Accountable to Whom, Exactly?

January 23, 2017

(The first in series on proposed federal regulatory reforms.)

It comes as no surprise that mere days into the new year, the 115th Congress officially convened and condemned the regulatory practices of the still sitting Obama administration. On its way to fulfilling President Trump’s campaign promises and the Republican Party’s longing desire to limit congressional delegation of rule-making authority, the House passed two pivotal pieces of reform legislation: H.R. 5 (Regulatory Review Act) and H.R. 26 (Regulations of the Executive in Need of Scrutiny Act).

The link between environmental and energy regulation and market demand for alternative energy sources like wind and solar is well established. Although the march towards decarbonization will continue with or without imposition of further federal limits on greenhouse gas (GHG) emissions by power generators, regulatory roll-backs are likely to have a softening influence on near-term demand for clean energy alternatives.

Neither the legislation nor the sentiment is new. Republican House majorities have previously ushered such bills through the lower chamber only to be thwarted in the Senate or promised a veto by the Obama White House.  Although the 2016 elections may not have totally cleared the way to  wholesale regulatory reform, they have widened and graded the road.

All that stands in the way of passage of the proposed reforms is the Senate’s requirement of a supermajority of 60 votes. Should the voting rule change or an alternative route be found, e.g. attachment to a budget bill, it is pretty much guaranteed the proposals will become law.

The Congressional regulatory debate has become a surrogate battleground for opposing political ideologies and an evidentiary hearing on the science of climate change. Its rancor hides other regulatorobjectives. Specifically, too  little is said of protecting human health.

Congressman Goodlatte (R-VA), the lead sponsor of H.R. 5 and chair of the Judiciary Committee, stated after the House voted largely along party lines in favor of his proposal:

All regulations come with a price tag and hardworking Americans,  as well as businesses, large and small, must cover those costs. As more regulations add up, American businesses become less competitive,  prices increase, job opportunities and wages decrease for struggling Americans, and our country is less competitive.

Environmental standards and practices, however, are also about:

What price is too much to pay for the health and welfare of a human life?

Neither in principle nor practice, can it rationally be claimed the current set of federal regulatory policies and procedures are perfect. Nor, should it be said there is no need for the establishment and enforcement of federal protections.

Reasonable reform is one thing–ideological snap-back another. One cannot help but think political payback is the motivating force behind the recent House votes. Phil Kerpen, president of the conservative think-tank American Commitment and a leading advocate of regulatory roll-back, recently quoted The Donald as having said:

 I will sign the REINS Act (H.R. 26) should it reach my desk as President and more importantly I will work hard to get it passed….The monstrosity that is the Federal Government with its pages and pages of rules and regulations has been a disaster for the American economy and job growth.

Steve Horn, writing for DeSmogBlog, reported that Speaker Ryan feels his party has a mandate to pass legislation such as the REINS Act. Horn goes on to quote Ryan’s description of Republican command and control of both the Congress and the White House as a once-in-a-lifetime opportunity…the kind of thing that most of us only dream about. I know — because I used to dream about it….

Conservatives have indeed dreamt long for the chance to roll-back federal regulations as a matter of principle. The 2016 Republican platform gave voice to the Party’s resentment of federal rules in general and expressed a particularly passionate dislike of any having to do with environmental protections or climate change. The Party left Cleveland promising to:

  …shift responsibility for environmental regulation from the federal bureaucracy to the states and to transform the EPA into an independent bipartisan commission…with structural safeguards against politicized science.  We will strictly limit congressional delegation of rule-making authority….

The platform alludes to the notion that the market—when left to its own devices—cleans itself:

 The central fact…is that, year by year, the environment is improving. Our air and waterways are much healthier than they were a few decades ago. As a nation, we have drastically reduced pollution, mainstreamed recycling, educated the public, and avoided ecological degradation. Even if no additional controls are added, air pollution will continue to decline for the next several decades due to technological turnover of aging equipment.

The problem with the position is its failure to credit federal rule-making for its contribution to improved air and water quality or, as a stimulus for technological innovation. It must be asked and answered: absent federal regulation would the environment have improved to an equal degree over the past decade or more on its own initiative?

There is sufficient evidence suggesting the unwillingness of industries to appropriately self-regulate in matters of environmental harms to validate the rationale for government action. Whether accident or negligence, the cost of corporate environmental mishaps is measured in the trillions of dollars—even with covering regulations.

I am not condemning the corporate community out of hand for recklessness or indifference. I am respectful of and encouraged by the growing number of   socially responsible businesses.

Reality is such, however, that absent uniform regulatory requirements, it can be difficult for an individual company to assume responsibility–when its competitors will not.  Uniform regulation serves to level the corporate playing field, while protecting the health and safety of people and their environment.

I am wary of the evidence cited by some regulatory reformers in support of arguments to rescind and to limit federal authorities. For years, they have suggested their arguments should be measured in feet rather than lives saved, accidents avoided or investors protected.

The in-coming Secretary of Housing and Urban Development offers as evidence of his call for regulatory reduction and reform the Federal Register:

 Last year [2015], there were an additional 81,000 pages of government regulations…. If you stack that up, it would be a three-story building.

Dr. Carson is not alone in erroneously using page numbers printed in the daily diary of federal activities to support his claim. The Competitive Enterprise Institute—home to the EPA transition team leader Myron Ebell—has reported:

 Tens of thousands of pages stream from America’s departments, agencies, and commissions….at  the end of 2015, the number of Federal Register pages stood at 80,260. This count is…the third-highest level in the entire history of the Federal Register…. The 79,435 count in 2008 under President George W. Bush holds the title for fourth-highest level.

Should digits, rather than need, substance and effectiveness, be the measure of effective governance? If so, the President-elect may have reason to worry.

My discomfort with the largely Republican reform measures of H.R. 5 and H.R. 26/S.21 is the seeming refusal to undertake a dispassionate and measured review leading to proposed recommended revisions. The presumptions—that federal regulatory actions are capricious, dismissive of the costs incurred by the private sector and more appropriately the purview of the industries being regulated—are an over generalization.

Agencies cannot properly act on their own. They are directed by Congress to develop and issue regulations as the means for implementing legislation. The Clean Power Plan was drafted at the direction of the President based on legislation passed by the Congress.

Was that a correct interpretation by White House counsel? Possibly not—but that is the basis for the West Virginia v. EPA legal challenge now awaiting a federal appellate court decision and, perhaps, the opinion of the U.S. Supreme Court.

To the matter of agency indifference to costs, it is a well-established, judicially-reviewed precedent that agencies must factor in the financial impacts of their regulatory proposals compared to the potentially derived benefits. Should the cost-side of the equation unreasonably outweigh the benefits side, the courts will send the rule back to an agency’s drawing board.

Putting ideology and the euphoria of electoral victory aside, Congress should be asking of itself:

Will the rulemaking process established by the package of reforms result in sound and timely environmental safeguards, striking an appropriate balance between the health, welfare and safety of individuals and the competitiveness of American businesses?

In the next part of this series of articles I will be discussing in greater detail both RAA (H.R. 5) and REINS (H.R. 26/S.21) in an attempt to answer that very question.

Joel Stronberg

Joel B. Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years of experience, based in Washington, DC. He writes about energy and politics in his blog Civil Notion ( and has recently published the book Earth v. TrumpThe Climate Defenders' Guide to Washington Politics based on his commentaries. He has worked extensively in the clean energy fields for public and private sector clients at all levels of government and in Latin America. His specialties include: resiliency; distributed generation and storage; utility regulation; financing mechanisms; sustainable agriculture; and human behavior. Stronberg is a frequent presenter at conferences and workshops.

Tags: American energy policy, American environmental policy, Federal regulations