Assessing the Regulatory Accountability Act

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Scholars debate the merits and drawbacks of the recently proposed Regulatory Accountability Act, which would dramatically reform the rulemaking process.

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New bills recently introduced in Congress would work the most significant structural changes to the administrative state since the Administrative Procedure Act of 1946, which Congress has not significantly modified in decades.

Two versions of the proposal—each called the Regulatory Accountability Act of 2017 (RAA)—are currently making their way through the U.S. Congress. Senators Rob Portman (R-Ohio) and Heidi Heitkamp (D-N.D.) recently introduced a bill in the U.S. Senate which has been approved earlier this month by the Senate Committee on Homeland Security and Governmental Affairs.  The U.S. House of Representatives previously passed its own version in January 2017 by a vote of 238-183.

Amid intensifying debate over regulatory reform, The Regulatory Review has published a series of essays analyzing the potential implications of the RAA. These essays present varying views about the wisdom of the RAA.  For example, one commentator argues that the RAA is “the type of common-sense, bipartisan legislation needed to modernize the APA,” while another asserts that at least some of the bill’s provisions are “ill-conceived and possibly disastrous.”

Although the proposal would make many changes in existing administrative procedures, commentators have focused much attention on the legislation’s imposition of so-called “formal rulemaking” for certain high-impact regulations, which would require agencies to add trial-type proceedings to the procedures they already follow. Additional concerns have been raised over the proposals to regulate agencies’ advocacy of their rules and potential new requirements for cost-benefit analysis.

The Misguided Regulatory Accountability Act

March 29, 2017  | Martha Roberts, Environmental Defense Fund

The Regulatory Accountability Act would resurrect many of the worst features of the former, failed Toxic Substances Control Act (TSCA). TSCA was supposed to protect the public from dangerous chemicals, but for many years it made regulatory decision-making so burdensome, that it effectively prevented regulators from doing their jobs.

A Good Effort, with One Glaring Flaw

May 8, 2017  | Richard J. Pierce, Jr., GWU Law School

The Senate’s version of the Regulatory Accountability Act contains one glaring error. Section 3(e) requires an agency to conduct an oral evidentiary hearing, including cross-examination, for “genuinely disputed” “specific scientific, technical, economic, or other complex factual issues” in any rulemaking expected to have an annual effect on the economy of $100 million or more.

Ditch the Flawed Legislative Proposal to Police Agency Communications

May 10, 2017  | Daniel E. Walters, Penn Program on Regulation

The Regulatory Accountability Act urges a potentially sweeping change by attempting to regulate agency advocacy. Regardless of the merits or demerits of the rest of the bill’s proposed changes to the rulemaking process, these ill-conceived and possibly disastrous provisions on agency advocacy should not survive the legislative process.

Looking More Closely at the Platypus of Formal Rulemaking

May 11, 2017  | Kent Barnett, University of Georgia School of Law

Scholars, policy makers, and others have advocated for eliminating formal, on-the-record rulemaking. The Regulatory Accountability Act would impose on agencies a “public hearing” requirement that is a close relative of formal rulemaking. But neither formal rulemaking nor its relative in the RAA should be dismissed as burdensome or anti-regulatory in all cases.

Requiring Formal Rulemaking Is a Thinly Veiled Attempt to Halt Regulation

May 18, 2017  | William Funk, Lewis & Clark Law School

Professor Kent Barnett recently opined in The Regulatory Review that formal rulemaking is not that bad and may be a good thing in certain circumstances. Barnett may be right to suggest that in some situations the costs of formal rulemaking could be justified, but he could not be more wrong to argue that the circumstances that would trigger it under the Regulatory Accountability Act are among those situations.

The Regulatory Accountability Act Is a Model of Bipartisan Reform

May 18, 2017  | Christopher Walker, The Ohio State University Moritz College of Law

If enacted, this bipartisan legislation would constitute the most significant regulatory reform since the Administrative Procedure Act (APA) was enacted in 1946. Like the APA itself, the Regulatory Accountability Act is the product of bipartisan compromise. Here, I highlight three main points about why the Regulatory Accountability Act is the type of common-sense, bipartisan legislation needed to modernize the APA.

Giving the Platypus of Formal Rulemaking a Second Look, Again

June 5, 2017  | Kent Barnett, University of Georgia School of Law

Professor Bill Funk’s response to my earlier essay critiques arguments that I make—and even ones that I do not. In my essay, I argued that formal rulemaking and similar procedures, such as the “public hearing” requirement for certain significant rules in the proposed Regulatory Accountability Act, should not be dismissed out of hand, as they typically are. Here, I briefly consider his useful criticisms.

The Regulatory Accountability Act and the Obsolescence of Formal Rulemaking

August 21, 2017  | Ronald M. Levin, Washington University in St. Louis

Richard Pierce and William Funk have criticized the public hearings provision of the RAA for being unwieldy and an obstruction to rulemaking. Kent Barnett and Christopher Walker have discussed the provision more sympathetically. The purpose of this essay is to highlight a different point: The proponents of reviving trial-type procedure in rulemaking have simply not reckoned with the implications of the fact that this technique has been considered obsolete for decades, following the U.S. Supreme Court’s narrow construction of the applicable APA language in 1973.