Biden’s Fall 2021 Unified Agenda of Federal Regulation Heralds Abandonment of Regulatory Oversight Role

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The Biden administration has just released the Fall 2021 edition of the twice-yearly Unified Agenda of Federal Regulatory and Deregulatory Actions. Since the early 1980s, the Agenda has laid out regulatory priorities of federal departments and agencies and reported and recently completed actions.

Both Biden’s spring and the fall editions promised and have delivered on a newer era of activist, government. The Office and Management and Budget (OMB), ostensibly tasked with regulatory oversight, in the spring edition turned on the recently departed Donald Trump with the caustic observation that, “[T]he Unified Regulatory Agenda continues rolling back the obstacles to recovery, equity, and sustainability that the prior Administration put in place.” Mere months earlier, this same split-personality body was engaged in a regulatory cost freeze and removing two rules for each significant one added.

The new fall edition heralds Biden’s transformation of OMB’s Office of Information and Regulatory Affairs (OIRA) into a tool of progressive activism with moves like advancing rather than moderating the excesses of the early 2021 American Rescue Plan (ARP), which received only Democratic votes. In the wake of the ARP, the administration has already promulgated 17 proposed and 32 final rules.

The Agenda preamble highlights rules to “Protect the Public from COVID,” to “Combat Housing Discrimination,” to “Tackle the Climate Crisis,” and to “Improve Pipeline Safety and Environmental Standards.” There appears to be little awareness of the contribution of preexisting government controls in creating the problems that same government now purports to solve with more regulation, such as with respect to airline baggage fees.

Rarely is there credit for the need for property rights and markets in securing sound policy, as seen in OIRA’s showcasing of the Environmental Protection Agency’s (EPA) “Transitioning Toward Zero-Emission Technologies,” to “strengthen greenhouse gas emission standards for light- and heavy-duty vehicles.” This campaign forcibly substitutes one fossil-fuel powered vehicle type for another (so-called electric vehicles), an act that can unhelpfully replace the government-caused fuel shortages of today with a rare-earth mineral shortage and crisis.

Those whose job it is to question EPA assertions intone that, “If implemented, the new standards would save consumers money, cut pollution, boost public health, advance environmental justice, and tackle the climate crisis.”

There’s always been a “Regulatory Plan” component to the fall agenda, but the new OIRA seems more zealous in its hopes to govern rather than restrain government. For example, OIRA assures us that, “These new plans build on significant progress the Administration has already made advancing our priorities and proving that our Government can deliver results—from confronting the pandemic, to creating a stronger and fairer economy, to addressing climate change and advancing equity.”

It seems Biden meant it in eliminating the Trump regulatory streamlining agenda. If OIRA is finished as a regulatory oversight body, a future Congress should replace or offset it with an “Office of No” chartered with making the case against regulation when it is not needed and placing economic, social and environmental well-being back in the appropriate realm of competitive rather than political discipline.

As it stands, the way OIRA has flipped from carrying out Trump’s now-revoked “one-in, two-out” executive order on “Reducing Regulation and Controlling Regulatory Costs” to praising government’s own mandates and boasting over its advancement of progressive causes like Affirmatively Furthering Fair Housing imply that OIRA may not be salvageable as an oversight body. We’d likely find ourselves back at square one with a series of Biden-like executive orders unleashing the regulatory state. As we were “warned” back in June by the OMB, “[T]here is still hard work ahead to build back better and more equitably.” There is simply no way such a body, one with a progressive savior mentality, can be useful in regulatory oversight, mitigation, rollback, and sunset. 

The writing was on the wall even under Trump, when longer-term deregulatory “economically significant” rules were outnumbered by the regulatory ones. As detailed earlier, even the “Deregulatory” designation for a federal rule no longer exists under Biden. Worse, the distinctions between regulatory and deregulatory weren’t merely silently dropped back in the spring 2021 edition of the Agenda; they were scrubbed even from the Trump years in the government’s database. This act has broader implications for trusting progressive government with data, on everything from economic reporting to vaccine efficacy trials to climate realities to routine cost-benefit calculations. A Biden day-one directive even removed guidance document portals and directed the removal of rules agencies had issued to codify guidance disclosure procedures under Trump.

Now to the numbers. Biden’s final rule counts as reflected in the Federal Register have not been particularly alarming in the scheme of things (3,084 as of today), but economically significant rules have crept back up to Obama and Bush levels.

Biden’s overall rule count in the fall Agenda stands at 3,777 across the “Active” “Completed,” and “Long-term” stages, compared to 3,959 back in the Spring. (Trump’s final Agenda tally of a year ago stood at 3,852 rules. There were, however, 653 rules deemed “Deregulatory” back then; Trump’s lowest count had been 3,209 in fall 2017).

The table also reflects the breakdown of Biden’s rules by those categories. We find, respectively, 475 rules recently Completed, 2,678 Active, and 624 Long-term rulemakings in the pipeline, compared to 787 recently Completed, 2,550 Active and 622 Long-term back the Spring edition. Many of the rules are reappearing and we may take a further look later.  

Digging a bit deeper, the Unified Agenda presents a costlier subset of rules classified as “economically significant,” generally indicating that they have $100 million in annual effects.

In the fall 2021 Agenda, 295 of the 3,777 are deemed economically significant, with 40 of them recently completed, 205 active and 50 being prepped for the long term.

In the “other significant” subset of rules, there are 1,163 rules (100 completed, 825 active, 235 long term).

While in most categories there was more completed output back in the spring as the administration moved fast, we might perhaps anticipate a surge before the spring 2022 Agenda appears, given that the OMB indicates that the just-passed infrastructure legislation will be the wind beneath administrative wings:

Between this regulatory agenda and the next in spring 2022, agencies will also be developing plans for implementing the Infrastructure Investment and Jobs Act (IIJA), historic legislation to rebuild crumbling infrastructure, create good paying jobs, and grow our economy. These plans will provide greater detail on how agencies will administer new IIJA programs in a manner that delivers meaningful results to all Americans, strengthens American manufacturing, and advances climate resilience. These plans will provide an opportunity for the public to be partners in the implementation of the IIJA—and all government programs. Public engagement in IIJA implementation can only make it better and more responsive to what our families and communities most need.

One must expect similar license will be assumed if some version of the Build Back Better plan comes to fruition in the coming days. Already Biden’s spending agenda, reflected in his $6 trillion fiscal budget proposal and across the American Rescue Plan and Build Back Better, is highly regulatory in nature in a manner not captured in the Agenda. The regulatory Agenda assumes less descriptive significance, as spending itself is increasingly regulatory. This transformation and rise of social custodianship is a major issue with which legislators need to grapple as the address the ongoing abuse of crises like the COVID-19 pandemic by policymakers.

The Trump deregulatory campaign was not durable. Biden’s executive orders and legislative and regulatory agenda have seen to that. Tracking the scope of government will increasingly pose a challenge, as the Unified Agenda and other official disclosures fall short as adequate yardsticks for disclosure and measurement of government.