114th Congress Begins Attack on Public Protections with So-Called Regulatory Accountability Act
by Katie Weatherford, 1/12/2015
On Jan. 7, Rep. Bob Goodlatte (R-VA) introduced the Regulatory Accountability Act of 2015 (H.R. 185). This measure would cripple our process for issuing and enforcing the rules that ensure we have clean air and water, safe food and consumer products, fair wages and safe workplaces, stable financial markets, state-of-the-art infrastructure, and so many other essential protections.
The Regulatory Accountability Act would not improve our regulatory process as big business groups and their anti-regulatory allies in Congress want you to believe. In reality, this bill would impose 74 new burdensome requirements to the Administrative Procedure Act, increasing the demands of agencies already struggling to operate under Congress’s latest budget cuts. It already takes several years for agencies to navigate the current regulatory process, yet this bill would require agencies to conduct even more analyses, meaning it would take even longer for agencies to issue important rules.
Here are just a few of the many troubling provisions included in this bill:
Imposes a Cost-Benefit Analysis Super-Mandate: The bill would require all federal agencies to conduct a cost-benefit analysis for all proposed rules and guidance, as well as any potential alternatives to the proposals or guidance. The bill would also expand the scope of these analyses by requiring agencies to include highly speculative estimates of all “indirect” costs and benefits for each option. Yet the bill does not even define what would qualify as an indirect cost.
Moreover, the legislation would require all agencies to perform this one-size-fits-all cost-benefit analysis, even though some statutes, such as the Clean Air Act and Occupational Safety and Health Act, currently bar agencies from relying on cost-benefit analysis. For example, the RAA would require the U.S. Environmental Protection Agency (EPA) to consider the cost of any new clean air rule, even though the Clean Air Act expressly prohibits EPA from factoring in cost when adopting standards to ensure we have clean, quality air to breathe.
Requires the “Least Costly” Rule: The bill would mandate that all federal agencies adopt the “least costly” rule out of all the alternatives considered. The only exception to this default rule is if the agency can demonstrate that the additional benefits to the rule justify the additional costs, although it is unclear what the agency would need to do to satisfy this requirement. Given that Congress has just recently cut agency budgets, agencies with already limited resources and rulemaking timelines may choose to adopt the least costly option when they lack resources to demonstrate that the additional benefits justify adopting a more costly rule.
Allows Big Business to Second-Guess Agency Scientists: The legislation would allow any interested person to petition an agency for a public hearing to challenge any information or evidence the agency relied on when drafting its proposed rule. The agency can only avoid the public hearing by throwing out the information being challenged. In effect, industry lobbyists could request a public hearing for every agency rulemaking to challenge any data that does not support the industry’s position, delaying the agency from finalizing a new rule.
Expands Judicial Review: Making matters worse, the RAA would lower the standard of judicial deference normally afforded to agency expertise. This would allow courts to review technical agency decisions and potentially overturn an agency’s rule based on the judge’s non-expert judgment.
History teaches us that failing to implement and enforce strong public protections costs lives, impairs our public health, jeopardizes our environment, and suppresses our economy. In a letter urging members of Congress to oppose the RAA of 2015, the Coalition for Sensible Safeguards wrote, “The costs of deregulation should be obvious by now: the Wall Street economic collapse, the Upper Big Branch mine explosion in West Virginia, various food and product safety recalls, and numerous environmental disasters including the recent Dan River coal ash spill in North Carolina and the Freedom Industries chemical spill in West Virginia demonstrate the need for a regulatory system that protects the public, not corporate interests.”
This legislation represents nothing more than a backdoor effort to undermine public protections without having to be on the record opposing implementation of laws the American people support, like the Clean Air Act and Clean Water Act. Instead of improving our system of public protections, the Regulatory Accountability Act would add numerous hurdles and delay to agency efforts to develop new safeguards and give big business even more opportunities to interfere in this process. This would waste government resources that agencies need to achieve their missions.
Contact your representatives and urge them to oppose the Regulatory Accountability Act of 2015.