The GOP's empty promises of regulatory reform
Environmental Protection Agency chief Carol Browner was not her normal polished self. She was slightly flushed, and the adjectives poured from her mouth: "extreme," "illogical," "cruel," "bizarre."
Anything that gets Browner so worked up must be good news for Republicans and their corporate allies. Indeed, business groups were gloating: "U.S. Chamber smokes EPA on clean air rules," said one press release. Conservative Republicans crowed in front of every TV camera they could find. Environmental groups went over the edge: The U.S. Court of Appeals for the District of Columbia Circuit "has just declared chemical warfare on the lungs of our children," said Sierra Club Executive Director Carl Pope.
You may not have heard anything about the decision that caused all this fuss. The news hit on a Friday night, when few Americans are paying attention to public policy matters. And Browner's scathing reaction came at a uniquely Washington event: a hearing on a ruling about a regulation produced in reaction to a law passed 29 years ago. Not scintillating stuff.
But the American economy often turns on boring issues. In American Trucking Associations et al. v. U.S. Environmental Protection Agency, a decision issued in early summer, the D.C. Circuit ruled that a whole raft of new federal regulations to reduce smog, soot, and pollution that drifts across state lines should either be rewritten or put on hold indefinitely. The rules Vice President Al Gore called the "centerpiece" of the Clinton administration's environmental program would have cost tens, maybe hundreds, of billions of dollars to implement. Understandably, business groups hated them.
Still, the celebration over American Trucking may have been a bit premature. Buried in the boring details of the decision, which overturned the regulations on obscure constitutional grounds, is a devastating defeat for Republican plans to rein in tough environmental regulations like the ones the court struck down.
You may recall the 10-point, poll-tested Contract with America that Republicans claimed was their key to taking control of Congress from the Democrats in the "revolution" of 1994. Among the few provisions of the contract that actually made it into law was the Unfunded Mandates Reform Act, known as UMRA by the judges, regulators, and congressional staffers who have to deal with it. The law was intended to stop federal agencies from writing new rules and then passing the cost of implementing them onto state and local governments or business.
When Congress passed UMRA in 1995, environmentalists screamed. They said it would bury further attempts to clean the air and water under a pile of red tape. One of the law's biggest proponents, Rep. David McIntosh (R-Ind.), said, "If we don't do something about [regulation], people are going to say that Congress only talks a big game."
Judging from the D.C. Circuit's ruling in American Trucking, UMRA's opponents and supporters were both wrong. It turns out that all Congress did was "talk a big game."
UMRA was supposed to require the EPA and other federal agencies to produce a "regulatory impact statement" before issuing new rules, a process aimed at minimizing the cost of regulations. But as the appeals court noted, the law said that "any compliance or noncompliance with the provisions of [UMRA] shall not be subject to judicial review, [nor shall any] provision of [UMRA] be construed to be enforceable by any person in any judicial action." In other words, the Republican Congress wrote into its much-touted regulatory reform law a provision that tells federal agencies there will be no consequences should they fail to abide by the law.
Washington attorneys C. Boyden Gray (a trustee of the Reason Foundation, publisher of this magazine) and Alan Charles Raul wrote a brief in American Trucking on behalf of House Commerce Committee Chairman Tom Bliley (R-Va. …