In the Two Minute Drill, we explain complex issues in politics in 500 words or less (roughly the amount of words it takes the average adult two minutes to read on a monitor). Politics just isn’t always that complicated. Without the fluff and partisan bias, even the most complex of our political differences can be explained succinctly. This week: examining the Regulatory Accountability Act. This is The Two Minute Drill for January 23, 2015.
On Jan. 13, 2015, the House of Representatives passed the Regulatory Accountability Act of 2015 (H.R. 185 or “RAA”). The bill represents a sweeping amendment to the Administrative Procedure Act by requiring agencies, in making a rule, to base all preliminary and final factual determinations on evidence and to consider (1) the legal authority under which the rule may be proposed, (2) the specific nature and significance of the problem the agency may address with the rule, (3) any reasonable alternatives for the rule, and (4) the potential costs and benefits associated with such alternatives. Additionally, the bill requires agencies to publish advance notice of proposed rule-making in the Federal Register for major rules, sets forth criteria for issuing major rules, permits immediate judicial review of rule-making not in compliance with the new notice requirements, and establishes a “substantial evidence” standard for affirming agency rule-making decisions. The White House issued a veto threat prior to H.R. 185’s passage. Here’s why.
The Explanation (500 or Bust)
H.R. 185, according to the bill’s sponsors, is a “solution to the problem of overreaching, ill-considered, and excessively costly federal regulation.” At the outset, the provisions of the RAA appear reasonable. But while the bill is ostensibly aimed at cutting costly regulations, it would actually make it much more difficult to pass and enforce protective measures overseen by the federal government.
There are three major problems with the RAA.
First, it is not at all clear that a cost-benefit analysis would provide a clear path to better regulation. Specifically, the traditional cost-benefit analysis is subject to a number of important limitations: (1) regulatory costs are generally much easier to identify and quantify than benefits; (2) costs estimates are commonly drawn from data supplied by the regulated industry, which has an inherent incentive to maximize cost estimates; (3) once regulations are imposed, regulated parties are often able to minimize compliance costs below expected levels; and (4) costs are borne by regulated parties, while benefits are often realized in the form of harms not inflicted on broader segments of society.
Second, every change in the RAA is calculated to make it more difficult for agencies to carry out their regulatory responsibilities, or is a direct assault on the existing legislative framework. The legislation, for example, requires federal agencies to consider costs to regulated corporations “notwithstanding any other law.” The result of this provision is to neutralize laws that do not require consideration of compliance costs. For instance, the Clean Air Act requires EPA to base clean air standards exclusively on health and medical science and does not require EPA to consider compliance costs to polluting industries when deciding whether the air is safe to breathe. This requirement was upheld in a unanimous ruling by the Supreme Court, authored by Justice Antonin Scalia. The RAA would essentially overturn that Supreme Court decision, and radically weaken the Clean Air Act.
Third, the RAA makes future rules fodder for corporate challenges by establishing the “substantial evidence” standard of review. Under this standard, a rule must be based on “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of the record considered as a whole, taking into account whatever in the record fairly detracts from the weight of the evidence relied upon by the agency to support its decision.” This standard is significant, because it governs the review of rule-making conducted through formal rule-making procedures (separately, the bill vastly expands the number of rules that must go through formal rule-making procedures). But more importantly, this standard makes it virtually impossible for a rule to survive judicial review. It is clearly designed with this goal in mind. Of particular concern is that it gives undue weight to small pieces of contrary evidence (think climate change).
Word Count: 466
The Five Best Things We’ve Read This Week
Here are the five most interesting articles we read this week:
- All About the Aim. “A German court has ruled that a tenant who liked to pee standing up doesn’t owe his landlord money for damages apparently caused by splashing, or missing his target altogether.” From the AP: German Court Uphold’s Man’s Right to Pee Standing Up.
- The New Fast Food. “Fast-casual restaurants first emerged in serious numbers in the nineteen-nineties, and though the industry is just a fraction of the size of the traditional fast-food business, it has grown remarkably quickly. Today, according to the food-service consulting firm Technomic, it accounts for thirty-four billion dollars in sales. Since Chipotle went public, in 2006, its stock price has risen more than fifteen hundred per cent.” From James Suroweicki in The New Yorker: The Shake Shack Economy.
- From Smack to Scholar. “In a plea deal, I received a sentence of 2 1/2 years. After leaving prison, I soon got a job as a reporter at a local newspaper. Then Cornell allowed me to start taking classes again, and I graduated last month. What made my quick rebound possible? I’m white.” From Keri Blakinger in WaPo: Heroin Addiction Sent Me to Prison. White Privilege Got Me out and to the Ivy League.
- All Hail the Queen. “In my world, you are not special . . . You are not some beautiful snowflake. I insure your appearance in court for the good people of the proud state of New York. That means that, for me, you are walking money. I own your body.” From Nicolás Medina Mora in Buzzfeed: Meet the Bail Bond Queen.
- Time Cook. “Well, no matter what, it wouldn’t be a pleasant experience. But it probably wouldn’t cook your internal organs. Most of the damage would be superficial. (It would probably be a good idea to tightly cover your eyes, which are more watery than most things in your body.)” From Esther Inglis-Arkell in i09: What Would Really Happen If You Put a Human in a Microwave?
And in case you missed it, check out The Weekly Column. This past week took a look at the academic research concerning misperceptions. Read the Column – The Science behind Misinformation: Does Fact Checking Work?