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Is the Regulatory Sky about to Fall?

| Dec 5, 2011 | Opinion

Cary_Coglianese.jpg Accusations of “sabotage” and governmental “paralysis.”  Alarm bells about “excessive formality and litigation.”

Although  these may sound just like the arguments made on the House floor Friday by Democrats opposed to H.R. 3010, the Regulatory Accountability Act, they are actually arguments made about seventy years ago when Congress imposed on federal government agencies the very procedures that many Democrats now seek to defend from change.
The Regulatory Accountability Act, which passed the House with a 253-vote majority, would amend the Administrative Procedure Act of 1946 (APA) to add new procedures government agencies must follow when adopting regulations. It’s a little known fact that the APA itself elicited the very kinds of attacks that are today leveled against the Regulatory Accountability Act.
So when Representative Gerry Connolly (D-VA) claims that the bill passed Friday will “eviscerate regulatory agencies,” or when a number of distinguished legal scholars conclude, less graphically, that it will make it “practically impossible” for agencies adopt regulations, it’s hard to know how seriously to take these dire forecasts.
We’ve heard this before — and yet the regulatory train has continued to chug right along.
When President Reagan imposed new economic analysis requirements on agencies by executive order, the same basic framework that H.R. 3010 would now codify and extend to independent regulatory agencies, similar alarm bells rang out. They have continued to resound time and again, even under subsequent administrations and notwithstanding time deadlines imposed on the process since the Clinton Administration.
LongstandingCloudy sky.jpg complaints about delay can find anecdotal support, but empirical research has yet to produce any convincing evidence of general roadblocks to regulation. One peer-reviewed study published last year even suggested the intriguing possibility that the addition of procedures might speed up rulemaking.
This is not to deny that agencies face an ever-tightening budgetary climate. Nor is it to say that no procedural reform could ever unduly hamper the rulemaking process.  In contrast with the analytic and procedural steps that the Regulatory Accountability Act would impose, the REINS Act that the House is slated to take up next week would require congressional approval of certain rules before they could take effect.
Yet the fact remains that, notwithstanding the imposition of procedures starting about seven decades ago, the regulatory state has grown dramatically in the intervening years. Agencies have adapted and have produced rules that impose substantial costs while also delivering substantial benefits. The sky has yet to fall.
Cary Coglianese is the Edward B. Shils Professor of Law at the University of Pennsylvania, the Director of the Penn Program on Regulation, and the Founder and Faculty Advisor of RegBlog. This post first appeared Saturday in Politico.

 


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