The question asked is “What will it take for federal regulators to actually exercise their authority? (e.g. DoJ & Antitrust, SEC & insider trading, EPA & fracking/pipelines)?”
Ahhhh, regulators. One the most boring, yet critical functions of government.
Government Regulation
Conservatives have a default answer for most federal regulators – fire them all or weaken them to the point of irrelevance. They often say ‘no’ or ‘maybe’ ad-nauseum slowing us down, and they seemingly have zero interest in the time value of money. Frankly, some of this reputation is 100% earned. I once walked into a meeting with a client to meet with a regulator/government staff, and my client was greeted with a “Man, we haven’t bankrupted you yet? Ha Ha.” It wasn’t funny.
But I don’t think me railing against government bureaucracy is the point of your question. So, to explore your question, lets agree that the federal regulators that you speak of are fine upstanding government servants carrying out their charge to the best of their abilities.
Our agency has done work in the clean energy space and land development space and this comprises most of our experience. I will say for the record, most of upper staff members in these spaces are smart as heck and understand the bureaucratic process. I am almost always appreciative of their expertise in their fields.
BUT…..the appointment officials of regulatory bodies often leave a lot to be desired for because of the concept of “regulatory capture.”
One must never forget, at its heart, the appointed officials were appointed because they at the time of their appointment aligned with the current administration. These are political bodies. Three phrases: Pipelines, Joe Machin, FERC Chairman.
And it is the politics that leads to regulatory capture.
Florida: An Example of Regulatory Capture
Let me give you an example in Florida – The Florida Public Service Commission (PSC). This body is to regulate utilities in the State of Florida. They are to be the safeguard, patrolling if Florida’s monopoly utility industry is justified in their actions & requests. These people are routinely making multi-million if not billion-dollar decisions, and in my opinion are 100% captured by the utility industry.
Here is my evidence:
- In the recent past, any commissioner that stood up to Florida Power & Light has been unceremoniously thrown off the commission.
- Florida’s monopoly utilities dominate/control the Legislature (in lobbyists hired, private hideaways and donations, donations (b), drafting of bills, and other assorted ruthless, shady tactics that have some calling for a federal probe), and the Florida’s legislature controls the nominating process for new PSC Commissioners.
- Florida’s monopoly utilities dominate the communities they operate in by steering philanthropic donations to key groups, sponsoring everything from business conventions to little league teams.
- The PSC is to have a citizen’s advocate or the office of public counsel. The legislature promptly removed the lawyer who kind of, tepidly fought against utility rate increases – at least making them work for it. Yeah, he was replaced by a lobbyist from the utility industry.
- And finally, this system of Legislative nomination, executive branch appointment, and PSC regulation allows everyone to shirk any responsibility. Especially, with elected officials getting to blame the faceless bureaucrats at the PSC avoiding any electoral blame.
The Results:
- Residential customers to bear brunt of $1.5 billion FPL rate hike
- Brace yourself for Florida Power & Light bills to increase at least thrice in 2023
- Duke Energy Rates Will Increase Over Next Three Years
- Higher fuel costs to hit TECO customers after state approves rate hike
ALL APPROVED UNANIMOUSLY!
“The PSC, whose five members have never before voted on an FPL rate case, spent no time publicly discussing the major issues….”
Read more at: https://www.miamiherald.com/news/business/article255293281.html#storylink=cpy
And they aren’t done:
Put in the simplest of terms – the entire game is rigged.
Why does this regulatory capture exist? Because the incentives are there and extremely high. The monopoly utilities are going to act like monopolies by using all their power and money to reward supporters, punish defectors, buy the love of people who are indifferent, and influence the process. The financial gains are too high (remember BILLIONS) for them to do anything else. Monopolies and massive industries (pharma, energy, banking, etc) are going to do everything they can legally (and in gray areas) to win.
As you see in Florida, we have a complete failure of Florida’s regulatory ‘system’ due to nearly complete regulatory capture.
Frankly, the PSC is so unresponsive to Florida’s ratepayers and Florida’s citizens this is why I wrote an op-ed calling for the way we organize this body – changing from an appointed position to an elected position. It is unlikely to happen or even get off the ground.
Political Science hasn’t spent a lot of time researching this phenomenon and there are no simple answers.
It is unlikely regulatory capture is ever eliminated; more likely we need to work to minimize it.
Some have called for deregulation (my personal default), others have called for making these regulators answer to the public, but I would think that in this case, the lowest hanging fruit is the creating/making the watchdog or “Office of Public Counsel” more independent and interdisciplinary – almost like an Inspector General office.
You may also be able to tell, I am completely cynical about the odds of any positive change happening. With most of these systems, the incentives are all aligned against the “exercise of their authority.”
It could be argued that Florida’s monopoly utility industry had the absolute worst years with scandal after scandal. They are likely to get most if not all, they are asking for from Florida’s ‘regulatory body.’
Sadly, it will take some massive, unfortunate event to create any appetite to trigger any real reform.
