Captured regulatory agencies

On the evening of September 15 2015 I went to the NOAA hearing on whether or not it makes sense to declare a variety of unique geological features with incredible biological productivity and diversity off the coast of New England National Monuments. The President has the sole discretion under the Antiquities act to declare national monuments.

Exactly what sites would be included is not yet decided, so NOAA held a listening session. Essentially the room was divided into two camps. The environmental community and the general public are overwhelmingly in favor of permanently protecting these sites, for a host of reasons including tourism, protection of endangered species, and because refuges like this help maintain the fish populations throughout the region, benefitting the fisheries industries for the long term.

Opposing the plan was the fishing industry. They had several reasons for opposing the plan. Some of it was just hatred of the administration, the president, and anything that smacks of government. I will ignore those arguments, they are simply a mind suck without substance. But what really struck me was the fishing community’s insistence that they are already protecting the areas through the Fisheries management councils and that therefore national monuments are an unnecessary and rogue process that is too vague at this stage. There was also the sentiment that the hearing should have been held further north where there are more commercial fisherman.

On some level I wanted to say to the fishermen, “welcome to my world”, a world in which arbitrary processes and fixes exclude the public from the decision making process in ways both blatant and insidious. I know we just ran into this same kind of inside game when we testified to oppose the expansion of gas pipelines and the building of fossil fuel infrastructure and the government, with the backing of all kinds of powerful interests, railroads communities.

But this one is a bit different. When my colleagues fight the government we are not only asking that they follow the law, we are also fighting captured regulatory agencies. BLM, USFS, BOMA (now MMS) , and local and state agencies, as well as all of the regulators of Wall St tend to be captured agencies. Captured agencies are those in which the regulated community controls the regulators such as the revolving door between Wall St and and the Securities and Exchange Commission, the oil companies sending people to MMS to manage gas leases, ranchers controlling the BLM. In this case it was completely obvious that the Marine Fisheries Councils are captured regulators.

Many people associated with the fisheries councils spoke at the hearing. I did not stay until the end, but I heard a number of fisheries council people speak and not one had anything good to say about the proposal to create a national monument. That tells me they are a captured regulatory agency and unlikely to really look at the issues from a broad perspective including that of the public. Can you really tell me that agencies that have only a fair to middling record of protecting fish stocks, that have a regular history of allowing overfishing and being slow to restrict catches, that have overseen the demise of fisheries are anything other than a captured agency. If these councils were not captured agencies surely there would have been at least one person associated with them that would understand the importance of protecting these spots, and protecting the larger public’s interest in these places. That the fishing industry is unwilling to look more broadly, that the industry and its “regulators” are willing to go all in on short term thinking, tells me that the captured bureaucracy of the fishery management councils needs to be opened up and removed from its insulated coccoon.

That the US has the Antiquities act points out very clearly that even 100 years ago we were very familiar with captured agencies (remember the Teapot Dome?) In other words, the President, who works for all of us even if he only rarely shows it, is allowed to put the public good over the misplaced concerns of a community used to getting just what it wants from captured regulators. And this is just the right place to use such powers.

Issues of democracy are important. And so often the government sides with the rich and powerful and subsidized industries against the public. Rhode Island is all too aware of what happens when inside deals are the norm, and has seen uprisings by the people to overturn bad decisions. But the display by commercial fishing interests at the hearing can be considered nothing but hypocrisy, turning on the government only when the people ask that the captured regulators get out of the way and let the government do the people’s work.

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