Over the past few weeks, the Speaker of the U.S. House of Representatives has announced a set of policy proposals, packaged together as “A Better Way.” Prominent in Speaker Ryan’s proposal is a call for “modernizing regulatory programs.” In fact, it is the first section in the Table of Contents—which sounded quite promising until I realized that the second section is “A More Aggressive Role for Congress in the Regulatory Process.” My excitement abated quickly.
Maybe if it had said something like—Greater Efforts by Congress to Protect the Public Interest. Or—Ensuring that Public Health, Safety and Environmental Protections Take Priority. Then I could be excited. But in reading through this very lengthy policy document, it is a resurfacing of a set of bad ideas. These proposals would radically change the process of creating public health, safety, environment and consumer protections, apparently with one goal in mind—delay. Instead of a “Better Way”, it should have been titled “An Endless Delay.”
The Top Five Prescriptions for Delaying Protection
- Congressional Review. I have written about this remarkably bad idea before. Essentially, the Speaker suggests that both houses of Congress should need to affirm any major regulation before it could be implemented. Today, the regulations we use to implement laws go through scientific and technical analysis, public comment, scoping of alternatives, more public comment, publication of proposed rules and final rules, and cooling off periods. If the Speaker had his way, all of that could be canceled out with a straightforward political decision. Not only would that throw all the science and technical basis to the winds, but it would be so unlikely that Congress could act in favor of restrictions that this proposal would basically eliminate any meaningful system of public health and safety protections.
- A Lack of Benefits. Speaker Ryan is advocating for a set of policies that would focus solely on the costs of regulation. Further, his ideas would seek to cap those costs based on a vague proposal that Congress first approve an acceptable level of cost and then prohibit agencies from exceeding those costs. Notably missing in the proposal is any mention of the public health, safety, and environmental benefits to the public. Even in the summary, the focus on cost comes through with repetition of a thoroughly discredited study on the huge costs of regulation. Why was it discredited? Because the authors acknowledged that they made no efforts to estimate benefits and their cost estimates were guesses. That speaks volumes about the Speaker’s view of the role of science and data. Further, his ideas would seek to cap those costs based on a vague proposal that Congress first approve an acceptable level of cost and then prohibit agencies from exceeding those costs. This cost cap would pointlessly pit regulations against each other, introducing another delay—even for rules relating to urgent public health issues like the Zika crisis.
- “Secret Science.” Speaker Ryan and his allies insist that agencies use “secret science,” and say that an agency should only be allowed to regulate if they can make all raw data, methods, models and any other information underlying their decision available to the public. This is not a reasonable standard—in many cases, there are justifiable reasons for not making data public, such as patient confidentiality or intellectual property rights. The Speaker’s proposal also makes arguments about “reproducibility” as essential that large scientific societies such as the American Association for the Advancement of Science have called flawed. This supposed effort to eliminate “secret science” is just one more way to derail the process, and could serve as litigation bait for industry to delay or avoid public health and safety protections.
- Cutting Regulations Sounds Good But…. The Better Way proposal misleadingly suggests that agencies add regulations but never get rid of any, and would give Congress broad power to get rid of regulations they don’t like. In reality, many regulations that are enacted each year supersede previous regulations. In other words, agencies are updating the previous versions, rather than just adding to the pile. Of course agencies should work to modify, or even eliminate outdated regulations. And Congress should give them the resources to do so. But micromanaging regulations long after they’re in effect just isn’t the right role for Congress.
- Endless Rounds of Comments Spell Endless Delay. Speaker Ryan’s suggestion that the Administrative Procedures Act (APA) somehow allows agencies to operate with little public comment, out of the public view and without the ability to challenge the results, is probably the most bizarre claim of all. The APA has been around for a long time. It sets up the requirements for public notice and comments, proposed rules, final rules and judicial review. In fact, the APA sets the standard that agency rulemaking may not be “arbitrary and capricious”, but must be reasoned, justified and within the authority given by Congress in the authorizing statute. In contrast, Congress has none of these restrictions. Congressional decisions, based on political judgment, can in fact be arbitrary and capricious. Congress does not have to accept public comment and respond to those comments in the public record, and they are not constrained by the authorizing statute, since they write the statutes themselves. And most importantly, agency actions are judicially reviewable under both APA and their authorizing statutes and all other applicable law. That is accountability. It takes time, resources and public involvement. But Speaker Ryan’s proposals “solve” an imaginary problem by lengthening comment periods and adding more steps and restrictions. If the “Better Way” proposals became law, the well-established process for public comment on regulation would be derailed and the process of implementing laws protecting public health and safety would face practically endless delays.
There are real reforms we could undertake to make science-based regulations more effective and more efficient. We should do regulatory review to streamline agency actions. There are important improvements to be made in the ability of the public to comment and influence policy, primarily through reducing the influence of high-powered industries. The process by which science informs agency decisions can be improved, through stronger scientific integrity policies, stronger requirements for independent peer review, disclosure of conflicts of interest, and greater public access to information. And yes, the APA could likely be strengthened as well. But the starting premise for such reforms should be the public interest and the need to provide stronger protections for public health, safety and the environment. I hope the Speaker reaches for these types of reforms, rather than the recipes for delay outlined in the current proposal.
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