Regulations conflict

Two bills rolling through a House Judiciary subcommittee offer 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 RAPID Act, subject of a hearing yesterday (July 11) at the Judiciary subcommittee on Regulatory Reform, Commercial and Antitrust Law, is the House Republicans’ latest attempt to gut NEPA, the National Environmental Policy Act. Passed by overwhelming majorities and signed by President Nixon more than 40 years ago, NEPA is a well-proven means to protect our communities and our environment from unwise or dangerous federal projects by requiring a “look before you leap” prior to starting construction. That means a thorough assessment of the environmental impacts, evaluation of less-damaging alternatives, and open public consultation.

But 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. For instance, 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.”

To solve this non-problem, RAPID (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.

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.

The subcommittee is likely to approve the bill, as it did a similar version in the last Congress. Yet the same group looked with favor at a hearing Tuesday (july 9) on another piece of legislation that takes exactly the opposite tack, 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.)

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 analyzed 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.

Scott Slesinger is the legislative director of the Natural Resources Defense Council.

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