Photo: Bjoertvedt, Wikimedia Commons
The budget reconciliation bill is now working its way through Congress, and what President Trump calls the “big, beautiful bill” has a lot of ugly provisions in it.
Among those ugly provisions are sweeping attacks on federal agencies and their ability to carry out their responsibilities under the law to protect the health and safety of the American public.
These provisions borrow from previous legislation that never made it into law, and so far they have received relatively little public attention compared to other parts of the budget reconciliation bill.
If signed into law, they would erect nearly insurmountable procedural hurdles to maintaining our existing health and environmental protections, and to establishing new ones. Safeguards that Americans rely on every day – from air quality standards to food and product safety regulations – are all at risk.
In addition to being harmful and misguided public policy, these provisions have no place in a budget reconciliation bill – which is supposed to include only provisions that are primarily intended to affect spending or revenues. Because the harmful policy impacts of the provisions are the intent and the budgetary impact is incidental – and far outweighed by the damage that would result –the House’s attempt to shoehorn these provisions into the budget reconciliation bill is an end-run around Congress’s own rules.
Here are some of those provisions:
An arbitrary “expiration date” for all existing protections
The budget reconciliation bill includes a version of a previously introduced bill known as the “Sunset Act” which would endanger every single existing rule across the federal government – including ones that protect people’s health, children’s safety, the environment, financial oversight, and consumer protection.
The version in the budget reconciliation bill would require that every federal agency submit every rule that is currently in effect to Congress over the next five years. If Congress does not take action to approve the rule, it will disappear — no matter what the costs or consequences might be to the public.
By allowing Congressional inaction to lead to the arbitrary and indiscriminate expiration of all existing regulations, this portion of the budget reconciliation bill threatens countless protections that most Americans take for granted and rely on every single day. That includes everything from air quality standards that protect communities from unhealthy levels of soot and smog, to standards that require oil and gas facilities and petrochemical plants to control their toxic and cancer-causing air pollution, to limits that keep power plants and industrial facilities from dumping polluted wastewater into our rivers and lakes.
The safeguards that would be affected by this provision were adopted by federal agencies through the transparent decision-making process required by federal law, with opportunities for public input and review in the courts. Federal agencies can, and do, revisit and revise these regulations to update and improve them, using the same transparent and rigorous process. There is no reason to bypass this process by subjecting all of our most important health, safety, and environmental protections to an arbitrary expiration date that can only be lifted through an act of Congress.
Protecting polluters who violate the law
This provision is borrowed from previous legislation introduced as H.R. 788 and S. 225 in the 118th Congress. It would shield polluters who violate our nation’s health, safety and environmental regulations – and leave the public on the hook for the damage they cause – by limiting the government’s ability to seek relief and compensation.
Violations of our health, safety and environmental regulations frequently harm large numbers of people who may be difficult to immediately identify. That’s why the government sometimes reaches settlement agreements that require the violators to fund pollution reduction projects or other activities that help make the public whole. The current budget reconciliation bill would prohibit settlement agreements that require polluters to make payments to anyone unless it is “restitution for” or “directly remedies actual harm” that is “directly and proximately” caused by the polluter. This could limit the government from pursuing remedies for harms that affect large numbers of people or that require broader solutions to provide effective redress to those harmed by a polluter’s actions.
For instance, in 2016, the U.S. Department of Justice pursued an enforcement action against Volkswagen for cheating on vehicle emission tests and exposing people across the country to harmful smog-forming pollution. As part of the settlement agreement, Volkswagen agreed to fund reduction projects for that pollution in places nationwide where their violation could have caused unlawful excessive pollution. The proposed policy in the budget reconciliation bill could have barred the Justice Department from pursuing this remedy because of the difficulty of tracing the specific pollution from Volkswagen vehicles to harms to specific people or communities.
More barriers for new protections
The budget reconciliation bill includes language similar to the REINS Act (H.R.142-Kat Cammack/S.485-Rand Paul), which is a long-running attempt to trample the ability of federal agencies to issue life-saving protections.
The REINS Act would require any “major rules,” which include some of the most consequential and necessary health and safety protections issued by federal agencies, to be affirmatively approved by a joint resolution passed by both the U.S. House of Representatives and the U.S. Senate. This would severely hamper the federal government’s ability to implement laws that were themselves written by Congress.
Either chamber could block a rule from going into effect simply by taking no action — no matter how common-sense or necessary the rule is for protecting Americans from threats to our welfare. As included in the budget resolution markup, the provisions would require Congress to approve all major rules that increase revenue.
Making it easier to undo new protections
The latest version of the reconciliation bill also includes a version of the so-called “Midnight Rules Relief Act” (H.R.77- Andy Biggs/S.164 -Ron Johnson). This legislation would supercharge the destructive force of the Congressional Review Act, which currently allows Congress to claw back regulations that were lawfully adopted by the federal government through a simple majority vote with no filibuster.
Once Congress votes to reject a regulation through the Congressional Review Act, the federal government is permanently barred from proposing a regulation that is “substantially the same” as the one voted down.
The Midnight Rules Relief Act goes even further. It would allow Congress to simultaneously repeal multiple rules finalized near the end of a President’s term – instead of voting on them individually as the Congressional Review Act currently requires.
This would enable Congress to permanently block a whole suite of public health and safety regulations through a single vote, without requiring members of Congress to consider individual rules on their own merits. As included in the budget reconciliation bill, the provision would allow Congress to repeal major rules that increase revenue in a bundle if they were finalized in the last year of a president’s te