February 14, 2017

Relief from Harmful Regulations: Week Three

  • Congress continues work on resolutions of disapproval under the Congressional Review Act.
  • While Congress takes legislative steps to reverse overregulation, the Trump administration also has moved to reduce bureaucratic barriers to economic growth.

Congress has now passed two resolutions of disapproval under the Congressional Review Act. The Senate will take up additional resolutions passed by the House of Representatives to repeal rules that are duplicative, infringe upon state authority, and raise significant due process concerns.


Blacklisting: On August 23, 2016, the Department of Labor issued guidance – and the Federal Acquisition Regulatory Council issued final rules – requiring that federal contractors report violations of 14 federal labor laws and state equivalents. The companies reporting violations could be blacklisted from receiving federal contracts. The rule violates contractors’ due process rights by requiring the reporting of allegations and citations that have not been adjudicated, as noted in a federal judge’s preliminary injunction against the rule.


Background Checks: On December 19, the Social Security Administration issued a rule requiring SSA to report to the National Instant Criminal Background Check System people who receive Social Security disability benefits and who the agency says have been adjudicated as “mentally defective.” The rule reaches too broadly, as it infringes on the Second Amendment rights of people with disorders that have nothing to do with firearm safety. There are also significant due process concerns with the rule.


Waste Prevention: On November 15, the Bureau of Land Management issued a final rule to regulate methane emissions from oil and gas facilities on federal and Indian lands. The rule exceeds BLM’s authority by regulating air quality, which Congress expressly vested in states and the Environmental Protection Agency under the Clean Air Act. The costly rule duplicates existing regulations and ignores commonsense solutions to curb emissions, such as increasing the number of gas gathering lines for producers to process methane.

The House of Representatives passed three more resolutions last week. By the end of this week there will be a total of 10 resolutions the Senate can consider in the next work period.


Teacher Preparation: On October 31, the Education Department released its final rule for teacher preparation grant programs. The rule requires federal standards for evaluating these programs based on four federally prescribed and defined criteria. This conflicts with the flexibility Congress provided in the recent reauthorization of the Elementary and Secondary Education Act. It also runs afoul of prohibitions in the law on federally mandated teacher evaluations.

State and Local Education Accountability: On November 29, the Department of Education issued regulations modifying the accountability measures for K-12 schools. Under the 2015 Every Student Succeeds Act, states must have an accountability system, which they choose for themselves. The intent was to provide maximum flexibility to states. The department’s final rules are too prescriptive, conflict with congressional intent, and violate explicit prohibitions on the education secretary’s authority to regulate.


Public Land Planning: On December 1, the Bureau of Land Management issued a rule that effectively rewrites procedures to prepare, revise, or amend federal land use plans under the Federal Land Policy and Management Act. The “Planning 2.0 Rule” empowers bureaucrats in Washington to direct massive landscape-scale plans. It takes authority away from state, local, and tribal land managers who have the most experience overseeing their resources. The rule could substantially limit recreation, energy development, mining, ranching, timber harvesting, and grazing on federal land. 

The Trump administration also continues its efforts to curb wasteful bureaucratic delays imposed by the Obama administration. On January 24, two presidential memos called for approval of the Keystone XL and Dakota Access pipelines. The Army Corps of Engineers last week granted an easement necessary to complete the Dakota Access pipeline. The nearly 1,200-mile pipeline from North Dakota to Illinois will create jobs and help move American oil to market. Despite being 90 percent complete and passing environmental reviews, the project had been held up by politically motivated regulatory roadblocks during the Obama administration. Yesterday, a U.S. district judge in Washington, D.C., denied a request to temporarily halt construction on the pipeline.

The Keystone XL pipeline had also been blocked by President Obama, even after the Senate passed, by a vote of 62-36, bipartisan legislation to approve it in 2015. On January 26, the developer of the pipeline resubmitted its permit application to the State Department. 

Issue Tag: Senate