House Republicans are fond of accusing the Obama Administration of trying to “regulate when it cannot legislate.” With a slight modification, a similar accusation can be hurled at House Republicans: They are trying to appropriate when they cannot legislate. This accusation has the benefit of actually being true.
The Fiscal Year 2012 appropriations bill for the EPA and the Department of Interior, currently being debated in the People’s House, is loaded down with dozens of anti-environment and anti-public safety policy riders. Several of these riders are virtually identical to bills that have been considered or are being considered in the House, but which have no chance of passing the Senate or surviving a presidential veto. These riders include a measure that prohibits the EPA from regulating coal ash as a hazardous waste (Section 434), blocks the EPA’s efforts to regulate greenhouse gases (Section 431), exempts offshore oil drilling facilities from several Clean Air Act requirements (Section 443), among others.
None of these policy riders would save the American taxpayer a single dime. They do, however, offer House Republicans a better chance to advance their anti-regulatory agenda than would a stand-alone bill—a wildly inappropriate end-run around the constitutionally mandated legislative process designed to provide their corporate benefactors with benefits that would otherwise be opposed by the majority of Americans.
One of these riders that warrants special attention can be found in Section 462 (page 151). It sounds more innocuous than many of the others, because it does not outright block a regulation – yet it is hardly less serious in purpose or effect. It requires the EPA to conduct a new detailed study of the various economic impacts of several of its rules, including the utility MACT rule (a rule to limit hazardous pollutants from power plants) and the interstate transport rule (a rule to limit pollution from power plants that drifts into neighboring states). Sound familiar? That’s because much of the language of this rider has been lifted straight from the TRAIN Act, an anti-regulatory favorite among the House GOP that has zero chance of passing the Senate. The rider adds an additional kicker: It prohibits the EPA from taking any action on the utility MACT and interstate transport rules until six months after the agency has completed the study. This prohibition is particularly troublesome in the case of the interstate transport rule, since the EPA already issued the final rule earlier this month. Accordingly, the rider retroactively rewrites the rule, and stays its effective date until six months after the study is completed.
The problems with the TRAIN Act study are clear. It is tilted against regulation, because it does not consider benefits. It is unnecessary and largely duplicative, because the EPA’s rules must undergo a thorough cost-benefit analysis before they can be finalized anyway. It will produce results that are so uncertain as to be useless, because it requires analysis of a litany of unknowable information: the cost of energy in 20 years; how regulations that haven’t even been written yet will indirectly affect jobs; and so on. The appropriations rider replicates these problems as well. But, since it is tucked away in an appropriations bill, they will not receive the full scrutiny deserved. (I suspect that is that point.) And the rider even takes this one step further by making agency action on two critical regulatory safeguards contingent upon the completion of this flawed study.
Fortunately, some Democrats in the House are taking steps to defeat many of these riders. To his credit, President Obama has issued a strong veto threat against an appropriations bill that contains anti-regulatory riders. Let’s hope these efforts succeed in stopping House Republicans’ efforts to appropriate when they cannot legislate.