Environmental Protection Agency chief Carol Browner was not her normal polished self. She was slightly flushed, and the adjectives poured from her mouth: "extreme," "illogical," "cruel," "bizarre."
Anything that gets Browner so worked up must be good news for Republicans and their corporate allies. Indeed, business groups were gloating: "U.S. Chamber smokes EPA on clean air rules," said one press release. Conservative Republicans crowed in front of every TV camera they could find. Environmental groups went over the edge: The U.S. Court of Appeals for the District of Columbia Circuit "has just declared chemical warfare on the lungs of our children," said Sierra Club Executive Director Carl Pope.
You may not have heard anything about the decision that caused all this fuss. The news hit on a Friday night, when few Americans are paying attention to public policy matters. And Browner's scathing reaction came at a uniquely Washington event: a hearing on a ruling about a regulation produced in reaction to a law passed 29 years ago. Not scintillating stuff.
But the American economy often turns on boring issues. In American Trucking Associations et al. v. U.S. Environmental Protection Agency, a decision issued in early summer, the D.C. Circuit ruled that a whole raft of new federal regulations to reduce smog, soot, and pollution that drifts across state lines should either be rewritten or put on hold indefinitely. The rules Vice President Al Gore called the "centerpiece" of the Clinton administration's environmental program would have cost tens, maybe hundreds, of billions of dollars to implement. Understandably, business groups hated them.
Still, the celebration over American Trucking may have been a bit premature. Buried in the boring details of the decision, which overturned the regulations on obscure constitutional grounds, is a devastating defeat for Republican plans to rein in tough environmental regulations like the ones the court struck down.
You may recall the 10-point, poll-tested "Contract with America" that Republicans claimed was their key to taking control of Congress from the Democrats in the "revolution" of 1994. Among the few provisions of the contract that actually made it into law was the Unfunded Mandates Reform Act, known as UMRA by the judges, regulators, and congressional staffers who have to deal with it. The law was intended to stop federal agencies from writing new rules and then passing the cost of implementing them onto state and local governments or business.
When Congress passed UMRA in 1995, environmentalists screamed. They said it would bury further attempts to clean the air and water under a pile of red tape. One of the law's biggest proponents, Rep. David McIntosh (R-Ind.), said, "If we don't do something about [regulation], people are going to say that Congress only talks a big game."
Judging from the D.C. Circuit's ruling in American Trucking, UMRA's opponents and supporters were both wrong. It turns out that all Congress did was "talk a big game."
UMRA was supposed to require the EPA and other federal agencies to produce a "regulatory impact statement" before issuing new rules, a process aimed at minimizing the cost of regulations. But as the appeals court noted, the law said that "any compliance or noncompliance with the provisions of [UMRA] shall not be subject to judicial review, [nor shall any] provision of [UMRA] be construed to be enforceable by any person in any judicial action." In other words, the Republican Congress wrote into its much-touted regulatory reform law a provision that tells federal agencies there will be no consequences should they fail to abide by the law.
Washington attorneys C. Boyden Gray (a trustee of the Reason Foundation, publisher of this magazine) and Alan Charles Raul wrote a brief in American Trucking on behalf of House Commerce Committee Chairman Tom Bliley (R-Va.). Although they cited UMRA provisions as one of the grounds for voiding the FDA's regulations, Raul says they knew the law was unenforceable. Bliley, one of the most vociferous regulatory reformers in the House, refused several interview requests.
Surely this must be some kind of mistake. Surely the Republicans were being straight with us when they said federal regulators had gone too far and needed to be stopped. It would be easier to believe that UMRA's toothlessness was accidental if this were the only time Republicans had loudly proclaimed regulatory reform while doing nothing of consequence. But it is part of a pattern.
About a year after Congress passed UMRA, it passed the Small Business Regulatory Enforcement Fairness Act. The Republicans promised a tool to stop regulators from squashing small businesses under piles of inane regulations. But again, courts have since ruled that the law includes language making it essentially unenforceable.
Even when the laws Republicans pass actually have teeth, Republicans apparently are afraid to use them. Also in 1996, Congress approved a requirement that each new rule created by a federal agency be submitted to Congress for review. Since 1996, federal agencies have sent nearly 13,000 rules to Congress. Not a single one has been rejected. The people who write these rules may have good intentions and plenty of expertise, but 13,000 perfect rules in a row would still be a hell of a run.
This pattern of anti-regulatory bluster combined with little real-world impact goes back to the beginning of the first Reagan administration. In the glow of the Gipper's triumph over Jimmy Carter, Ronald Reagan appointed his new vice president, George Bush, to head a group that would "cut away the thicket of irresponsible and senseless regulations." And to back the study group with action, Reagan issued a 60-day moratorium on new regulations.
A year later, Bush turned in his recommendations. First and most important was the idea that the Office of Management and Budget should supervise all new regulations, checking to see that they were cost-effective and coordinated with other federal agencies. The Bush committee estimated that adopting this proposal could save local governments, business, and consumers hundreds of billions of dollars a year.