Battle Over Rulemaking Centers on the EPA

By Geof Koss, CQ Staff

A top White House official told House Republicans on Wednesday that economic costs would be a key consideration in rulemaking at the EPA under a new executive order intended to overhaul the regulatory process.

Cass Sunstein, administrator of the Office of Information and Regulatory Affairs, defended President Obama’s regulatory agenda to some of the agency’s loudest critics. At the same time, he tried to assure them that concerns over economic costs are being heard — especially at the EPA.

“We will be focusing very much on job loss as a result of regulations,” Sunstein told members of the House Energy and Commerce Subcommittee on Oversight and Investigations during a hearing on the executive order signed by President Obama last week. The order is intended to eliminate unnecessary rules and “improve” the regulatory process.

Regarding the EPA — which Republican critics accuse of pursuing a “job-killing” regulatory agenda — Sunstein highlighted the order’s “new emphasis . . . to minimize burdens.”

He told the panel’s new chairman, Republican Fred Upton of Michigan, that the EPA is “completely alert” to industry complaints about the costs of a pending air rule on industrial boilers. To Rep. Joe L. Barton, R-Texas, Sunstein asserted that EPA regulations on greenhouse gases were “full” of cost-benefit analysis, rebutting a frequent complaint.

Sunstein also pushed back against complaints that the pace of federal rulemaking has accelerated under President Obama.

“Actually, the number of regulations issued over the past two years is approximately the same as the number of regulations issued in the last two years of the Bush administration,” he told Barton, after the former chairman of the panel criticized the “explosion” of new rules under Obama.

A renowned legal scholar who has drawn criticism from both ends of the political spectrum for some of his controversial views, Sunstein was frequently cut off while responding to his GOP questioners. Subcommittee Chairman Cliff Stearns, R-Fla., limited Sunstein, to “yes” or “no” responses to his questions about his regulatory views, while John D. Dingell, D-Mich., rebuked the former Harvard Law School professor when he disagreed with his interpretation of the Clean Air Act (PL 101-549).

“I would suggest strongly you go back and take a look at it,” Dingell, the longest-serving House member in history and an author of the law, said to Sunstein.

But Democrats largely used the hearing to emphasize the benefits of regulations, while cautioning the newly empowered Republican majority against overreaching in their zeal to roll back rules.

“The mantra that regulations are inherently bad and kill jobs is wrong and dangerous,” said Diana DeGette, D-Colo., the ranking member on the subcommittee.

Legislation Targeting the EPA

Over protests by many Democratic lawmakers and their environmentalist allies, interest in curtailing the EPA’s regulatory power is growing among Republicans and some coal-state Democrats on both sides of the Capitol.

On Tuesday, Sen. David Vitter, R-La., introduced legislation (S 15) that would block regulation of carbon dioxide until China, India and Russia place similar limits on emissions. Sen. John Barrasso, R-Wyo., predicted earlier this week he would gain bipartisan support for a bill he will soon introduce that would block climate regulations under a host of environmental laws, including the Clean Air Act, the National Environmental Policy Act (PL 91-190), the Endangered Species Act (PL 91-135) and the Clean Water Act (PL 92-500).

Also keeping an eye on the EPA’s legislative authority is Sen. James M. Inhofe, R-Okla., the ranking member on the Senate Environment and Public Works Committee, who is working with Upton on a plan “to permanently eliminate the threat of greenhouse gas regulation through the Clean Air Act.”

A spokesman Wednesday said Barton is laying the groundwork to “invalidate” the EPA’s “endangerment” finding that triggered the climate rules. The push could include legislation, and Barton on Wednesday floated the concept of an amendment to the Clean Air Act that would impose new cost-benefit reviews on rules under the law.

But even as anti-EPA sentiment grows on Capitol Hill, agency critics appear stymied by the lack of a unifying approach. For instance, Sen. John D. Rockefeller IV, D-W. Va., said this week that Alaska Republican Lisa Murkowski was unlikely to cosponsor his legislation to delay for two years EPA greenhouse gas rules for major emitters. The rules took effect Jan. 2.

“It’s just a question of Lisa wanted to go farther, and I don’t want to go farther,” he said. “I’m not in the business of trying to destroy the EPA.”

Murkowski spokesman Robert Dillon said the legislation needs changes to reflect that the rules in question have taken effect since Rockefeller’s bill was first introduced in the last Congress.

“Senator Murkowski supports the goal, but she wants the bill to work,” he said.

Among the changes Murkowski is seeking are the “grandfathering” of new applicants under the old permitting regime for the two years of the delay, as well as language to address the numerous states that have changed their regulations or laws in response to the EPA rules.

“You have to deal with that,” Dillon said.

Meanwhile, former House Speaker Newt Gingrich, a prospective Republican presidential contender, upped the ante this week by proposing the outright abolition of the EPA.

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