Industry is arguing that EPA cannot implement its endocrine disruptor screening program (EDSP) because the final rule for the program has not been sent to Congress or the Government Accountability Office (GAO), arguing that EPA is violating the Congressional Review Act (CRA) that requires the submission before a rule can take effect.
“Based on the clear statutory text of the CRA, the EDSP rule does not take effect prior to their submission, along with other specified material to each House of Congress and the Comptroller General” of GAO according to a Jan. 8 letter from Jim Tozzi of the Center for Regulatory Effectiveness (CRE), a non-profit think tank linked to industry. EPA issued the final rule for its endocrine program April 15 but never sent the rule to Congress or GAO, Tozzi writes.
CRE sent the letter to Vice President Joe Biden and House Speaker Nancy Pelosi (D-CA) and asks them to advise EPA that its EDSP rule is not in effect until the agency sends it to Congress or GAO.
The letter cites a Dec. 29 Congressional Research Service Report, “Congressional Review Act: Rules not Submitted to GAO and Congress,” that highlights the rule as one that violates CRA by not being submitted. Of 17 significant EPA rules reviewed by the White House Office of Management & Budget between October 2008 and June 2009, only the EDSP rule from April 2009 was not submitted to the GAO, according to the report.
In the report, CRS also says that when agencies do not submit their rules to Congress it denies lawmakers the ability to use CRA's “expedited disapproval authority” to overturn federal agency rules.
Environmentalists and others are also questioning why agencies did not follow up on the CRA requirements. “Agencies appear to be the most culpable for this potentially significant screw up,” according to a Jan. 5 blog post by OMB Watch, a group that seeks greater transparency in governmental affairs. “The CRA is clear that agencies must send a copy of new rules to Congress and the GAO. There is no excuse for failing to do so.”
Still, the group concludes there is a quick fix to the issue: The CRA “does not contain any apparent statute of limitations on the submission of rules, so, barring litigation, simply putting the rules in an envelope and sending them to GAO and Congress should do the trick,” according to the blog post.
CRE's letter marks another attempt by industry to challenge implementation of the highly controversial EDSP. Industry have long raised concerns about the EDSP, which was mandated by Congress in 1996 amendments to the Food Quality Protection Act. The agency's endocrine program establishes a two-tiered set of assays for assessing pesticides’ potential for disrupting human hormones, and EPA sent out the first test orders last fall.
While CRE makes no reference to using CRA to overturn the rule, the law allows members of Congress to introduce a joint resolution of disapproval to strike a rule after an agency sends it to Congress.
For example, Sen. Lisa Murkowski (R-AK) and Rep. Darrell Issa (R-CA) are planning to introduce disapproval resolutions to block EPA's final finding that greenhouse gas emissions endanger human health. The lawmakers argue that the finding will trigger “job-killing” climate policies because it will lead to EPA issuing a slew of potentially costly climate rules under the Clean Air Act. Murkowski's use of a CRA resolution to undo the finding would only require a simple 51-vote majority to pass in the Senate and cannot be filibustered.
CRA Resolutions Rarely Successful
But CRA disapproval resolutions routinely fail to pass, including a failed attempt in 2005 by Democratic and Republican senators to overturn the Bush EPA's cap-and-trade rule to reduce power plant mercury emissions.
The CRS report notes that the CRA has only been used to successfully disapprove a rule once since the law's enactment, but says this “does not lessen agencies’ responsibilities to submit their rules in accordance with the act’s requirements.” Lawmakers successfully revoked the Occupational Safety and Health Administration’s ergonomic standards at the beginning of the Bush administration using the CRA.
The CRS report concludes that Congress could “(among other things) (1) require GAO to continue to compare the rules it receives with the rules that are published in the Federal Register, (2) require GAO to continue to report any missing rules to [the White House Office of Information & Regulatory Affairs (OIRA)], and (3) require OIRA or GAO to take other action to encourage agencies to comply with the CRA’s reporting requirements.”
Further, Congress “may also conclude that enactment of H.R. 2247 (allowing agencies to submit their rules only to GAO, perhaps electronically) will improve agencies’ willingness or ability to submit all of their covered rules, and that no other action is needed,” the report says. H.R. 2247 would “make technical amendments” to the CRA and only require that federal agencies send their rules to GAO. The bill was introduced by Rep. Steve Cohen (D-TN) and passed the House in June. Companion legislation is currently in the Senate Homeland Security & Government Affairs Committee. -- Aaron Lovell