Under the latest version of the REINS Act, a regulation with “an annual effect on the economy of $100,000,000 or more” could not take effect without congressional approval. In this way, either the House or the Senate could easily scuttle a major new regulation—one that requires food producers to sanitize their tools, for example—simply by doing nothing. “Given partisan gridlock in Congress, this could result in a de facto ban on new public interest safeguards,” Alison Cassady, the director of domestic energy policy at the Center for American Progress, noted in a recent post on the bill.
The ostensible justification for the REINS Act is a fear of executive overreach. However, it’s easy to discern the real—and darker—motive. No agency imposes a regulation with “an annual effect on the economy of $100,000,000 or more” lightly. Such regulations take years to draft and finalize. They’re subject to multiple levels of review, not to mention months of public comment. These regulations also tend to be the sort that have an impact on big corporations, in areas such as energy production, workers’ safety, and lending practices, and, not surprisingly, big corporations often don’t like them. According to the climate-change-focussed Web site DeSmogBlog, among the REINS Act’s most vigorous supporters are the various lobbying organizations sponsored by the Koch brothers. (During the 2016 election cycle, contributions from Koch Industries and its affiliates, to individual candidates and to PACs, came to more than ten million dollars, according to figures compiled by the Web site Open Secrets.)
“Tellingly,” Steve Horn, of DeSmogBlog, noted recently, “the only person President-elect Donald Trump has spoken to on the record about REINS” is a conservative political activist named Phil Kerpen, who, for several years, served as a vice-president of the Koch-funded group Americans for Prosperity. In an op-ed published in USA Today last month, Kerpen said that, in 2015, Trump’s campaign provided him with a statement in which Trump vowed to “sign the REINS Act should it reach my desk as President.”
The REINS Act has been approved by the House before. In 2015, the White House’s Office of Management and Budget decried the bill as a “radical departure from the longstanding separation of powers between the Executive and Legislative branches.” (Many legal scholars question whether the bill is even constitutional.) It has never passed the Senate, and the hope is that the Senate’s Democratic minority will insure that it never actually reaches Trump’s desk. But the REINS Act is part of a broader assault on federal regulations that will be tough for Democrats to contain. Not only is Congress in what one commentator has referred to as a “full anti-regulatory frenzy” but, to the extent that Trump has offered anything resembling a policy agenda, it, too, is radically anti-regulatory. In a video released by the President-elect in November, he said that in his first hundred days in office he would “formulate a rule that says for every one new regulation two old regulations must be eliminated. So important!” (How such a rule could be written legally, he did not say.) Trump’s adviser on regulatory “reform” is the financier Carl Icahn, who has billions invested in heavily regulated industries. (New York magazine recently labelled Icahn a “blinding supernova of conflicts of interest.”) And Trump’s Cabinet, should his nominees win Senate approval, will be composed of anti-regulatory zealots.
The REINS Act already has plenty of company. Congressional Republicans are preparing a slew of bills aimed at undermining the regulatory process, some of which are expected to reach the floor as soon as this week. One, the Regulatory Accountability Act, would compel agencies to adopt the cheapest rules, rather than those deemed most effective or those likely to do the most good. (The Regulatory Accountability Act’s chief sponsor is Representative Bob Goodlatte, Republican of Virginia, who earlier this month engineered the stealth—and ultimately failed—attempt to undermine the Office of Congressional Ethics.)
Lawmakers are also drawing up lists of Obama-era regulations that they hope to repeal using what’s known as the Congressional Review Act, or the C.R.A. Under the C.R.A., rules issued by the White House anytime during the prior six months or so—the timing has to do with how many days Congress has been in session since the rule was adopted—could be rescinded using a joint resolution of Congress. (The C.R.A. was enacted in 1996, but it has only been successfully used once, in the early days of George W. Bush’s Presidency, to rescind a Clinton-era regulation on, of all things, ergonomics.)
If a regulation is rescinded under the C.R.A., then, under the same law, agencies are barred from issuing a similar regulation in the future. Just how similar has never been tested; however, the stakes are obviously enormous. According to the Washington Post, among the regulations Congress is looking to revoke are rules aimed at curbing methane emissions from oil and gas production, at preventing coal-mining companies from permanently polluting streams used for drinking water, and at increasing the number of employees eligible for overtime pay. As the Post’s James Hohmann pointed out, if the overtime rule is rescinded then a replacement regulation would require congressional approval, and “if you know anything about the Hill, you know that will happen—when pigs fly.”
“It is hard to overstate what a big deal that is,” Hohmann observed.
Also tough to overstate is just how consequential the assault on regulation in the coming weeks could be. Once a stream used for drinking water is permanently polluted, it cannot really be cleaned up. And once methane is released into the atmosphere, there is no effective way to recapture it—at least, that is, until pigs fly.
Author: Elizabeth Kolbert