A round-up of the key developments in regulatory policy we have covered in 2005. In Congress | In the White House | Other Major Developments In Congress A new year, a new Congress, and the same old threat: 2005 began with many signs of interest from congressional leaders and the White House in generating anti-regulatory legislation to push in the 109th Congress. The clues pointed to a revival of the anti-regulatory proposals from the Contract With America as well as new, dangerous threats -- all released in a slew of separate, disconnected bills, some of which would propose regulatory "reforms" one or two steps short of the ultimate anti-regulatory goal, in order to make opposition more difficult. Many bills have now been introduced, although only a few legislative developments successfully advanced in 2005:

• An immigration reform bill gave the Secretary of Homeland Security the unprecedented power to waive any and all law when securing the nation's borders. It was forced through the Senate when the House appended it to a supplemental spending bill for the Iraq war. The Department of Homeland Security has already used this dangerous new exemption from the rule of law, with little or no press coverage or congressional oversight.
• The public interest community was caught flat-footed by the last-minute discovery of a provision in the Senate budget resolution to modify the parliamentary rules related to the Unfunded Mandates Reform Act. While many public interest advocates and senators focused on the details of one fiscal year's budget framework, the Senate voted to erect a new long-term barrier to new protective legislation, which has since been used to block a proposed increase in the federal minimum wage.
• A House committee reported out a bill that would essentially codify the White House's highly political performance measurement process, but that bill has reportedly been held up from moving to a floor vote by House appropriators, who have objected to the White House's uses of performance measurement to justify slashing the popular Community Development Block Grant.

What's in store for 2006 remains unclear. On the one hand, it is an election year, and many members of Congress will feel pressured to avoid controversial legislation aside from those that are ideologically potent (such as gay marriage bans) and thus resonate with an electoral base. On the other hand, many anti-regulatory initiatives are so technical that they guarantee minimal coverage from an easily distracted press corps, and support for them resonates with the corporate special interests whose campaign donations can make or break an election bid. A few anti-regulatory efforts stand out, according to the latest intelligence from the Hill, as having the most apparent chances of moving forward in 2006:

• federalism bills, such as bills attacking consent decrees and proposals to amend the Unfunded Mandates Reform Act;
• proposals for government sunsets and fast-track, take-it-or-leave-it reorganization authority;
• proposals to impose paralysis by analysis through amendments to the Regulatory Flexibility Act; and
• the upcoming reauthorization of the Paperwork Reduction Act, which is likely to be used as a vehicle for anti-regulatory process changes.

Back to the Top In the White House Unsurprising for an administration historically hostile to regulation, the White House seized opportunities this year to put forward several anti-regulatory initiatives aimed at dismantling needed protections. White House interventions included the following:

• The White House kicked off 2005 by advancing an anti-regulatory hit list, featuring proposals for reversing public protections, mostly proposed by industry lobbyists. The plan, detailed in the Office of Management and Budget's (OMB) yearly report to Congress, instructed agencies to review and complete action plans on a regulatory hit list of 189 safeguards to be weakened or eliminated. In March of 2005, the White House expressly endorsed 76 of the hit list items as high priorities for the administration, though the White House refused to inform the public about its justifications for deciding which regulatory protections were added to its hit list. Even more perplexing, the administration added one rule to the hit list after touting it as a "regulatory reform accomplishment" just three months earlier.
• The White House budget proposals introduced in February included items aimed at giving the White House unprecedented authority to drastically overhaul the federal government. Several pieces of legislation emerged mirroring the budget request, but they have not yet gained momentum.
• In a callous and cynical move, the Bush administration attempted to use Hurricane Katrina as an excuse to relax environmental, health, safety and worker rights laws and regulations, including waiving the Davis-Bacon law that provides fair minimum wages to workers. Though most government agencies worked diligently to alleviate the untold burdens on Hurricane Katrina's victims and to expedite recovery in a safe and effective manner, several agencies took the opportunity to waive needed protections, thus possibly putting recovery workers and others at greater risk. In a small victory for workers and their families, the administration was forced to backpedal on the Davis-Bacon waiver only a few weeks later.
• OMB also took the unprecedented step of asserting authority over agency guidance documents this year. The White House released a draft bulletin on the day before Thanksgiving that establishes new guidelines for non-rulemaking agency guidance documents. By requiring new procedural burdens and approval from political appointees for many guidance documents, the bulletin may restrain agencies' ability to issue needed guidance to regulated communities.

After adding these new anti-regulatory distortions to his already lengthy record of policy interventions that put the American people at risk, John Graham announced his resignation as administrator of the White House Office of Management and Budget's Office of Information and Regulatory Affairs effective February 1. Back to the Top Other Major Developments In an all too familiar pattern, 2005 brought a swath of examples of the many unmet security and safety needs still left in the United States, underscoring the continued necessity of responsive regulation. Unfortunately, we were also reminded of the politicization of science and paralysis by analysis that often lead to weakened protections or festering gaps in needed safeguards. Hurricane Katrina, in particular, highlighted the need for strong public protections. At the same time, key public health, safety and environmental protections have continued to languish on agency agendas, despite being long-identified as agency priorities. Below are just some of the most egregious unmet needs and weakened protections that came to light this year.

• Forests Up for Grabs: Christmas came early for the timber and paper industries in 2004, when, three days before Christmas, the U.S. Forest Service handed them a final rule that will drastically overhaul the U.S. Forest Service's land management system much to the benefit of both industries. The agency served another blow to the nation's forests in May by publishing a final rule that would allow governors to petition for changes to state forest management plans, effectively undoing the Clinton-era forest regulations known as the "roadless rule."
• Weak Regulations on Mercury Emissions: In March, EPA introduced a rule to control mercury emissions from power plants using the dubious cap-and-trade method. The rule faced severe opposition from state and local governments, environmental groups and some members of Congress, prompting EPA to seek comments on reopening the rule for reconsideration in October.
• A Blind Eye to Drug Safety: Last spring, the revelation that COX-2 inhibitors such as Vioxx and Celebrex can lead to heart failure brought to light the cozy relationship between industry and the FDA. A House hearing revealed how FDA stood idly by while drugmakers aggressively pushed a drug known to have potential harms, leading to the premature death of untold numbers. Unfortunately, efforts to free the Food and Drug Administration from the pharmaceutical industry's excessive influence seesawed between success and failure, as the House voted to ban drug company scientists from FDA advisory committees, while an agency whistleblower revealed that a new drug safety board has been tilted in favor of the drug companies.
• Teflon--The Wrap that Won't Stick: In an astounding case of politics over science, DuPont, the maker of Teflon, suppressed information for 20 years on the adverse effects of the product, allowing exposure to dangerous chemicals used in the production of Teflon to go unregulated.
• Weak Protection on Roof Crush Resistance: Based in part on flawed cost-benefit analysis, a proposed rule, issued on Aug. 23, to reduce injuries sustained when vehicles roll over and their roofs are crushed inward fails to require the level of safety available in current technology and threatens to eliminate the rights of roof crush victims to sue manufacturers.

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