html xmlns="http://www.w3.org/1999/xhtml" xml:lang="en" lang="en"> From the archives: What, you want more?

Thursday, February 01, 2007

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.

29 Comments:

Blogger bobvis said...

But those regulations are all intended toward one end, the ‘What happens on your farm can’t hurt anyone else’ end.

Then why not make *that* the regulation? Why not regulate the consequences you are trying to avoid rather than the means that at this particular moment in time bureaucrats think will probably lead to those consequences? If you regulate the consequences, it leaves open the opportunity for innovation in the future that avoids them using a method that happens to use means we currently think are bad.

5:23 AM  
Blogger bobvis said...

By the way, I'm not saying that bureaucrats should be completely silent on the issue of the means. They can provide recommendations as to how to avoid the consequences. Farmers or others could use those typically and switch to something else only when they become aware of a better method that does no additional harm.

5:25 AM  
Anonymous Anonymous said...

Please, please read "The Road to Serfdom" by F.A. Hayek.

-Stephen

7:42 AM  
Anonymous ptm said...

Wow, Megan, this is one of the more interesting essays I've read in a while.

8:24 AM  
Anonymous Sven said...

And...and...the "Fountainhead" and... the P.J. O'Rourke canon and...the Bible. Please.

8:43 AM  
Blogger Megan said...

Perhaps you guys missed my earlier post on Rand.

I start from a fundamentally different worldview, guys. Our core values are so different that I don't think we are going to come to much agreement. What I don't understand, and I mean this really sincerely and nicely, is why do you read me? What do you get that keeps you coming back to my liberal, Democratic, you-are-deeply-obligated-to-society-and-your-community, pro-environment, pro-feminism, pro-market regulation, pro-eating locally, pro-train, pro-hippy blog?

Don't answer if you are going to be all fawning. But honestly, I don't think like you do. Why would you keep reading?

Also, why don't I get linked by the famous blogs for environmental engineers with hops? Why do I have readers who MUST argue with me, who MUST tell me to read books I have nothing but contempt for? Why don't the green websites link me, so we can all sit around agreeing with each other and then, with that out of the way, move on to "yes, we are rather pretty" and then making out?

9:08 AM  
Blogger Megan said...

ptm:
I am this close to answering bobvis' questions, which would make this a pretty intolerable week of long-winded preachiness. But if I am still thinking it over when I get back from my meeting, you might get YET ANOTHER essay on this shit.

9:09 AM  
Blogger Mark said...

You and I agree that people's shouldn't be allowed to willy-nilly spew externalities all over other people. Where we disagree is on the effectiveness and desirability of various mechanisms to accomplish that.

Byzantine regulation, unfair enforcement, and some amount of make-work meddling is the inevitable result of top-down regulation. There may well be situations where this is the best possible solution. Please note that I'm granting that. But you have to factor in the fact that those negative things are part of the package deal when it is time to select a mechanism.

Too often, enthusiasts of top-down problem solving seem to address the task of finding a good mechanism by first wishing away all those negatives. There is no benevolent and wise Philosopher King. Many people seem to ignore that fact in their enthusiasm to get to the solving of problems and righting of wrongs. The regulatory mechanism is going to be slow, hidebound, favor those with political clout, and will create unintended side effects as people respond to new incentives.

When I call myself a libertarian, I'm not saying I think all government should be abolished tomorrow. I simpy mean that I think those side effects are more important than the top-down problem-solving enthusiasts seem to.

9:15 AM  
Blogger Mark said...

Oh, and to answer the "why do you read me" question:
1) [fawning expurgated]
2) I have come to appreciate the fact that predominantly reading people who agree with me is not mentally healthy nor useful. We're built to rationalize what we want to be true.

(and I think sven was kidding)

9:25 AM  
Anonymous Mitch said...

Even if you read the regs, you wouldn’t know that damage to you was averted.
A nice shorthand for this kind of thing that I've seen elsewhere is "Building codes are written in blood".

10:31 AM  
Blogger Justin said...

Wouldn't blind agreement with you be as boring as compliments?

Anyway, I think you missed the point of what he was saying. I'm pretty sure he's not an anarchist.

His point was more along the lines of, these regulations can come with criminal penalties, and consequences. But, we're not even voting for the people deciding the regulations. The Congress has handed that authority off to some other agency.

Does it really seem right that you're bound by regulations where you had no representation in their creation?

And, just because you can think of a few good examples (I'll just assume the ones you chose are good), there are plenty of bad regulations.

I'd go through the EPA nightmares, but that's been done in the past. But, here's another favorite.

10:42 AM  
Anonymous Ananda said...

"Nothing but contempt" for Hayek? Really?

10:50 AM  
Blogger ScottM said...

About your tomato link Justin:
It sounds like something that might be possible to overcome today-- with individual labels, etc. So that your "Brookshire farms" or whatever label can clearly warn me away after a bad experience or two.

If we're just sold together as "California Tomatoes", and supermarkets won't deal with/spend the effort to specifically identify which farm my tomato comes from (as today), then the bad experience with Brookshire farms tomatoes costs me customers.

Why are you arguing that Brookshire farms can destroy my market without allowing me to exclude his inferior product from the group I'm included in?

11:57 AM  
Blogger jjsingh04 said...

I don't know much about Hayek or his book but from what I do understand, I'd say his thinking is flawed. He seems to imply that regulators always have some sort of self-gratifying agenda in pushing pet policies onto the public. Is it making the regulator rich? Maybe, in some cases. Is it satisfying the regulator's ego? Again maybe, in some cases. However, it's naive and dangerous to assume that the majority of regulators have nothing better to do than sit at a desk all day reading and revising legislation or policy & procedure manuals, or that they do so primarily in order to rip everybody else off. There are easier and more exciting ways to be corrupt or egotistical.

12:15 PM  
Blogger Justin said...

Read it more clearly. The problem wasn't with the supermarkets, it was with the Florida Tomato Committee regulating what could and couldn't be sold.

"Given that the Uglyripe is a more expensive, visually unappealing tomato"

It sounds like it was already being sold separately from the others.

more
here here and here

I think the real point here is, it's a ridiculous case of over regulation. You started with these agricultural marketing committees, then went on to banning produce that had no problems, and then took several years to get the problem resolved in this one instance, with a specific exemption for this one type of tomato, not an overall fix.

12:21 PM  
Anonymous Anonymous said...

Once again, I agree with Mark. [Insert fawning over Megan here.]

But really, you have an interesting life. You seem like a nice person. You think completely different from me, politically and lifestyle-wise. But I don't get this sense of complete contempt for me (a pseudo-conservatarian) and piling on that I might get from reading another site with similar leanings. -K.

12:30 PM  
Blogger billo said...

K, can someone feel contempt for a person's ideas and not the person himself/herself?

I tend to agree with all of Megan's "pro's" and yet still feel that I MUST argue with her! Bizarre.

12:47 PM  
Blogger LizardBreath said...

Hey, I read you and I'm both fawning and right with you on the politics. (Although I have no hops. I used to have hops, back when I was brewing beer, but now I have no hops.)

12:49 PM  
Blogger bobvis said...

Why don't the green websites link me, so we can all sit around agreeing with each other and then, with that out of the way, move on to "yes, we are rather pretty" and then making out?

If I was a green hippie (and frankly, I can pass myself off as one among them), I'd still argue with you. I'm built that way. This may be why I don't get invited to more parties. It's either that or my odor.

12:58 PM  
Blogger Megan said...

(and I think sven was kidding)
Dude, I must be overwrought. I'm missing tone, and usually think I catch it.

Does it really seem right that you're bound by regulations where you had no representation in their creation?
I think you have this particular aspect completely backward. You have SO MUCH MORE voice in regulation. Seriously. We put out our regulations in draft after draft. We hold public comment meetings in four cities in the state, to hear what everyone has to say. If you pick up the phone, the regulator answers, thrilled beyond belief that anyone took an interest. You ABSOLUTELY can shape regulations. You could edit drafts, re-write sections, suggest new things. If you were interested, there is no distance between you and the relevent bureaucrat. You can't get that influence from voting on a legislator.

He seems to imply that regulators always have some sort of self-gratifying agenda in pushing pet policies onto the public.

Believe what you will, but I'll say without hesitation that the regulators I know have an intense sense of duty to the public. They want to balance competing interests fairly, within the constraints of the law. They truly perceive themselves to be civil servants.

LB:
See, I get why people who agree with me read me. Have I ever mentioned that you are pretty? Want to make out?

It is the people who contradict everything I say that I can't understand. Why come here to be frustrated?

1:11 PM  
Blogger Justin said...

Maybe we don't find disagreeing with you frustrating?

And, while maybe I could call up and give my opinion on regulation, let's say you disagree with me, and go your way anyway, can the rest of us get together and have you fired? You have less incentive to listen to the people you serve than a politician does.

And, as I recall you have a significant lack of respect for the regulations on maintaining your property (lawn care). What makes it acceptable for you to ignore those regulations, and hurt the property values of the people around you? If you're convinced the regulators have considered everyone's best interest, and set the system up accordingly, don't you have an obligation to obey these regulations to avoid hurting the people around you?

2:15 PM  
Anonymous Anonymous said...

Megan,

Your writing is smart, funny, and often wise. So thank you for the effort and the energy you allocate to your blog. I am proud to join the many whom are grateful for what you do here.

I read your site because I appreciate real diversity--intellectual diversity. One of my favorite things about going to a highly granola left-wing college, was to see the overwhelming closed-mindedness of so many zealots whom call themselves "liberals" or "progressives." Is not your displeasure with dissenting commenters an indication of narrowness?

I have a running compact with many of my friends--read Hayek, or Friedman, and I'll read any book of their choice, say Chomsky, Zinn, whomever--and give it a fair shake, and open analysis.

Sure, I really care about ideas, and may from time to time very deeply reject the worldview you espouse, but that does not change that I appreciate and respect:

A) you and your blog,
B) the way that you arrived at your ideas,
C) your intentions for a better future.

So, that's why I read your blog, that's why I ruffled your feathers with my Hayek recommendation, and that's why I hope you will express a little less contempt for a diversity of opinion among your blog fans.

-Stephen

2:33 PM  
Blogger Pooh said...

Adding on the Megan's last re: the responsiveness of regulators.

Further, there are all kinds of avenues one can pursue in response to an adverse regulatory decision (obvious varies between agencies and jurisdictions), from applying for variances or waivers, to internal administrative appeals to full-blown litigation.

If the legislature passes a law, you are almost certainly SOL in terms of challenging aside from advocating a repeal or amendment.

As an aside, I'm not sure how much Hayek would have to do with many of those who most commonly invoke his name these days...

3:45 PM  
Anonymous Rob M said...

I am away from the computer for a couple of days and this is what I come back to, something right up my alley. Look folks Megan is right here. The Bush regulation is stupid and redundant. There is a political appointee at ever agency. In fact at the head of every agency. So if that doesn't work we will just add another political appointee? WTF? This is the kind of stupid worthless bureaucratic extra layer "if that doesn't work we will just try more of the same" crap that many folks are complaining about.

And trust me Congress is involved in everyone of these darned regulations. Or should I talk about the Ag Department meetings I had to sit in about pesticides for tomato growers?

Fact is, if not for many government programs and regulations the rivers of Cleveland would still be on fire and someone would be getting rich by selling tickets to tourists. maybe not the most exact example but you get the point. "If men were angels, governments would not be necessary."

Oh and just for the record, I am probably as far away from Megan on the political spectrum as possible. The only thing I hate more than government is the fact that without it life would be far far worse.

Now I will spend the required 30 minutes fawning and worshiping at the alter of Megan.

5:07 PM  
Blogger Megan said...

Now I will spend the required 30 minutes fawning and worshiping at the alter of Megan.

Take it somewhere else, hon.

5:19 PM  
Anonymous Anonymous said...

About that burning river:

http://www.case.edu/news/2004/6-04/fire.htm

5:33 PM  
Anonymous ptm said...

If you were interested, there is no distance between you and the relevent bureaucrat.

Why is it hard to find out what's in the works, who's discussing it, who to call, and such?

Note - my civic experience is mostly with land management issues in Utah and western Colorado.

9:11 AM  
Blogger Megan said...

Why is it hard to find out what's in the works, who's discussing it, who to call, and such?

I can't tell if you are rebutting Justin, by saying that it isn't hard, or really asking me.

If you aren't a regular, it could take you maybe an hour of calling around to get to the bureaucrat of your choice. You can pull up org charts and phone directories of any agency in California, from the www.ca.gov page . But the office names aren't really clear, and maybe you don't realize that the st-t- w-t-r r-s--rc-s c-ntr-l b--rd and the d-p-rtm-nt of w-t-r r-s--rc-s are two entirely different things, with not much connection to the other. Still, if you want to be influential on an issue, you should learn the agencies you'll be working with.

But all gov't public documents are required to have a name and phone number on them, so if you can find a document on your subject, there'll be someone you can call. Then, start cold-calling, explain your interest, and let them transfer you for a while.

I would recommend that you absolutely avoid the public affairs office, which has a PR mission, and you want to go as low on the chain as you can find a phone number for. Managers are busy and cautious. Bottom level people are happy to talk to you.

10:29 AM  
Anonymous ptm said...

I was really asking. The thing is, doesn't seem particularly easy. I recognize that it's perfectly possible that I'm just too lazy, but given that I'm less lazy than most folks "not easy for me" implies "not easy enough".

I can stay current on what's happening in Congress, or baseball, or my state legislature by scanning the paper, chatting at the bar, using "what's shakin at the Capitol?" as a pickup line, etc. But there are a lot of different agencies whose relationships and processes I don't know or understand and figuring that out takes time. As you note, it's possible for me to get that information.

Looking back, I'm not sure where I picked up that you were implying that this was trivial for members of the public, as opposed to merely feasible. It's only the former that I would object to.

11:03 AM  

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