The Green Regulatory State

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Over the years, the environmental lobby has advanced a considerable number of laws—leading to the passage of hundreds of environmental statutes. But the legacy does not end there; a great many of these laws require federal agencies to issue regulations on an ongoing basis. The following analysis employs several tools to assess the scope and growth of the environmental regulatory state. It shows that environmental regulations comprise a considerable size of the total federal regulatory agenda, and the impact expands annually in the absence of congressional activity.

First, it shows that environmental regulations comprise nearly 30 percent of all economically significant regulations submitted for regulatory review—making it the largest area of regulation by this measure. In addition, during the years in which environmental activists complained that Congress was doing little on the environment, environmental regulations continued to grow substantially.

Another common measure of the regulatory state involves estimating costs. Again, environment ranks high in this category. According to CEI regulatory expert Clyde Wayne Crews Jr., Office of Management and Budget figures indicate that federal regulations in total cost $39 to $46 billion between 1996 and 2006, but actual costs could be more than 10 times higher.

In addition to the compliance costs, another measure of the environmental regulatory state involves assessing the number of resources devoted to development and enforcement of environmental regulations. An analysis of spending to implement federal regulations shows that environment was the second largest category of such spending. Homeland security was the largest, with consumer health and safety coming in third. All other categories were substantially lower.

When adjusted for inflation, environmental regulatory spending has grown from $81 million to more than $6 billion in 2000 dollars, or 7,372 percent between 1960 and 2006. Only homeland security-related spending exceeds environmental spending, with federal outlays of more than $15 billion in 2006. However, homeland security spending has only increased by 2,089 percent since 1960—meaning that environmental spending has grown more than three times faster than homeland security spending since 1960. Other categories of spending grew far more slowly than environment. An analysis of the staffing levels reveals a similar story.

In addition, much of environmental policy costs and impacts are not included in these compliance costs and government spending estimates. For example, federal regulation of public land use is another indicator of the scope of the green regulatory state. The available data show that federal government land-use controls are substantial and growing—and the emphasis on managing land for wildlife conservation uses has grown at the expense of resource extraction uses. In particular, federal government policy has continued to reduce access to public lands for mining and energy extraction.

Endangered Species Act (ESA) regulation is yet another area in which federal regulation grows in a largely unchecked fashion. Government reports reveal that the costs of the Act are considerable and increasing.

Yet independent studies show that these governmental estimates grossly underestimate the costs. In particular, costs to the private sector are not documented in government reports. These costs are substantial considering that 75 percent of all listed species reside at least in part on private land.

The ESA listing process provides additional evidence of this law’s substantial and increasing impact on American society. After a species is listed, the Fish and Wildlife Service may designate a “critical habitat” for it. Habitat designations allow federal regulators to regulate the use of such lands and impact use by federal agencies and developers. An increasing number of designations—like the increasing number of listings—is indicative of a growing territory for regulatory activity.

The data show that environmental regulations continued to expand the scope of federal controls without the involvement of elected policy makers in Congress. Failure of Congress to initiate any reforms of these programs means that they will continue to grow larger and have increasingly greater influence on society.