In the 1980s, the BBC comedy series Yes Minister introduced British TV viewers to the idea that what politicians do all day is not – as might be expected – make good on the pledges they made to the electorate when they were seeking election but, rather, to do what they can to benefit their party and, quite regularly, to do so in the face of opposition and obfuscation on the part of the civil service.
I do wonder how this was taken in the US, where the series aired on PBS and where there is a clear distinction between political appointees and civil servants (though I had to have this pointed out to me, some years ago). There is a world of difference between the Associate Administrator (political) and the Deputy Associate Administrator (civil service) in US departments, just as there was between the Principal Private Secretary and the Permanent Secretary in Yes Minister.
That revelation was prompted by a disturbance to the (apparently) natural order of regulatory things in the US, at least 15 years ago. Seemingly out of nowhere, it was suddenly alleged that the Department of Transportation and its agencies were ‘too cozy’ with industry. It seemed that, for some, the very transparent system of rulemaking in the US, which ensured that all dutyholders had the opportunity to comment on proposals that could materially affect them, allowed industry to write its own rules.
This caused all sorts of problems for a few years, until more sensible heads took over. Industry has always played a large role in the framing of regulations because, when it comes down to it, it is industry that is best positioned to be aware of the problems that any new regulations might cause. To put it another way, while politicians are responsible for legislating, when it comes to translating new legislation into regulations, civil servants need to be able to talk it through with the regulated community.
There was another disturbance in the PHMSA ether during the (first?) Trump administration, when there was a general belief that any regulation is bad. New regulation that DOT agencies dared to put forward had to be matched by two going out of the door. This worldview could not cope with the idea that industry (to be more specific, the hazmat industry) actively wanted to be regulated, wanted those regulations to be the same for all and, in an ideal world, wanted them to be the same as they were elsewhere in the world.
Lately, things have got worse. From our perspective, it started last year when, out of the blue, EPA flagged up what it saw as a problem with container reconditioning, putting forward proposals that might – if they go through to adoption – put the sector out of business. Then came the planned revisions to the Risk Management Program (see page 18) and the SCCAP to the Clean Water Act. Industry bodies have lined up to voice loud opposition to plans that they see as adding extra burdens for no safety improvements. It galls them in particular that this is coming at the same time as they are also baying for regulation under CFATS, which has still not been renewed.
If there is a second Trump administration, things may change again. For now, though, there will be a lot of shouting.
Peter Mackay
