Markups

Opening Statements

Statement of Honorable John Conyers,Jr. for the Markup of H.R. 2542, the "Regulatory Flexibility Improvements Act of 2013,"
by the Committee on the Judiciary

Wednesday, July 31, 2013, at 11:00 a.m.
2141 Rayburn House Office Building

     Under the guise of protecting small businesses from putatively burdensome regulatory requirements, the "Regulatory Flexibility Improvements Act" is actually yet another attempt to:

• prevent regulatory agencies from promulgating regulations that protect the health and safety of Americans;
• overwhelm regulatory agencies with unnecessary and costly analyses; and
• give well-financed businesses and anti-regulatory organizations greater opportunities to thwart the rulemaking process.

     This explains why the administration threatened to veto similar legislation considered in the last Congress.

     The administration stated that the bill "would seriously undermine the ability of agencies to execute their statutory mandates" and " impede the ability of agencies to provide the public with basic protections."

     It also explains why many of the nation's leading consumer, labor, and environmental organizations have expressed similar concerns about this "dangerous" measure, including —

• the AFL-CIO,
• the American Lung Association,
• the Consumer Federation of America,
• Consumers Union,
• the Natural Resources Defense Council,
• Public Citizen,
• the United Auto Workers, and
• the National Women's Law Center,
  just to name a few.

     One of my principal concerns about this bill is that it could jeopardize Americans' health and safety.

     Our federal agencies are charged with promulgating regulations that impact virtually every aspect of our lives, including the air we breathe, the water we drink, the food we eat, the cars we drive, and the play toys we give our children.

     Small businesses, like all businesses, provide services and goods that also affect our lives.

     So, it makes no difference to a victim who breathes contaminated air or drinks poisoned water, whether the hazards were caused by a small or large business.

     But, the far-reaching legislation before us today would undermine the ability of federal agencies to quickly respond to emergent health and safety concerns.

     Section 5 of the bill, for example, repeals the authority under current law that allows an agency to waive or delay the initial analyses required under the Regulatory Flexibility Act "in response to an emergency that makes compliance or timely compliance . . . impracticable."

     Instead, the bill empowers the chief counsel for advocacy to issue regulations about how agencies in general should comply with the Act.

     So, if there is a widespread E. coli outbreak or an imminent environmental disaster that could be quickly addressed through regulation, this bill says "Don't worry.  Don't rush.  Let's have the chief counsel for advocacy decide."

     To address this major problem with H.R. 2542, I intend to offer an amendment striking this provision of the bill during today's markup.

     Another problem with this bill is that it will waste millions of taxpayer dollars by forcing agencies to redirect their scarce resources to meet the bill's burdensome compliance requirements.

     Section 6 of the bill, for example, would require agencies to review not only all rules currently in effect, but, in addition, all guidance documents in effect as of the bill's date of enactment.

     We are talking about thousands of pages of regulations in the Code of Federal Regulations and several hundred thousands of guidance documents.

     It is no wonder that the Congressional Budget Office estimates that it will cost $80 million over a five-year period to implement the bill's new requirements.

     Rather than burdening agencies responsible for protecting our health and safety, we should be exploring constructive ways to help small businesses comply with these regulations.

     A further concern I have about this bill is that it will result in paralysis by analysis and give corporate interests too much control over the rulemaking process.

     Other ways in which the bill will result in regulatory paralysis include the following:

• It greatly expands the types of rules subject to analysis under the Regulatory Flexibility Act;
• It mandates that agencies prepare excessively detailed analyses for proposed rules; and
• It requires review panels to ensure that certain rules issued by all agencies – not just the Environmental Protection Agency, the  Occupational Safety and Health Administration, and the Consumer Financial Protection Board and the CFPB – consider the interests of small businesses.

     Glaringly missing from the bill is any requirement that agencies consider the benefits of regulations and how they affect the public interest.

     This is a very harmful bill that puts the health and safety of all Americans at risk while adding nothing to the efficiency or cost-effectiveness of agency rulemaking.

     Accordingly, I strongly oppose H.R. 2542.

Statement of the Honorable John Conyers, Jr. for the Markup of H.R. 2641, the  "Responsibly and Professionally Invigorating Development Act of 2013," by the Committee on the Judiciary

Wednesday, July 31, 2013, at 11:00 a.m.
2141 Rayburn House Office Building

     The title of bill that the Committee proposes to markup today – namely, the "Responsibly and Professionally Invigorating Development Act of 2013" – is, in fact, very misleading.

     Rather than effectuating real reforms to the  process by which federal agencies undertake environmental impact reviews as required by the National Environmental Policy Act, or NEPA, this legislation will actually result in making this process less responsible, less professional, and less accountable.

     Worse yet, this measure could jeopardize public health and safety by prioritizing project approval over meaningful analysis.

     To begin with, the bill – under the guise of streamlining the approval process – forecloses potentially critical input from federal, state and local agencies and other interested parties for construction projects that are federally-funded or that require federal approval.

     The bill limits the opportunity for public participation and imposes deadlines that may be unrealistic under certain circumstances.

     Moreover, if an agency fails to meet these unrealistic deadlines, the bill simply declares that a project must be deemed approved, regardless of whether the agency has thoroughly assessed risks.

     As a result, this measure could allow projects to proceed that put public health and safety at risk.

     For example, as our witness aptly explained at the hearing earlier this month on this measure, H.R. 2641 could effectively prevent the Nuclear Regulatory Commission from exercising its licensing authority pertaining to nuclear power reactors, waste management sites, and nuclear waste disposal facilities.

     This bill could allow such projects to be approved before the safety review is completed.

     This failing of the bill, along with many others, explains why the administration and the President's Council on Environmental Quality, along with 25 respected environmental groups, including the Audubon Society, League of Conservation Voters, Natural Resources Defense Council, Sierra Club, and The Wilderness Society, vigorously opposed this bill's predecessor in the last Congress.

     In issuing its veto threat regarding that prior measure, the administration noted, for example, that the bill "would create excessively complex permitting processes that would hamper economic growth"

     Another concern that I have with this bill – like other measures that we have considered – is that it is a solution in search of a problem.

     And, that is not just my opinion.  The nonpartisan Congressional Research Service issued a report last year stating that the primary source of approval delays for construction projects "are more often tied to local/state and project-specific factors, primarily local/state agency priorities, project funding levels, local opposition to a project, project complexity, or late changes in project scope."

     CRS further notes that project delays based on environmental requirements stem not from NEPA, but from "laws other than NEPA."

     So I have to ask, why do we need a bill such as the so-called RAPID Act that will undoubtedly make the process less clear and less protective of public health and safety?

     My final major concern with this bill is that – rather than streamlining the environmental review process – it will sow utter confusion.

     H.R. 2641 does this by creating a separate, but only partly parallel environmental review process for construction projects that will only cause confusion, delay, and litigation.

     As I noted at the outset, the changes to the NEPA review process contemplated by this measure  apply only to certain construction projects.

     NEPA, however, applies to a broad panoply of federal actions, including fishing, hunting, and grazing permits, land management plans, Base Realignment and Closure activities, and treaties.

     As a result of the bill, there could potentially be 2 different environmental review processes for the same project.  For instance, the bill's requirements would apply to the construction of a nuclear reactor, but not to its decommissioning or to the transportation and storage of its spent fuel.

     Rather than improving the environmental review process, this bill will complicate it and generate litigation.

     But, more importantly, this bill is yet another effort by my friends on the other side of the aisle to undermine regulatory protections.

     As with all the other regulatory bills, this measure is a thinly disguised effort to hobble the ability of federal agencies to do the work that Congress requires them to do.

     I oppose this seriously flawed bill.

Statement of the Honorable John Conyers, Jr. in Support of His Amendment to H.R. 2641

     As I observed in my opening remarks, H.R. 2641 is yet another anti-regulatory measure designed to give more control to the private sector over the approval process for environmentally-sensitive construction projects.

     Under current law – the National Environmental Policy Act – all citizens from all walks of life, including individuals, local neighborhoods, farmers, small business owners, and local officials have an opportunity to explain their concerns to those federal agencies responsible for approving these projects.

     By ensuring public participation, this process ensures that the ultimate decisions made by these agencies for these projects are well-informed.

     Unfortunately, the cumulative effect of H.R. 2641 could be to limit the right of the public to comment on construction projects that may have an environmental impact by reducing opportunities for public input and requiring agencies to meet various deadlines.

     For instance, the bill limits comment periods for environmental reviews other than a draft Environmental Impact Statement to 30 days.  Even though the bill allows a lead agency to extend this deadline for "good cause," that term is undefined and would be a lightning rod for potential litigation.

     Given the broad scope of activities covered by NEPA, I am concerned that the bill might inadvertently limit opportunities for public comment or participation that the public is otherwise guaranteed.

     Accordingly, my amendment simply ensures that the right of the public to comment on construction projects that may have an environmental impact is not in any way adversely impacted by any provisions of the bill.

     As a result, the bill will not be construed to cut off the rights of the public to comment on any construction project that may have environmental consequences.

     If the bill's proponents claim that it will have no substantive impact on public participation, then they surely should have no reason to oppose this amendment.

Statement by the Honorable John Conyers, Jr. in Support of His Amendment to H.R. 2542

     Section 5 of H.R. 2542 contains one of the bill's most pernicious provisions as it could undermine the ability of agencies to quickly respond to emergent health and safety risks.

     This section repeals the authority under current law that allows an agency to waive or delay the initial analyses required under the Regulatory Flexibility Act "in response to an emergency that makes compliance or timely compliance . . . impracticable."

     Instead, the bill empowers the Chief Counsel for Advocacy to issue regulations about how agencies in general should comply with the Act.

     Thus, if there's a looming national pandemic or environmental disaster that could be mitigated through regulation, the bill prevents agencies from responding to such emergencies without having first to go through the arduous and time-consuming task of review and analysis.

     This requirement in the bill is not only wrongheaded, but jeopardizes the health and safety of all Americans.

     My amendment simply restores a critical exception that allows agencies to quickly respond to emergencies without being hampered or second-guessed by others.