Tuesday, June 29, 2010

Legislator + Regulator + Disaster = Quagmire

In the two months since the Deepwater Horizon drilling rig exploded and sank, the ruptured wellhead has been spewing crude oil and gas at a terrifying rate. At the same time, news reports about the Obama Administration's response to the spill have more resembled water torture: they've come out in a slow dribble. But we've finally seen enough to detect a pattern:

The pattern, of course, is the slavish adherence to regulatory regimes during this catastrophic spill without regard to the scale and nature of the disaster.

The question has been asked widely: why didn't President Obama issue an executive order waiving the Jones Act restrictions, as President Bush did in the wake of Hurricane Katrina? Some speculate that he's been reluctant to offend the maritime unions due to his reliance on support from organized labor.

But that doesn't explain why he has also failed to issue executive orders to waive EPA restrictions and other regulations. After all, doing so would facilitate workers getting onto containment and cleanup jobs, even if it would potentially dismay environmentalists. And even environmentalists must be at a loss to understand why the regulations that protect wetlands and coastal ecosystems in normal times should prevent defensive measures against a massive flood of oil.

Maybe it's not his obligations to special interest groups that make President Obama reluctant to waive these regulations. Maybe he just likes regulations.

President Obama had little executive experience before ascending to the Presidency. His public service was as a legislator. Legislators create laws, which become regulations. That's as far as legislators go: the implementation of laws and regulations fall to the executive.

So a politician with legislative experience but no executive experience becomes conditioned to believe that all you need to solve any problem is a law and the regulations that translate that law into specific instructions. The legislator isn't tasked with implementing that law in the real world, nor is he directly exposed to the direct results of the law and the measures of its success or failure -- there may be many years and obfuscating factors separating the passage of the law and the first election after its failure becomes evident, so the verdict of the ballot box is an inefficient tool for teaching legislators how to craft laws that work.

So here is President Obama and his coterie, trained up in the belief that laws and regulations solve problems. The idea that solving a problem might require waiving regulations never enters their minds.

And here's David Axelrod on The Daily Show, confronting Jon Stewart's question about whether the Obama Administration has demonstrated sufficient competence to be trusted with ever more regulation of Americans' lives:

JON STEWART, HOST: It's clear that this administration believes that government can have a stronger hand in regulating Wall Street, in regulating energy, in doing these things. But, has government during this time proved itself competent? And are our only two choices sort of an incompetent bureaucracy that doesn't quite regulate properly or free market anarchy? Before you can make the case that this administration and government can effectively regulate shouldn't they, you know, the MMS case makes a pretty clear point that the regulatory system is somewhat broken, and you guys had a chance to...

DAVID AXELROD, SENIOR OBAMA ADVISOR: The answer Jon is not to abandon the notion that there have to be rules and oversight. The answer is to make it, to make it work better. There's a long legacy there at MMS, and frankly at other agencies of government because the last administration wasn't really interested in regulating.

STEWART: But why then, why not then go in and really, with the urgency? You know, the fear is the government is not agile enough, is not urgent enough to deal with things like a catastrophic oil spill.

AXELROD: There is, there is no doubt that in retrospect we would have liked to move faster on the MMS situation, but understand that we were also dealing with the economic crisis, and, and, and, and, and the wars, and a whole range of issues, and we, that was, that was a defect that we're correcting and moving aggressively to correct now. But the answer isn't to walk away from it. I think we tested the proposition of what no regulation means. What you get, you get the leak, you get the mine disaster in West Virginia, and you get an economic crisis. And everybody recognizes that government has to play a role. It shouldn't be an oppressive role, but there has to be some firm oversight and some rules of people respond to. These, you know, it's pretty clear the oil industry is not going to regulate itself.

STEWART: But do you think, I guess my point is before you have the opportunity, before you can earn the ability to go in and, and, and do that, don't, don't we have to show a certain baseline level of competence.

Note that Axelrod mentions both the Deepwater Horizon disaster and the West Virginia mine disaster as "what no regulation means." But here's the thing: there were and are plenty of regulations on offshore oil drilling rigs and on coal mines. The problem was not the absence of regulation, but the Obama Administration's blind belief that merely having regulations in place ensures that those regulations will be followed properly.

So have a little sympathy for President Obama. When he refuses to waive Federal regulations in order to allow an all-out effort to contain and clean this ever-burgeoning catastrophe, it may just be because he doesn't know any better.

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