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Sunshine cures what sunsets worsen

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By John Bartlit

Companies complain that regulations in place to cut pollution are flawed. They complain about rules being clumsy, confusing, redundant, scattered among bureaus, and slow in the process.
Flaws that companies overlook are the scant resources for inspections and enforcement that is clumsy, scattered among bureaus, and slow in the process.
To make rules work well, or perhaps end them, companies favor the “sunset clause.”
A sunset clause is a clause in a regulation that states the rule expires after a set number of years. The idea is to require regulators to re-examine and re-decide each regulation every so many years to keep it current with new knowledge and technology, with other rules and with more efficient methods.
Making regulations more efficient is good.
But the devil is in the rest of the story.
The story begins with the basics of regulation. The system has four distinct steps – rule-making, permitting, surveillance, and enforcement. Agencies issue permits to emit pollutants that comply with set rules. A working system needs efficient inspecting and enforcing to go with permitting.
All four tasks of a bureau are paid for from the bureau’s limited budget. The more time and money are spent on one of the tasks, the less can go to the others. If a bureau has to do more reviewing and re-making of rules, then staff must be pulled from the tasks of permitting, surveillance and enforcement.
Thus any choice slows other essential work products of the bureau.
Some people may like to slow the issuing of permits. On the other side, some or many companies may like to slow or stop surveillance and enforcement. Either result adds a fault that justifies more complaints.
What to do? Increased staff could keep pace with continually expiring rules, which means larger government. But paying for more government is not a popular tonic.
Modern remedies grow from knowledge of the rule-making process and the means it has for updating rules.
There is much to see. Major rules are made by gathering years of data, months of comments, and days or weeks of legal testimony. The public hearing on a major rule can last weeks and the hearing record runs to thousands of transcribed pages, paid by the bureau’s budget.
The hearing lasts as long as it takes to hear all sides, pro and con. A decision is made based on the hearing record. Court appeals of the decision are allowed, based on the hearing record, and are common.
Anyone can petition the bureau for specific changes in a regulation. It is not unusual to see.
Pollution emitters already know which parts of rules they believe are faulty. Denouncing flaws is one thing. It is quite another to fix flaws without creating worse ones.
From stories they tell, emitters can suggest detailed wording to fix what they find troubling. Thus begins the hearing process, in which an early step is public notice.
The spending for lawyers at hearings is significant on all sides, which poses a bigger obstacle to some than others. The resultant rule changes, if any, depend on the weight of evidence and rebuttal evidence gathered in detailed testimony and cross-examination of sworn witnesses.
Devotees of democracy historically call it messy in the working and uncertain in outcome. Hearings fit the narrative.
Updating rules using the perpetual sunset process is certain to cost more time and money than are spent now. The rest is uncertain. By any measure of efficient government, the sunset clause is a turn for the worse.
Better ways to regulate are found by taking a hard look at the four steps – rule-making, permitting, surveillance, enforcement.
An efficient system needs every part to be efficient. Choosing among inefficiencies is not the answer.