Dysfunction Junction: Another Industry-backed Effort to Delay Crucial Safeguards and Cripple the Regulatory Process
by Tania Matsuoka, 6/23/2015
Effective public safeguards protect all of us from toxic chemicals, air pollution, water contamination, and unsafe food. Streamlining the process of strengthening and updating these standards would help us fight new and emerging dangers. But earlier this year, Sen. Mike Rounds (R-SD) quietly introduced a resolution that would inject Congress into the federal regulatory review process and slam the brakes on a rulemaking system that is already fraught with delays that put people's lives and health at risk.
Rounds and his co-sponsors claim that the measure, the Regulation Sensibility Through Oversight Restoration (RESTORE) Resolution, would address issues raised in an industry-backed report on the cost of regulations. But that publication and its findings ignore the immense benefits of public protections and were debunked by the Washington Post Fact Checker as "misleading" and having "serious methodological problems."
Rounds' proposal would create a temporary Joint Select Committee that would "conduct a systematic review of rules enacted by federal agencies" and would hold potentially wide-ranging hearings on these rules. The committee would submit recommendations to Congress to sunset rules it doesn't like and would impose a process for federal agencies to submit rules to Congress for review before they are enacted.
RESTORE would also require Congress to consider creating a permanent "Joint Committee on Rules Review," which would further broaden the scope of standards and safeguards subject to unnecessary delay and possible repeal.
RESTORE is redundant, unnecessary, and a backdoor way to prevent the implementation of popular laws.
Our regulatory process is already overloaded with roadblocks that slow the enactment of crucial public safeguards. It already takes years for agencies to develop even uncontroversial and pressing standards. During these delays, people may die or suffer serious injuries and illnesses, and communities and our natural resources can be irreparably harmed.
The Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) currently reviews rules that agencies develop. Congress created OIRA through the Paperwork Reduction Act and tasked it with overseeing the federal regulatory process. The office focuses on evaluating the economic impacts of rules and avoiding inconsistent and duplicative policies among agencies. RESTORE essentially gives the Joint Select Committee some of the same functions as OIRA, rendering the resolution redundant and wasting staff time and resources of executive agencies and Congress.
RESTORE is a "solution" in search of a problem because Congress already has extensive oversight of the regulatory process. It may make recommendations to agencies, hold hearings and pose questions to agency heads, impose restrictions through funding bills that prevent agencies from enforcing specific rules, or enact legislation concerning a proposed rule. Should an agency issue a final regulation that Congress disagrees with, it can pass a joint resolution of disapproval by a simple majority under the Congressional Review Act. This can overturn a rule if the president signs it.
At a recent hearing, Senate Republicans tried to cite the shrinking capacity of OIRA to take on expansive regulatory review as a justification for the RESTORE resolution, but their own witness, former OIRA Administrator Susan Dudley, pointed to an easier fix: Congress could just provide the office with more resources.
Legislators don't have the time or the expertise to review all significant rules, and RESTORE is likely unconstitutional.
Members of Congress have scant time to review rules – whether they're newly proposed or already adopted. Incredibly, Rounds proposes a review of all existing federal regulations to identify rules and sets of rules that should be repealed, which could subject every regulation ever enacted to an undefined standard of congressional review.
Further, the resolution would drag more proposed rules into the review process by lowering the economic standard for defining a "significant" rule, from an annual impact on the economy of $100 million or more to $50 million. Even the current standard is unreasonably low; it was set in 1978 during the Carter administration and has not been changed since. Adjusted for inflation, the equivalent impact on the economy would be $713 million today.
As Rounds himself points out, there is no way Congress can review over "ten thousand regulations per year" unless such an undertaking is institutionalized. He is absolutely correct, and that's why Congress delegated this responsibility to the executive branch.
It is also highly unlikely that legislators appointed to the Joint Select Committee would have the necessary expertise to review technical and scientific rules. In addition to OIRA, the current rulemaking review process allows other federal agencies with expertise and interest in a rule to provide their input. However, congressional review would allow industry-backed legislators to overrule scientific experts and roll back decades of vital public protections.
RESTORE represents a transparent and likely unconstitutional power grab that is unworkable and creates more problems than it purports to solve. Congress should reject this proposal.