Maybe Government Shouldn’t Just “Get Out Of The Way”

A number of years ago, I read a book by a well-regarded libertarian academic, arguing against most government regulation. I don’t remember a great deal of it, but I do vividly recall his argument against the FAA’s assignment of air lanes (and actually, the agency’s very existence): he argued that the choice of airplane paths should be left to the airlines. Once a couple of planes collided midair and they got sued for big bucks, airline CEOs would get together to work out routes and ensure that it didn’t happen again.

Maybe I’m just a weenie, but I’d prefer not to be on one of those planes that collided.

I thought about that argument when I read the Sunday New York Times article attributing the two Boeing disasters to lax government regulation. Evidently, the officials charged with oversight allowed Boeing to “self-certify” the safety of many of its components and processes–as a result, regulators had never independently assessed the risks of the software known as MCAS when they approved the plane in 2017.

When you put the fox in charge of the henhouse…..

It has been an article of faith of the GOP that there is just too much government regulation–their default position is that most state intrusion into the marketplace is illegitimate and unnecessary. They seem unable to comprehend why government regulations were ever created.

Not long after the events that triggered the Great Recession, the New York Times ran a column by Edward Glaeser, in which he discussed the importance of both the public and private sectors in sustaining a workable market economy. Among his points:

Markets are built on both private entrepreneurs and public law enforcement. For centuries, investors have relied on courts to enforce contracts. Who would buy a company’s shares if the law didn’t impose a fiduciary duty on their issuer? Every person with a bank account in the United States relies on the government to protect his or her assets. Taxpayers also trust that the government can make the costs of overseeing the banking system reasonable.

So who failed? Certainly, the shenanigans on Wall Street remind us that capitalists are not angels, and that unchecked, their mischief can do much harm. But the point of financial market regulation was to ensure that misbehavior would not imperil the entire system.

Are some regulations onerous? Stupid? Unneeded? Sure. But even bigger problems emerge from inadequate regulation and/or enforcement.

Glaeser was writing about the importance of government’s role in financial oversight, an issue that Elizabeth Warren has consistently raised. It takes only a short walk down memory lane to remind us of numerous others.

The BP oil spill in the Gulf has been attributed to inadequate inspections of drilling machinery; the collapse of the I35W bridge was attributed to deficient government infrastructure inspections; the mine collapse in West Virginia occurred because regulators failed to cite and punish the owner for refusing to install required safety equipment; the Enron, Worldcon and Madoff scandals were enabled by a lax SEC.

As a consequences of such inadequate oversight, thousands of people were harmed. Hundreds died.

We rely upon the Food and Drug Administration to ensure that our medications are safe and effective, our chickens free of e coli. (As I tell my students when we discuss regulatory processes, I’d just as soon not have to test the chicken I buy in the supermarket myself when I get it home.)

We rely on the Consumer Product Safety Commission to ensure that the toys we buy our children are free from toxic paint and dangerous parts.

We rely on the FAA to independently inspect the aircraft we fly in, and to regulate those flight paths so that we don’t meet midair.

Caveat emptor is no substitute for competent government oversight–and right now, Americans do not have a competent government.

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Kakistocracy

Kakistocracy is defined as government by the least competent or suitable. To which I would add: most corrupt. And that corruption goes well beyond the White House, where Trump’s incompetence is on constant display.

Examples abound. The Guardian recently reported accusations that the FDA has “direct links” to the opioid crisis.

The Food and Drug Administration is sacrificing American lives by continuing to approve new high-strength opioidpainkillers, and manipulating the process in favor of big pharma, according to the chair of the agency’s own opioid advisory committee.

Dr Raeford Brown told the Guardian there is “a war” within the FDA as officials in charge of opioid policy have “failed to learn the lessons” of the epidemic that has killed hundreds of thousands of people over the past 20 years and continues to claim about 150 lives a day.

Brown accused the agency of putting the interests of narcotics manufacturers ahead of public health, most recently by approving a “terrible drug”, Dsuvia, in a process he alleged was manipulated.

Brown’s accusations come at a time when the FDA’s credibility is low; it has been damaged by  the opioid crisis and by accusations that the agency has behaved less as a regulator and overseer of the pharmaceutical industry and more like a business partner of drug manufacturers.

The FDA was also embarrassed by revelations that officials responsible for opioid approvals were taking part in “pay to play” schemes in which manufacturers paid to attend meetings to draw up the criteria for approving prescription narcotics.

Things are no better at the EPA.

The EPA is in charge of ensuring companies and utilities follow national environmental laws. Its enforcement has actually been on the decline for the past decade and reached 10-year lows in the fiscal year 2017, according to the agency’s own data. But the numbers really plummeted between the fiscal years 2017 and 2018, according to the Environmental Data and Governance Initiative, an advocacy group formed by university researchers to counter what they see as the Trump administration’s rejection of science.

The decline in enforcement is intentional, according to environmental groups and former EPA personnel.

“The administration has strongly sent a message, to the folks who do enforcement, that they should cut back on their role,” says Marianne Sullivan, a public-health professor at William Paterson University in New Jersey and an EDGI volunteer who conducted the interviews. “There are declining resources. There’s much more deference to industry.”

Less enforcement, of course, means–among other things– that more Americans may be exposed to lead, smoke, and other pollutants that the EPA regulates.

Here in Indiana, we have  two recent examples of the consequences of EPA non-performance. In Franklin, Indiana, residents attribute a cluster of childhood cancers to a toxic site identified years ago by the EPA–after which nothing was done.

And in the small town of Wheatfield, Indiana, toxic coal ash is leaching into the groundwater.

In Indiana, coal ash ponds are leaking at 15 out of 15 power plant sites tested. But the problem isn’t limited to the Hoosier State, which currently has the most coal ash dumps in the country. Based on the industry’s own data, 92 percent of all coal ash ponds and landfills tested under the new rule have contaminated groundwaterwith harmful levels of toxic chemicals like arsenic and boron. Oklahoma reported in June that 4 out of 4 sites tested had contaminated groundwater, while Illinois revealed in November that 22 out of 24 coal ash sites tested positive for groundwater contamination. In total, the U.S. is home to more than 1,400 of these sites, many of them filled with millions of gallons of toxic ash.

As news about the contamination leaks out, coal companies and electric utilities are desperate to water down the 2015 regulations, including weakening the reporting, closure, siting, and cleanup requirements in the new rule.

Last March, Trump’s EPA heeded their wishes, proposing to gut coal ash regulationsjust as the nation began discovering that many coal ash ponds and landfills are leakingtoxic pollutants into groundwater. The 2015 rule opened a door to a hidden disaster; weak regulators now want to slam it shut. And they’re just getting started.

To characterize the current administration as “just” a Kakistocracy is to be kind. If it isn’t also a criminal enterprise, it’s close.

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