Time to Take Regulations Seriously: How Legislative Sleight-of-Hand is Being Used to Undermine Public Protections

When the 112th Congress convened, it agreed to a rule that, barring emergencies, no bill would be voted on until its text had been publicly available for three days. Recently, however, anti-regulatory legislators have become adept at using amendments and seemingly innocuous provisions to attempt to undercut long-standing safeguards without providing sufficient time for debate and discussion of the implications of their actions. These tactics threaten public protections and the legislative process itself.

The Transparency in Regulatory Analysis of Impacts on the Nation (TRAIN) Act, passed by the House on Sept. 23, would require that an interagency panel of non-experts review U.S. Environmental Protection Agency (EPA) regulations before they are issued. The panel would be asked to consider costs of proposed regulations and issue a report. The panel's report amounts to nothing more than bureaucratic red tape: not only do EPA and the Office of Management and Budget (OMB) already perform this function, but the TRAIN panel's report would necessarily be less useful because the panel is directed to consider cumulative costs of proposed and final regulations, a highly speculative analysis that would serve only to artificially inflate costs. This type of analysis stacks the deck against issuing safeguards in a process based on net benefits.

The bill would also eliminate deadlines for action on two rules – the Mercury and Air Toxics Standards and the Cross-State Air Pollution Rule (CSPAR) – both of which are required by the Clean Air Act (CAA). The Mercury and Air Toxics Standards, which is a proposed rule, restricts the amount of mercury and toxins that utilities can emit. The CSPAR, which has been finalized by EPA, limits the amount of air pollution that crosses state lines.

Last-Minute Floor Amendments Avoid Debate

Not satisfied with the anti-regulatory slant of the TRAIN Act, Reps. Ed Whitfield (R-KY) and Bob Latta (R-OH) each introduced amendments that would make even greater changes to the CAA and the current regulatory process. The House approved both the Whitfield and Latta amendments when passing the TRAIN Act, providing only 10 minutes of floor debate for each.

The Whitfield amendment negates the effect of both the Mercury and Air Toxics Standards and the CSAPR. The amendment requires EPA to set standards for air toxics emissions based on a complicated formula that produces an "in the aggregate" standard for all toxic pollutants rather than separate standards for each pollutant. According to the Energy and Commerce Committee Democratic staff, "[t]his would require EPA to make completely subjective decisions about whether a plant that emits more carcinogens but less neurotoxins is better or worse performing than a plant that emits fewer carcinogens but more neurotoxins. There is no known methodology for making these decisions, which would be impossible to defend in court."

In short, the Whitfield amendment represents a fundamental shift in EPA policy – something that most members of the public think should be subject to debate and consideration. On Sept. 19, Education and Commerce Committee Ranking Member Henry Waxman (D-CA) and Energy and Power Subcommittee Ranking Member Bobby Rush (D-IL) sent a letter to committee chairman Fred Upton (R-MI) and subcommittee chairman Whitfield that made this point. They specifically objected to Whitfield's floor amendment, which they called an "egregious abuse of process." The letter emphasized that the amendment "makes radical changes in the Clean Air Act provisions that address toxic air emissions . . . [that] have never been considered in hearings or debated in Committee." Because "[m]embers are being asked to vote on major changes to the Clean Air Act without any idea what they would do," Waxman and Rush asked the chairs to withdraw the amendment "from consideration and hold hearings on it, so that members and the public can understand the effect of [the] proposal before it is brought to a vote."

Latta’s amendment requires EPA to consider feasibility and cost when setting National Ambient Air Quality Standards (NAAQS) for air pollutants. The Clean Air Act specifically prohibits such considerations, and the U.S. Supreme Court affirmed in 2001 that costs to polluters should not be considered when setting health-based air quality standards that are required to protect the public.

"The Latta amendment will reverse 40 years of clean air policy, allowing our national goals for clean air to be determined by corporate profits – not public health," Waxman said. Like the Whitfield amendment, the Latta amendment comes without the honest debate commensurate with the seriousness of its effects. According to Energy and Commerce Committee Democrats, "The process for consideration of the Latta amendment is as objectionable as its substance . . . This proposal has never been considered in hearings or debated in Committee. No legislative record exists to evaluate the amendment."

When "Study" and "Deadline Extension" Become Avoidance

Proponents of the TRAIN Act, like Rep. Rob Bishop (R-UT), contend that the bill requires additional study of EPA rules but does not actually stop or cut any regulation. These characterizations of the bill have been countered by opposition from public interest and environmental groups, members of the Senate, and even the White House. The Executive Office of the President released a White House Statement of Administration Policy on Sept. 21. "While the Administration strongly supports careful analysis of the economic effects of regulation," it said, "the approach taken in H.R. 2401 would slow or undermine important public health protections." The statement concluded that senior advisors would recommend a veto of H.R. 2401.

Like the TRAIN Act, the EPA Regulatory Relief Act of 2011 (H.R. 2250) and the Cement Sector Regulatory Relief Act of 2011 (H.R. 2681), passed through the House Energy and Commerce Committee during the week of Sept. 19, have been opposed on both substantive and procedural grounds. The bills' sponsors contend that they merely provide additional time for EPA to establish, and for industry to comply with, new emissions standards for boilers, incinerators, and cement plants. However, they would actually make substantial alterations to the Clean Air Act and EPA's long-standing practice for establishing emissions standards for hazardous air pollutants.

John Walke, the clean air director for the Natural Resources Defense Council (NRDC), denounced the sponsors' characterization of the bills' impacts in testimony given at a Sept. 8 hearing before the Energy and Commerce Committee. "Let me emphasize in the strongest possible terms that these bills are not mere 15 month delays of the rules as EPA itself has requested, as some have misrepresented the legislation. Instead the bills reflect the complete evisceration of the substantive standards for achieving reductions in toxic air pollution, coupled with the elimination of any statutory deadlines for EPA to re-issue standards to protect Americans."

Although the versions of H.R. 2250 and H.R. 2681 that were reported out of committee require that EPA issue the rules after the 15-month delay period, they retain the provisions making substantive changes to the CAA. Both bills would force EPA to impose the "least burdensome" regulatory alternative from a range of options, including less stringent work practice standards, even though section 112 of the act allows EPA to impose such standards only "in cases where it is not feasible to prescribe or enforce an emission standard" such as an achievable control technology standard. "These changes would radically distort the Clean Air Act's twenty-year approach to controlling toxic air pollution and would have enormous health impacts," Walke said.

When the committee marked up H.R. 2250 and H.R. 2681 on Sept. 20 and 21, Rep. John Dingell (D-MI) stated that the bills failed to meet the goals of having "good legislative process and good legislative product." Dingell urged the committee to recognize the need to proceed under the proper procedures before taking steps to alter the CAA, and to "ensure [that EPA] can function in a proper and transparent process." Rep. Joe Barton (R-TX), however, expressed confusion over the controversy around the bills, which he said were "basically extension[s] of compliance deadlines."

If the contentious debate in the House Energy and Commerce Committee is any indication, the current political climate surrounding regulations, especially environmental protections, may continue to test the integrity of the legislative and committee processes. The public expects and deserves a transparent and thorough discussion of the implications of any congressional action that would substantially alter an important statute like the Clean Air Act.

Image in teaser by flickr user emilykbecker, used under a Creative Commons license.

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