Your Up-to-Date 10-Day Forecast for Capitol Hill: A Blizzard of Antiregulatory Bills

While meteorologists’ recent doom-laden predictions of an apocalyptic blizzard hitting the mid-Atlantic may not have exactly panned out, I have a forecast that you can take to the bank:  A large mass of conservative hot air has recently moved into the Washington, DC, region where it is now combining with a high pressure zone of intense industry lobbying.  As a result, we can expect over the next several days a heavy downpour of bills aimed at eviscerating our nation’s regulatory safety net with long-lasting, if not irreversible, damage to the public health, financial security, and the environment.  The powerful corporate interests that find compliance with these safeguards to be inconvenient to their bottom lines, however, stand to reap a windfall from this storm if any of these bills are enacted into law.

I have already highlighted one of these bills—the Small Business Regulatory Flexibility Improvements Act (SBRFIA)—in this space earlier.  As I explained there, the bill—which the House Judiciary Committee marked up today without the benefit of a formal background hearings—would further entrench big businesses’ control over rulemaking institutions and procedures that are ostensibly intended to help small businesses participate more effectively in the development of new regulations.  As it stands now, the Small Business Administration’s (SBA) Office of Advocacy already wastes taxpayer money by working on behalf of powerful corporate interests to block or delay regulatory safeguards to the detriment of both small businesses and the general public.

But the antiregulatory members of Congress aren’t stopping there.  They have several other bills teed up that are similarly aimed at weakening the ability of regulatory agencies—such as the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and the Consumer Financial Protection Bureau—from carrying out their statutory missions of protecting the public.

Also today, the House Oversight Committee is marking up the Unfunded Mandates Information and Transparency Act (UMITA).  This bill would amend portions of the Unfunded Mandates Reform Act—a law that already requires agencies to complete several burdensome analyses and consultations as part of the rulemaking process—to make it even more burdensome and wasteful.  UMITA—like the law that seeks to amend—would do little, if anything, to improve agency rulemakings, but it would delay crucial safeguards and waste scarce agency resources.  The only real virtue to the original Unfunded Mandates Reform Act is that its worst provisions are not really subject to judicial review, which means activist judges are limited in their ability to use the law’s bad provisions as an avenue for blocking or unduly interfering with rules that they oppose on ideological grounds.  So, of course, UMITA aims to change that as well, by giving reviewing judges greater authority to interfere in agency rulemakings based on that agency’s compliance with UMITA’s requirements on top of those that are already mandated by the Unfunded Mandates Reform Act.  Most alarmingly, it would subject the most dangerous provision of the original Unfunded Mandates Reform Act—a requirement that agencies choose the “least costly, most cost-effective or least burdensome alternative”—to enhanced judicial review.  In effect, this requirement would be transformed into a super mandate that overrides the strong protective language in countless environmental, health, and safety statutes, such as the Clean Air Act, the Occupational Safety and Health Act, and the Food Safety Modernization Act.

The House Judiciary Committee is also promising swift action on two more antiregulatory bills early next month.  The first bill, the Regulations from the Executive in Need of Scrutiny (REINS) Act, would block the most important agency rules from taking effect unless both houses of Congress affirmatively votes to approve them within a short time frame.  If Congress fails to approve the regulation in that time frame, then it may not take effect.  Needless to say, this bill would sound the death knell for virtually all large regulations in the future.  The second bill, the Responsibly and Professionally Invigorating Development (RAPID) Act, would significantly restrict the time that federal agencies could conduct environmental reviews before issuing permits for large development projects.  If the agencies fail to meet the bill’s mandated timelines, then the agency might be forced to grant the permit, even if the project in question raises serious environmental or public health concerns.

Over in the Senate, a group of conservative Democrats are working with several Republicans on a bill called the Startup Act, which its supporters claim is aimed at helping startup companies thrive and contribute to overall economic growth.  The bill is basically a hodgepodge of seemingly unrelated provisions.  Whatever the merits of most of the provisions in actually helping startup companies, one section stands out as patently ridiculous on that score.  It seeks to codify into law large portions of Executive Order 12866’s burdensome regulatory impact analysis requirements—including its controversial cost-benefit analysis requirements.  Regulations are not an obstacle for startup firms—in fact, it is the absence of regulations that is most harmful to new businesses.  Even if the underlying assumption of that section of the bill had any basis in reality, it is hard to imagine what difference it would make in practice.  If agencies’ voluntary compliance with these provisions in accordance with the Executive Order wasn’t enough to help small business, how would making their compliance a legal requirement change anything?

And this all comes after the House of Representatives rammed through the Regulatory Accountability Act a few weeks back.  That bill tie the rulemaking process in knots by forcing agencies to overcome as many as 74 new analytical and procedural requirements before finalizing new rules.

While their respective approaches may be different, all of these antiregulatory bills—SBRFIA, UMITA, the REINS Act, the RAPID Act, the Startup Act, and the Regulatory Accountability Act—all have the same goal of seeking to undermine several important and visionary laws that were enacted by previous Congresses, including the Clean Water Act, the Clean Air Act, and the National Environmental Policy Act.  Needless to say, these laws enjoy widespread public support.  As a result, the antiregulatory opponents of these laws lack the courage and the votes to repeal them or amend them significantly, so they are trying to hobble their implementation under the deceitfully sanctimonious banner of “regulatory reform.”  Their ulterior motive is clear, though:  to deny the meaningful protections for the public and the environment that these laws promise.

Sadly, this likely just marks the beginning of what will be a long campaign against the protective regulatory system that all Americans depend upon.  It’s hard to believe that the antiregulatory climate in Congress could get any worse that it has in recent years.  But these coming developments suggest that that is precisely what we have in store.