The Dilemma of Regulation:

Is it Good or Evil?

After I reported on the death of Harold Denton last week, I couldn't shake the feeling that his career and his role in the aftermath of the Three Mile Island (TMI) accident had some larger implications that I should have addressed--namely, the importance of a good regulator.

When I lecture to students on regulation, I always start by saying that, in a perfect world, there would be no need for regulation.  Everyone would be capable and ethical and honest--no one would cut corners to save time or money, no one would cheat anyone else, no one would be careless or irresponsible or would handle equipment they weren't trained to handle.  We wouldn't need stoplights that end up making us stop even when we can see that no traffic is coming the other way.  We wouldn't need to have policemen giving us speeding tickets when, most of the time, you can drive a little over the speed limit perfectly safely.

I also like to give two examples of the value that regulation--and regulators--sometimes have.  In particular, I point out that before the present era of occupational, environmental, and other regulation, the death rate from accidents was astounding by today's standards.  Quoting from David Von Drehle in Time magazine, May 2, 2013, who was talking about what happened after the infamous Triangle Factory fire in New York City in 1911:

A little more than a century ago, in the rapidly developing United States of America, nearly 1,000 workers died on the job every week, on average. Collapsed mines buried them alive. Bursting steam engines scalded them to death. Pots of molten steel poured over their heads. Whirling saw blades worked loose in lumber mills and turned to shrapnel. Railroad engines crashed. Merchant ships and fishing boats sank in trackless seas.

In the years since then, the number of workplace fatalities has been cut by more than 90%, even as the population of the country has more than tripled. The risk of death on the job today is but a tiny fraction — less than 1/30th — what it was on the warm spring day in 1911 when 146 garment workers died in New York's notorious Triangle fire.

The fact is that most regulation today was introduced in an effort to prevent a repetition of disasters that were killing and maiming people in the early days of industrialization.  Even today, as Von Drehle points out, in countries with lower regulatory standards and higher levels of corruption, we still see factories collapsing and killing hundreds of workers.

My other favorite example is the Thalidomide scare of the 1950s.  Thalidomide was legal in Europe while the FDA appeared to dither and delay approval for use in the U.S.  In the meantime, women using the drug in Europe started to give birth to deformed babies.  In the end, it was a single person on the FDA staff who kept asking for more information that saved the American public from the same fate.  Until the risks of Thalidomide were revealed, this woman had been widely criticized for causing regulatory delay.  

Does every regulatory delay save lives?  Of course not.  Is every search for more information merited?  No.  Can regulators make an effort to speed up their reviews?  Certainly.  But it is a difficult challenge to determine how to speed up reviews without risking missing some important potential problem.  It is not a problem that can be solved by imposing an arbitrary restrictions on regulations.

I do not want to be an apologist for regulation.  Regulations do have some inherent shortcomings:  they are sometimes made in reaction to a problem, so they are implemented in a hurry and may not fully consider all possible situations and implications; regulators tend to use some conservatisms to try to counter anything they may not have thought of; they tend not to be updated as fast as new technology develops or as our knowledge evolves, so can be out of date.

Regulations, to serve their purpose, need to be continually reviewed and modified to reflect new technology, new science, new social developments, and new concerns.  Some regulations may even become obsolete and should be eliminated.  But evaluating regulations is complex.  Regulations exist in a complex world--they have costs, but they also have benefits.  Decisions to eliminate or modify existing regulations or to develop new regulations need to be based on objective reviews of the entire picture: the needs, the options, the costs, and the benefits.

There is a lot that can and should be done to improve regulation.  Regulators should seek to find the least burdensome ways of implementing regulations.  The NRC has attempted to encourage this through its Principles of Good Regulation.  The paperwork and reporting requirements of regulations are often considerable and should be streamlined where possible.

All of this, however, should not be done with a view that regulation is evil and the less we have the better.  This should be done with a view toward addressing the kinds of needs that led to the regulations in the first place, whether they were health and safety regulations, economic regulations, or any other kind of regulation.  They should be done with a perspective on what has been good about regulation as well as what has been flawed--of the factory accidents that were prevented because of the lessons learned from the Triangle Factory fire, the medical problems that were prevented because of the kinds of regulators that evaluated Thalidomide and other drugs, and all the other benefits, often unrecognized, of things that didn't go wrong because of regulation.

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