crops! When they can plow to avoid kangaroo rats!! How they can store their crops! Everything! Every detail, regulated!!! Each regulation, eating a piece of their money!! Too much!! But those regulations are all intended toward one end, the ‘What happens on your farm can’t hurt anyone else’ end. If I could change their deep-seated beliefs that they are entitled to farm in ways that hurt people on the other sides of their farm borders, their historic sense that they are entitled to use the waters and airs of the state as sinks, our beliefs about what rights accompany land ownership, I wouldn’t have to have pissant regulations about the types of diesel motors you can use for farm pumps.

Privilege.
Regulations in general are trying to correct something, for some reason. Bureaucrats don’t write them for recreation. They write environmental regulations to correct an imbalance that arose over time. It may be a comfortable imbalance for you, one you have always known, that you have grown so accustomed to that it feels like a right. But there is a cost somewhere, or no bureaucrat would have been sicced on the problem. If new regulations threaten your comfort or wallet or habits, consider that your privileges are imposing a cost somewhere else. The regulation shifts the cost back to you. If you hate regulation, approve of anything that would delay some regulation, you are, in essence, saying that because the status quo is acceptable to you, you are happy to let other people and the earth bear the costs of your lifestyle and existence. I have no respect for that.