The Politics of Krill: Regulations in BushWorld

Krill are shrimplike crustaceans that swarm in masses in the ocean, making an inviting supper for birds, whales, and other sea creatures. According to National Geographic, scientists estimate that the total weight of just the Antarctic krill alone is more than the total weight of all humans on Earth.

Krill are valuable not just as a food source for other marine life, but quite possibly for their role in the health of the ocean itself. Scientists have found that the nightly migration of krill swarms actually facilitates mixing in the upper layers of the oceans, circulating nutrients and exchanging heat and gases, including carbon dioxide, suggesting a possible role in climate change.

In October 2007, the Office of Information and Regulatory Affairs, headed by Susan Dudley, rejected a NOAA-proposed rule protecting krill from being harvested in federal waters off the coast of California, Oregon, and Washington. With the support of the Pacific Fishery Management Council and other groups, the states had already banned harvesting from their coastal waters, as well as banning any catch from seeking port in those states.

There is at present no harvesting of krill in these waters, but the practice is expanding worldwide, leading to decreasing krill stocks in some areas. This foresight factored into NOAA's proposed rule. However, OMBWatch states that

In a letter, OIRA Administrator Susan Dudley identified why her office is rejecting the rule. Among other things, Dudley accuses NOAA of failing to identify the rationale for the rulemaking and scolds the agency for not including measurable performance objectives.

Keep reading (I know, this is sooooo long!) to get a further view of Bush's anti-regulatory policies, and how his positioning of political appointees as gatekeepers throughout our government affects the common good.

Background

Ronald Reagan, in a burst of anti-regulatory fervor, issued Executive Order 12291, requiring all proposed agency regulations to undergo a cost/benefit analysis. The problem with cost/benefit analysis is that while costs can be determined fairly precisely, the benefits, especially when concerning environmental or human health issues are not as easily determined, or are extended into the future. Thus we have charts that determine the relative "worth" of an individual's life, for instance, depending on the person's age.

Bill Clinton refined the process somewhat by issuing E.O. 12286:

E.O. 12,866 establishes the guiding principles agencies must follow when developing regulations, including encouraging the use of cost-benefit analysis, risk assessment, and performance-based regulatory standards. The executive order also establishes the regulatory planning process for each agency, delegating authority to the Office of Information and Regulatory Affairs (OIRA) to coordinate agency rulemaking efforts with the regulatory priorities of the President.

George W. Bush has gone down the anti-regulatory track even further. His Executive Order 13422 replaces 12286 with changes described in this article from the Union of Concerned Scientists:

The federal agencies of the United States, such as the Environmental Protection Agency, Food and Drug Administration, and Occupational Safety and Health Administration, derive their authority to pass regulatory laws from acts passed in Congress...."Congress obviously cannot pass a law, or amend statu[t]e, every time a new threat to air or health arises.  Instead, Congress puts in place general purposes, general authority and a set of values that the agency should use in carrying out the law."2  

E.O. 13422 modifies a previous order, Executive Order 12866,3 to distort this process by placing high level Executive Branch political appointees at the helm of the regulatory divisions of every agency.  Agencies must now get approval from this regulatory policy officer (RPO) before  beginning work on a new regulation. The RPO will serve as the gatekeeper of regulations; where the head of the federal agency used to decide what major regulations would be included in the agency's regulatory plan, the political appointee will now make these decisions.  It is worthwhile to note that the heads of federal agencies require Senate confirmation, and are therefore accountable to Congress, where these political appointees are only accountable to the president.4

(My emphasis.)

To administer OIRA, President Bush in the fall of 2006 nominated Susan Dudley, a fellow at the Mercatus Center and an academic with a host of credentials. From OMBWatch:

A report by OMB Watch and Public Citizen finds Dudley to be ideologically opposed to government regulation. She overemphasizes the ability of the free market to self-correct. She also abuses the idea of monetizing the value of regulations, going so far as to support the senior death discount — a cost-benefit analysis calculation that devalues older individuals' lives compared to younger individuals.

Opposition to Dudley's nomination proved fruitless, when, in April 2007, she was given the office of Administrator of OIRA through recess appointment by President Bush.

Krill, whales, and OIRA

By replacing the judgment of career staff with political appointees; and by adding several layers of bureaucratic demands and economic determinations--including descriptions of market failure, an economic effect of $100 million or more, and the sacred cost/benefit analysis--the Bush White House through OIRA has succeeded in creating bottlenecks that stall or prohibit the creation of new regulations and the enforcement of old ones. The emphasis on cost/benefit analysis places economic factors above others such as human health, safety, and environmental protections.

The krill ruling was issued past its 90-day consideration period. Past the available 30-day extension period.

Another NOAA proposal, to reduce speeds in shipping lanes along the East Coast to prevent injuries to endangered North Atlantic right whales, has been delayed for nearly a year and a half, with the OMB being lobbied by foreign shipping interests. The World Shipping Council, on behalf of 27 mostly foreign shipping companies has submitted a letter of opposition to the rule to Susan Dudley.

Only about 300 North Atlantic right whales remain today after commercial whaling wiped out most of the huge creatures in the 19th and early 20th centuries. A worldwide total ban on right whaling was agreed in 1937.

The agencies under OIRA's umbrella include those that protect the health and welfare of our bodies and our planet. These concerns are not properly considered by anti-regulatory ideologues using the current economic tools. Our Congresspeople have the power to fight this juggernaut, to restore respect for human and environmental values--if only they will.

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More links to regulatory actions and policies:

Reagan's order on cost-benefit analysis
Presidential mandate centralizes regulatory power
A Failure to Govern--Bush's attack on the regulatory process, from OMBWatch
Problems of the Jan. 2007 Executive Order
Guidance Map
OMB Risk Analysis Memorandum
National Center on Policy Analysis--Guide to Regulatory Reform: the Cost-Benefit Rule
  (contains some rather disturbing statistics)
Democratic Caucus criticism of E.O. 13422

Additional Links to Susan Dudley:

Recess Appointment and Dudley's husband Brian Mannix as RPO
Quotes from Susan Dudley
Dudley Watch on OMBWatch
Letter of protest from Citizens for Sensible Safeguards
Federal Times interview

Links to Krill and Related Issues of Concern:

NOAA article on krill
A Proactive NOAA Vs. a Reactive White House
Krill Levels Decreasing
NOAA proposed rule for krill protection
Paper on harvesting krill
Existing prohibitions on harvesting krill
Scientific and commercial uses of krill
Stonewalling Climate Change Regulations
White House Delays Whale Protection Rule
Does President Bush Hate Whales?