The Regulatory Accountability Act Would Severely Threaten TSCA Implementation

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By Richard Denison, Environmental Defense Fund

Last week, as anticipated, Senator Rob Portman introduced his updated Regulatory Accountability Act (RAA).  Sens. Hatch, Heitcamp and Manchin cosponsored the bill.

While it’s new, it can’t be said it’s improved.  Some problems raised with Sen. Portman’s earlier version of the bill were addressed but many were not and quite a few new very problematic provisions were added.

In March, I blogged about the irony that RAA would reinstate a number of requirements that Congress just last June removed from the old Toxic Substances Control Act (TSCA) through the Lautenberg Act amendments that were enacted with overwhelming bipartisan support.  Unfortunately, many of those problems remain with Sen. Portman’s new version of RAA.  And, those flawed requirements would be imposed across the entire federal government, effectively rewriting dozens of federal statutes simultaneously.

I have updated my earlier analysis of RAA vs. the new TSCA to reflect the new version of RAA.  

The analysis is divided into two sections:  First, it discusses provisions of RAA that would directly undo critical changes the Lautenberg Act made to TSCA when it passed just last year.  Among them:

  • It would still impose a cost test on an agency’s selection of a regulatory option, requiring it to be the “most cost-effective” – a term that is undefined. In contrast, reformed TSCA merely requires EPA to “consider” and “factor in” cost and related factors, to the extent practicable based on reasonably available information.
  • It would generally require lengthy formal hearings for any major rule if anyone asks for one. The hearing requirement in original TSCA was struck based on broad agreement that it was an unnecessary and overly time- and resource-consuming step in the rulemaking process.

Second, my analysis describes a few examples of the many other provisions of RAA that could or would affect implementation of the new TSCA (as well as that of all of the dozens of other federal statutes to which RAA would apply).

In providing this new analysis, I want to emphasize that in no way does it capture the full range of problems with the new version of RAA.  RAA amends the Administrative Procedure Act, and the changes it would make are sweeping in nature.  The full implications of this legislation are difficult to discern and would likely not become fully apparent for years after adoption, especially given the extent of litigation it can be expected to engender.

Many provisions of RAA in addition to those discussed above would affect rulemaking activities under the new TSCA – as well as those under all other federal statutes.  My analysis only addresses a subset of these problematic provisions.

Originally posted here.

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