Anti-Regulatory Attacks Coming in Both the House and Senate

11/8/2011

While most Congress watchers have been focusing on the work of the Super Committee, anti-regulatory activists in both the House and the Senate have been working hard to undercut some of the most important safeguards that protect Americans.

On Nov. 3, the Senate rejected S. 1786, the Long-Term Surface Transportation Extension Act of 2011. This bill, which was offered as the Republican alternative to the Democrats' transportation and infrastructure jobs bill, included two sweeping anti-regulatory provisions: the Regulations from the Executive in Need of Scrutiny (REINS) Act and the Regulatory Time-Out Act.

Both the REINS Act and the Regulatory Time-Out Act would make it more difficult for agencies to fulfill their statutory missions. The REINS Act would flip the existing regulatory process on its head: under current law, Congress may use the Congressional Review Act to halt a rule it opposes; if REINS took effect, Congress would have to approve every major rule issued by any government agency before the rule could take effect. The Regulatory Time-Out Act would impose a one-year moratorium on new regulatory actions by government agencies, including, for example, safe produce regulations that are required by the Food Safety Modernization Act and should help to protect against contaminants like Listeria.

S. 1786 failed 47-53 on a procedural vote, with all Democrats but Sen. Joe Manchin (D-WV) voting against it and all Republicans but Sen. Olympia Snowe (R-ME) voting in favor. This was a significant change from the last time a major anti-regulatory provision was on the floor of the Senate: on June 9, six Democrats and every Republican voted in favor of an anti-regulatory amendment offered by Sens. Snowe and Tom Coburn (R-OK). While this may indicate that more senators are coming to understand the importance of our nation's public protections, caution and vigilance will be needed in the weeks ahead, as more anti-regulatory attacks are expected in the Senate.

On the other side of the Capitol, the House Judiciary Committee was marking up the Regulatory Accountability Act (RAA). The RAA, which is sponsored in the House by Reps. Lamar Smith (R-TX) and Collin Peterson (D-MN) and in the Senate by Sens. Rob Portman (R-OH), Susan Collins (R-ME), and Mark Pryor (D-AR), would fundamentally reorient the regulatory process, requiring agencies to always choose the "least costly" alternative rule.

While such a provision sounds reasonable on its face, experience under the Toxic Substances Control Act (TSCA) has shown that requiring the least costly alternative as the standard essentially forbids agencies from issuing protective rules. In 1991, a federal court found that the U.S. Environmental Protection Agency (EPA) had not adequately analyzed every possible alternative asbestos regulation – even though the agency had spent ten years and millions of dollars considering alternatives and developed a 45,000-page record of their findings. Since that ruling, EPA has not even attempted to regulate chemicals under TSCA because, as the CEO of SC Johnson put it, "Your child has a better chance of becoming a major league baseball player than a chemical has of being regulated [under TSCA]."

Even more concerning, the RAA would run roughshod over many laws that are crucial to protecting the health and safety of Americans. One of these, the Occupational Safety and Health Act, requires that regulations be issued when "reasonably necessary or appropriate to provide safe or healthful employment." Comparable requirements exist in the Clean Air Act, the Clean Water Act, the Mine Safety and Health Act, and at least twenty-one other major statutes. The RAA demands that, "notwithstanding any other provision of law," cost-benefit analysis must always be the first consideration.

At the mark-up in the House Judiciary Committee, Rep. Steve Cohen (D-TN) offered an amendment that would have preserved agencies' focus on public health and safety over costs to regulated industries. This amendment, which reaffirmed the basic goal of the entire regulatory system, failed by one vote. Ultimately, the RAA itself was reported out of the Judiciary Committee on a 16-6 vote, with many Democratic committee members unable to vote because Chairman Smith held the vote hours earlier than promised, at the same time that many Democratic members were meeting with U.S. Supreme Court Justice Elena Kagan.

The RAA came close on the heels of the REINS Act, which was marked up in the same committee on Oct. 25. Both RAA and REINS represent the culmination of the agenda that Majority Leader Eric Cantor (R-VA) announced in August. Over the past several weeks, the House has hewn closely to the Cantor agenda, passing a procession of bills that attack or repeal particular regulations; now, with RAA and REINS ready for floor action, they are preparing to take on the entire regulatory process.

Fortunately, both the Senate and the White House seem to be prepared to protect the public by protecting the process. Not only did the Senate vote down S. 1786, but the Obama administration also issued a strong Statement of Administration Policy, which centered on the bill's anti-regulatory provisions and contained a strong veto threat.

While these are positive indications, they are not cause for much relief. A plethora of "regulatory reform" bills are still pending before the Senate Homeland Security and Governmental Affairs Committee chaired by Sen. Joe Lieberman (I-CT). Considering Senate Republicans' willingness to resort to amendments and procedural maneuvering to push their anti-regulatory agenda, Americans, all of whom benefit from our system of regulatory safeguards, will have to pay close attention to developments on the floor.