April 8, 2020
By Mark Flatten

Bad ideas are bad ideas even in the best of times. But in times like these, they can be deadly.

Federal, state, and local government regulators, as well as the American people, are finding that out the hard way as the death toll from the COVID-19 virus rises exponentially. Suddenly, it has become clear that layers of burdensome regulations are a hindrance in dealing with the global pandemic. So in recent weeks, governments at all levels have begun scrapping, at least temporarily, some of the rules they passed in better days.

Most have to do with regulation of the healthcare industry. States and the federal government have taken emergency actions to ease state-to-state licensing requirements of doctors, nurses, and other medical professionals. They’ve also expanded the scope of permissible practice for physician’s assistants, nurses, and medical technicians; and suspended prohibitions on such things as telemedicine, which allows doctors to consult with patients over the phone or internet.

But there are a lot of other offbeat laws and regulations that governments are suspending to deal with the crisis of an ailing nation in lockdown. Americans for Tax Reform has compiled the most extensive list of these exceptions to the rules, and it identifies about 150 laws, regulations, and policies that have been put on hold.

Here are some notable examples:

Plastic Bag Bans: Many states either ban or impose a tax on the use of disposable plastic grocery bags. Instead, shoppers are supposed to bring their own satchels made out of cloth or some other reusable material. The problem is that the COVID-19 virus, and other disease-causing microbes, tend to cling to the fabrics of the multi-use bags. That’s bad enough, but when you plop them onto the grocery belt as you check out of the supermarket, you are transferring those germs onto the belt, the checkout counter and eventually the groceries and “go-green” bags of other customers.

Connecticut, Maine, Massachusetts, New York, and the city of Albuquerque, New Mexico, have all suspended their bans or taxes on single-use plastic bags. San Francisco took it a step further and banned reusable bags.

Ironically, the effort to rid the world of those plastic wonders that cling to trees and bushes was an environmental failure even before the COVID-19 outbreak. University of Sydney economist Rebecca Taylor studied the environmental effects of a California ban and found that it actually caused more environmental harm than good. People used the plastic grocery bags for everything from lining small trash cans to picking up dog poop, according to a story on Taylor’s research published by National Public Radio. Deprived of that option, they turned to much thicker plastic garbage bags, sales of which spiked. Some switched to paper. But as the NPR report points out, producing paper bags requires “cutting down and processing trees, which involves lots of water, toxic chemicals, fuel and heavy machinery.”

The bottom line on the plastic bag ban: “The huge increase of paper, together with the uptick in plastic trash bags, means banning plastic shopping bags increases greenhouse gas emissions.”

Alcohol: Since the outbreak began, at least six states and five cities have relaxed or removed limits on the ability of restaurants to sell alcoholic beverages to go, or to allow alcoholic beverages to be delivered. New Hampshire limited the policy to beer and wine. Other states allow mixed drinks to be delivered curbside or to homes.

Oddly, this is one of the most popular non-medical reforms state and local governments have enacted. Perhaps the thinking is that with restaurants closed and most of the country bunkered up, it makes sense to allow people to do their drinking at home. Maybe that makes sense when things return to normal. Restaurants are going to be hurting, and facilitating takeout customers who want a cocktail with their dinners would certainly aid in the industry’s recovery. And rather than sucking down drinks with dinner, then driving home, it might make more sense if folks can enjoy their meals and accompanying beverages at home. It is already against the law in 40 states to consume or have an open container of alcohol in a motor vehicle, according to the National Conference of State Legislatures. Nine other states prohibit the driver from consuming alcohol. Only Mississippi and the Virgin Islands do not regulate the consumption of alcohol in a motor vehicle. So it’s not like banning restaurants from alcohol takeouts is the only way to prevent people from drinking and driving.

Pumping Gas: Oregon and New Jersey prohibit you from pumping your own gas. Only a service station attendant is deemed qualified to do that. In March, the Oregon Fire Marshal issued an edict allowing customers to fill up their own tanks, albeit with ample other regulations attached, in the name of social distancing.

New Jersey is staunchly standing by its prohibitions at the pump, as noted by Reason. Governor Phil Murphy sent out a tweet March 30, warning: “PLEASE NOTE (capital letters are his): We have no plans to turn our gas stations into self-serve at this time. Please DO NOT pump your own gas.” Violators are subject to fines up to $500.

As to why restrictions on pumping gas may not be needed to protect the health and safety of the public in normal times; well, those of us in the other 48 states managed to figure it out.

Miscellaneous Regulations: It’s hard to explain why the suspension of some regulations are needed now because it’s hard to figure out where they came from in the first place. For instance:

  • New York suspended laws mandating which cleaning products schools and the state may purchase.
  • New York also is allowing individuals with disabilities to be transported from state facilities without being accompanied by a staff member of the same gender.
  • Pennsylvania suspended a requirement that court reporters must be present in person.
  • Connecticut and Massachusetts will allow pharmacists to make hand sanitizer. Also, the Transportation Security Administration will allow up to 12 ounces of hand sanitizer to be stowed in carry-on luggage.
  • Florida has relaxed regulations to allow doctors to issue a certification for medical marijuana without an in-person physical examination.
  • Texas also waived its prohibition on groceries and alcohol being delivered to stores in the same truck.

Perhaps the best approach to the needed, if temporary, suspension of unnecessary regulation comes from North Dakota. Governor Doug Burgum issued an order in March that requires state agencies to identify “any state laws, rules or regulations that hinder or delay their ability to render maximum assistance or continue to deliver essential services to citizens during the COVID-19 crisis.” State elected officials and other executive branch offices were invited to do the same.

That seems like a sensible approach in these bad times. A similar approach might also work when good times return.

Mark Flatten is the National Investigative Journalist at the Goldwater Institute.

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