A House Judiciary Subcommittee answered an important question before Congress this week: Should the regulatory process for projects that have major impacts on the environment be speeded up or slowed down?
Yes, according to House Republicans.
Two bills rolled through a House Judiciary subcommittee offering opposite prescriptions for regulatory reform. One deals with the rules governing construction of oil refineries, power plants, nuclear waste disposal sites, big flood control projects and the like. The other concerns efforts by the Environmental Protection Agency and other agencies to safeguard public health, protect our air and water from dangerous pollutants, prevent an outbreak of a food-borne illness, or rein in shoddy lending practices that threaten the whole economy.
One bill calls for hasty approvals and steamrolling over well-established protections. The other throws up new roadblocks to regulation and seeks to slow down implementation of any rule that can’t be stopped entirely.
Guess which is which?
The National Environmental Policy Act (NEPA)
NEPA, often called the Magna Carta of environmental law is a well-proven means to require the federal government to consider the impacts on the environment and communities of major federal activity. The key to NEPA is to evaluate alternatives prior to starting construction. That means a thorough assessment of the environmental impacts, evaluation of less-damaging alternatives, and open public consultation.
NEPA has become a bête noir for Republicans and their industry allies, who wrongly blame the law for holding up major projects by the Army Corps of Engineers, the Federal Highway Administration and others. Study after study has shown that lack of funding is the primary cause of many delays. A recent Congressional Research Service report found that holdups are not usually caused by NEPA, but rather “are more often tied to local/state and project-specific factors.” Flood control and other water related projects are often used as examples of NEPA slowing down the process. But the truth is more obvious: Congress has authorized $60 billion of projects and funds Corps construction at under $2 billion a year. Money is the cause of the delay, not NEPA.
Chamber of Commerce Statements against Interest
The Chamber of Commerce has a website that complains about delays and therefore the need for changing NEPA. But if you look to the Chamber site, www.progressnoprogress.com, the Chamber proves out point. Almost all the delays are caused by other factors such as local zoning law, inability of the projects to get funding, local opposition or even hurricanes. Unless NEPA was responsible for the financial collapse or weather, the Chamber website points out delays but the cause is clearly not federal environmental analysis.
NRDC’s site of NEPA success stories shows more examples of where projects were improved; money saved and the environment protected precisely because of the public participation that is key to NEPA.
The Attack on NEPA
The latest attempt to gut NEPA is the RAPID Act, H.R. 2641 that was subject to a hearing on July 11 at the Judiciary subcommittee on Regulatory Reform, Commercial and Antitrust Law. My testimony is here.
The RAPID Act (it stands for Responsibly and Professionally Invigorating Development) would allow automatic approval of permits and licenses under the Clean Water Act, the Clean Air Act, and even the licensing requirements of the Atomic Energy Act for nuclear power or nuclear waste disposal.
It aims at the core of NEPA’s safeguards by placing arbitrary and short time limits on environmental reviews and severely limiting consideration of less harmful alternatives. It reduces all-important public participation. And it creates a presumption that a project is acceptable, so that once an agency runs up against the bill's arbitrary deadlines for a project analysis, no matter how bad the project might be, the government would be forced to approve it.
Attack on protections
On the same day that the subcommittee passed the RAPID Act, the members took exactly the opposite tack in the Regulatory Accountability Act. That benign title masks a bill that is patently designed, as GOP members made clear during the hearing, to block new regulations by imposing an ornate and overly complex process on health and environmental rules. It is championed by the full Committee chairman, Rep. Bob Goodlatte (R, Va.). My colleague, David Goldston testified at that hearing on that legislation and his testimony is here.
The contrast between the two bills could not be more stark: in RAA, the number of alternatives that an agency must consider is multiplied, and the grounds for industry to appeal are increased. It requires so much additional analysis of the impacts of a proposed regulation that it would become difficult, if not impossible, to implement laws intended to protect the public. (Case in point: thanks to similar language in the Toxic Substances Control Act, EPA was not able to ban asbestos, an undisputed cause of cancer, because it could not prove it had analysed every alternative.)
In RAPID, the chance to consider better alternatives is limited, while deadlines cut short the time needed for additional analysis and are used to force action or default to moving forward with construction.
Two different approaches—speed up, slow down. One believes the bureaucrats are always wrong. The other, that they’re always right. But the intent is the same: allow industry to ride roughshod over laws and regulations designed to protect the public. The two bills are a “regulatory reform” charade and the full House should reject them both.