Republicans Now to Face Consequences of Rule Repeals

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By Cheryl Bolen

House Republicans, who in February could barely contain their excitement about using a rare power to start repealing Obama-era regulations, now face the consequences of their rush to repeal.

So far,13 rules have been indefinitely repealed under the Congressional Review Act and one more is headed to President Donald Trump’s desk for elimination before the window closes on this process. The law specifically prohibits federal agencies from issuing “a new rule that is substantially the same” as the original regulation.

Just under the deadline of May 11, a 15th rule repeal was rejected by the Senate May 10 when it voted 49-51 against a resolution (H.J. Res. 36) passed by the House that would have repealed a Bureau of Land Management rule on waste limits for methane.

“The methane vote going down in flames is a fitting end to this tragic chapter in Congress,” said Amit Narang, regulatory policy advocate at Public Citizen. “This Republican Congress made the purpose of the CRA clear: it’s nothing but a shortcut for Congress to hand out favors to corporate special interests.”

Cost Savings to Industry

In April, White House Director of Legislative Affairs Marc Short said the CRA resolutions enacted to date would save industry $10 billion in regulatory costs over the next 20 years and boost economic growth.

Trump and congressional Republicans often tout the significant cost savings to business and industry from repealing regulations, but have been silent on public benefits lost.

“And far from creating jobs or boosting wages, they will have negative effects on hardworking families, including, on an annual basis, a net loss of jobs, $3 million in lost wages, and $57 million in increased costs as a result of higher carbon dioxide emissions,” Sam Berger, senior policy adviser at the Center for American Progress, said in a blog posted April 24.

Unintended Consequences

Some of what Congress did is quite detrimental even to their own interests, because the CRA is a blunt and poorly designed instrument, said Richard Revesz, professor of law and dean emeritus at the New York University School of Law.

For example, a Department of Labor rule that has been repealed (H.J. Res. 42) would have allowed state unemployment compensation agencies to conduct drug testing of certain applicants. The problem, Revesz said, is that proponents of the rule wanted broader drug testing, not that they didn’t want drug testing at all.

Unfortunately, the CRA states that once a regulation has been set aside, a substantially similar rule cannot be implemented, Revesz said. So a broader rule probably is precluded by the CRA, he said.

“So instead of getting what they wanted, they might end up in a position that’s worse,” Revesz said. “They want to test more people—they might end up not testing anyone as a result of the CRA,” he said.

Mulvaney: No Going Back

It is “unlikely” that the Trump administration will revisit any of the repealed rules, Office of Management and Budget Director Mick Mulvaney said in an April 20 interview with Bloomberg BNA. “We will be moving on and focusing on other areas,” he said.

The regulations overturned through the CRA were “so generally violative of this administration’s principles” that any agency would be unlikely to go back and even get close to them, Mulvaney said.

Mulvaney pointed to the Department of Interior’s stream protection rule that was overturned (H.J. Res. 38) to make it more difficult for coal mines to release pollutants into nearby waters. “That’s not consistent with the priorities of this administration regarding coal power,” he said.

Another example is a Department of Health and Human Services rule that was repealed (H.J. Res. 43) to protect funding for health clinics such as Planned Parenthood. “We’re not going to go back in and redo that,” Mulvaney said. “We’re simply going to undo what the previous administration did.”

$7 Billion in Giveaways

Adding up the 13 repealed regulations results in $7 billion in “giveaways” to businesses over the next decade, Berger said in a May 9 interview with Bloomberg BNA. But everyone else is likely to face a net loss of jobs, millions in reduced wages and the elimination of important consumer protections across the board.

Berger, who previously served at the OMB and White House Domestic Policy Council in the Obama administration, said he was able to calculate the quantitative costs and effects of the rules. But there are frequently qualitative effects, which cover a lot of things that people find important, he said.

For example, how is a monetary or quantified cost calculated for an increased risk to people of having pollutants in their drinking water, an outcome of the repeal of the stream protection rule, Berger said.

Congress also repealed a Federal Communications Commission rule (S.J. Res. 34) to protect the privacy of broadband connections. There is no way to quantify the privacy concerns that people have about their browser history being up for sale to third parties, Berger said.

“As important as the quantifiable effects are, the qualitative effects are equally important in terms of the negative impacts they’ll have on people’s lives,” Berger said.

Uncertainty Now the Rule

Another consequence is the important role that regulations play in setting the rules of the road, so that everyone knows whether to drive on the left or the right, Berger said.

“And there’s a huge value in providing that set of certainty—that’s not the only thing regulations do, but people frequently forget that there actually are folks in the business world and industry that care about knowing what they’re supposed to do,” Berger said.

A rule repeal headed to the president’s desk (H.J. Res. 66) that governs retirement savings plans at the state and local levels is likely to invite a lot of litigation and confusion as to what they can and can’t do, Berger said.

Cumulative Effect

Overall, Berger predicted a “cumulative effect” for the rule repeals. Some people will notice the disappearance of various regulations and protections, and if the effects are not noticed this month, they will be noticed next month, or two or three months down the road, he said.

“Because people pay attention and they know when government is working in a way that hurts them,” Berger said.

Industry came through with its wish list of the rules it wanted to get rid of, and “no one really cared” whether or not it was going to have a negative effect on hardworking Americans across the country, Berger said.

“They sort of just took that wish list and started implementing it,” he said.

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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