{"id":6272,"date":"2017-03-08T12:52:47","date_gmt":"2017-03-08T17:52:47","guid":{"rendered":"http:\/\/blogs.edf.org\/health\/?p=6272"},"modified":"2024-02-12T11:01:55","modified_gmt":"2024-02-12T16:01:55","slug":"congress-just-fixed-tsca-yet-is-now-gearing-up-to-re-impose-the-worst-flaws-of-the-old-law-across-the-entire-federal-government","status":"publish","type":"post","link":"https:\/\/blogs.edf.org\/health\/2017\/03\/08\/congress-just-fixed-tsca-yet-is-now-gearing-up-to-re-impose-the-worst-flaws-of-the-old-law-across-the-entire-federal-government\/","title":{"rendered":"Congress just fixed TSCA \u2013 yet is now gearing up to re-impose the worst flaws of the old law across the entire Federal government"},"content":{"rendered":"

Richard Denison, Ph.D.,\u00a0<\/em>is a Lead Senior Scientist.<\/p>\n

I noted in a recent post <\/a>EDF\u2019s grave concerns about the Regulatory Accountability Act<\/a> (RAA), which passed the House on January 11.\u00a0 A shorter but still very concerning version of it may soon<\/a> be introduced in the Senate, modeled on last Congress\u2019 Senate version of RAA<\/a>.\u00a0 This bill would add dozens of burdensome and time-consuming hurdles to the rulemaking process, effectively crippling it and eliminating the health and safety protections rules are intended to provide.\u00a0 To get a feel for all of the requirements, see this dizzying RAA flow chart<\/a>.<\/p>\n

Among other things, the RAA would mandate multiple rounds of cost and impact analysis of a potentially unlimited number of regulatory alternatives; require that all major rules go through an entirely new pre-proposal step, adding months if not longer to the rulemaking process; generally require that agencies choose the lowest-cost regulatory option, regardless of whether or not it is the best option or even sufficient to meet a law\u2019s requirements; and require lengthy and resource-intensive public hearings on many rules.\u00a0 To top all this off, the bill would require an agency to finalize a proposed rule within 2 years (subject to a 1-year extension) \u2013 a timeframe almost impossible to meet now without<\/em> all of the additional requirements the Act would impose; if that deadline was not met, the agency would have to start over.<\/p>\n

There is extreme irony in the advancement of the RAA in this Congress:\u00a0 Just last June, both houses of Congress passed \u2013 with overwhelming bipartisan support \u2013 major reforms to the obsolete Toxic Substances Control Act (TSCA).\u00a0 The Lautenberg Act<\/a> removed from the original TSCA several major constraints on the rulemaking process that had so tied the hands of the Environmental Protection Agency (EPA) that it could not even restrict asbestos, a known carcinogen that kills more than 10,000 Americans every year.\u00a0 There was widespread agreement among industry and other stakeholders that those provisions of the old TSCA were detrimental or unnecessary to an efficient regulatory system and were undermining public and market confidence in the federal chemical safety system \u2013 not to mention failing to protect public health.<\/p>\n

So here\u2019s the irony:\u00a0 The RAA would impose those same knot-tying strictures that the Lautenberg Act just got rid of<\/em> \u2013 and expand them to rulemakings undertaken by any federal agency. \u00a0Let\u2019s look at some of these crippling requirements, based on last Congress\u2019s Senate version of the RAA: \u00a0<\/p>\n

COST-BENEFIT CONSIDERATIONS<\/u>:\u00a0 As interpreted by the 5th<\/sup> Circuit in Corrosion Proof Fittings v. EPA<\/em>, in order to regulate a chemical under the old TSCA, EPA had to conduct quantitative cost-benefit analysis (CBA) on a potentially limitless number of regulatory alternatives, regardless of whether information was available. \u00a0This requirement, coupled with the \u201cleast burdensome\u201d requirement discussed below, is widely regarded as the most fatal flaw of the old TSCA, imposing virtually impossible evidentiary<\/u> and analytic<\/u> burdens on EPA.<\/p>\n

The Lautenberg Act fixed these problems:\u00a0 It requires EPA only to \u201cconsider<\/em> and publish a statement on\u201d the economic effects of a rule, and to do so only:\u00a0 i) \u201cto the extent practicable,\u201d ii) \u201cbased on reasonably available information,\u201d and iii) \u201cfor the 1 or more primary alternatives considered by\u201d EPA.\u00a0 It provides EPA with considerable discretion to limit the extent of analysis so that it is feasible.<\/p>\n

<\/u>Enter the RAA:\u00a0 EPA and other federal agencies would have to evaluate \u201cany<\/em> substantial alternatives or other responses identified by interested persons,\u201d regardless of how many alternatives that would be and whether or not information on them is reasonably available.\u00a0 Literally anyone could tie an agency in knots merely by suggesting options that the agency would then have to analyze.\u00a0 For major or high-impact rules, formal CBA would be required to be conducted on each such alternative, with virtually no discretion afforded the agency based on availability of information or practicality, and the agency would have to demonstrate that the \u201cbenefits … justify the costs.\u201d<\/p>\n

LEAST-COST REQUIREMENT<\/u>:\u00a0 The original TSCA required that EPA prove its selected regulatory requirement was the \u201cleast burdensome\u201d of all possible options sufficient to address the problem.\u00a0 The Lautenberg Act struck this requirement entirely.<\/p>\n

Yet under the RAA, for all major or high-impact rules, EPA and other agencies would be required generally to adopt the \u201cleast costly\u201d rule and prove that no lower-cost option is sufficient; an exception is provided where EPA could demonstrate, through even more analysis, that the additional benefits \u2013 which could not count any ancillary benefits<\/em> \u2013 of a more costly rule justify the additional costs.\u00a0 Yet, in contrast to costs, many benefits are very difficult to quantify or monetize and hence get short shrift in such cost-benefit analyses.<\/p>\n

RULEMAKING STANDARD<\/u>:\u00a0 As just noted, TSCA originally required that EPA\u2019s regulation to address an identified risk protect adequately against such risk using the \u201cleast burdensome requirements.\u201d\u00a0 It allowed a rule that did not actually eliminate the risk if the rule was deemed too costly.\u00a0 A key reform made by the Lautenberg Act is that it precludes EPA from adopting a rule that does not eliminate an identified risk, which is to be determined without consideration of cost; then, in regulating such risk, EPA must consider costs \u2013 but only in deciding among different regulatory options each of which is sufficiently protective.\u00a0 Moreover, these cost factors are only required to be considered<\/em>, and EPA is not<\/em> required to prove that an option meets a specific test (e.g., lowest-cost).<\/p>\n

The RAA only generally indicates that a rule is to \u201cmeet relevant statutory objectives\u201d \u2013 a vague term that does not require that a rule be sufficient to meet all requirements of the law that mandates or authorizes it. \u00a0In contrast, the bill\u2019s language on cost requirements does not make clear that a rule not meeting a health-based standard would not be allowed.<\/p>\n

<\/u>REQUESTS FOR HEARINGS<\/u>:\u00a0 Under the old TSCA, any person could request EPA to hold a public hearing on any rule.\u00a0 The Lautenberg Act struck this provision as unnecessary and overly time- and resource-intensive.\u00a0 It was struck based on agreement among stakeholders that hearings were not needed and would make it impossible for EPA to meet the new law\u2019s rulemaking deadlines.<\/p>\n

<\/u>Under the RAA, any person would be able to request a hearing on any major or high-impact rule, other than a rule \u201crequired by law\u201d that is not a high-impact rule.\u00a0 An agency would generally have to grant the request if any factual issue is in dispute, which is nearly always the case at some level. \u00a0Under this approach, any entity that wanted to drag out and obstruct a rule would have a ready opportunity to do so.<\/p>\n

DEADLINES<\/u>:\u00a0 The old TSCA imposed no deadlines on EPA to identify or take action to address unreasonable chemical risks.\u00a0 The Lautenberg Act imposes judicially enforceable deadlines on EPA\u2019s proposal and finalization of risk management rules. \u00a0Critically, however, failure to meet a deadline does not<\/em> relieve EPA of its obligation to complete the rulemaking.<\/p>\n

The RAA perverts the very accountability that deadlines under the new TSCA and most federal statutes are intended to provide. \u00a0If an agency did not complete a rulemaking with 2 years of proposal (subject to a 1-year extension), the rule would be voided and the agency would have to start over \u2013 further delaying needed action to protect health or achieve a law\u2019s key objectives.\u00a0 This \u201creverse deadline\u201d would apply to all rules.\u00a0 Two years is highly ambitious to meet even under current rulemaking procedures, and agencies have rarely done so.\u00a0 Coupled with all of the new procedural, analytic and evidentiary hurdles to rulemaking imposed by RAA, this deadline would be virtually impossible to meet and would mean virtually no regulations of any substance could be finalized.<\/p>\n

 <\/p>\n

Less than a year after Congress overwhelmingly adopted the Lautenberg Act \u2013 the first major federal environmental legislation enacted in over two decades \u2013 some in Congress are now threatening to impose across all of government the same paralyzing mandates that were just<\/em> removed from the original TSCA by passage of the Lautenberg Act.<\/p>\n

Lest anyone think I\u2019m suggesting simply exempting the Lautenberg Act from the RAA, let me be clear that is no solution at all.\u00a0 Congress passed the Lautenberg Act in order to restore public and market confidence in a key element of the federal safety net.\u00a0 This step was also acknowledged as necessary to provide the business community with the regulatory certainty it needs to operate.\u00a0 These are needs that cut across the entire federal landscape.<\/p>\n

The very real threats \u2013 to public health, to our communities and to our environment \u2013 posed by the RAA suggests some in Congress have very short memories.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Richard Denison, Ph.D.,\u00a0is a Lead Senior Scientist. I noted in a recent post EDF\u2019s grave concerns about the Regulatory Accountability Act (RAA), which passed the House on January 11.\u00a0 A shorter but still very concerning version of it may soon be introduced in the Senate, modeled on last Congress\u2019 Senate version of RAA.\u00a0 This bill …<\/p>\n","protected":false},"author":100,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[44,114108],"tags":[68,56107,91779],"coauthors":[],"class_list":["post-6272","post","type-post","status-publish","format-standard","hentry","category-policy","category-tsca","tag-epa","tag-lautenberg-act","tag-regulatory-accountability-act"],"acf":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/6272","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/users\/100"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/comments?post=6272"}],"version-history":[{"count":1,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/6272\/revisions"}],"predecessor-version":[{"id":12787,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/6272\/revisions\/12787"}],"wp:attachment":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/media?parent=6272"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/categories?post=6272"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/tags?post=6272"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/coauthors?post=6272"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}