For several years, the U.S. Chamber of Commerce has been pushing what it euphemistically refers to as “regulatory reform.” The goal of the Chamber’s drive to amend the Administrative Procedure Act, which lays out the procedural framework for rulemaking, is to make it much more difficult for the government to issue rules protecting workers, consumers, and the environment. Indeed, Chamber President Tom Donohue has boasted that the Chamber has been leading the fight in favor of legislation that would seriously threaten federal agencies’ ability to issue new rules ensuring clean air and clean water, food and drug safety, healthy workplaces and safer products.
The latest incarnation of this Chamber-championed legislation is the Regulatory Accountability Act of 2017 (RAA). The RAA would hamstring the rulemaking process in several ways, but at its heart, it would add layers of procedural requirements and analytical complexity to an already lengthy process.
The rulemaking process for economically significant rules averages 2.4 years and has been increasing. It already takes more than half a presidential term and more than an entire term of Congress to complete an economically significant rule. And this is just the average time it takes. The rulemaking process can be far slower for rules that face overwhelming opposition from industry. For example, a rule limiting workplace exposure to silica, which when inhaled can cause cancer and other lung diseases, took more than 40 years to finalize, and its implementation is still being delayed.
These statistics should make it clear that the last thing America’s consumers, workers and environment need is a law like the RAA that will make rulemaking even more complex and sluggish. After all, while dragging out the rulemaking process may make industry richer, it means more lives lost to dangerous products and workplaces and more environmental degradation as a result of continued pollution. In the more than 40 years it took the Occupational Safety and Health Administration (OSHA) to finalize its rule limiting workplace exposure to silica, thousands of people died from exposure.
Interestingly, while the Chamber is a big fan of delay and complexity when it comes to rulemaking that protects consumers, workers, and the environment, it is a major opponent of delay and complexity in a different context: permitting. The Chamber claims that permitting for energy and infrastructure projects is complicated, time consuming, slow, costly and subject to endless litigation, and it has eagerly embraced legislation designed to speed up and simplify permitting processes. The Chamber was a major proponent of both the Federal Permitting and Improvement Act and the Responsibly and Professionally Reinvigorating Development (RAPID) Act in the last Congress and it continues to advocate for streamlining permitting processes.
If the Chamber is so concerned about alleged procedural complexity, cost and lethargy in permitting as well as litigation related to permitting, then why is it supporting the RAA, which would make the already complex, costly and slow rulemaking process even more complex, costly, and slow? If the Chamber believes its permitting reform model is a way to improve and streamline a regulatory process that it believes takes far too long, then why is it proposing the exact opposite model for agencies that issue regulations that protect consumers and the public?
Perhaps the answer lies in the fact that the Chamber’s allegiance lies almost exclusively with its Big Business members, most of which come from regulated industries. According to the Chamber, we should grease the permitting skids for a coal-fired power plant, but make it almost impossible to issue rules limiting the amount of carbon dioxide and other pollutants that this same power plant will emit. The Chamber is more concerned with the short-term impacts of regulation on these corporations’ bottom lines than it is with the long-term goals of ensuring a healthy populace and environment, without which the American economy cannot fully flourish.
While the Chamber’s divergent positions on permitting and rulemaking are intellectually inconsistent, they are consistent with its ultimate goal: to make our government work for corporate interests and regulated industries and against consumers and working families.