Beware of This Zombie Bill: The Regulatory Accountability Act Returns from the Dead

January 9, 2015 | 12:07 pm
Celia Wexler
Former contributor

The House leadership has promised a new day for Congress. Less partisanship, more governing. But it’s hard to believe them when first out of the gate the House chooses to recycle one of its most divisive bills, and one which would greatly harm science-informed policymaking at federal agencies.

Why should we care? Because instead of science informing the decisions our government makes about protecting our environment, public health and safety, those decisions would be driven by the needs and wants of regulated industries, putting average Americans in jeopardy.

The proposal, expected to be voted on next Tuesday, is H.R. 185, the Regulatory Accountability Act of 2015. Rep. Robert Goodlatte (VA), chair of the House Judiciary Committee, is the bill’s main sponsor. The bill will continue the House Majority’s ill-advised war on regulation and is virtually identical to proposals he’s offered in the past.

The first in a series

You might want to call this the first in what we expect to be a long list of “zombie bills” – legislative proposals that harm science-informed policy, and in so doing jeopardize public health and safety and the environment. These are retreads of bills which failed to become law in previous years, but have been resurrected one more time. They are coming back in part because the shift in power in the Senate may mean these bills have a chance of surviving the legislative process this year.

Goodlatte and Democratic co-sponsor Collin Peterson (MN) claim that the bill would “modernize” the regulatory process and reduce burdens on the “little guys.” That is absolutely not what the bill would do nor was designed to do.

The Regulatory Accountability Act would make an already complicated process even worse by creating extra hurdles for agencies that serve no useful purpose. Photo: Flickr user lkonstanski

The Regulatory Accountability Act would make an already complicated process even worse by presenting agencies with extra hurdles that serve no useful purpose. Photo: Flickr user lkonstanski

This bill is deliberately complicated. You have to be a regulatory lawyer to perceive all the traps, and even then you might miss some. Essentially what the RAA would do is hamstring federal agencies with additional procedural burdens when they try to carry out their mandates using the best available science. Instead, agencies like the Environmental Protection Agency, the Food and Drug Administration, and the Consumer Product Safety Commission would all be subject to more special-interest interference.

On top of the already complicated regulatory process agencies have to deal with, this bill constructs a Rube Goldberg contraption—you know, one of those rickety, byzantine machines that serve no useful purpose.

Last year, James Goodwin of the Center for Progressive Reform found that one version of the bill added a whopping 65 additional procedural requirements that agencies would have to undertake to implement rules. (The 2015 bill appears to add well over 70 procedural hurdles).

Undermining science

Even assessing risk, which should be in the hands of scientists, would be second-guessed by the White House Office of Management and Budget. Goodlatte’s proposal requires that the White House Office of Information and Regulatory Affairs (OIRA) develop guidelines for assessing risk, and that agencies must conform to whatever OIRA imposes, despite the fact that OIRA’s small staff, which includes only a handful of scientists, lacks the scientific and technical expertise that federal agency scientists possess. OMB bean counters should not be in the business of determining what constitutes a scientifically valid risk assessment.

In passing bipartisan laws like the Clean Air Act and Clean Water Act, Congress told the EPA that preserving the environment and protecting public health was its core mission, and directed that it should not nickel and dime regulations that have ensured that future generations have access to unpolluted lakes and rivers and breathable air.

This proposal would jeopardize that mandate. The EPA would be much more vulnerable to legal challenges of its rules based on the costs of proposed rules, even if those rules were crucial to protecting our air and water and safeguarding public health—indeed, even if those rules have enormous long-term economic benefits or savings. The RAA emphasizes the costs to businesses, not the long-term benefits to the public.

A lack of debate

This bill harms science, but it also harms democracy. In rushing this complicated legislative proposal during the first weeks of Congress, House leaders subvert the democratic process. If Congress wants an open and public debate on the value of bipartisan public protections built over the past century, then it should do so directly.

But Goodlatte and others may suspect that they’d lose in a fair fight over the value of clean air and water and public health and safety. Recent polling and focus groups demonstrate that there is strong support for federal agencies that crosses party and ideological lines.  Even the EPA, often the target of Congressional critiques, received the support of more than half of those polled, well above popular support for Congress, which hovers around 10 percent.  The average voter understands and respects the work of agencies and knows the value of regulations that protect public health, safety and the environment. They want regulations to be enforced, and enforced fairly.  They don’t like the idea of big companies gaming the system. And the RAA not only ups the game, but gives priority seats to select players—regulated industries.

So instead of a direct assault, those who oppose regulation are trying a back-door approach.  The Goodlatte proposal is written in legalese that is as dense and unfathomable to a lay person as a scientific formula is to a non-scientist.

Making matters worse, Goodlatte is attempting to gain support for this radical change by trying to rush it though the House process. The House has 73 new members this Congress.  They barely know how to find their offices, don’t have full staffs, and yet they are being asked to vote on a complex bill rapidly and without any time for consideration.

If this effort is any indication, the House is off to a very poor start. But constituents have power here. Laws must be made with the consent of both the House and Senate and the approval of the President. We need citizens to fight this zombie bill, letting our elected officials know that it should be buried, once and for all.