REGULATORY FOCUS
Regulatory reform legislation
Michael R. Deland
can administrations have pushed for regulatory reform legislation, and two successive Congresses have debated it, thus far without final enactment. On March 24, 1982, the Senate passed a regulatory reform bill by a 94-0 vote, but despite strong bipartisan support and designation by President Reagan as a top priority for the lameduck session, a comparable version (H.R. 746) has yet to pass the House. Legislative goals
A veritable explosion in govern mental regulatory activity has oc curred in the past 20 years. The num ber of state regulatory agencies in creased from 150 in 1960 to 1500 in 1979. Since 1969, 26 new federal agencies have been created, including the Occupational Safety and Health Administration, the Consumer Pro tection Agency, and EPA. The volume of regulations also has proliferated. In 1960 there were 14 000 pages in the Federal Register, by 1970 the number had grown to 20 000, and by 1980 to 87 000. (President Rea gan's regulatory reform program re versed this trend, and by 1981 the pages had been reduced to 64 000.) The costs created by regulations have soared concurrently and are now estimated by the business community to be $100 billion or more per year. While it is widely recognized that the costs of not regulating also can be substantial, as evidenced by the Love Canal tragedy, there is clearly a con sensus that some form of regulatory reform is needed. The procedures by which agencies promulgate regulations are still gov erned by the Administrative Procedure Act (ΑΡΑ), which was passed in 1946—long before the sweeping change in the nature and reach of agency rule making. In the past five years, both Democratic and Republi 0013-936X/82/0916-0023A$01.50/0
The reform effort is supported by a broad business coalition and by groups such as the American Bar Association. The major goal of the legislation as envisioned by these groups is to force the regulatory agencies to be ac countable—to justify on the record their regulatory initiatives. If this is done, the quality of agency decision making should improve. The proposed bills, which pertain only to "major" rules (defined as those that have an annual impact on the economy of $100 million or more), seek to accomplish this goal by several means. First, agencies would be re quired to analyze whether the rule is needed and to set forth the benefits it is likely to achieve, along with the ad verse effects it is likely to produce. Agencies also would be required to identify and analyze reasonable al ternatives and to evaluate their merits against the proposed rule. Second, the opportunity for public participation in the rule-making process would be ex panded by providing an opportunity for oral presentation and for limited cross-examination. Another key element of the current House compromise bill is the Bumpers Amendment, named after its chief sponsor, Sen. Dale Bumpers (D-Ark.). Under existing law, the exercise of agency discretion can be successfully contested only if it can be shown to be "arbitrary and capricious." The
© 1982 American Chemical Society
amendment would make it easier to challenge an agency regulation by re quiring that the agency have "sub stantial support" in its rule-making file to justify its action and to avoid an arbitrary and capricious finding. Major objections Opponents of the legislation include many environmental, consumer, and labor groups, who fear that regulatory reform could be a "back-door way" to weaken protection of public health, safety, and the environment. Their cause is championed in Congress by House Energy Chairman John Dingell (D-Mich.), who, while strongly sup porting "the notion of genuine regu latory reform," believes the current bill is a "hodgepodge" of concepts and proposals that would result not in re form but in "further delays and new opportunities to challenge often needed health, safety . . . and other essential regulations." Opponents of the bill have three major objections. First, they feel that the legislation would impose so many procedural steps on agencies that it would "bog down" the regulatory process. Second, they say a reliance on cost-benefit analysis, however modi fied, "inevitably skews a decision in favor of costs" since they are easier to quantify than benefits. Finally, the opponents strongly object to giving the Office of Management and Budget any statutory authority to "interfere in the regulatory process," particularly that of the independent agencies. Regulatory conditions today are dramatically different than they were 36 years ago when the ΑΡΑ was en acted. Few question that regulatory reform is needed; and Congress, after four years of debate, should be pre pared to participate creatively in the reform process. Deland writes this column monthly and is counsel to ERT, Concord, Mass. Environ. Sci. Technol., Vol. 17, No. 1, 1983
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