Republicans Find New Ways to Roll Back Protections

protectionsJust what you needed One more thing to keep you up at night.

One of things we complained about at OSHA was how slowly the wheels of government work, especially the regulatory process that’s used to improve protections for workers and the environment. On the other hand, we now console ourselves in these days of corporate control of our government with the knowledge that the wheels of government also move slowly backwards — just as it takes a lot of time and work to issue new protections, it also takes a lot of time and work to repeal those protections.

The Congressional Review Act was one exception, allowing a hostile Congress and President to remove recently issued worker, environmental and consumer protections, and we saw this Congress take full advantage of that ability (See the Volks rule.)  But otherwise, they have to go through full notice and comment under the requirements of the Administrative Procedures Act, in order to repeal regulatory protections.

Or maybe not. While everyone’s eyes are (justifiably) focused on this ridiculous tax deform bill, and indictment of Michael Flynn (with more to follow), the expected imminent need for Rex Tillerson to spend more time with his family, men who are unable to keep their junk in their pants, and the possible election of an (alleged?!) child molester to the US Senate, etc., etc., the Washington Post‘s t Juliet Eilperin has discovered that without anyone noticing, “House and Senate Republicans have inserted language into spending bills aimed at blocking legal challenges to the Trump administration’s effort to repeal a 2015 water protection rule that gave two federal agencies broad leeway in regulating activities that could affect streams and tributaries.”

With this language, EPA or OSHA would be able to repeal protective regulations without any notice to the public, without providing an opportunity for written comments or hearings, and without considering any evidence to justify repealing any protections. 

What’s going on?

Even though we’re now in December, we still don’t have a federal budget for FY 2018, which began on October 1st, and the US government is operating on a “continuing resolution” which funds the government until December 8.  With no budget or extension, the federal government shuts down one week from today. Republicans are trying to push appropriations bills that not only fund the government for the rest of the year, but also contain some hidden holiday gifts fir their corporate patrons — in this case language that would

authorize the EPA and the Army Corps to pull back the [water protection] rule “without regard to any provision of statute or regulation that establishes a requirement for such withdrawal.” Legislative experts say this could block challenges filed under the Administrative Procedures Act, which not only requires agencies to solicit comment but to lay out the basis for their regulatory actions in the public record and demonstrate that they have not favored a particular group or individual in making their decision.

Now this would not only be bad for those of us who drink water or appreciate clean rivers and lakes, but it would set a disastrous precedent for other environmental, worker and consumer protections.  With this language, EPA or OSHA would be able to repeal protective regulations without any notice to the public, without providing an opportunity for written comments or hearings, and without considering any evidence to justify repealing any protections.

Just one example. OSHA’s silica rule which protects tens of thousands of construction workers and others is in full effect. The administration will not try to repeal it despite business pressure — at least partly because it would be too hard. The evidence is far too strong, the process would take years, and a repeal would likely be overturned in court.

But waive a magic wand and get rid of any requirement to actually go through the notice and comment process, or consider any evidence, and you can do anything you want, whenever you want.

But who needs notice and comment? As Eric Schaeffer, executive director of the Environmental Integrity Project, notes in the Post, EPA Administrator Scott Pruitt “held at least 17 private meetings with agribusinesses, farm groups and other industries to discuss the rule between July 6 and Oct. 20. No record of those sessions or of the administrator’s remarks has been posted publicly. ‘Why have a notice-and-comment period if you’re going to spend your entire summer with industry?’ he asked.”

Why indeed?

As Paul Krugman put it in a column about the lies and hypocrisy behind the tax bill: “So what will it take to clean out the rot? The answer, basically, is overwhelming electoral defeat. Until or unless that happens, there’s no telling how low the G.O.P. will sink.”

Deconstructing the Administrative State Environmental Protection Agency OSHA Regulatory Process

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