Why does it take so long to issue a regulation?

The Environmental Protection Agency (EPA) recently announced that it was delaying its regulation on formaldehyde emission standards for certain wood products. The EPA began working on the formaldehyde regulation after it was told to do so by Congress in 2010, and the latest delay has produced the usual concerns from environmental activists that the EPA is caving into industry by delaying the rule (the EPA actually cites comments from the state of California as the reason for its decision to delay).

{mosads}A long timeframe for completing a regulation is not unusual. The Occupational Safety and Health Administration (OSHA) proposed a rule regulating exposure to crystalline silica in 2013, but actually began work on it in 2003. A dozen years later, it has yet to be finalized. When Congress created the regulatory process, many thought it would be an efficient way to make policy. What happened? And is the long process a problem?

The first thing to note is that not all regulations take a long time to complete. Thousands of noncontroversial regulations are issued each year and they are typically completed in a year or less. There are really two categories of regulations that take a long time for agencies to finish. The first consists of those regulations that are a low priority for the agency. The second, and more interesting category, consists of the regulations, like the EPA formaldehyde and OSHA crystalline silica regulations, where there are high stakes. These regulations typically impose significant costs on industry (and also have large public health benefits).

Regulation began to surface as a significant policymaking tool in the wake of the large number of statutes passed in the 1960s and early 1970s designed to protect public health. It wasn’t long after this emergence that industry began to object to the regulations promulgated pursuant to these statutes. Two means for objections were already in place. Agencies were required to solicit public comment on their proposed regulations before issuing them in final form. And agencies could be sued if the regulations were not justified by a statute, or the agencies did not follow proper procedures in publishing the regulation. These two mechanisms immediately became sources of delay and continue to be so today.

But both public comment and judicial review are very important checks on agency power to issue regulations. Rule-making is an administrative process, not a legislative one. When a member of the public doesn’t like the actions taken by their representative in Washington, they vote against them or donate to their opponent. This is not an option in the regulatory process; therefore Congress designed the public comment process to allow parties affected by a regulation to weigh in on the policy decision. Courts are also a necessary check to ensure that agencies are following their statutory mandates. Indeed, courts have been used to compel agency regulation as well as to stop it.

In the years that followed, Congress and the president imposed new requirements on agencies issuing regulations. These include requirements that agencies conduct cost-benefit analyses, encourage participation by particular constituencies and examine the impact of their rules in numerous different ways. Many of these requirements only apply to small subsets of regulations (but usually they do apply to the most controversial ones). Each of these steps unquestionably adds time to the agency process for issuing a regulation. There is considerable debate over whether the time added leads to better regulations. In my view, as someone who has studied this field considerably, some of these requirements, like economic analysis, have to potential to be worth the time they take. Others, like the myriad impact analyses, do not.

It is important to keep in mind that much of the delay in issuing politically controversial regulations comes from attempts to embody certain values (public participation, judicial review, economic efficiency) in a policymaking process that is largely conducted by unelected officials. Some of these attempts don’t always work well and we should always be working to improve them (increasing funding for regulatory agencies to meet these requirements is one necessity). Twelve years is too long to issue a regulation. But delay in and of itself is not a problem. Once issued, regulations rarely disappear, so getting them right is important.

Shapiro is an associate professor and director of the Public Policy Program at Rutgers University and a member of the Scholars Strategy Network.