House passes Regulatory Accountability Act
The 115th Congress of the U.S. started the New Year with a bang, passing multiple bills “to solve the problem of overreaching, ill-considered, insufficiently checkedand-balanced federal regulation” on small businesses. Such were the words of Rep. Bob Goodlatte (R-VA), Chairman of the House Judiciary Committee, who introduced the Regulatory Accountability Act of 2017 (H.R. 5).
The bill passed the House by a vote of 238-183 last Wednesday night. The vote lay almost entirely along party lines with five Democrats joining 233 Republicans to pass it, while all “nay” votes came from Democrats.
The bill—a package of six separate reform bills that passed the House in the last Congress—was supported by groups such as American Farm Bureau Federation and National Cattlemen’s Beef Association. Additionally, a letter of support was sent to the House by some 380 small business groups, including livestock groups in Kansas, Missouri, New Mexico and Wyoming.
Spotlight on public lands
A key provision, included in Title III of the bill, proposes to protect small businesses from damaging regulation—and specifically lists
federal land management decisions as applicable under the law.
This is a significant win for ranching in the West.
Title III proposes to strengthen the Regulatory Flexibility Act of 1980, a law that requires agencies to assess the impact of rules and regulations on small business and consider possible alternatives. The new provisions would require more detailed analysis of proposed regulations, providing greater opportunity for small business input, and ensuring agencies regularly review regulations already on the books for their economic impact on small businesses. Additionally, the new changes would expand the scope of the required economic impact analysis to consider indirect and cumulative impacts of new regulations.
It also requires the agency proposing the new rule to provide “a detailed description of alternatives to the proposed rule which minimize any adverse significant economic impact or maximize any beneficial significant economic impact on small entities.”
The sections dedicated to federal land management ensure that the Bureau of Land Management (BLM) and the U.S. Forest Service provide the above analysis and business-friendly alternatives for any plan amendment or revision.
Title I of the bill, the largest title, reforms the process by which federal agencies analyze and formulate new regulations and guidance documents. It requires agencies to issue the least costly alternative rule that achieves relevant statutory objectives. Agencies would have to identify when new rules would have a negative impact on jobs and wages, and submit an Advance Notice of Proposed Rulemaking 90 days before they propose any major or high-impact rule, one costing the economy $100 million or more.
Under Title I, public input would be required at each stage of the rulemaking process, and the agency would be required to include ‘‘all documents and information considered by the agency during the proceeding’’ in the rulemaking record.
Additionally, federal agencies would be required to consider: 1) the legal authority for the rule and other relevant statutory considerations; 2) the nature of the problem and whether it warrants new regulations; 3) whether the problem could be addressed by repealing or modifying existing regulations; 4) potential alternatives to adopting a new regulation; and 5) the potential costs and benefits associated with each alternative.
Title I also brings major guidance within the regulatory review process, thereby subjecting it to more intensive pre-issuance scrutiny.
It reforms the process of issuing interim-final rules, which may currently be promulgated without public input.
Court deference, public access, and lobbying
Title II repeals the “Chevron” doctrine—a U.S. Supreme Court standard established in Chevron USA, Inc. v. Natural Resources Defense Council, Inc. (1984) that gives deference to agencies’ legal interpretations when their decisions are challenged. Agencies often use the Chevron standard to successfully defend their own regulations in court.
Another title of the bill, Title IV, would prohibit new billion-dollar rules from taking effect until courts can resolve timely-filed litigation challenging their promulgation.
Title V requires agencies to publish online timely information about draft regulations and their expected nature, cost and timing. Title VI requires agencies to publish plain-language, online summaries of new proposed rules.
An amendment to the bill made Wednesday before the final vote requires federal agencies to report on “influential scientific information and associated peer reviews disseminated or to be disseminated in a rulemaking proceeding.”
Another amendment that passed during Wednesday’s proceedings, offered by Rep. Collin Peterson (D-MN7), would strengthen the prohibition on federal agencies’ lobbying for their own rulemakings.
This problem was blatant in the case of the “Waters of the United States” (WOTUS) proposed rule, where the Environmental Protection Agency (EPA) was using the web, social media and communication with environmental groups to garner support for the rule. A Government Accountability Office report released in late 2015 ruled that the EPA engaged in prohibited propaganda and lobbying surrounding its promotion of WOTUS.
The Regulatory Accountability Act of 2017 now goes to the Senate for consideration. — Theodora Johnson, WLJ Correspondent