Rolling in Red Tape, Once Again


IF ANYONE WAS WONDERING ABOUT the new Biden administration’s regulatory approach, it didn’t take long to see their zeal for red tape. Within the first three days of his administration, President Biden issued a flurry of executive orders. Some of these new orders, including measures to protect the legal status of people covered by the “dreamers” and Temporary Protected Status programs, should help address workforce shortages. Others, such as the termination of the Keystone XL pipeline project, show that when it comes to siding between infrastructure and construction jobs or a progressive agenda, the President sides with the progressives.

As of writing, the administration is expected to release even more executive orders on issues from Buy American to imposing new environmental reviews. These executive orders offer early insight into the administration’s regulatory approach, which can best be summarized as – with due respect to Chicago Mayor Richard Dailey – regulate early and often.

One of the first regulations to expect from the Biden administration is an OSHA emergency temporary standard for coronavirus safety, something the President called for in those initial executive orders. On the possible plus side, this new order will give contractors greater certainty about the steps they need to implement to protect workers. The big if, however, is whether the administration will craft common sense safety measures or use the pretense of coronavirus safety to impose union-friendly mandates and/or undermine economic activity by imposing unreasonable requirements, like the use of scarce respirators on job sites.

The administration is also likely to impose measures requiring federal contractors to employ a specific percentage of apprentices participating in registered apprenticeship programs. These measures would make it extremely difficult for contractors operating in the many parts of the country with limited access to registered apprenticeship programs to compete for federal work. The clear intent with such a measure is to give a competitive advantage to union contractors since most registered apprenticeship programs are operated in partnership with organized labor.

It is also safe to assume that the new administration will seek to roll back some of the Trump administration measures that were designed to streamline and accelerate environmental reviews. This includes stopping the prior administration’s efforts to reform the National Environmental Protection Act review process and possibly seeking to rewrite the Waters of the United States regulation. These regulatory rollbacks would very likely extend the federal review process for many types of infrastructure projects and undermine the President’ desire to rapidly rebuild the economy.

AGC of America will be working diligently to educate Biden administration officials about the significant, adverse impacts of the regulations they are likely to proffer. And while the administrative has more control over its regulatory agenda than it does its legislative one, the fact is AGC has amassed an impressive track record of pushing back against new red tape. It takes time, a lot of research, and even more patience, as well as a lot of resources, to kill a regulation. But we are committed to making sure the Biden administration does not become its own worst enemy when it comes to rebuilding the economy.

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