Rein in the Regulators

 For 11 consecutive days to start September, California told residents to cut their electricity use at night to avoid rolling blackouts. Amusingly, the state recommended that residents avoid charging electric automobiles mere days after passing an electric-vehicle mandate that bans the sale of new gas vehicles starting in 2035. The state’s elected leaders tout the rule as the law of the land, while 17 additional states that often adopt California regulations are weighing their options.

Though its consequences are momentous, the gas-powered car ban did not come from the California legislature. A majority of 14 unelected bureaucrats on the California Air Resources Board (CARB) made a sweeping regulatory decision that will soon affect every state resident. The pros and cons of the ban—which mandates that 35 percent of new cars sold in California be electric in 2026, 68 percent in 2030, and 100 percent in 2035—have been hotly debated. The power that CARB and other regulators have over citizens, however, deserves more attention.

CARB does not cite a state or federal statute to support its new regulation. Rather, the agency points to its general power to ensure clean air in California and to an executive order calling for a gas-car phase-out. Opponents have argued that CARB lacks authority to issue such sweeping regulations without legislation. “In general,” CARB’s own website concedes, “the rulemaking process begins with an initial enabling law, passed by the California legislature and signed by the Governor.”

Nevertheless, the legally dubious regulation may stand—like so many others. Regulations traditionally implement legislation or interpret a law’s unclear provisions to make it easier for citizens to follow. But many regulatory bodies at both the state and federal levels take broad action well beyond their traditional roles. Whether it’s the U.S. Environmental Protection Agency attempting to regulate carbon dioxide emissions under an expansive reading of federal statutes, the U.S. Occupational Safety and Health Administration imposing a Covid vaccine and testing mandate on all employers, or the CARB banning the sale of certain vehicles, regulators are often effectively legislating rather than merely clarifying existing law.

These decisions have real-world implications. Small businesses and the workers who depend on them for jobs are least equipped to keep track of these ever-changing requirements and must spend scarce resources to comply. Regulations like the gas-car ban can impose severe costs. Voters can hold lawmakers accountable for such laws, but regulators are shielded from such responsibility.

Still, options exist to rein them in. Mandatory pre-enactment review of all new regulations would protect citizens from suspect measures. States should require regulators to identify the legal authority for major new rules. When a proposed rule risks destabilizing the economy, states should require regulators to prove that the benefits outweigh the proposal’s costs. Strict adherence to these procedures would have given CARB pause before it finalized its gas-car ban. As it stands, California citizens have limited recourse to challenge the rulemaking.

Regulatory bloat hurts businesses, workers, and customers by driving up costs and stifling innovation. By requiring agencies to adopt structural reforms, states can ensure that businesses are burdened by only the most useful, not to mention legally permissible, regulations.

Jonathan Wolfson is the chief legal officer and policy director of the Cicero Institute, where he researches health-care and regulatory policy. Wolfson previously led the policy office at the Department of Labor.

https://www.city-journal.org/how-to-rein-in-regulatory-bloat