November 22, 2010
November 22, 2010
The Election – Regulatory Reprieve?
By John Ledger
Associated Oregon Industries
Oregon’s largest business advocate
Although this month’s election may herald a period of a slowing regulatory expansion in the Congress and legislature, it may have shifted the whole thing to the executive branch agencies. The implications for manufacturers, and working Oregonians, can be profound.
With the Oregon House tied and the Senate all but so, chances of seeing major new environmental legislation detrimental to job growth may have lessened. There is little doubt that efforts such as having Oregon join California’s Cap & Trade Program, successfully opposed by a business and labor coalition in 2009, are much less likely to pass.
This does not mean that manufacturers should breathe easier or unemployed workers break out their lunch buckets. Although never taught in high-school civics, many of the most powerful and far reaching regulatory initiatives have their genesis within executive branch agencies, not the legislature or Congress. One of the most dramatic examples is EPA’s decision to regulate greenhouse gases as a pollutant when Congress opted not to pursue the issue. (AOI is currently working with the Oregon DEQ on how the state will implement these rules, click here for more information.)
Federal and state agencies routinely initiate new programs seemly de novo because each session Congress and the state legislature actively transfer more of their lawmaking authority to the executive branch. Often times this grant of lawmaking authority, rule making, is exceedingly broad, non-directed, and powerful. Although rules are promulgated by non-elected officials (agency directors or commissions) they have the effect of law; and violations can end you up in the hoosegow.
Once this authority is handed off, it is for all practical purposes, abdicated forever and the results are almost impossible to control. Many of AOI’s most vigorous efforts within the capitol building are to stop or limit the scope of such transfers from elected to non-elected officials.
How this will play out over the next few years will largely depend on the two non-legislative drivers of agency rules, both of which will be tempted to direct the agency if they feel that the legislature is not sufficiently activist. The Governor, even if he does not formally oversee an agency, could all but order the agency to initiate and adopt rules for almost any program he would like to see – no agency is going to balk at an executive order and they would figure out how to pay for it later. And agency staff, having thoughts and sympathies of their own, is often a primary source of program expansions.
In any case, just how sensitive the Governor and executive branch agencies are to the plight of manufacturers will determine how soon, if ever, many Oregonians see another paycheck.