PRESIDENT CARTER is pulling hard on the reins, trying to control runaway regulation, but he is tugging at the wrong reins. He wants to reform the practices of regulatory agencies, but experience shows the real problems stem from Capitol Hill, not from the agencies downtown.
For more than 6 years as a top officer of EPA, I watched this regulatory juggernaut gather momentum - usually moving in the right direction, but at excessive speeds and often out of control.
Let me state my viewpoint, up front. Most environmental requirements are basically sound, their goals essential to the public welfare. Yet the regulatory process is dangerously overextended. Priorities are out of focus and administrative problems are obstructing desirable business activities.
The environmental field therefore presents the classic dilemma in the debate over regulatory reform: Can we reduce the burdens of regulation and still achieve its objectives?
The weakness of the president's approach can be quickly seen in the chief recommendation in a recent speech in Dallas. He called for regulatory agencies to analyze the economic impacts of their proposed regulations. But this is not a a new approach. Nor does it solve the problem. Most regulatory agencies already perform these analyses. EPA has done so routinely for years.
The basic requirements of most regulations are set by laws enacted by Congress. Economic analysis by the agency developing the regulations may marginally influence the controls required, but it cannot fundamentally change the outcome.
Statutory provisions not only control the character of most regulations, they also determine how many are issued. Several years ago, EPA Administrator Russell Train requested a list of all regulations beging prepared within the agency, planning to weed out those that might not be necessary. He found his handsa were tied. Of approximately 125 regulations under development, all but a few were specifically required by a statute or by a court order interpreting a statute.Shortly after assuming office in March 1977, EPA's current administrator, Douglas Costle, conducted a similar review - with the same results. Unrealistie timetables
The fact is that Congress is responsible. It is often argued that regulatory agencies are overzealous. Sometimes that is true, but more often agencies take the heat for Congress. The implications of statutes are seldom widely understood at the time of enactment. Later, when an agency implements burdensome requirements, a typical reaction is to blame it for decisions which had been made by a congressional committee.
The most searing experience I lived through concerned EPA's efforts to enforce transportation control plans. These were ambitious and complicated programs to reduce auto pollution, including requirements to limit urban parking, force shifts to public transportation, establish new systems for semi-annual inspection of automobiles, retrofit older cars with pollution-control devices and make other abrupt changes in metropolitan transportation systems which had evolved over decades.
Their timetables were unrealistic. As a result, no serious attempt was made to develop public understanding and support.The programs provoked widespread opposition and generally ended in failure.
In retrospect, it is easy to see that the attempt to impose these regulations fueled the fires of regulatory backlash, while contributing little to air pollution control. Their implementation was launched against EPA's better judgment, under the compulsion of two court orders enforcing a rigid statute.
I remember going up to Capitol Hill in January 1973 to brief the Senate committee which wrote the original law the day before EPA Administrator Bill Ruckelshaus announced regulations to require 82 percent gasoline rationing for Los Angeles. Most of the senators were stunned. This was not what they had in mind, they insisted. They reacted by modifying the statute - but not until four years later.
A common fault of regulatory statutes is that their requirements do not fit the real world. Statutory deadlines present the clearest exemply. The 1972 Clean Water Act, for instance, required every municipality to install secondary treatment and meet water quality standards by July 1977. But even now that goal is years away from completion.
Congress typically imposes deadlines for the development of new regualtions, but these deadlines invariably underestimate the steps required to lay a sound foundation ofr a new program. The Resource Conservation and Recovery Act, the 1976 statute to control disposal of hazardous wastes, requires that a permit program for new plants go into effect six months after the regulations are promulgated - a hopelessly inadequate time for EPA or state agencies to start up their programs. They must receive and process applications, hold public hearings and issue final permits, all in six months. It simply is not doable, regardless of the law.
A related problem is the nonchalance with which Congress writes detailed new requirements into the law, which must be applied with nationwide rigidity. Predictably such requirements make no sense in certain individual cases.
A more profound criticism of modern regulation relates to its cumulative impact. The growth of regulation is suggested by the daily issues of the Federal Register, where in just four years the space required to print all proposed and promulgated federal regulations has doubled - from 13,500 pages per year in 1974 to more than 27,000 pages in 1978. This volume of regulation has outstripped the administrative capabilities of government. There is a limit on how many decisions a government agency can handle. For most agencies, that limit was exceeded long ago.
With the stroke of a pen, Congress can multiply the coverage of regulatory programs, demand new studies, expand procedural requirements or add other complexities. Three words in a statute can require pages of new regulations - and millions of dollars of expenditures. In 1973, the Supreme Court directed EPA to establish an entire new program restricting construction of industrial plants to prevent significant deterioration of air quality in clean areas - based on three words in the preamble of the Clean Air Act.
The result of this overloading of the regulatory system is delay, which hurts us all. In a world where advance approval by government is increasingly required to produce a new product or to build a new plant, delay in making government decisions can sap the vitality from our economy. Applying pressure
One reason so many practical problems result from regulatory statutes is that the laws are written not merely to set forth the ground rules for government programs, but also to send a signal to the regulated industry and the general public. Congress often writes its environmental statutes to put pressure on industry or the bureaucracy to move faster toward clean air, clean water or control of toxic materials. The pressure many be needed but it sometimes creates statutory deadlines, such as those for auto emissions, which are really action-forcing mechanisms, designed as much for their psychological impact as for literal application. When a court later construes these provisions as inflexible legal commands, someone's toes may be pinched.
Congress operates at a disadvantage in deciding what controls can be achieved. Industry has better knowledge of what could be done, but industry usually has resisted stringent requirements. Congress instinctively disbelieves the contentions of industry, and ratchets the requirements tighter. It is a game of bluster and bluff - a vicious circle - and it's hard to say where the blame lies, but in the process the statues are based on guesswork.
The increasing lack of self-discipline within Congress compounds the difficulty of drafting sound legislation. Congressional "reforms" have weakened the committee chairmen and shifted mark-up sessions into a public arena. These changes infuse the political grandstanding of legislators into the actual drafting process. And the expansion of congressional staff has created new cadres of young assistants eager to make an impact by inserting an amendment into a law.
The frantic, midnight-session conditions under which the final language of most bills is written virtually guarantee a number of outright mistakes. For example, a recent court decision in litigation over the 1977 Clean Air Act amendments concluded there was no way that two related provisions could be reconciled with each other.
Worst of all is the recent ballooning in the length of statutes. In contrast to earlier statutes, which set forth general principles of law, the modern style of legislation is to spell out all the details.
The Clean Air Act of 1970, for example, ran for 56 printed pages. In 1977, that law was amended - it now totals 173 pages. The 1978 national energy legislation covered roughly 300 pages. buried in the fine print, but still having the full force of law, are detailed requirements covering hundreds or thousands of situations that will arise at a time and place far beyond the horizons of those who wrote the law. No wonder the public rebels.
The irony - and the tragedy - of these characteristics of regulatory legislation is that they generate criticism of the basic regulatory programs despite the fact that those programs may be entirely sound. In the environmental area progress toward control of pollution would be impossible without strong regulation.
The principal programs do make sense. Moreover, most of the excessive or unrealistic requirements, such as the transportation control plans, have not been carried out. Thus they made no contribution to the genuine progress being made in this country toward a cleaner and healthier environment. Yet, they contributed to the confusion, controversy and political vulnerability of vital environmental programs.
The reign of statutes means that these problems cannot be handled within the executive branch. President Carter can huff and puff, but nothing is going to change.
Congress must mend its ways. It must insist on better analyses of costs and benefits and administrative workability - before it legislates. It must exercise a new restraint in controlling the length and specificity of legislation.
One may wonder whether this ever will occur. I have my doubts. No evidence provides any ground for optimism. But until Congress makes basic changes in the way it writes the laws, the hopes of regulatory reform will be little more than a mirage. CAPTION: Illustration, no caption, By Geoffrey Moss for The Washington Post