The Administrative Procedure Act has thwarted many of the Trump Administration’s attempts to roll back regulations without sufficient public input. This law has been a longtime target of antiregulatory crusaders, and many of them believe this is their moment for reform. The question is, if they’re successful, will the government’s rulemaking process change for better or worse?
Regulatory opponents say Republican control of both chambers of Congress as well as the White House present an opportunity to finally pass a bill changing the APA that has hung around Capitol Hill for years. The full House passed the Regulatory Accountability Act in January 2017 and the legislation secured a place on the Senate calendar this February. The fact that two Democrats—Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia—are co-sponsors of the Senate bill increases its chances of success, but it remains a long shot since it would need 60 votes in the Senate to go to President Trump.
Signaling how seriously the legislation is being taken by supporters and opponents alike, at least 142 organizations according to official filings have disclosed that they have specifically lobbied Congress on the Regulatory Accountability Act in the first quarter of 2018. The liberal grassroots group Indivisible has created action alerts telling Senators to vote the bill down, and the powerful Chamber of Commerce, representing myriad business interests, expressed its support for the Senate legislation in a letter to Congress last week.
But legal experts say passage of the legislation could be a double-edged sword for those who want to control government regulation.
“To the extent it [the Regulatory Accountability Act] imposes greater barriers to rulemaking, it makes it harder to repeal them,” says William Funk, a professor of administrative law at Lewis and Clark University and former counsel at the Department of Energy. “Those who want to undo rules shouldn’t like the bill either.”
The Administrative Procedure Act, or APA, is the primary law governing the federal regulatory process. Passed in 1946 after the New Deal era’s expansion of government agencies, the APA gave federal agencies the ability to create—or “promulgate” in bureaucratese—the rules and regulations that implement laws. Previously, only Congress had the power to create regulations through legislation.
Opinions of the APA fell largely along party lines at the time of its passage, with Democrats favoring it as a tool to give agencies the flexibility and means to use their expertise, and Republicans opposing on grounds that giving unelected bureaucrats the power to regulate impinged on individual liberties. This ideological division persists today, despite the fact that the APA is now well-enshrined in government functions.
The APA outlines several methods of rulemaking, but the most common is the informal “notice and comment” procedure. This requires an agency to notify the public of proposed rules with a publication in the Federal Register, followed by a period where individuals can submit written comments or other evidence supporting their opinion. Another common method is the formal rulemaking process, which involves a hearing before Congress similar to a trial, with witnesses and evidence presented.
APA violations are frequently cited in legal challenges to regulations and their rollbacks regardless of political ideology. President Barack Obama finalized several environmental regulations during his tenure, some shortly before leaving office. This infuriated conservatives, and several companies and state attorneys general responded with lawsuits alleging violations of laws including the APA. Then-Oklahoma Attorney General Scott Pruitt was one of the most prolific of these litigators, initiating or joining 14 lawsuits accusing the Environmental Protection Agency (EPA) of overstepping its authority on rules such as the Clean Power Plan.
Since becoming EPA Administrator in March 2017, Pruitt has attempted to halt dozens of environmental rules, either through delay, repeal, or revision. Environmental and public health organizations as well as several state attorney generals have countered Pruitt’s actions with lawsuits, many charging him with violating the APA.
Pruitt portrays his current efforts as simply undoing the damage of the Obama rules. But his opponents say that delaying or rewriting a rule amounts to creating a new rule. Judges have agreed. The Project On Government Oversight reported on one recent example in which a U.S. District Judge agreed with farmworker advocate groups that the EPA’s repeated delay of agricultural worker protections updated during the Obama Administration amounted to a new rulemaking. EPA had not justified its delay of the provisions or allowed sufficient public comment as required by the APA.
Other instances of APA violations by the current EPA administration include its delay of rules restricting emissions of methane and other greenhouse gases; limiting the amount of mercury and other toxic metals discharged by dentists’ offices into the municipal water supply; and implementing formaldehyde emission standards.
A handful of bills that would raise the bar for rule promulgation were reintroduced in the current Congress, partly in response to Obama’s end-of-term activity. The bill that has gotten the most traction is the Regulatory Accountability Act, originally introduced by Senator Rob Portman (R-OH) in 2011, and re-introduced in subsequent sessions of Congress. The bill would create a process similar to the current formal rulemaking procedure, but would require the solicitation of alternatives for proposed regulations. It would also require lengthy cost-and-benefit analyses for each, and instruct agencies to favor the least costly option, among other provisions.
The Regulatory Accountability Act failed to attract enough support to advance during the Obama years, but the bill secured a place on the Senate calendar in February, and its companion bill passed the full House in January 2017. But is this the bill regulatory opponents want right now? Requirements for greater justification before regulations can be put into effect and that create more avenues for opponents of rules to challenge the government may seem like a good idea, but that also makes it harder to change or unravel rules that are finalized, likely to the dismay of future Scott Pruitts.
“This bill is fighting yesterday’s battles, but is looking toward obstructing a new and more progressive administration in 2021,” says William Andreen, the Edgar Clarkson Professor of Law at the University of Alabama and a former EPA assistant regional counsel.
The numerous laws enacted over the past two decades have already increased the amount of analysis and review proposed rules must undergo, such as the 1995 Unfunded Mandates Reform Act and 1996 Congressional Review Act. Agencies today have to engage in a wide-ranging and prescribed process of obtaining input from the public and stakeholders, be transparent about their actions, provide cost-benefit analyses, and make decisions strongly backed by reason and evidence. Any regulation that would have a significant impact on the private sector is also closely scrutinized by the White House’s Office of Information and Regulatory Affairs. All this is the status quo without the Regulatory Accountability Act becoming law, so our regulatory process is hardly lacking checks and balances.
One of the few things both parties can agree on these days is that government bureaucracy is plentiful and often problematic. It’s hard to see the benefit of adding more to an already loaded plate.