By David M. Uhlmann, the Jeffrey F. Liss Professor from Practice, and Director of the Environmental Law and Policy Program, University of Michigan Law School.
Over the last 40 years, the United States has amassed a remarkable record of environmental, health, and safety accomplishments-with cleaner air and water, safer food, less dangerous cars, and overall a much higher quality of life for most Americans. It no longer physically hurts to breathe the air in major American cities, as it did in Los Angeles during the 1970's. The indelible image of the Cuyahoga River on fire, which burned as it passed through Cleveland during the 1960's, is now a distant memory.
America today is better and stronger than it was 30 or 40 years ago as a result of the changes brought by our environmental, worker safety, and food and drug laws. In the span of a generation, we have outlawed lead in gasoline and paint, cars without seatbelts, and red dye number two in food. We have engineered startling health and safety advances from air bags and catalytic converters to scrubbers on smoke stacks and the elimination of chemicals like Freon that were burning a hole in the ozone layer.
Yet it is unlikely that any of the health and safety gains we have enjoyed would have been possible under legislation proposed by Senator Rand Paul called the "REINS Act," which would strip federal agencies of the authority to implement environmental, public health, and safety protections unless a majority in both the House and the Senate approved the rules and they were signed by the President. The REINS Act is described as an effort to increase accountability and transparency in the regulatory process, but as with other "regulatory reform" measures, the high-minded rhetoric glosses over what is a cynical attempt to block further environmental, public health, and safety protections.
We can and should ensure that we regulate American businesses only when necessary to meet broader societal objectives like limiting harmful pollution or preventing worker injuries or reducing motor vehicle deaths. For that reason, the Executive Branch only has the power to regulate when Congress passes laws that confer regulatory authority. As a further protection against unwarranted regulation, the Congressional Review Act allows Congress to veto any regulations that a majority in both Houses deem unacceptable. Congress also retains its authority to limit funding for marginal regulatory programs and to enact new laws if it believes regulatory protections are no longer necessary.
The REINS Act would go several steps beyond the careful balance of power envisioned by the Constitution and give Congress both the power to make the laws and, in effect, to execute those laws, which would raise significant constitutional problems. Even if the REINS Act were constitutional, there are serious questions about whether it is good policy. Do we want the Congress, with all of its partisan influences, to be the arbiter of sound science and best practices in areas as complex as toxicology, engineering, ecology, and pharmacology? Do we believe that we would have more efficient and more effective regulation if we empowered Congress, rather than scientists and engineers, to decide fundamental questions about environmental protection, public health, and motor vehicle safety?
President Obama recently directed federal agencies to review existing regulations to ensure that we repeal regulations that are no longer necessary and to streamline regulatory requirements where possible. It is appropriate to revise and update our regulations and to be sensitive to concerns from the business community about unduly burdensome regulations. But we cannot lose sight of the fact that many of the advances in environmental protection, health, and safety that we enjoy today would not have occurred without regulations-and when those health and safety standards were imposed, the industries involved objected based on the many of the same economic arguments we hear today.
As our economy has faltered, we are justifiably concerned about how we remain competitive with China and India and other countries where labor costs and environmental, health, and safety standards are weaker than in the United States. At an earlier time in our history, we might have responded to such challenges by striving to out-compete those countries through innovation, industry, and quality-in short by making better products or offering superior service than our competitors. A similar approach today would be far more inspiring to Americans than complaints that we cannot compete because environmental, health, and safety regulations are too costly in the United States.
Our greatness as a Nation reflects our willingness to hold ourselves to high standards and to pursue lofty ideals, including the notion that we can be effective stewards of the environment and promote public health and safety in an economy that is flourishing. Pursuit of those principles, even if they prove challenging at times, should be the focus of our leaders in Washington, not misleading legislative efforts like the REINS Act, which would thwart future environmental, health, and safety gains.