With Obama, Regulations Are Back in Fashion

Eric Lipton|The New York Times

In a burst of rule-making, federal agencies have toughened or proposed new standards to protect Americans from tainted eggs, safeguard construction workers from crane accidents, prevent injuries from baby walkers and even protect polar bears from extinction.

Over the last year, the Obama administration has pressed forward on hundreds of new mandates, while also stepping up enforcement of rules by increasing the ranks of inspectors and imposing higher fines for violations.

A new age of regulation is well under way in Washington, a fact somewhat obscured by the high-profile debates over the health care overhaul and financial oversight system and by fresh calls for greater federal vigilance spurred by the oil spill in the Gulf of Mexico and the deaths of coal miners in West Virginia.

President Barack Obama
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The surge in rule-making has resulted from an unusual confluence of factors, from repeated outbreaks of food-borne illnesses to workplace disasters. Some industry groups, wanting foreign competitors to adhere to the same standards they must meet, have backed new federal mandates. The push for some of the measures began at the end of the Bush administration, a tacit acknowledgment that its deregulatory agenda had gone too far.

Still, the new aggressiveness reflects the new cops on the beat, and the contrast with the Bush administration is an intentionally sharp one. While the Bush administration mostly favored voluntary compliance by industry, senior Obama administration officials argue that carefully crafted regulation can be a positive force.

“We start from the perspective that we all want a cleaner environment, longer lives, improved safety,” said Peter R. Orszag, director of the Office of Management and Budget, which reviews major regulations. “Smart regulation can make people’s lives better off.”

But complaints from industry leaders are intensifying. Manufacturers, home builders, toymakers and others say that Washington has been overzealous about imposing new requirements, and they warn of serious consequences for businesses and consumers.

“I am all for clean water, but this really isn’t helping,” said Bobby Bowling IV, president of the Tropicana Building Corporation in El Paso, who objects to rules adopted by the Environmental Protection Agency last year requiring larger construction sites to prevent turbid storm-water runoff. “All this is one more obstacle to development,” Mr. Bowling said.

The National Association of Manufacturers made a similar complaint about the cost of many of the new proposed mandates. “Dollars spent on compliance with cumbersome regulations are dollars not spent on hiring new employees,” said Erin Streeter, a spokeswoman for the group.

Obama administration officials reject the criticism, saying that the benefits associated with the dozens of major rules adopted between President Obama’s inauguration and the end of 2009 outweigh the costs by an estimated $3.1 billion, a savings they assert is greater than that attributed to new regulations in the first years of the Clinton and Bush administrations.

They arrived at that figure by factoring in upfront costs — like the price of stronger brake systems being mandated in new tractor-trailers — with the estimated long-term savings — like reduced property damage and an estimated 227 fewer highway deaths each year.

“I don’t want to put anyone out of business,” said Inez Tenenbaum, chairwoman of the Consumer Product Safety Commission, who was appointed by Mr. Obama. “But if anything will help the marketplace, it is to make sure that people have confidence in the products that they buy.”

The Environmental Protection Agency is perhaps the most aggressive advocate of the new regulatory philosophy in Washington. It has moved quickly to reverse or strengthen Bush administration policies on power plant pollution, lead paint and toxic chemical discharges.

Last month, along with the Transportation Department, the agency mandated that automakers significantly cut greenhouse-gas emissions while increasing fuel economy standards, an issue the Bush administration had put on hold, citing the industry’s weakened financial condition. The car companies pronounced themselves happy with the result because it eliminated the possibility of even stricter regulation by California and about a dozen other states.

The agency’s administrator, Lisa P. Jackson, has made clear that she would prefer to have Congress tackle climate change through broad legislation in what would be one of the largest regulatory actions in American history. But if Congress fails to pass a law, she has already started the process of mandating standards on her own.

The shift is also evident at major agencies charged with policing worker safety, health and consumer products. Many of the rules those agencies have adopted or are now pushing to impose — including a requirement that farmers refrigerate eggs and kill rodents to combat salmonella contamination on eggshells, which sickens 79,000 people a year — languished during previous administrations.

Now, a newly muscular Food and Drug Administration will have more authority, money and staff for greater scrutiny of products. Since bottoming out at 1,309 inspectors in the 2007 fiscal year, the agency now has 1,800 inspectors with 150 more on the way. Inspections rose 5 percent in 2009 after years of declines and are expected to increase steadily in coming years.

Nanny state worries

David Michaels, who became head of the Occupational Safety and Health Administration in December, has asked Congress to allow the agency to impose much larger fines and criminal penalties on employers that knowingly leave their workers at risk. The agency also is adding dozens of inspectors.

“Fourteen workers die every day in preventable events all across the country,” Dr. Michaels said. “We have to turn up the volume to make it very clear that OSHA is on the job.”

Dr. Michaels typifies the new breed of regulator installed by the Obama administration. Many are former academics, government officials, union leaders or consumer advocates, a contrast with the many former industry officials appointed by the Bush administration.

An epidemiologist, Dr. Michaels published a book in 2008 titled “Doubt Is Their Product: How Industry’s Assault on Science Threatens Your Health.” It argues that “corporate interest successfully infiltrated the federal government from top to bottom” during the Bush administration and concluded that federal regulatory agencies “are intimated and outgunned, and quiescent.”

Some of the regulatory changes have drawn cheers from consumers, like a rule put into effect last month by the Department of Transportation that imposes fines of up to $27,500 per passenger on airlines for holding domestic flights on the tarmac for more than three hours.

But other recent proposals have provoked strong protests. For example, the F.D.A. announced in October that it intended to ban the sale of raw, untreated oysters harvested from the Gulf of Mexico in warm months. Fifteen deaths a year are attributed to eating oysters with a cholera-like bacteria.

Oyster farmers, restaurateurs and members of Congress campaigned to block the rule. Within a month, the F.D.A. announced that it was reconsidering, a move consumer advocates condemned. “This political victory for the Gulf Coast oyster industry is a health tragedy for their consumers,” said David Plunkett, a senior staff attorney at the Center for Science in the Public Interest.

Executives at coal mining and offshore oil rig companies have also protested proposed expansions of federal regulations or a significant increase in fines — although those complaints have become decidedly more muted after last month’s catastrophes at a West Virginia coal mine and on an oil rig in the Gulf of Mexico left dozens of workers dead.

Toymakers are also vigorously challenging rules imposed as part of a 2008 law that Mr. Obama helped push while he was still in the Senate that effectively bans lead in all children’s products and then requires follow-up testing.

Anne M. Northup, a former Republican congresswoman from Kentucky whom Mr. Obama appointed to the Consumer Product Safety Commission, said an excessive number of new mandates was harming the toy market.

“Companies who put products on store shelves that consumers want should not be treated like the enemy,” she said in a statement explaining her vote in March against new agency guidelines for imposing larger fines. “I want the agency to be perceived by consumers as protecting them and by industry as a fair cop — not as a mindlessly punitive bureaucracy.”

Other conservative critics have assailed the administration as creating a big-government nanny state that threatens the nation’s global competitiveness. James L. Gattuso, an expert on regulatory policy at the Heritage Foundation, said the Obama administration was most likely inflating the cost savings and other benefits associated with many of its rule changes, disguising the negative impact they are having on the economy.

“The agencies that prepare these estimates are the same ones that proposed the new rules,” said Mr. Gattuso, who released a report in 2008, “Red Tape Rising,” on the rising cost of federal regulation.

Mr. Orszag defended the administration, saying if each new regulation is based on good science, and drafted to maximize the benefit while minimizing the costs, the country will be better off.

“If the assertion is that we are more willing to adopt policies that have benefits far in excess than cost, rather than being motivated by dogmatic opposition even when it generates huge benefits, then sure, guilty as charged,” Mr. Orszag said.