September 23, 2011

The Regulatory Accountability Act: Putting the Screws to Health, Safety and Environmental Regulation

Rep. John Dingell (D-Michigan) once remarked, “I’ll let you write the substance … you let me write the procedure, and I’ll screw you every time.” Legislation introduced yesterday in the Senate by Sens. Rob Portman (R-Ohio), Mark Pryor (D-Ark.), and Susan Collins (R-Maine) and in the House by Reps. Lamar Smith (R-Texas) and Collin Peterson (D-Minnesota) to amend the Administrative Procedure Act (APA) proves Rep. Dingell knew what he was talking about. The APA is the law that governs the way the various agencies of the federal government do their regulatory business – requiring them to operate in the sunlight and to solicit and weigh public comment about proposed regulations, and establishing a framework for judicial review of regulations. The new bill makes more than 30 pages worth of changes to the current APA, which is now about 45 pages long (not counting its Freedom of Information Act provisions), so this is no modest set of amendments.

In fact, the bill is a Christmas tree filled with nearly every shiny proposal that corporate opponents of regulation and their political allies could have ever wished for. It’s designed to hobble regulatory agencies; gum up the regulatory process; produce weaker safeguards for health, safety, the environment and more; and to make sure that landmark laws like the Clean Air Act, Clean Water Act and others are meekly enforced. Its proponents cloak it in rhetoric about giving a jumpstart to the economy, but it would do nothing of the sort.

Rulemaking is already an achingly slow process; this bill would slow it down even further. Right now, significant rules written to enforce the nation’s laws typically take somewhere between three and eight years to complete. During this time, interested parties have ample opportunity to weigh in with evidence and arguments.  On top of this already ossified process, the proposed legislation, among other changes, would:

  • Overrule more than 20 current regulatory statutes by changing regulators’ burden of proof in a way that will make sure regulations offer less protection to the public.
  • Substantially expand the types of rules that must undergo formal rulemaking procedures, a form of rulemaking that is highly complex and can easily take over a decade to complete.
  • Change the judicial review standard for most rules, giving unelected federal judges with life-time tenure more power to overrule regulators at the behest of industry litigants.

Current regulatory mandates are based on the premise that the country should do “the best we can” to decrease the number of deaths and serious injuries from air pollution, unsafe foods, dangerous products, unsafe workplaces and other risks that we cannot personally prevent. Although the statutes vary somewhat in how they accomplish this goal, they generally require regulators to seek the greatest level of protection that is technologically available and that is affordable for regulated entities. This commitment honors the intrinsic value of human life by taking all reasonable precautions.  The sponsors of this bill apparently believe that doing the best we can to prevent deaths is wasteful because it does not consider how much (according to economists) it is worth to prevent someone from being killed from such hazards.  So they would require agencies to justify that regulatory benefits exceed regulatory costs, a mandate that wipes out the “do the best we can” goal of important protective laws like the Clean Air Act and the Clean Water Act.   If the “Regulatory Accountability Act” had been the law in the 1970s, the government almost certainly would not have required the removal of most lead from gasoline until perhaps decades later.

The change is not only morally repugnant (“sorry, but your life is not worth protecting”), but it is unnecessary.   The bill’s sponsors have justified their proposal on the ground that regulation is holding back the American economy. But, as CPR has identified in a recent report, there is no evidence that regulation causes a net loss of jobs, and, in fact, it can even increase employment.   And, as we have discussed, the regulatory process does not discourage investment in new jobs because of the uncertainty of how a regulation might turn out.   If these Members of Congress really believed in this myth, they would not propose a bill that would prolong regulatory uncertainty by slowing the regulatory process even more.

As for the other two drastic changes – formal rulemaking and less deferential judicial review – almost no serious expert of the administrative process thinks that these are good ideas. Reflecting this consensus, the United States Supreme Court has interpreted the current APA in a way that reduces the number of agencies that have to engage in formal rulemaking. The Supreme Court has also supported judicial deference to administrative agencies because they have greater expertise than generalist federal judges and because regulators are more politically accountable.

The current system, while hardly perfect, has produced substantial protections for the American public at reasonable costs.   The APA is the cornerstone of the regulatory process and has served us well. The sponsors of this bill are recklessly seeking to engage in radical changes to current laws and to the APA.   They apparently are counting on the public to forget that it was the lack of regulation of Wall Street that got the country into the current economic mess we are in. Or maybe they are hoping that the public will fail to heed John Dingell’s warning that it is easier to screw the American public by procedure than substance. 


Sidney Shapiro, CPR Member Scholar; Fletcher Chair in Admin Law, Wake Forest University School of Law. Bio.

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