When Governor Arnold Schwarzenegger first sought the Horseshoe in 2003, he famously announced his intention "blow up the boxes" in Sacramento. That goal appealed to a voting public tired of unbalanced budgets, confusing mazes of bureaucracy in Sacramento, and a seemingly endless number of state agencies with unintelligible acronyms for names and equally confusing mandates and authorities. Yet when it came time to actually trigger the explosions, the fuses apparently wouldn’t light.
The Governor called his state reorganization plan the "California Performance Review." Its stated mission was to "…restructure, reorganize and reform state government to make it more responsive to the needs of its citizens and business community." However, in the five years since its launch, any performance review of the California Performance Review would not be favorable.
Of the 88 Boards and Commissions targeted for elimination, most remain today. Of the Boards and Commissions that were eliminated, the bureaucracies that supported them were left behind to do their work with less public scrutiny.
There are many ways to blow things up, metaphorically. One way is with a wrecking ball, which can leave behind quite a mess. Alternatively, smart government reformers will try to think like a demolition team taking down an old building–strategically designed to accomplish a goal with little residual impacts.
Case in point: Last year, State Senator Tony Strickland’s SB 63 targeted government "waste" by eliminating the California Integrated Waste Management Board. The goal made sense; no one will miss the Waste Management Board except the six former legislators who enjoyed the six figure salaries each board member received. Yet practically speaking, the move seemed closer to an explosion we’d have expected from the Governor’s Hollywood personality.
In the wake of the elimination of the Integrated Waste Management Board, California lost six Board members focused on garbage. But the bureaucrats below them remain-in a newly created department called the Department of Resources Recycling and Recovery (which quickly avoided the acronym "DRRR" by calling itself "CalRecycle."
But some key questions remain. Does it make sense to have a state government agency devoted to the topic of "garbage"? Moreover, does it make sense to have two state government agencies devoted to the topic of "garbage"? While the old Waste Board and the new CalRecycle are devoted to regulation of one type of garbage, the State’s Department of Toxic Substances Control also regulates garbage under the California Environmental Protection Agency, Cal-EPA. There are different rules for the handling of toxic versus non-toxic garbage, but does that mean you need a separate government agency for each? Unfortunately, it didn’t occur to anyone that eliminating the California Integrated Waste Management Board provided an opportunity to manage the integration of the bureaucracies overseeing waste in California.
Government waste, however, is not the exclusive domain of waste management. Similar duplicity abounds across California’s State Government, as the duplicitous and competing attempts to regulate chemicals attest.
In the summer of 2009, the Developmental and Reproductive Toxic Identification Committee (DART-IC) voted against classifying Bisphenol A (aka BPA), a commonly-used chemical in commercial plastics and food containers, as a toxicant under the terms of Proposition 65, requiring one of those ubiquitous warnings we see as we enter just about any building in California.
Yet the very day that DART-IC ruled that BPA was not a developmental or reproductive toxicant, the National Resources Defense Council (NRDC) filed a petition with Cal-EPA’s Office of Environmental Health Hazard Assessment to classify BPA as… wait for it… a reproductive toxicant.
Because the NRDC petition was filed the same day as the DART-IC decision not to list BPA, it would have been impossible for NRDC to study the DART-IC decision and base its petition on some perceived flaw in DART-IC’s analysis-the NRDC petition was already written. Duplicative processes allow for such political contingency plans, and neither state law nor regulatory rules allow precedence of one proceeding over another. So which ruling will stand?
One proposal that could have addressed the complex regulatory environment which the BPA case illustrates was Governor Schwarzenegger’s Green Chemistry Initiative. The idea was to move government focus from the end-of-the pipe or on wastes and garbage to the beginning of product manufacture where design choices in materials would reduce the need for ever more costly waste management regulatory regimes.
The idea was to promote technological advancements and stimulate innovation for greener chemicals and products so that proceedings like those of the DART-IC and OEHHA, or other duplicative single end point regulatory processes, would not be necessary. The opportunity lost, however, was a chance to streamline three different agencies (Waste Board, DTSC and OEHHA) and their multiple processes to a single new agency and system that leads to environmental and public health improvement at lower and decreasing regulatory costs.
Rather than creating and continuing the 3 separate government agencies and multiple regulatory processes, a single agency focused on improvements in material sustainability would end the focus on garbage and heavy handed government management controls, in favor of innovation in product design, increased consumer choice and decreasing regulatory costs.
Whether the next Governor is named Meg Whitman, Jerry Brown or Steve Poizner, he or she must look at the bigger picture and ask some common sense questions: "Why do we have different agencies in Government looking at the same issue?" "What effect does such multiple programs and interminable proceedings have on jobs and the economy?" "Who is paying for all of this?" "Aren’t we in a budget crisis?" Aren’t the single endpoint regulatory processes confusing and wasting resources instead of leading to greener, safer products?
The environmental and public health harm caused by California’s bureaucratic redundancy may indeed be greater than the environmental and public health harm they’ve been set up to regulate.
Maureen Gorsen is a partner at Alston + Bird, LLP in their Sacramento office where her practice focuses on State law, agencies and regulation. She is the former director of the California Department of Toxic Substances Control, where she oversaw the state agency charged with protecting the public health and the environment from toxic harm. Ms. Gorsen has also served as both the general counsel at the California Environmental Protection Agency and the California Natural Resources Agency, where she was responsible for law and policy over 20+ state departments, boards and commissions under those cabinet agencies for 10 of the past 15 years.