Sen. McCaskill Joins the Republican Attack on Regulations with Misguided Bill

by Sidney Shapiro

December 07, 2011

On Tuesday, Senators Susan Collins (R-ME) and Claire McCaskill (D-MO) introduced the Bipartisan Jobs Creation Act, legislation that offers a number of proposals for jump-starting the economy.  The bill includes two provisions that would hobble the regulatory system without generating the new jobs that the Senators seek. If these provisions were enacted, the bill would block regulatory safeguards that protect all Americans and our environment. The bill’s regulatory provisions would make it harder for the EPA and other regulatory agencies to implement congressional legislation designed to clean up our air and water, make our food safer, and reduce avoidable workplace hazards.

The regulatory provisions in the Collins-McCaskill bill are a nod to Republicans’ specious claim that “excessive regulation” is holding back job growth. One provision would delay EPA’s rule limiting hazardous air pollutants from commercial and industrial boilers by 15 months, and prevent the agency from issuing regulations that are as strong as the Clean Air Act currently requires. This regulation is already more than a decade overdue, and, once implemented, would prevent thousands of premature deaths and non-fatal heart attacks every year. They didn’t call it the “more mercury pollution bill”, but that’s what it effectively is.

The other deregulatory provision—based on the CURB Act, a bill introduced earlier this year by Sen. Collins—would add several new procedural requirements to the regulatory process, which would effectively block or delay critical safeguards. The bill would require agencies to conduct detailed cost-benefit analyses—including the impossible requirement of measuring "indirect effects"—before it could issue new rules. Most environmental, health and safety statutes rightly require protecting the public to levels that make these analyses irrelevant under the law, and would serve only to delay regulations while agencies completed the required analysis. Another requirement would require agencies to conduct lengthy analyses before issuing “guidance documents.” These documents can come in several forms, and regulated industry often welcomes them, because they help reduce regulatory uncertainty. Delaying or blocking these documents will only waste limited government resources, and make it harder for industry to comply with regulations.

While these provisions might be useful in attracting the support of Republican Senators, because they make it more difficult to promulgate needed regulations, they are unlikely to create jobs. I noted recently, no less than the head of the Congressional Budget Office, Director Douglas Elmendorf, has testified that anti-regulatory policies, such as those in the Collins-McCaskill bill, will probably not lead to job growth, and may even backfire, sinking the economy more and worsening unemployment.

Sen. McCaskill didn’t get that message, or, perhaps with an eye toward a tough upcoming re-election challenge, chose to ignore it. I hope the other Democratic Members of the Senate don’t follow her lead and join the erroneous anti-regulatory campaign.

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Sidney A. Shapiro holds the Fletcher Chair in Administrative Law at the Wake Forest University School of Law and is the Associate Dean for Research and Development. He is a member of the board of directors of the Center for Progressive Reform.

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