The need for regulatory reform has been recognized for decades. Recent White House efforts on this front have varied dramatically, from President Reagan’s controversial, and ultimately ineffectual, attempts to control environmental and safety regulations, to President Clinton’s virtual abandonment of regulatory review.
With the 104th Congress, regulatory reform has moved to center stage. It was a major element in the Republican’s Contract With America, and the House of Representatives’ enactment of H.R. 1022 suggested the possibility that real reform might finally be achieved. The House bill attempts to replace the wildly unrealistic risk assessments found in such programs as Superfund with science-based “best estimates.” It recognizes the principle that regulations should “do no harm” through a Supermandate provision, under which cost-benefit requirements are imposed on existing law. Most importantly, it allows courts to review whether agencies have in fact complied with these provisions.
By comparison, Senate bill S. 343, which has been significantly weakened during floor debate, takes a far less forceful approach. It lacks any “best estimate” provision, and its cost-benefit requirements can only supplement, rather than override, existing law. The judicial review provision of S. 343 is so weak that an agency’s refusal to do any cost-benefit analyses at all may well pass muster in court. S. 343’s most promising provision is its replacement of the Delaney Clause with a “negligible risk” standard.
Unless S. 343 is substantially strengthened in conference, its enactment may well be worse than no regulatory reform legislation at all.