What it takes to streamline state regulations

With 25 volumes of regs, there's plenty to do

TO JUDGE the Boston Globe’s op-ed page, public officials, environmental advocates, and business leaders all seek permitting reform, some for protection of a warming planet, and others for provision of a hot meal downtown.  Rather than advocating for a third category of favored cause or constituency, I suggest some principles for regulatory reform that can work for all.

Regulatory reform is often referred to as “streamlining.” That word does a lot of work: to streamline is not to dam, divert, or dredge a river; it is to remove those obstacles that cause turbulence in the waters’ flow.  In less metaphorical terms, proper regulatory reform results in more protection and less process. In more practical terms, it allows the Commonwealth to build what needs to be built and to save what needs to be saved.

To realize these matched-pair goals requires regulations to adhere to five principles, captured by the acronym S.P.A.C.E. – Simplicity, Predictability, Accountability, Consistency, and Even-Handedness.  To be truly streamlined, to avoid unnecessary turbulence, our regulatory processes should give this SPACE to regulated entities unreservedly, while still protecting special spaces and places unfailingly.

The Code of Massachusetts Regulations consists of 25 volumes, with over 150 titles, and dozens or scores of chapters under many of those titles. There’s plenty of SPACE to be made.

Simplicity should infuse the rules themselves: straightforward declarations of prohibited (and allowed) activities or circumstances, with concise, precise exemptions and exceptions.  Simplicity should also inform word choice, sentence structure, and overall format.  There is no magic formula for simplicity in regulating complex matters.  To succeed with meaningful streamlining requires those reforming regulations at least to: first solicit input from regulated parties and cause-based and community-focused advocates; next propose an initial draft, for broad-based public review and comment; and then review, revise, and revert, with a proposed final draft for last-minute tweaks (it’s surprising how much these will matter!) before formal promulgation.

Predictability begins with the use of well-understood terms and concepts, ideally building on a regulated industry’s best practices (especially if reflecting well-established norms or receiving independent certification).  Predictability should also be spelled out in logical, step-by-step processes, with specified requirements.  Predictability is best realized when the regulations’ presumptions – what to do when the words aren’t clear? – are made explicit, with a decision-tree for clarifying ambiguities or resolving conflicts.

Accountability suggests regulations should be definitive about what is being regulated, when a permit is required, where the application should be filed, and how the process will proceed.  Accountability begins with accessibility, so regulators’ websites containing their regulations should list appropriate staff contacts and other current, pertinent, nuts-and-bolts information (present practice is shamefully inconsistent).  And, finally, accountability means consequences for regulators’ missteps and mess-ups; absent critical life-safety issues, deeming an unjustifiably long-pending application automatically approved (albeit still subject to judicial review) may be sufficient in most instances.

Consistency should be baked into the regulations themselves and spread across all intersecting or overlapping (there are lots of them!) regulatory programs.  There are many manifestations of this need, and some are quite complex.  So, perhaps start with a simple one: set timelines, with deadlines, for regulators’ actions, as is the norm in local zoning and subdivision; if it’s good enough for municipal ordinances and by-laws, why not for state regulations?

Even-handedness is most evident when regulations are being implemented, when regulators treat person or project A no differently than similarly situated person or project B.  But even-handedness also means avoiding picking winners-and-losers in the crafting of the regulations themselves.  To cite two seemingly apt examples: why favor some carbon-free generation sources over others? And why push restaurants when other retailers also enliven the life of the city?  The hardest part of all regulatory reform is remaining resolutely focused on the real goal, and not just that moment’s felt need.  In all, it is critical to remember that dealing with the government can be daunting, starting with the homeowner trying to add an accessory apartment or the small business owner trying to expand or to open a second location.

Some of these SPACE principles may appear simple to understand in concept, yet experience reveals that they are complex to draft in practice.  Meaningful regulatory reform depends in the first instance with the waiving of a gubernatorial or mayoral wand (see, e.g., Governor’s Executive Orders No. 384 [Weld] and No. 562 [Baker]).

But streamlining regulations does not happen like magic; even with gubernatorial or mayoral blessing, it depends on senior advisors and staff then rolling up their sleeves and getting into the muck with the regulated community, engaged activists, and the public at large to pick each obstacle out of the river one by one. It’s detail-oriented work, not glorious or glamorous, but necessary and valuable. As we’ve learned over the last three decades, our economy and our environment depend on regulatory reform for all.

R.J. Lyman is counsel at the Dain Torpy law firm in Boston. He previously served as assistant environmental secretary for former governor William Weld and chaired Weld’s primary challenge to Donald Trump in 2020.