(Cross-posted from the The Fine Print, the Center for Effective Government’s blog)
by Katie Weatherford, February 18, 2014
On Feb. 11, the House Subcommittee on Regulatory Reform, Commercial, and Antitrust Law held a hearing on yet another anti-regulatory bill that attempts to undermine our nation’s important health, safety, and environmental protections. The bill, entitled the “Searching for and Cutting Regulations that are Unnecessarily Burdensome (SCRUB) Act of 2014,” would establish a “retrospective regulatory review commission” that would grant unaccountable, non-expert political appointees the power to override our nation’s most crucial health, safety, and environmental safeguards.The clear agenda behind this legislation is to limit the role of congressionally established agencies tasked with protecting public health and safety by establishing a new commission and tasking it with getting rid of or weakening any rules that big businesses dislike. To accomplish this, the bill establishes a nine-member regulatory review commission to identify existing rules that should be “repealed or amended to lower the cost of regulation to the economy.”
According to Chairman Bob Goodlatte’s (R-VA) written statement prepared for the hearing, establishing such a commission “assures that the Legislative Branch has the ultimate say over the exercise of legislative authority it delegates to agencies.” Rather than a proper delegation of legislative power, the bill hands the commission what is effectively a veto over health, safety, and environmental safeguards that have already survived the arduous rulemaking process, yet provides virtually no mechanism for holding the commission accountable for its decisions.
A major concern with the bill is that it does not permit the commission to identify rules to be improved or strengthened, and the criteria that the commission must consider as it searches for rules to be appealed or amended does not include the rule’s benefits. Rather, the criteria are mainly focused on economic issues of interest to industry – such as whether a rule’s costs are justified by its benefits, whether there is a less costly alternative to the rule (without consideration of whether the same level of benefits would be achieved), whether the rule restricts business competitiveness, or whether getting rid of the rule would reduce costs to the U.S. economy.
The commission must also make judgments on issues that are better left to agency scientists and experts, such as whether a rule has achieved its intended purpose or could be repealed without “significant” harm.
The proposal would also require agencies to repeal or amend rules based on commission decisions, ultimately limiting agencies’ ability to carry out their statutory missions of protecting the public and environment from unnecessary harms. Under the bill, the commission would be required to classify, by vote, the rules it has identified as either subject to (1) immediate repeal or amendment or (2) regulatory ‘cut-go’ procedures. If the rule identified is a “major rule,” a minority vote – four of nine members – is sufficient to identify and classify a rule, even if the five other members disagree. All other rules would require a simple majority to be classified.
For the first category, the issuing agency would be required to promptly repeal or amend the rule unless both chambers of Congress expressly agree that the rule should not be amended or repealed. The congressional resolution would have only limited affect, however, because the bill provides that the rule would simply be reclassified as subject to “regulatory cut-go.” Under the cut-go procedures, an agency would have to offset the cost of any new rule by amending or repealing one of the rules identified by the commission. Moreover, the agency would have to apply the cost calculations of the commission; the bill provides no mechanism for challenging these calculations.
To make matters worse, if an agency issues a new rule without implementing the regulatory cut-go procedures, even in the case of an emergency, a congressional resolution approving the new rule would be required before it could go into effect. This provision is similar to controversial language included in another anti-regulatory bill, the Regulations from the Executive in Need of Scrutiny (REINS) Act, which has failed to garner enough votes to pass both houses of Congress.
In anticipation of the hearing, the Coalition for Sensible Safeguards (CSS) sent an opposition letter to the chairman and ranking member of the subcommittee, which explains that the bill does “nothing to identify the numerous gaps, shortfalls, and outdated regulatory standards that leave the public vulnerable to the next public health tragedy.” The letter also warns that “it is very likely that this legislation will result in a commission that seeks to repeal rules that are in fact continuing to protect the public.” The Center for Effective Government co-chairs CSS.
Instead of creating secretive, unaccountable panels and undermining crucial standards and safeguards, Congress should instead turn its focus to actually improving the regulatory process by providing needed resources to agencies and eliminating costly rulemaking delays.