Despite All the Evidence, Congress Wants to Weaken Public Protections

November 6, 2015
Celia Wexler
Former contributor

It seems that a week doesn’t go by when we are not reminded that our regulatory process leaves us exposed to hazards. It could be a fertilizer plant explosion, like the West, Texas disaster in 2013 that took 15 lives, injured 200, and caused millions of dollars of damage, an explosion later deemed by the federal Chemical Safety Board to have been preventable.

President Barack Obama delivers remarks during a memorial service at Baylor University in Waco, Texas, for victims killed last week at a fertilizer plant explosion in West, Texas, April 25, 2013. (Official White House Photo by Pete Souza)

President Barack Obama delivers remarks during a memorial service at Baylor University in Waco, Texas, for victims killed at a fertilizer plant explosion in West, Texas, April 25, 2013. (Official White House Photo by Pete Souza)

Or a defective ignition switch on more than a million cars that caused more than 100 deaths. Carmaker General Motors is paying more than $1 billion in fines because it concealed the problem for years. As auto safety advocate Clarence Ditlow observes, GM spent millions of dollars lobbying to ensure that federal laws lacked criminal penalties for auto executives whose actions cost lives.

It could be a drug, like the blood-thinner Pradaxa, approved by the FDA, that later turned out to have catastrophic consequences. An investigation by the Project on Government Oversight, released last month, faults the Food and Drug Administration for approving the drug, which can cause severe bleeding in some patients, even though there was no antidote to this life-threatening side effect.

In each case, the regulatory process was on trial. And in each case, and so many more, what was uncovered was that either the laws or regulations were too weak or non-existent, or resource-starved agencies failed to monitor regulated industries well enough.

Science-informed regulation is the best way for our government to prevent tens of thousands of deaths, injuries, and billions of dollars in property damage that result from shoddy products or poor oversight of hazardous materials.

Congress is on the wrong track

And yet instead of strengthening the role of science in regulation, and working hard to make sure our laws and regulations actually protect us, many members of Congress have done the opposite: They are doing all they can to weaken an already weak system.

On October 7, the Senate Homeland Security and Governmental Affairs Committee met to consider four very flawed bills. All of the bills addressed the process agencies use to issue regulations, which causes most people to immediately yawn and change the subject.

But these process bills are dangerous and damaging precisely because they don’t look like they’re doing anything particularly harmful. Think of them as stealth attacks on the environment and public health and safety.

True, these bills were approved by just one Senate committee. Nevertheless, this is a very dangerous time for bad ideas in Congress. The House already has approved similar anti-regulatory bills. And without going through a formal vote in both House and Senate, these bills can easily be transformed into amendments—or riders—that get attached to must-pass budget or other bills in a last-minute legislative flurry in these final months of 2015.

I will focus on the three Senate bills that are the most damaging. They all have names that make them sound as threatening as a tuna sandwich. It is their deceptive blandness that makes them particularly lethal.

Principled Rulemaking Act hurts science

The bill that most directly attacks science is the inaccurately named Principled Rulemaking Act, S. 1818. The bill’s sponsor, Oklahama Senator James Lankford, claims that the bill makes permanent what has long been the practice in agency rulemaking, but that’s just not true. It goes much farther. It would impose very inflexible mandates on agencies when they tried to justify their rules, including a requirement that agencies choose the least costly rule. But we have laws on the books such as the Clean Air Act, the Clean Water Act, and the Occupational Safety and Health Act that tell agencies that their first priority should be public health and safety and preserving the environment, not cost. The language in S. 1818 is really a back-door way to repeal these longstanding bipartisan landmark laws.

The bill attacks science in two different sections. One section requires agencies to publicly disclose the “relevant scientific and technical findings” informing the regulation in an “open, searchable, and downloadable format.” But many of the studies crucial to agency rulemaking cannot be disclosed, since they include confidential health information, or confidential business information.

A last-minute addition to the bill reinforces this demand and adds new requirements. The bill lets agencies know that they will be held accountable for ensuring that the science they use is not only “publicly accessible” but also “reproducible.” But agencies should not be restricted to use only information that fits these categories. You can’t reproduce a long-term health study assessing the damage from exposure to a toxic chemical, or climate studies that examine climate changes over hundreds of years.

Agencies that ignored this “advice” from Congress, however, could have their science challenged in court. Agencies cannot regulate if they are not able to be informed by confidential health data or confidential business information or data that cannot be reproduced.

If this language sounds familiar, it should. It echoes the “Secret Science” bill that was approved by the House earlier this year and received a veto threat from the President.

But the House-passed bill would hamper science at just one agency, the Environmental Protection Agency. The Senate bill, while not as drastic in its restrictions, covers science at all federal agencies, including independent agencies such as the Nuclear Regulatory Commission and the Consumer Product Safety Commission.

Independent agencies threatened

The second bill, S. 1607, the Independent Regulatory Agency Analysis Act, would greatly harm independent agencies that use science to protect the public and the environment, including the Consumer Product Safety Commission and the Nuclear Regulatory Commission. Congress created independent agencies to operate with a bipartisan commission structure, and to insulate them from White House pressure.

Congress felt these agencies’ missions were so important and involved such complex technical matters that they needed extra protection from political interference. We know that scientists working at executive branch agencies, which lack that extra layer of independence, do feel the political heat. Our latest scientist survey of nearly 7,000 scientists at four agencies revealed that more than 45 percent of the scientists who responded believe that political interference at their respective agencies is too high.

But this bill would let any President break right through that layer of independence, and order independent agencies to get their proposed regulations analyzed by the White House office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA). OIRA critiques of regulations would be fair game for any wealthy special interest wishing to challenge an agency rule in court. If this bill became law, it definitely would have an impact on any scientist, economist, engineer or other technical expert working at an independent agency. Their judgments, which help inform agency rules, would be second-guessed and much more vulnerable to political interference and micro-managing by activist judges.

Regulatory Improvement Act improves nothing

The third bill, S. 708, the Regulatory Improvement Act, is kind of like a Rube Goldberg contraption—sort of a jerry-built structure that really doesn’t work very well. S. 708 would create an independent nine-member commission to evaluate rules in effect for ten years or longer and put together a “hit list” of rules to cut or gut. The Commission’s recommendations would get just an up-or-down vote from Congress under expedited legislative procedures that allow for little meaningful debate or consideration. No changes permitted. You can see all the damage that this bill could create. Nine commission members couldn’t begin to have all the expertise they would need to assess regulations that run the gamut from train and truck speeds to food safety and nuclear power plant regulations. Even Delaware Senator Tom Carper, a lawmaker known for his bonhomie and courtesy who rarely criticizes his colleagues, called the bill “wrongheaded.”

The Senate Homeland Security committee did not vote on this bill, but not because it is unwise. Some members did not think the bill went far enough. They wanted to hobble agencies even more. Iowa Senator Jodi Ernst, for example, proposed that whenever an agency adds a regulation, it should be required to subtract a regulation of equal cost to the economy. The harm that could come from this concept is immeasurable. What would happen when there is an emerging danger the government needs to address—like an Ebola epidemic or the problem of unsafe rail cars carrying loads of crude oil across the country? Would agencies need to take crucial time away from dealing with emergencies to try to figure out what regulations they could do without?

The next two months are crucial

As Congress begins work in earnest on agency spending bills, all these legislative proposals could end up attached to a huge “omnibus” spending bill. Congress has until December 11 to pass spending bills. If Congress fails to act on time, the government could shut down. We must do all we can to make sure no damaging riders are included on this spending bill.

Stealth bills are no longer stealth if they are called out. In the coming weeks, we will use this blog space to keep you informed about dangers to science and our regulatory process, so that when we ask for your engagement, you will be ready to help us and help democracy.