House Judiciary Committee Chairman Bob Goodlatte (R-Va.) has introduced the “Regulatory Accountability Act of 2017,” which combines a series of regulatory reform initiatives reported out of the House Judiciary Committee and passed by the House of Representatives during the 114th Congress. The bill, H.R. 5, is aimed at eliminating “overly-burdensome red tape and regulations in order to lift unnecessary burdens on hardworking Americans and to promote jobs, innovation, and economic growth,” according to its sponsor. Goodlatte undoubtedly sees an easier route to passage in the now Republican-controlled Congress and Republican President-elect Donald Trump.
Old proposals incorporated. The measure incorporates six separate reform bills that have already passed the House with bipartisan support in previous Congresses, Goodlatte said in a press release. Collectively, its provisions would:
Require agencies to choose the lowest-cost rulemaking alternative that meets statutory objectives and require greater opportunity for public input and vetting of critical information—especially for major and billion-dollar rules. (Title I—Regulatory Accountability Act)
Repeal the Chevron and Auer doctrines to end judicial deference to agencies’ statutory and regulatory interpretations. (Title II—Separation of Powers Restoration Act)
Require agencies to account for the direct, indirect, and cumulative impacts of new regulations on small businesses—and find flexible ways to reduce them. (Title III—Small Business Regulatory Flexibility Improvements Act)
Prohibit new billion-dollar rules from taking effect until courts can resolve timely-filed litigation challenging their promulgation. (Title IV—REVIEW Act)
Force agencies to publish online, timely information about regulations in development and their expected nature, costs, and timing. (Title V—ALERT Act)
Publish plain-language, online summaries of new proposed rules, so the public can understand what agencies actually propose to do. (Title VI—Providing Accountability Through Transparency Act)
REVIEW Act sharply criticized. Although the measures cited above may have enjoyed some bipartisan support, it was far from overwhelming. The REVIEW Act, for example, drew sharp criticism because of the legal uncertainty that would result from delaying regulations until litigation challenging their promulgation is resolved.
At a November 2015 hearing on the REVIEW Act, Georgetown University Law Center Professor William W. Buzbee called the proposed legislation a “bad idea.” Expressing strong opposition, he it said it “could have a devastating effect on the law, while also causing massive economic and health harms and creating legal uncertainty. ... [R]ather than courts reviewing stay motions and later the merits of a regulation under a body of law long developed by the Supreme Court, the mere fact of a challenge would result in a stay ‘pending judicial review.’”
Buzbee pointed out that “virtually all high stakes rules will be challenged by someone, so virtually all such rules under a law such as this proposal would receive new statutorily granted stays.” He continued, “Since such rules often now generate millions of comments and are issued with lengthy technical documents, Federal Register preambles, and additional legal memoranda, briefing of such challenges itself takes many months, sometimes years.”
The law professor also noted that since “rules of broad impact typically are addressing a huge risk to a population or the environment,” the "virtually guaranteed stay would mean that the regulated harms might go unchecked for years, potentially resulting in illnesses and deaths or environmental destruction on a huge scale.”
Among other things, the REVIEW Act “could be seen as an indirect legislative effort to defeat regulations or render laws a partial nullity when more direct and democratically accountable legislative action would fail,” Buzbee suggested. “Under the guise of giving courts a chance to review challenges, laws would be nullified for years even where the courts and Congress have clearly required an agency to undertake the regulatory action and even in settings where the regulation might be rock solid,” he said.
Impact on the economy. Goodlatte, however, focused his comments on the economy when he unveiled the Regulatory Accountability Act of 2017. “If we want to see better and faster growth within our economy, reforming our regulatory system must be at the center of our nation’s focus,” he said. “The runaway regulatory state is creating hidden costs on hardworking Americans and small business owners alike. As these costs grow and continue to burden our economy, we are losing jobs and wages to thousands of regulations.
“The Regulatory Accountability Act is a major step to reverse the negative effects regulations are having on our economy. The bill promotes making the regulatory process more transparent for the American people; increases the power of the people’s elected representatives and the courts to stop overreaching new rulemaking; and lets the public have the full say they deserve in the rulemaking process.”
“The barriers regulations have built halt economic growth but those burdens can be lifted, and Congress has the opportunity to make our economy work for hardworking Americans again.”