Unfunded Mandates On The States Rising Again

Fifteen Republican Attorneys General just wrote to House and Senate leadership, concerned about agencies “failing to fully consider the effect of their regulations on States and state law.”

The July 11 letter never received the media attention gotten by a different set of AGs seeking to terminate the speech and research of those who differ on climate change policy and related regulation.

The AGs denounced agencies’ now-common abuse of so-called “guidance documents” to implement policy. These agency interpretations should not be binding on the public, yet sometimes are exploited to bypass the Administrative Procedure Act’s notice-and-comment requirements for normal regulations. (Here is some recent Senate testimony (oral and written) I gave on such “regulatory dark matter.”

The AGs merely ask that Congress “do its job,” that it assure appropriate state and local input on rules and guidance, and also that regulatory costs be assessed (here’s analysis by my colleague Myron Ebell). The AGs also point to a 1999 executive order on “Federalism” that requires agencies to “consult, to the extent practicable, with appropriate State and local officials” when their rules may clash with and state law.

I would like to think that non-Republican AGs might have also signed this letter, because it coincides with ongoing bipartisan concern over unfunded mandates on states.

In recent days, I received an invitation to appear on a panel at the upcoming National Conference of State Legislatures’ Legislative Summit 2016 conference in Chicago. The topic is “The Federal Regulatory Burden.” The NCSL hosts a Standing Committee on Budgets and Revenue, and their prominent resolution on unfunded mandates asserts that:

“The growth of federal mandates and other costs that the federal government imposes on states and localities is one of the most serious fiscal issues confronting state and local government officials.”

The NCSL calls for “reassessing” and “broadening” the 1995 Unfunded Mandates Reform Act, a version of which passed the House of Representatives in 1995. That bill provided for a point of order to lie against any bill that imposes mandates without authorizing funding (It didn’t say “no money, no mandate” as some had urged); it also required Congressional Budget Office cost estimates of mandates affecting state, local, and tribal governments above a (then) $50 million threshold, and a point of order should the estimate not be provided.

Along with the NCSL, the original mandate relief legislation was supported by then-President Bill Clinton, the U.S. Chamber, the National Governors’ Association, the National Association of Counties, the National League of Cities, and the U.S. Conference of Mayors. An update (H.R. 50) long championed by Rep. Virginia Foxx (R-NC) passed the House in 2015 (here’s her summary), but not the Senate where S. 189 sits idle.

The original bill’s targets were federal burdens such as those stemming from landfill standards, waste water treatment requirements, drinking water standards, some Americans with Disabilities Act provisions, and stormwater regulations. Back then, a Price Waterhouse study projected costs for the five years 1994 through 1998 for the following mandates would total $54 billion.

  1. Clean Water Act (especially wetlands)
  2. Clean Air Act
  3. Resource Conservation and Recovery Act (solid waste disposal)
  4. Safe Drinking Water Act
  5. Asbestos abatement
  6. Lead paint abatement
  7. Endangered Species Act
  8. Americans with Disabilities Act
  9. Fair Labor Standards Act
  10. Underground storage tank regulations

Back then, NCSL reckoned only six mandates prior to 1955, but between then and 1995, 186 Public Laws imposed a total of 241 statutory mandates or preemptions on states and localities. Forty‑five percent of these mandates and preemptions were enacted just between 1985 and 1995. Between 1995 and 2009, the NCSL pointed to at least 11 other laws that CBO identified as exceeding the threshold.

The current NCSL emphasis appears to be on reimbursements for entitlement and support programs and changes in tax law that affect state revenues, but the legacy issues that brought governors to Washington in the 90s persist.

Currently, CBO says 167 laws since 2006 have imposed mandates on states and localities, with a notable tailing off since 2012. According to the official data, none since 2010 have costs exceeding the statutory threshold (aggregate direct costs during any of the mandate’s first five years of $50 million in 1996, $77 million now).

I have trouble believing it, first in the context of the AG’s letter and NCSL’s ongoing concerns, and secondly because CBO reports on laws that contain mandates. Regulations stemming from law or from agency unilateralism are another matter. Below I include a compilation of some notable and substantial completed or pending regulations since 2009 (using the Unified Agenda of federal regulations) that federal agencies acknowledge as unfunded mandates (not just mandates). There could be more. (The last number in each is the so-called Regulation Identifier Number.)

  • USDA/FNS Final Rule Stage National School Lunch and School Breakfast Programs: Nutrition Standards for All Foods Sold in School, as Required by the Healthy, Hunger-Free Kids Act of 2010 Spring 2016 0584-AE09
  • DOT/PHMSA Proposed Rule Stage Hazardous Materials: Real-Time Emergency Response Information by Rail Spring 2016 2137-AF21
  • EPA/WATER Final Rule Stage Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category Spring 2015 2040-AF14
  • EPA/SWER Final Rule Stage Revising Underground Storage Tank Regulations–Revisions to Existing Requirements and New Requirements for Secondary Containment and Operator Training Spring 2015 2050-AG46
  • USDA/RBS Proposed Rule Stage Debt Settlement–Community and Business Programs Fall 2014 0570-AA88
  • HHS/FDA Final Rule Stage Combinations of Bronchodilators With Expectorants; Cold, Cough, Allergy, Bronchodilator, and Antiasthmatic Drug Products for Over-the-Counter Human Use Fall 2014 0910-AH16
  • HHS/CMS Proposed Rule Stage CY 2016 Notice of Benefit and Payment Parameters (CMS-9944-P) Fall 2014 0938-AS19
  • EPA/SWER Completed Standards for the Management of Coal Combustion Residuals Generated by Commercial Electric Power Producers (Coal Ash) Spring 2015 2050-AE81
  • DOL/OSHA Proposed Rule Stage Occupational Exposure to Crystalline Silica Spring 2013 1218-AB70
  • ATBCB Final Rule Stage Americans With Disabilities Act (ADA) Accessibility Guidelines for Transportation Vehicles Spring 2013 3014-AA38
  • HHS/FDA Proposed Rule Stage Over-the-Counter (OTC) Drug Review–Internal Analgesic Products 2012 0910-AF36
  • HHS/CDC Proposed Rule Stage Establishment of Minimum Standards for Birth Certificates 2012 0920-AA46
  • EPA/AR Proposed Rule Stage Control of Air Pollution From Motor Vehicles: Tier 3 Motor Vehicle Emission and Fuel Standards 2012 2060-AQ86
  • EPA/AR Completed Actions National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters; Reconsideration 2012 2060-AR13
  • EPA/AR Completed Actions National Emission Standards for Hazardous Air Pollutants From Coal- and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Electric Utility Steam Generating Units 2012 2060-AP52
  • EPA/AR Completed Actions NESHAP From Coal- and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Electric Utility Steam Generating Units–Appropriate and Necessary Finding 2012 2060-AR31
  • NRC Completed Revision of Fee Schedules Fall 2011 3150-AI93
  • DOJ/LA Completed Actions Supplemental Guidelines for Sex Offender Registration and Notification Spring 2011 1105-AB36
  • EPA/AR Completed Actions National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers Spring 2011 2060-AM44
  • EPA/AR Completed Actions National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial & Institutional Boilers and Process Heaters Spring 2011 2060-AQ25
  • HHS/FDA Completed Actions Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco To Protect Children and Adolescents Fall 2010 0910-AG33
  • DOJ/CRT Completed Actions Nondiscrimination on the Basis of Disability in State and Local Government Services Fall 2010 1190-AA46
  • DOT/FHWA Completed Actions Real-Time System Management Information Program Fall 2010 2125-AF19
  • EPA/AR Completed Actions NESHAP: Portland Cement Notice of Reconsideration and NSPS for Portland Cement Fall 2010 2060-AO15

Orignally posted at Forbes.