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'REGULATORY REFORM' LEGISLATION

A number of regulatory "reform" bills moved forward in the first session of 106th Congress. These bills could be harmful to the environment by unnecessarily burdening federal regulatory agencies and providing polluters with new opportunities to sue. These bills are briefly described below.

H.R. 3311/ S. 746, the "Regulatory Improvement Act of 1999"
Major Regulatory Reform Bill Stalls in the Senate But Could Move This Year. A sweeping regulatory reform bill (S. 746), introduced by Governmental Affairs Committee Chairman Thompson (R-TN) and Senator Levin (D-MI), was approved by the Senate Governmental Affairs Committee on May 20, 1999, but never made it to the Senate floor. This bill would require federal agencies to perform risk assessment and cost-benefit analysis for major pieces of legislation. Even as modified to include provisions requested by the Clinton administration, this bill would undermine legislation that protects the environment, public health, and safety. A companion bill on the House side was introduced by House Judiciary Subcommittee on Commercial and Administrative Law Chairman Rep. Gekas (R-PA) on November 10, 1999. H.R. 3311 fails to limit judicial review of agency regulatory cost/benefit assessments, providing opportunities for companies to tie up environmental and health regulations they oppose in court.

H.R. 1074/ S. 59, the "Regulatory Right-to-Know Act of 1999"
House Passes Bill That Puts Regulatory Costs Ahead of Environmental and Health Benefits. The "Regulatory Right-to-Know Act of 1999" (H.R. 1074/ S.59) introduced in the House by Commerce Committee Chairman Bliley (R-VA) and Rep. McIntosh (R-IN), and in the Senate by Governmental Affairs Committee Chairman Thompson (R-TN), would divert scarce resources from federal agencies for unnecessary cost and benefit analyses. By requiring that the Office of Management and Budget estimate the costs and benefits of each federal regulation, these regulatory accounting bills erect bureaucratic hurdles that must be surmounted by agencies charged with safeguarding the nation’s health, safety, and environment. On July 26, 1999, the House passed H.R. 1074 by a vote of 254-157, and S. 59 is under consideration by the Senate Governmental Affairs Committee. While their sponsors call the bills "good government," the bills will instead place regulatory cost considerations above environmental, health, and safety benefits.

H.R. 350/ S. 427, the "Mandates Information Act of 1999"
House Provides Protections For Businesses But Rejects Similar Protections for Environment. On February 10, 2000, the House passed H.R. 350 by a vote of 274 to 149. Introduced by Rep. Condit (D-CA), this bill would essentially expand the Unfunded Mandates law enacted in the 104th Congress by requiring a statement on the effects of proposed health, safety, and environmental legislation on the private sector. The bill also provided procedural mechanisms to halt public debate and votes on important legislative measures when the cost of compliance for the private sector is estimated to exceed $100 million per year nationwide (even when the benefits override costs). However, an amendment offered by Rep. Waxman (D-CA) that would have provided important procedural tools for members who are concerned about the effect of legislation on the environment was rejected (203-216). The Senate version of this bill, introduced by Senator Abraham (R-MI) awaits consideration by the Committee on Budget and the Committee on Governmental Affairs.

H.R. 391/ S. 1378, the "Small Business Paperwork Reduction Act"
First-Time Immunity for Violator, Bill Passes House, Considered in Senate. On February 11, 1999, the House passed H.R. 391 by a vote of 274 to 151. This bill would waive penalties for first-time violators of vital reporting requirements in health, safety, and environmental laws. The bill also would give a green light to "small" businesses (up to 1,500 employees in some instances) to ignore reporting requirements for toxic releases, food adulterations, oil spills, nuclear safety incidents, and drinking water contamination, to name a few examples. Rep. Kucinich (D-OH) offered an amendment that would preserve federal agencies’ discretion to impose penalties for violations of important reporting and disclosure requirements, which was defeated 210-214. The Senate Governmental Affairs Committee held a hearing on 10/19 on Senator Voinovich’s (R-OH) companion bill (S. 1378).

H.R. 2245/ S. 1214, the "Federalism Accountability Act of 1999"
Bill Could Interfere With Enforcement of Environmental and Public Health Regulations. On August 8, 1999, the Senate Governmental Affairs Committee approved S. 1214, the "Federalism Accountability Act of 1999." This bill, which was introduced by Chairman Thompson (R-TN) and Senator Levin (D-MI), would make it more difficult for federal laws and regulations to preempt state and local laws or ordinances. In doing so, however, the bill creates an unworkable regulatory assessment process that could interfere with the federal government’s ability to implement and enforce public health, safety, and environmental protections on a nationwide basis. It also provides new opportunities for industry to challenge important health and safety protections in court. The companion bill in the House (H.R. 2245), which was introduced by Rep. McIntosh (R-IN), was pulled from a full Government Reform Committee markup, because supporters could not muster enough votes.

S. 1198, the "Congressional Accountability for Regulatory Information Act of 1999"
H.R. 3521, the "Congressional Accountability for Regulatory Information Act of 2000"
Regulatory Reform Bill Places Financial Costs Above Environmental Protection. S. 1198 was introduced by Senator Shelby (R-AL) on June 9, 1999 and amended by substituting Chairman Thompson’s congressional accountability bill, S. 1244, when S. 1198 was approved by the Senate Committee on Governmental Affairs. Rep. McIntosh (R-IN) introduced H.R. 3521 on January 24, 2000. These bills require the General Accounting Office (in S. 1198 through a pilot program) to review economically significant federal rules and to conduct yet another analysis of the costs and benefits of each rule, alternatives to the rule, effects on state and local governments, and a summary of the differences between the analysis done by the agency and that done by the General Accounting Office. Again, these bills tend to undermine public protections by elevating cost, which is more easily calculated, over many of the benefits of health and environmental protections, which are not so easily calculated.

H.R. 881, the "Regulatory Fair Warning Act of 1999"
Possible Immunity for Violators of Federal Environmental Laws and Regulations. This bill, introduced by Chairman Gekas (R-PA), was marked up in the House Subcommittee on Commercial and Administrative Law on September 29, 1999 and awaits consideration by the full Judiciary Committee. Supported by Rep. Delahunt (D-MA) this bill, although considerably modified, is still highly problematic. H.R. 881 would provide blanket immunity from penalties for violations of environmental regulations – no matter how egregious – if the violator claims the rule failed to provide fair warning of requirements. It is even possible that a violator can avoid liability when there is fair warning in a federal rule but a state official provides a conflicting interpretation that authorizes the violation. It would impede judicial enforcement of federal laws and regulations by binding courts to follow written representations made by agency officials, many of which are informal and are not intended to be construed as the agency’s official position. Moreover, these written agency representations are not publicly disclosed and therefore will not assure accuracy and accountability.

H.R. 1924, the "Federal Agency Compliance Act of 1999"
Regulatory Reform Bill Could Weaken Environmental Laws. This bill potentially could weaken vital environmental laws by arbitrarily limiting the discretionary authority of federal agencies, such as EPA, the U.S. Fish and Wildlife Service and the Bureau of Land Management, to challenge circuit court decisions. By limiting the enforcement options of federal agencies, H.R. 1924 tips the scales of justice in favor of polluters and other violators of environmental laws and regulations. This bill was introduced by Chairman Gekas (R-PA) and has been the subject of hearings in the Subcommittee on Commercial and Administrative Law.

H.R. 2376, a bill "To require executive agencies to establish expedited review procedures for granting a waiver to a State under a grant program…"
During its deliberations on this bill on November 5, 1999, the Subcommittee on Government Management, Information and Technology made it considerably worse than the original, which was introduced by Rep. Green (R-WI). The subcommittee approved the bill by voice vote. In its amended form, this bill would codify a vague executive order allowing states to waive statutory and regulatory requirements for federal grant programs, require expedited review of a request for waivers, and allow states that sue the federal government to demand waivers of federal requirements. Waivers of important environmental grant requirements could result in decreased environmental protection.

H.R. 2366/ S. 1185, the "Small Business Liability Reform Act"
On February 16, 2000, the House passed H.R. 2366, introduced by Rep. Rogan (R-CA), to provide small businesses with liability relief from punitive damages. The bill’s language, however, is unacceptably broad and would interfere with federal, state, and citizen environmental enforcement actions and could even delay Superfund cleanups. Thus, this bill could allow companies and individuals to violate environmental laws with impunity, encouraging recalcitrant behavior.