Saturday 17 November 2018

Is this the way business will happen in D.C. under a new Congress and new President?

On January 5, 2017, the U.S. House of Representatives passed a bill that would require congressional approval on all major regulations.  Any major regulation that does not get the approval of Congress and the President after 90 days will effectively die.

This is just one of the many “regulatory reform” bills currently before the U.S. Congress. The package of reform bills, taken together, could seriously undermine the current regulatory process – leaving the public and the environment less protected, while opening the doors for the political system to be subject to more abuse by those with political and economic power.

Another reform bill – the Midnight Rules Relief Act – also passed the House in the first week of January.  If enacted, this bill would enable Congress to swiftly undo groups of finalized regulations without any consideration for the merits of each regulation.  Any group of regulations passed during the last few months in office by a president will be subject to this law. GOP leaders said that their top targets will be President Obama’s rule to decrease the environmental impact of coal mining on nearby streams and his rule to reduce methane emissions.

The most sweeping regulatory reform bill – the Regulatory Accountability Act of 2017 – will have a dramatic impact on the way federal agencies implement new regulations.  This omnibus bill imposes more than 60 new analytical requirements for agencies that are already subject to a robust system of vetting for every new regulation.  The bill, among other things, would require agencies to supply exaggerated justification for proposed regulations, add in more checkpoints for parties to delay the whole rulemaking process through evidentiary hearings, expand the scope of judicial review, and override the Supreme Court’s longstanding principle of judicial deference to agencies’ statutory interpretations.

With expanded ability to sue the agency, the bill also stipulates that no “high-impact rule” will take effect until all judicial challenges to the rule are resolved. With the typical amount of time courts take to resolve these types of lawsuits, this effectively will delay the implementation of such rules for several years.

The impact of all these new provisions, taken together, will severely impede the ability of federal agencies to promulgate new regulations.  It’s not surprising that some are calling into question the constitutionality of the bill.

Waterkeepers Chesapeake are following these bills. We will make sure to keep you posted as the bills move through Congress. 


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