A couple of years ago, attorney Michael Grossman wrote about the electronic logging device (ELD) mandate implementation. As you can imagine, there were heated comments from a diverse group of truck drivers, with a range of opinions about the ELD mandate, and ELDs in general.
Michael appreciates that people still take the time to respond to an old article. During the initial months of the Covid-19 outbreak, I noticed that some people voiced a new concern. Their contention is that since the Federal Motor Carrier Safety Administration (FMCSA) suspended many trucking industry regulations during the initial period of the pandemic, the suspension illustrates that those rules weren't necessary in the first place. In their crosshairs are hours of service rules, which regulate how much time drivers can spend on duty.
Now I'm more than happy to debate anyone about whether a particular regulation is good or bad policy, but using the extreme circumstances of the pandemic as an argument in favor of getting rid of regulations altogether doesn't sit right with me. It also makes for a very poor argument. Here's why...
Lawmakers Pass Laws for Ordinary Times: Regulator Amend them During a Crisis
One of the biggest problems with our current regulatory and legal regime is that we wait until a crisis presents itself, then our legislators spring into action, passing laws to prevent that particular crisis from reoccurring. Too often, lawmakers fight the last war, setting the circumstances in motion for the next crisis.
The best example of this phenomenon is public employee pensions. Rather than funding pensions ahead of time, lawmakers wait until it looks like those pensions near insolvency, then they change the rules to allow the pensions to chase higher returns, to offset the lack of proper funding. The leads to more bad investments and more problems down the road.
The opposite of using a crisis to make bad laws is to use a crises to argue that we don't need any laws. Lawmakers design laws with ordinary circumstances in mind, because most of the time, things are pretty dull. When something like a global pandemic strikes, the normal rules might not be up to the challenge, which is why many laws and regulations have provisions that allow executives to set them aside in particularly trying times.
For example, a couple of weeks ago, Texas regulators asked the federal government to temporarily waive clean air standards at coal power plants ahead of a major winter storm. They did so to free up the electricity required to run the plants' scrubbers. Regulators granted the request. As a result, even amidst the massive blackouts that ensued, some number of homes that would have been without power were able to get electricity.
Does this mean that clean air standards are a joke and should be set aside on a permanent basis? Absolutely not. The takeaway is that enforcing those standards in a crises would harm more people than temporarily relaxing the standard. To put it another way, the threat of people freezing to death outweighed a week's worth of a air pollution.
Suspending Regulations Is About Trade-Offs
Even if you disagree with them, it's important to understand the reason that most trucking regulations exist, which is to promote safe conditions on our highways. Under normal conditions, there isn't much of a trade-off between safety and ensuring that freight gets to its destination.
Of course, things were dramatically different in March, April, and May of 2020. Lockdowns throughout the country affected consumer spending habits. Purchasing spikes in groceries, cleaning supplies, and personal protective equipment created shortages at retail locations. Shortages led to panic buying and stockpiling. This raised the possibility that groceries would simply run out of food and cleaning supplies.
As manufacturers changed their production to match the new reality, a very real fear existed that even when they started producing more, the shortages would persist due to a lack of transport capacity. In addition, there were real concerns that the virus would knock out a significant number of truckers. Since truck drivers were already in short supply before the pandemic began, this could have led to even further challenges.
Against this backdrop, the Federal Motor Carrier Safety Administration stepped in and temporarily suspended many trucking industry regulations. Just as during the recent Texas ice storm, authorities considered a week's worth of extra coal plant pollution to be a lesser concern than a lack of electricity, FMCSA regulators weighed the safety benefits of regulations against other pressing issues.
The government didn't suspend trucking regulations because the regulations are unnecessary, they suspended them because the circumstances that regulators had in mind when they designed the rules did not exist. The cost of keeping regulations in place rose in the face of new circumstances.
An Example of Why Using a Crises to Argue a General Rule Doesn't Work
Perhaps the best way to understand why suspending regulations isn't an argument in favor of abolishing them is by looking at an example. For instance, every parent that I know who has a small child has a house rule that the child isn't allowed to go outside on their own.
This rule makes sense in normal times, because small children can get into many dangerous situations without adult supervision. However, sometimes a danger comes along where parents gladly set aside this rule. For instance, we all teach our children to escape from burning buildings. This goes against the "don't go outside without a parent" rule, but it makes sense in the extreme circumstances of a fire.
Does a fire exception to the "don't go outside without a parent" rule prove that the original rule shouldn't exist? Of course, not. The immediate danger of the fire outweighs concerns over what could happen when the child goes outside.
We recognize that no rule, or set of rules, can adequately cover ever conceivable scenario. That's why, for example, self-defense is a special set of circumstances that exists within murder laws. Applying the same logic to laws against murder that those who see the suspension of trucking regulation as proof that we don't need them, then the existance of self-defense exceptions means that we don't need murder laws. Obviously, that's absurd.
If someone would like to argue that even accounting for reduced traffic, suspending many trucking industry regulations didn't lead to an increase in accidents and deaths, which shows that we don't need hours of service regulations, be my guest. However, the folks who believe that suspending rules during a crises proves that we don't need the rules are, in my opinion, mistaken.