Congress created a regulatory scheme that keeps its hands clean — time for accountability

When EPA Administrator Scott Pruitt announced a proposal to repeal the Obama-era “Clean Power Plan,” last week no one was surprised that many Republicans legislators cheered and many Democrats jeered. But, how did we get to such a polarized place, and what can be done about it? We may have an answer.

There is increasing agreement that federal regulation may be getting out of control. Liberal HBO host, Bill Maher recently told Democrats that regulatory micromanagement “makes people hate us. It makes me hate us.” Yet, addressing this problem feels out of reach, in part because the system works pretty well for legislators the way it is.

{mosads}For decades, Congress has shaped regulatory statutes so that its members can take credit for popular promises, but shift blame to agencies for the unpopular burdens needed to deliver them and the failures to do so.

Take the Clean Air Act, which provides the authority for EPA’s Clean Power Plan, for example. Back in 1970, the act’s chief author, Sen. Edmund Muskie (D-Maine), promised that “all Americans in all parts of the country shall have clean air to breathe within the 1970s.” But, the statute handed to EPA the tough job of writing regulations to meet that promise and the blame that comes with associated costs.

Detailed yet vague statutory commands combined with rapid changes in technology and our understanding of threats and responses inevitably renders the statutes obsolete. Yet, having shifted blame to the agencies for the failures and burdens, Congress avoids updating the statutes. The Clean Air Act was last amended in 1990, more than a quarter of a century ago — and almost all the other environmental statutes have gone unchanged even longer.

There’s a simple solution to this problem. Writing almost 80 years ago, James Landis, the New Deal’s leading regulatory expert and later dean of Harvard Law School, urged Congress to vote on major regulatory decisions. He said this would make the agency “the technical agent in the initiation of rules of conduct, yet at the same time . . . [make elected lawmakers] share in the responsibility for their adoption.” Such responsibility would prompt legislators to design statutes more carefully in the first place and to update them when obsolete.

The Landis proposal is neither pro- nor anti- regulatory, but rather calls for elected lawmakers to strike the balance between regulatory benefits and costs. That’s as it should be in a democracy.

In 1984, then-Judge Stephen Breyer wrote on how to implement this approach in a way that would be effective and constitutional. A bill to implement the Landis-Breyer scheme was first introduced in 1995 as the “Congressional Responsibility Act,” but in today’s polarized climate, it has taken on an anti-regulatory spin as suggested by its current title: “Regulations from the Executive in Need of Scrutiny Act (REINS).” The title blames agencies for the regulatory mess that the responsibility-shirking Congress set in motion.

Not surprisingly, while REINS passed the House in January, it garnered only two votes from Democrats. The Senate version was voted out of committee with no Democratic support. With REINS stymied, some legislators can say they are against “job-killing” regulations, while others can say they are against “life-threatening” pollution, and none need take responsibility for regulatory decisions. That’s heaven for politicians, hell for their constituents — and the agencies are stuck in limbo.

A new bill based squarely on the Landis-Breyer model could shift the focus from the symptom, which is the current regulatory mess to its cause, which is lawmakers’ shirking responsibility for the laws. Several Democratic, as well as Republican senators, are keenly interested in more accountable regulatory practices.

First, rather than requiring roll-call votes only on rules that add more than $100 million in regulatory burdens, as key House sponsors of REINS describe their bill, a Responsibility for Regulation Act would require votes on rules that add or cut regulatory costs by more than a threshold amount.

Second, several provisions of REINS — while they may be worth considering as separate initiatives — weigh down what could be a clean and straightforward solution to lack of congressional responsibility.

Third, a Responsibility Act would need provisions to facilitate two-way exchanges of information between Congress and agencies to make both legislative and agency decisions more responsive to the needs of the public.

As the extended debate over the Clean Power Plan shows, our regulatory system is dysfunctional. Regulations get bogged down in litigation and administration transitions, delaying implementation and increasing uncertainty.

Requiring congressional approval for major new regulatory initiatives and enabling better communication between the branches on regulation would make our regulatory system more accountable and responsive to the needs and wishes of the people. According to a recent Rasmussen poll, voters think by a margin of more than two-to-one that the EPA should not be able to make major regulatory changes without congressional approval.

Susan Dudley (@SusanEDudley) is the director of the George Washington University Regulatory Studies Center and distinguished professor of practice in GW’s Trachtenberg School of Public Policy & Public Administration/ She previously served as administrator of the Office of Information and Regulatory Affairs.

David Schoenbrod (@DavidSchoenbrod) is a professor at New York Law School and author of “DC Confidential: Inside the Five Tricks of Washington” (2017). He previously served as a senior litigator for the Natural Resources Defense Council.