Require Evaluation Before Implementing Executive Wishlists Act of 2016

Floor Speech

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Mr. JOHNSON of Georgia. Mr. Chairman, I rise to speak in opposition to H.R. 3438, the Require Evaluation Before Implementing Executive Wishlists Act of 2016, also known as the REVIEW Act, which would automatically stay so-called high-impact rules that a party challenges by filing suit in court.

Now, this is a very arcane and esoteric subject that my colleagues on the other side of the aisle will literally put you to sleep listening to their arguments about it. But make no mistake about it, this is a very important piece of legislation that would torpedo the good work of legislators who are trying to protect the health, safety, and well- being of the American people.

Simply put, this bill is yet another reckless measure designed to delay the implementation of the most important rules protecting the health, safety, and financial well-being of everyday people. Passage of this bill will only benefit the pocketbooks of the large corporations in the top 1 percent while the American people will be left unprotected from corporate greed.

Other than satisfying the insatiable thirst of the superwealthy for more and more and more profits to stuff into their already fat and overflowing pockets, this bill is completely unnecessary and is not in the best interest of the greater good.

Under current law, both courts and the agency issuing a rule may stay the effective date of a final rule. While agencies have broad discretion in postponing the effective date of a rule, a court considers several factors in deciding whether to stay a rule, including whether the party is likely to succeed on the merits.

In 2009, the Supreme Court, in Nken v. Holder, instructed courts to consider four factors when deciding whether to issue a stay: One, whether the stay applicant has made a strong showing that he is likely to succeed on the merits; two, whether the applicant will be irreparably injured absent a stay; three, whether the issuance of the stay will substantially injure the other parties interested in the proceedings; and, four, where the public interest lies.

The REVIEW Act would discard this very flexible and practical test in favor of an inflexible and unyielding requirement that agencies automatically delay the effective date of any rule exceeding $1 billion in costs that is challenged in court regardless of whether the party challenging the rule has any likelihood of success on the merits, is actually harmed by the rule, or whether staying the rule would be contrary to the public interest.

It is virtually guaranteed that every high-impact rule would be delayed through litigation challenges, regardless of whether the litigation is meritorious. Frivolous litigation would almost certainly create years of delays for these rules which, in many cases, have already taken years to promulgate.

But the bill wouldn't just simply apply to lifesaving rules that exceed $1 billion in costs that keep our air clean and our children safe. Rather, it would likely apply to transfer rules which involve the transfer of funds for budgetary programs authorized by Congress, such as transfer rules involving the Medicare program or the Federal Pell Grant Program, as the Office of Management and Budget has clarified.

Lastly, Mr. Chairman, I oppose this bill because it is a dangerous solution to a nonexistent problem. Any party affected by a final agency action may challenge that action in court while agencies may also delay the effective date of rules on a discretionary basis. Professor William Funk, a leading administrative law expert, explains that existing law ``weeds out frivolous claims and takes account of both the cost of the rule and the benefits of the rule that would be avoided by granting the stay.'' Absent any evidence whatsoever that courts have inappropriately refused to grant stays, I am confident that existing law provides adequate protection.

In closing, I urge my colleagues to oppose this legislation and make in order any of the amendments that you will hear hereafter.

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Mr. JOHNSON of Georgia. Mr. Chairman, I thank the ranking member for yielding.

The majority argues that H.R. 3438 responds to cases where a court vacates a rule after it has already gone into effect. The majority argues that H.R. 3438 responds to the Supreme Court's 2015 decision in Michigan v. EPA, where the Court remanded a clean air rule adopted by the Environmental Protection Agency to reduce power plants' emissions of hazardous air pollutants.

As leading administrator and law professor William Funk has noted, the Court remanded the rule rather than vacating it altogether because the ``grounds upon which the Supreme Court found the rule invalid appear to be easily remedied.'' He further observes that delaying this rule would cost the U.S. economy $20- to $80 billion per year.

Importantly, the industry and State challengers to the EPA's rule at issue in Michigan v. EPA did not seek judicial stay of the rule prior to the Court's remand. Perhaps that is because they knew it would fail and that they could not meet the judicial test requiring showings of irreparable harm and likelihood of success on the merits.

These challengers are hardly in a good position to complain now about the rule being found unlawful in one respect but not unlawful with respect to every other issue raised by the challengers when they themselves even failed to ask the Court to stay the rule beforehand.

Furthermore, notwithstanding the majority's misleading claims that this rule caused irreparable harm and cost billions of dollars to implement while only offering potential benefits in the millions of dollars, the Office of Information and Regulatory Affairs, which is the same entity that would be charged with conducting cost estimates under the bill, states that annual benefits of the rule range between $30- and $90 billion, very much dwarfing its annual cost of $9.6 billion.

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Mr. JOHNSON of Georgia. Mr. Chair, I thank the ranking member.

Following the Court's remand, the EPA has reaffirmed its original finding that it is appropriate to achieve deep cuts in mercury and up to 7 dozen hazardous air pollutants such as lead, arsenic, and benzene from coal-burning power plants even after considering cost, which was the only issue in the Supreme Court's remand of the case.

This rule delivers immense benefits to Americans, with monetized benefits greatly outweighing compliance costs. An automatic stay brought by the REVIEW Act would result in all of those health hazards-- 4,200 premature deaths, 2,800 cases of chronic bronchitis, and on and on and on. The automatic stay brought by the REVIEW Act, if it passes, would result in so many health hazards occurring to Americans and health costs being borne by the public after the rules compliance date.

I urge my colleagues to vote against this ill-founded and ill- conceived piece of legislation.

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