CONYERS Floor Statement In Opposition To The So-Called "Regulatory Accountability Act 2017

OPENING STATEMENT

I rise in strong opposition to H.R. 5, the “Regulatory Accountability Act.”

           

Under the guise of improving the regulatory process, H.R. 5 will, in truth, undermine that process and jeopardize the ability of government agencies to safeguard public health and safety, the environment, workplace safety, and consumer financial protections. 

The ways in which this legislation accomplishes this result are almost too numerous to list here, but I will mention a few. 

For example, title I of the bill would impose more than 70 new analytical requirements that will add years to the rulemaking process. 

Worse yet, many of these new requirements are intended to facilitate the ability of regulated entities -- such as well-funded corporate interests -- to intervene and derail regulatory protections they oppose. 

And, it would function as a “super mandate,” overriding critical laws that Congress specifically intended to prohibit agencies from considering costs when American lives are at stake. 

Additionally, the bill creates numerous procedural hurdles in the rulemaking process, further endangering American lives through years of delay and increasing the likelihood of regulatory capture. 

For example, H.R. 5 dramatically expands the use of formal rulemaking, a time- and resource-intensive process, requiring formal trial-like hearings for certain rules.

Formal rulemaking has long been roundly rejected for good cause as being excessively costly and ill-suited for complex policy issues. 

The Administrative Section of the American Bar Association noted that “these provisions run directly contrary to a virtual consensus in the administrative law community that the Administrative Procedure Act formal rulemaking procedure is obsolete.” 

I am also concerned that H.R. 5 would impose an arbitrary one-size-fits-all 6-month delay on virtually every new rule.

Specifically, title V of the bill will prohibit agency rules from becoming effective until the information required by the bill has been available online for 6 months, with only limited exception. 

Clearly, H.R. 5 fails to take into account a vast array of time-sensitive rules ranging from the mundane -- such as the frequent U.S. Coast Guard bridge closings regulations -- to those that protect public health and safety, such as forthcoming updates to the Lead and Copper Rule by the Environmental Protection Agency to reduce lead in public drinking water.

Finally, title II of H.R. 5 would eliminate judicial deference to agencies and require federal courts to review all agency rulemakings and interpretations of statutes on a de novo basis.

The unfortunate result of this requirement is that the bill would empower a generalist court to override the determinations of agency experts, regardless of the judge’s technical knowledge and understanding of the underlying subject matter.

By eliminating any deference to agencies, H.R. 5 would force agencies to adopt even moredetailed factual records and explanations, which would further delay the finalization of critical life-saving regulatory protections.

The Supreme Court has recognized that federal courts simply lack the subject-matter expertise of agencies, are politically unaccountable, and should not engage in making substantive determinations from the bench.

It is ironic that those who have long decried “judicial activism” now support facilitating a greater role for the judiciary in agency rulemaking.

These are just a few of the many serious concerns presented by H.R. 5 and, accordingly, I urge my colleagues to oppose this dangerous legislation and I reserve the balance of my time.

CLOSING REMARKS

I oppose H.R. 5 because it is based on the faulty premise that environmental and public safety protections kill jobs, result in economically stifling costs, and promote uncertainty.

This bill would not create a single job.  During the series of hearings and markups held on this anti-regulatory legislation in previous congresses, not one shred of evidence emerged indicating that this bill would create jobs.

To the contrary, the Majority’s own witness, Christopher DeMuth, appearing on behalf of the conservative think tank American Enterprise Institute, debunked this argument, stating that focusing on jobs “can lead to confusion in regulatory debates” and that the employment effects of regulatory protections “are indeterminate.”

In sharp contrast to the misguided approach of H.R. 5, regulatory protections that ensure the safety of American-made products unquestionably foster job creation and protect the competitiveness of our businesses in the global marketplace. 

This explains why more than 150 organizations strongly oppose this dangerous legislation, including:

·                     Americans for Financial Reform

·                     The American Lung Association

·                     Consumers Union

·                     The Humane Society of the United States

·                     The League of Conservation Voters

·                     Public Citizen

·                     The American Federation of State, County, and Municipal Employees

·                     Earthjustice

·                     The Coalition for Sensible Safeguards

·                     The American Public Health Association

·                     The Environmental Defense Action Fund

·                     The Center for American Progress, and

·                     The Trust for America’s Health.

The American people deserve better than H.R. 5. 

We need legislation that creates middle class financial security and opportunity.

           

We need sensible regulations that protect American families from economic ruin and that bring predatory financial practices to an end.

We need workplace safety protections that ensure hardworking Americans who go to work each day without having to risk their lives as a result of hazardous work environments.

Unfortunately, H.R. 5 does nothing to advance any of these critical goals. 

I must therefore oppose H.R. 5 and I yield back the balance of my time.

Voting is beautiful, be beautiful ~ vote.©

Floor Statement of the Honorable John Conyers Jr. in Opposition to H.R. 3438, the “Require Evaluation before Implementing Executive Wishlists Act of 2016”

Dean of the U.S. House
of Representatives
John Conyers, Jr.

H.R. 3438, the “Require Evaluation before Implementing Executive Wishlists Act of 2016,” would stay the enforcement of any rule imposing an annual cost to the economy in excess of $1 billion pending judicial review.

Notwithstanding the bill’s colorful short title, H.R. 3438 would have a pernicious impact on rulemaking and the ability of agencies to respond to critical health and safety issues.

In essence, the bill would encourage anyone who wants to delay a significant rule from going into effect by simply seeking judicial review of the rule.

We all know that the judicial review process can take months, if not years to finalize, especially if the appellate process reaches the United States Supreme Court.

Thus, rather than ensuring predictability and streamlining the rulemaking process, this bill would have a completely opposite impact by making the process less predictable and more time-consuming.

Equally important, H.R. 3438 has absolutely no health or safety emergency exceptions. If anything, this bill would empower the very entities that caused a serious health or safety risk to delay –and possibly derail—legitimate efforts by regulatory agencies to respond to such threats.

And, as with other bills proposed by my colleagues on the other side of the aisle, this legislation myopically focuses only on the cost of a proposed rule, while ignoring the rule’s benefits, which often exceed its cost by many multiples.

In closing, there is broad agreement among experts in the administrative law field that our Nation’s regulatory system is already too cumbersome and slow-moving.

In addition to the Administrative Procedure Act’s procedural mechanisms – which are designed to ensure an open and fair rulemaking system -- Congress has passed various additional federal laws that impose further rulemaking requirements. 

And, rulemaking agencies must also comply with a number of Executive Orders issued over the past several decades that have created additional layers of analytical and procedural requirements.

The result of this dense web of existing requirements is a complex, time-consuming rulemaking process.

In response to the explosion of analytical requirements imposed on the rulemaking process, the American Bar Association, as well as many administrative law experts, have urged Congress to exercise restraint and assess the usefulness of existing requirements before considering sweeping legislation.

Imposing new analytical and procedural requirements on the administrative system also carries real human and economic costs.

As Robert Weissman, the President of Public Citizen, has observed, the cost of regulatory delay is “far more severe than generic inefficiency. Lengthy delay costs money and lives; it permits ongoing ecologic destruction and the infliction of needless injury; and it enables fraudsters and wrongdoers to perpetuate their misdeeds.”

Rather than alleviating these problems, H.R. 3438 would clearly exacerbate them. Accordingly, I must oppose this ill-conceived legislation.

Voting is beautiful, be beautiful ~ vote.©

Statement of the Honorable John Conyers, Jr. for the Markup of H.R. 4768, the “Separation of Powers Restoration Act of 2016,” by the Committee on the Judiciary

Dean of the U.S. House
of Representatives
John Conyers, Jr.

H.R. 4768, the “Separation of Powers Restoration Act of 2016,” would eliminate judicial deference to agencies and require federal courts to review all agency rulemakings and interpretations of statutes on a de novo basis.

As a result, the bill would empower a judge to override the determinations of agency experts and to substitute his or her judgment, regardless of the judge’s technical knowledge and understanding of the underlying subject matter.

This legislation is harmful for several reasons. To begin with, H.R. 4768 would make the federal rulemaking process even more time-consuming and costly. 

This process is already severely ossified.  As the Nation’s leading administrative law scholars observed, agency rulemaking is hampered by many burdens imposed by both the courts and Congress. 

By eliminating any deference to agencies, H.R. 4768 would exacerbate this problem by forcing agencies to adopt even more detailed factual records and explanations, which would further delay the finalization of critical life-saving regulations. 

We are talking about regulations that protect the quality of the air we breathe, the water we drink, and the food we consume. 

Slowing down the rulemaking process means that rules intended to protect the health and safety of American citizens will take longer to promulgate and become effective, thereby putting us all at risk.

And, H.R. 4768 could also have the perverse effect of undermining agency accountability and transparency by encouraging clandestine rulemaking through civil enforcement actions, for instance.  

I am also concerned that H.R. 4768 will deter public participation in the rulemaking process. As the nonpartisan Congressional Research Service has observed, “[p]ublic participation in agency decision making is highly sensitive to cost and delay.” 

By imposing greater scrutiny of agency rulemaking, the bill will skew the fact-finding process in favor of those with significant resources. Large corporate interests – devoted only to maximizing profits for the benefit of their shareholders – already have the edge with their vast resources to weaken regulatory standards by burying an agency with paperwork demands and litigation.

Rather than giving more opportunities for corporate interests to prevail, we should be evaluating ways to ensure that that the voices of the public have a greater role in the rulemaking process. 

Finally, H.R. 4768 would encourage judicial activism.

By eliminating judicial deference, the bill would effectively empower the courts to make public policy from the bench even though they lack the specialized expertise that agencies possess.

Although the Supreme Court has had numerous opportunities to expand judicial review of rulemaking, the Court has rejected this approach in recognition of the fact that generalist courts simply lack the subject-matter expertise of agencies, are politically unaccountable, and should not engage in making substantive determinations from the bench.

It is somewhat ironic that those who have long decried “judicial activism,” would now support facilitating a greater role for the judiciary in agency rulemaking.

Given these concerns and others presented by the bill, I accordingly must oppose H.R. 4768.

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