by Katie Weatherford, 2/25/2014
This week, the House of Representatives will vote on a series of anti-regulatory proposals during a campaign targeting important public health and environmental safeguards. While House Majority Leader Eric Cantor (R-VA) has dubbed the campaign #StopGovtAbuse Week, the proposed legislation is in fact designed to delay or halt the rulemaking process by adding time-consuming and redundant procedural hurdles, by providing regulated industries additional opportunities to delay the process, and by stripping away the public’s right to petition agencies when they fail to act.
We have seen many of these proposals before. However, during Cantor’s week of damaging bills, four anti-regulatory proposals introduced over the past year will be re-introduced as one piece of legislation with a new title, the Achieving Less Excess in Regulation and Requiring Transparency (ALERRT) Act (H.R. 2804). A separate vote will be taken on the Unfunded Mandates Information and Transparency Act of 2013 (H.R. 899).
The ALERRT Act: One Big Gift to Big Business
The ALERRT Act was originally introduced in July 2013 as the All Economic Regulations are Transparent (ALERT) Act, but the bill has been rewritten to add in three other anti-regulatory proposals. Together, these bills are a dramatic assault on rules that protect our health, safety, and environment.
Part 1. The All Economic Regulations are Transparent (ALERT) Act
The All Economic Regulations are Transparent (ALERT) Act would require all agencies to submit monthly reports of all rules under development to the White House Office of Information and Regulatory Affairs (OIRA). OIRA would be required to publish the reports online, and no final rule could go into effect until information about the rule appeared online for six months, with limited exceptions. In effect, this would add a six-month moratorium onto a process that already takes agencies four to eight years to complete.
Moreover, the bill provides no recourse for the agency or the public if OIRA fails to publish an agency’s monthly report online in a timely manner, effectively granting the OIRA administrator unilateral authority to decide whether or not a rule moves forward. OIRA would not be required to explain its inaction, and neither the agency nor the public would have a right to challenge the inaction in court.
Part 2. The Regulatory Accountability Act (RAA) of 2013
The Regulatory Accountability Act (RAA) of 2013 (H.R. 2122) would impose over 60 new procedural and analytical requirements to the Administrative Procedure Act (APA), the statute guiding the federal regulatory process, fundamentally rewriting the law and bringing the rulemaking process to a screeching halt.
Among the worst of these new procedures, the RAA would require an expansive cost-benefit analysis by all agencies, including independent agencies, even if the agency is prohibited by law from relying on such an analysis when issuing rules. These agencies would be required to assess not only the direct costs and benefits, but also the indirect costs of all major rules and any alternatives, and then choose the “least costly” option, unless the agency can show that the added benefits justify the added cost. This would likely pressure resource-constrained agencies to choose a weaker alternative to avoid the cost and time spent to perform the extensive analysis required to justify a stronger standard.
Should a rule actually get past these obstacles, the RAA makes it easier for courts to overturn them by requiring a stricter standard of review than currently exists under the APA.
Part 3. The Regulatory Flexibility Improvements Act (RFIA)
The Regulatory Flexibility Improvements Act (RFIA) (H.R. 2542) would require agencies to assess the potential direct and indirect impacts of agency actions on small businesses. The bill would also require all agencies to host small business panels for rules that may have a “significant impact on a substantial number of small businesses.” Currently, only three agencies have to establish these panels: the U.S. Environmental Protection Agency (EPA), the Occupational Safety and Health Administration (OSHA), and the Consumer Financial Protection Bureau (CFPB).
As the Center for Effective Government stated in written testimony to the House Subcommittee on Regulatory Reform, Commercial and Antitrust Law, “The Regulatory Flexibility Improvements Act would undermine the implementation of health and safety rules mandated by current law; it would expand the authority and reach of an agency whose practices and independent judgment are already under scrutiny; and it would unnecessarily divert public resources needed elsewhere. This bill is unwise and unsound and should be rejected.”
Part 4. Sunshine for Regulatory Decrees and Settlements Act
The Sunshine for Regulatory Decrees and Settlements Act (H.R. 1493) would impose costly and time-consuming procedural hurdles on settling certain lawsuits related to rulemaking. These suits typically challenge an agency’s failure to issue a rule to reduce an unnecessary risk to human health, safety, or the environment by a statutory deadline. This would limit citizens’ rights to hold agencies accountable for not implementing a law passed by Congress. At the same time, it would enhance the rights of corporations to delay an agency from issuing a legally required rule.
The Unfunded Mandates Information and Transparency Act of 2013
The House will also vote on a separate anti-regulatory bill, the Unfunded Mandates Information and Transparency Act of 2013 (H.R. 899). This bill would give businesses the right to obtain an advanced notice of proposed rulemaking and submit comments to an agency, but public interest groups and citizens would not be given this special privilege.
In an opposition letter to the Oversight and Government Reform committee, the Coalition for Sensible Safeguards, joined by over 70 organizations, wrote that the legislation will “add even more redundancy and duplication to an already byzantine rulemaking process.”
The upcoming legislation is just the latest attack on public protections by House anti-regulatory zealots. The legislation will not gain enough votes for passage in the Senate, so the votes this week appear to be another effort by conservatives to test talking points with their base ahead of the 2014 midterm elections. We look forward to a time when they put as much energy into protecting the American people as they put into abusing government.