In June 2009, the Department of Energy, responding to a mandate from President Obama, issued new regulations to phase out fluorescent tubes and the cone-shaped bulbs used in recessed lighting. “When it comes to saving money and growing our economy, energy efficiency isn’t just low-hanging fruit; it’s fruit on the ground,” said Secretary of Energy Steven Chu. Yet one of the institutions having the most trouble picking fruit is the Department of Energy itself. A recent report by the department’s inspector general found that the agency had made little progress in installing the more efficient systems that it recommends to others and was instead using older bulbs, racking up a $76 million electricity bill annually. But don’t expect the department’s struggles to dampen the Obama administration’s enthusiasm for regulation. During its first year and a half, the administration issued far more rules than the Bush administration did over the same period, according to a study by OMB Watch, a government-accountability group.
Even with a new Congress filled with Tea Party types keen on reducing government, Washington is likely to remain a source of mounting regulations, thanks to the broad rule-making powers that federal agencies wield. For starters, the Obama administration’s signature new laws—Obamacare, signed last spring, and the Dodd-Frank financial-reform act, which became law in July—will require a blizzard of new rules from myriad agencies responsible for enforcing them. Already, the Internal Revenue Service, the Department of Labor, and the Department and Health and Human Services have promulgated more than 1,000 pages of rules related to the health-care act, and the total will reach more than 10,000 pages, estimates Inside Counsel, a magazine for corporate lawyers. The Dodd-Frank bill will require some 240 new rules from agencies like the Securities and Exchange Commission, the Federal Reserve, and the newly created Consumer Financial Protection Bureau.
Further, the White House is using its rule-making powers in aggressively political ways. In its most notable move, the administration used the threat of extensive new environmental regulations to get Congress to pass a law to fight climate change. When Congress failed to act, the Environmental Protection Agency went ahead with the new rules, which included declaring carbon dioxide a greenhouse gas and demanding that manufacturers seeking permits for new facilities install the “best available technology” to control emissions, though the agency has yet to define what that technology is. A number of states and industry groups have launched lawsuits to fight the regulations. The EPA also issued controversial new goals for gas efficiency in cars and light trucks, with a target of 35.5 miles per gallon, on average, in cars sold in the U.S. by 2016, compared with 25 miles per gallon in 2009.
Other federal agencies have been nearly as busy. At Obama’s request, the Department of Labor now requires firms that contract with the federal government to inform employees that they have the right to unionize and bargain collectively. The department also expanded the requirements of the Family and Medical Leave Act. Previously, working parents could get time off to care for sick kids; now, grandparents, domestic partners, and anyone who provides financial support or day-to-day care for children are eligible, too. The new regulations reflect “the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother,” the department noted. The labor department also required any contractor doing stimulus-financed weatherization to pay prevailing wages, which are generally on par with union pay scales.
The union-friendly Obama labor department did, however, get rid of one significant regulation: a Bush-administration rule that unions file disclosure statements on how they spend their members’ money. The disclosure rule had helped prompt a number of investigations of abuses, including a Los Angeles Times series that resulted in the removal of the head of a Service Employees International Union local for misallocating hundreds of thousands of dollars of members’ money. The Obama administration considered the transparency requirement an excessive burden on unions.
Other new Obama regulations cover everything from transportation to classrooms. The Department of Transportation, for example, issued a new rule requiring train operators to install systems that monitor and control train movements, known as “positive train controls.” Estimated cost to the industry: $10 billion. The energy department, meanwhile, has issued new, higher standards for efficient energy use for everything from washing machines to water heaters. The department even redefined what constitutes a showerhead in order to regulate more stringently the new multi-nozzle shower fixtures that, the Obama administration argues, waste water. The Department of Education has discussed applying the gender quotas of Title IX to college courses in math and science in an effort to force colleges to recruit more women as majors in these subjects.
And the administration may just be getting started. The president said last week that he was ordering a review of regulations throughout the federal bureaucracy. But his administration’s regulatory agenda identifies some 4,000 rules under development, says Susan Dudley, administrator of the Office of Information and Regulatory Affairs under President Bush. This is big government by the back door.
