Notice & Comment

The Good, the Bad, and the Ugly of Recent Regulatory Reform Efforts (Part I), by Satya Thallam

First, a note on jurisdiction. When trying to track the Senate’s regulatory reform efforts, you have to know where to look. Whereas most APA-focused legislation in the House is referred to the Judiciary Committee, in the Senate that place is the Homeland Security and Governmental Affairs Committee(HSGAC). There’s a long and (to some of us) interesting story behind that committee’s origins and unique jurisdiction, but the bottom line is HSGAC is the gatekeeper for most cross-cutting regulatory process changes. For agency or industry-specific reforms, like those directed at Dodd-Frank or the EPA, look to the Committees on Banking or Environmental and Public Works, respectively. For those changes directly targeted at the role of the courts, look to (where else) the Judiciary Committee. A final caveat, unlike the House, the Senate does not do sequential or simultaneous referrals. This means legislation is referred to a single committee based on its preponderance of content – the issue of judicial review may be addressed in a larger bill which is nonetheless referred to HSGAC rather than Judiciary.

In a series of posts, I’ll outline the Good, the Bad, and the Ugly of recent regulatory reform efforts in Congress. Now on to the 114th Congress specifically: what have we seen so far in 2015-16 in the Senate? Fortunately for those of you trying to catch up, not much. Only a handful of bills have passed the committee, and only one has been signed into law. We’ll start with the Good.

The Federal Permitting Improvement Act (S. 236, sponsored by Sen. Portman) passed out of committee in May 2015. This bill, which attempts to streamline the environmental reviews and interagency federal permitting processes for large infrastructure projects (greater than $200 million), managed to hitch a ride (so to speak) on a must-pass surface transportation reauthorization – the so-called FAST Act (Title XLI, Pub. L. 114-94). By building on existing Administration programs and priorities and addressing the evergreen and bipartisan issue of “infrastructure,” the bill was able to become a priority inclusion in a bill needed to extend the imminently expiring highways trust fund.

As with most Senate bills, there was a House counterpart (H.R. 348 – RAPID Act, though, not strictly speaking, a companion) that went much further in the direction of reducing review timetables and limiting the length of post-approval judicial review. In the end, the bill’s sponsors, various committee chairs, and the Administration had to quickly negotiate a compromise – with the House certainly conceding the most – in order to give the bill a green light. In the end, the language was far short of the “ fundamental overhaul” that the most interested parties have been calling for. But it’s a useful example of how even tendentious topics, like regulatory improvement efforts, can get through a hyperpartisan legislature.

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