Amid the Republican backlash against federal scientists who write rules governing everything from movie theater popcorn to offshore oil drilling, stories abound of overburdened businesses, heavy-handed civil servants and crushing paperwork.
But another story, one involving a deadly household material, offers a lesson in what can go wrong when government experts are shackled, as currently envisioned under a sweeping regulatory revision bill gliding toward President Trump’s desk.
The GOP-backed legislation revives many of the rule-making hurdles that for years crippled the government’s ability to respond to the asbestos-exposure epidemic, which has been blamed for tens of thousands of American deaths.
“I don’t think lawmakers are focusing on how extreme this legislation is,” said Paul Billings, lobbyist for the American Lung Assn., which has joined several major public health groups imploring congressional leaders to apply the brakes. “It has been viewed as this abstraction that creates improvements in the regulatory process. This would undermine bedrock public health laws.”
The linchpin of the 87-page proposal is a directive to regulators that may be impossible to meet. They would have to prove they have taken the least costly option possible to business before imposing any major new rule. A similar mandate became stifling when applied for decades to the regulation of chemicals such as asbestos because it allowed companies to keep rules at bay by continually arguing for cheaper approaches.
The Environmental Protection Agency gave up trying to ban the substance in 1991, after a federal appeals court ruled it had not proved its regulation was the least financially burdensome approach. The decision became a rallying point for overhauling the Toxic Substances Control Act, which guides EPA authority over such chemicals. The act finally was revised last year, and in November, the EPA announced asbestos was among the first chemicals it was targeting with its new authority to require safety reviews.
By then, however, there was not much left for the EPA to do on asbestos, after legions of cancer victims took matters into their own hands with civil actions that bankrupted the industry. But the years of government inaction took their toll. A quarter-century later, nearly 15,000 Americans still die annually of diseases caused by asbestos exposure during their lifetime, according to the Asbestos Disease Awareness Organization.
The new GOP regulatory overhaul bill, which swiftly passed the House in January without committee debate, would apply the same test that hobbled regulators on asbestos to every major rule the government wants to impose. That includes setting Clean Air Act limits for how much toxic pollution can be released into the air in dense, asthma-infested urban areas like Los Angeles. Car safety, food safety, worker safety and consumer product safety rule-making also would be affected.
The far-reaching plan has been overshadowed by more immediate headlines springing from the White House, where wiretapping conspiracies, travel bans and Obamacare repeal anxieties are consuming the oxygen. Even the regulatory revision blueprint’s name — the Regulatory Accountability Act — is sleep-inducing, masking the gravity of a proposal the U.S. Chamber of Commerce has placed among its top political priorities at a time when its influence in Washington has surged.
The chamber, which spent nearly $104 million in federal lobbying last year, is aggressively lobbying for and promoting the bill, HR 5. It alerted lawmakers just before the measure passed the House in January that it “is a long-standing priority for the chamber” that is “long overdue.” Lawmakers were cautioned in the letter against supporting any amendments that would moderate the proposed law, warning that such action could reflect unfavorably on the politically potent voting scorecard that the organization publishes to rank lawmakers.
While there are several dramatic proposals before Congress to rein in federal rule-makers, lobbyists are advising clients that the bill is one that actually stands a good chance of advancing to a president who is urgently looking to deliver a blow to the bureaucracy. A few moderate Democrats in the Senate already have expressed interest in helping the GOP leadership secure the 60 votes it needs for passage.
Supporters offer a cache of statistics that frame the bill as a common sense plan to give corporations some influence over a regulatory process they say is suffocating them. They point to a spike over the past 15 years in complex federal rules costing businesses more than a billion dollars, and showcase estimates concluding the rules have become such a drag on the economy that they are costing the average American family $15,000 per year.
“There is a legitimate question of whether you really need this continued churning and accumulation of all these regulations,” said Susan Dudley, who worked on regulatory revision at the George W. Bush White House and is now director of Regulatory Studies Center at George Washington University.
But others warn the legislation threatens to go considerably further than slowing the churn of rule-making. It directs agencies that for decades have used science alone in crafting major public health and worker safety protections to change course and find the most cost-effective approach for business.
“It’s not hard to look down the line and see the problems this would create,” said Thomas McGarity, professor of administrative law at the University of Texas. He cited several major public safety challenges with which regulators are wrestling and the potentially tragic consequences of cutting corners on oversight, from undrinkable water in cities like Flint, Mich., to blueprints for self-driving 18-wheelers.
Beyond requiring a cost analysis, the legislation also would put dozens of new obstacles on federal agencies before they can finalize a new rule — a process that already takes years. Companies that don’t like the approach would be empowered with a bounty of new opportunities to file legal challenges and demand reviews.
Yogin Kothari, a lobbyist at the Union of Concerned Scientists, sees irony in it all: “Their solution to too much bureaucracy and red tape is adding more red tape.”
Clean Air Act enforcement, which is based on a painstaking analysis of such factors as how many lives would be saved and cases of asthma averted, could be altered drastically. The toll those rules take on corporate profits would gain new currency. Public health officials warn that enforcement of tobacco laws also would be inhibited.
The Consumers Union advised lawmakers that other landmark protections, including the Consumer Product Safety Act and the Securities Exchange Act, would be weakened substantially. “This dangerous proposal would do severe damage to protections consumers depend on,” the group wrote to lawmakers.
Yet the bill’s champions in Congress are undeterred. Among them are Rep. Doug Collins (R-Ga.), who took to the House floor the same day Consumers Union sent its plea.
“It is time we demand the voice of the American people be heard,” Collins said just before casting his vote in favor of the bill, “rather than letting the others up here, separated in cubicles, decide what is best.”
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