by Karl Coplan

The environmental law community is organizing to oppose the latest Congressional attack on the regulatory state, the so-called ‘‘Regulations From the Executive in Need of Scrutiny Act of 2011,” or REINS. The bill, HR10, would prevent any “Major Rule” from going into effect unless it was first approved by a fast-tracked joint resolution of both Houses of Congress. A “Major Rule” is defined as any rule having economic impacts of more than $100 million. The bill is an obvious attempt to prevent block any new environmental regulations from taking effect — especially greenhouse gas regulations being formulated pursuant to EPA’s endangerment finding under the Clean Air Act. The bill’s text can be found here.

This sort of legislative veto would be an fundamental alteration of the assignment of responsibilities in our current system of administrative law. From the inception of the concept of administrative agencies in the late 19th century, through the New Deal, and especially through the development of United States environmental laws, Congress has set statutory goals, while leaving most of the scientific and economic factfinding and regulatory implementation to “expert” agencies. While Congress gives agencies their marching orders, the President is their general (except for the “independent” agencies), and the functioning of our administrative state has evolved to accommodate this structure, with regulatory agendas set by the more diffuse influences of Presidential politics, and career agency employees maintaining some measure of policy continuity and independence.

Under the REINS act, regulatory agencies would answer directly to Congress rather than the President, at least when it comes to rulemaking. This would put an end to administrative law as we know it; no longer would regulations be the product of legislative authority delegated to the executive, subject to deferential judicial review for rough adherence to the Congressional outline; rather, all major new rules would require the (literal) imprimatur of Congress. While the bill purports to preserve rights to challenge rules even after so-approved, judicial review of a rule for fidelity to Congress’s intent after Congress has approved the exact rule would seem superfluous.

In essence, this bill would convert administrative agencies from adjuncts of the Executive branch to legislative adjuncts of Congress: agencies would draft proposed laws, which Congress would choose to legislate into law, or to reject.

Like the rest of the environmental community, I oppose this bill, as it is a transparent attempt to cut back on environmental protections (among other regulatory programs) by allowing either house of Congress to block all new regulations.

But the reason I oppose this bill reflects a certain level of distrust of Congress to implement environmental protections in the current political climate. Even with the anti-environmental Bush II administration a recent memory (or a gaping wound), I still would prefer to take my chances on most environmental issues with a political EPA administrator and EPA’s career staff than with Congress.

A letter in opposition to the bill to be presented on behalf of environmental law professors across the country opposes the bill on the grounds, among others, that the legislative veto it proposes is “anti-democratic.” At first glance, this seems to be a contradiction in terms. How can assignment of greater regulatory authority to the branch subject to the most frequent and direct popular elections be anti-democratic. The theory is that the original legislation authorizing a rulemaking (such as the Clean Air Act authority to regulate pollutants that endanger public health and welfare, such as GHGs) reflects the democratic will, while the proposed joint resolution procedure thwarts this democratic will by allowing interest groups to block approval of a new rule.

Boiled down, this argument is basically that the Congress of the environmental decade of the 1970s was more democratic than the Congress that might adopt HR10 and implement it. I think that is about right: while no-one can pretend that campaign contributions and industry groups lacked any influence in the 1970s, clearly the structural changes in campaign financing and the increased organization of interest group lobbyists have changed the Congressional dynamic. Last year’s decision in Citizens United v. Federal Election Commission just increases this influence. It is hard to imagine the current Congress re-adopting any of the major environmental programs of the 1970s on the same terms — not NEPA’s declaration that a healthy environment is the right of every American; not the Clean Water Act’s declaration of a national goal to eliminate all water pollution completely by 1985; not even the Clean Air Act’s declaration that the nation should achieve health-based air quality standards without regard to cost.

It remains an open and interesting question whether a true representative democracy, free of undue industry influence in elections, can be relied on adequately to protect environmental interests. Or, when environmental protection and economic hardship vie for political attention (as is now the case), will populism always favor short-term pocketbook interests over long term, communitarian environmental values? HR 10 is not itself a great threat (it is hard to see it getting past a Senate filibuster, or a Presidential veto), but the underlying political dynamic — the sense that environmentalism is a loser in Congress as currently structured — suggests that political reform should be environmental law’s first priority. A constitutional amendment overruling Citizens United and authorizing campaign finance reform would be a good start. No matter how many legislative skirmishes environmentalists win, we are going to lose the war to maintain an environmentally protective system of regulation if we accept as our baseline that Congress is “anti-democratically” predisposed against environmental protection.

Other discussions of HR10 can be found at the following links:

Legal Planet

NRDC Switchboard

and Professor Jonathan Adler’s reflections in support of the REINS act at the Volockh Conspiracy.