UN Photo/R Kollar
Former EPA Administrator William Reilly recently said of the statutory duties that George W. Bush's EPA had failed to fulfill and so left to Barack Obama's EPA, "They're like little hand grenades that have been rolled out there by previous administrators, and now they're ticking." The hand grenade analogy is apt: fulfilling those duties has triggered political explosions now leading legislators from both parties to call for shackling EPA.
The hand grenade analogy is, however, incomplete. Bush's presidential administration was far from the first to roll grenades to its successor. His EPA was on the receiving end of grenades rolled by President Bill Clinton's EPA. Indeed, EPA has been rolling grenades to succeeding administrations since it was established.
The prime roller is Congress. In statutes passed in the 1970s and 1980s, Congress required EPA to meet impossibly tight deadlines to issue regulations with the result that EPA has missed most deadlines. Congress also required EPA to achieve environmental quality goals that are unachievable without control measures that would infuriate the legislators themselves. In the 1970 Clean Air Act, for example, Congress mandated that EPA achieve air quality goals that could be met only by choking the supply of gasoline to Southern California, banning cars and trucks from the business district of Manhattan, and more.
Having rolled the grenades, legislators then chastise EPA for imposing unpalatable control measures or failing to achieve statutory goals. In sum, Congress has designed the environmental statutes to provide "a handy set of mirrors--so useful in Washington--by which a politician can appear to kiss both sides of the apple," as John Quarles, EPA's first general counsel, put it.
Congress cannot justify itself by blaming the conflicting desires of constituents; the Constitution assigns to Congress the job of resolving the key conflicts.
Leading liberals have shown how Congress could do its job. James Landis, the New Deal's sage of administrative law, urged that agency regulations be presented to Congress for approval. He wrote, "It is an act of political wisdom to put back upon the shoulders of Congress" responsibility for "controversial choices."
Justice Stephen Breyer explained how congressional vetting of agency regulations could work in practice. As he wrote in a law review, Congress could enact a statute that prevents regulations from taking effect until confirmed through the legislative process and establishes a fast track process to ensure up-or-down votes by a deadline.
Deadlines on Congress would be poetic justice.
I came to support putting the responsibility back on Congress while still litigating for the Natural Resources Defense Council. Eventually, I helped turn Breyer's idea into a bill called the Congressional Responsibility Act. It drew many sponsors, but the Republican leadership appropriated the title by passing in 1996 a watered-down version called the Congressional Review Act. It gives the legislators the option of taking responsibility for regulations, while the original bill would have forced them to take responsibility. They hardly ever opt to take responsibility.
Now in 2011, the House of Representatives will likely vote on a bill that is modeled on the Congressional Responsibility Act. Like the original bill, the new bill would implement Breyer's suggestion, but unlike the Congressional Responsibility Act would be limited to "major" regulations. These are defined chiefly as regulations that the Office of Management & Budget finds have an annual effect on the economy of $100 million or more. The bill is H.R. 10, the Regulations from the Executive in Need of Scrutiny Act, or REINS Act.
"By failing to do its job, it improvises explosive devices. REINS would roll the hand grenades back from whence they came."
Some of the rhetoric heralding the bill is sometimes heard as regulation-bashing. This raises hackles because it was Congress, often with broad bipartisan support, that imposed the deadlines and duties on the agencies and authorized the courts to make sure the agencies comply.
Yet, the substance of the bill is pro-accountability rather than anti-regulation. That substance was aptly captured in the title of a Wall Street Journal editorial--"The Congressional Accountability Act." Thoughtful people will focus on the substance rather than the rhetoric.
Let us start by considering some concerns voiced by a hypothetical critic.
Concern: "Legislators are much less knowledgeable than agency experts." But, the agency would, as Landis put it, continue to be "the technical agent in the initiation of rules of conduct, yet at the same time ... have [the elected lawmakers] share in the responsibility for their adoption."
Concern: "Congress lacks the time to vote on agency regulations." During the 111th Congress, agencies promulgated 126 final major rules and Congress enacted 70 public laws naming post offices and the like. These naming bills take less time than would deciding whether to confirm an agency regulation even though the agency already crafted the rule, developed a record, and evaluated its impacts. But, the naming bills do illustrate that legislators spend much time taking symbolic stances. Enacting REINS would be a decision by legislators to shift time from taking symbolic stances to taking responsibility for the most important regulations. They are laws that bind and protect their constituents. Elected lawmakers should take responsibility for the laws, or at least most important ones.
Concern: "Regulations will be filibustered." REINS limits debate on the confirmatory vote and all related motions to two hours in each house and there is no realistic way around this time limit. Quorum calls, roll calls and the like would result in some rules taking more than two hours. If Congress believes that this is too much time, it should raise the criteria for a major regulation above $100 million rather than abdicate responsibility altogether.
Concern: "REINS would change the powers of the administration in mid-presidential term." Congress routinely changes the powers of agencies. In any event, the president could exact, as a price for enactment, postponing the effective date until the start of the next presidential term. The issue with REINS is whether the elected lawmakers will be accountable for the major regulations, not the powers of a sitting president. Concern: "Congress sometimes fails to act responsibly." To the extent this is so, it is because Congress found ways to avoid responsibility for the consequences. The solution cannot be for Congress to hand the choices over to even less accountable agencies. With REINS, Congress would reassume responsibility and thereby improve itself.
On the environment, Congress is bipolar. The right vilifies the left as crazy ideologues and the left vilifies the right as greedy ignoramuses. When the right does well in an election, as it did in 1994, it projects its success into the future and acts as if it can run roughshod over the left. But, back then, the Republicans' proposals alienated voters and that hurt in subsequent elections. The behavior of the left in many ways mirrors that of the right. The result is erratic swings in the attitudes of the majority in Congress with a devastating impact on EPA's ability to act sensibly.
To modulate the bipolar politics, what has to come, as columnist David Brooks recently put it, "is a sense of humility, that the reason people behave civilly to one another is because, alone, no one has the resources to really conduct an intelligent policy, that you need the conversation, you need the back-and-forth." Brooks was speaking about the aftermath of the shooting of Congresswoman Gabrielle Giffords, but his statement applies fully to environmental protection. REINS would force a conversation between EPA and centrist legislators, pressuring those on the left and right to join in. Both parties will find that they must adopt a modulated approach to regulation or voters will punish them at the polls. That is how we should get to sensible outcomes in a democracy, not by elected lawmakers hiding behind unelected agency officials.
REINS would also improve environmental regulation by giving legislators a role in updating our obsolete environmental statutes. The basic structure of most key environmental statutes dates back 30 or 40 years. These highly detailed statutes force EPA to regulate in ways that are often ineffective and inefficient. This is a problem for the environment and the economy, but not for the legislators, who shift the blame on EPA. But, once the legislators are responsible for the regulations, they will have a personal stake in breaking the logjam in updating the obsolete environmental statutes.
The origin of the rolling, ticking hand grenades is Congress. By failing to do its job, it improvises explosive devices. REINS would roll the hand grenades back from whence they came. The grenades would help blow up the logjam in Congress and thereby convert it from terrorist to problem solver.
David Schoenbrod is a visiting scholar at AEI.