Good morning. Today we take testimony on a rulemaking recently concluded by the EPA dealing with national air quality standards. In particular, consistent with our mandate as the Subcommittee on Commercial and Administrative Law, we look at the process by which EPA came up with its recent rules.
The administrative process was invented this century to accommodate the growth of the federal government. In broadest generality, it is designed to replicate the functions of the legislative branch when the legislative branch has chosen to delegate its responsibility to an executive branch agency.
Since 1946, when the Administrative Procedures Act was first signed into law, Congress and the President have labored continuously to craft an administrative process that treats all parties and all perspectives fairly. While one of the ends is getting the best possible rules, another, equally important purpose, is making the administrative process an open process that informs the American people about the actions of its government. In short, the administrative process is designed to be a two-way street that both collects and disseminates information to affected interests, the public, voters, and Congress.
Consistent with these dual goals, the 104th Congress passed, and President Clinton signed the Unfunded Mandates Reform Act, which requires agencies to inform and work with States and localities on major rules. Likewise, Congress passed, and the President signed, the Small Business Regulatory Enforcement Fairness Act (SBREFA), which requires agencies to inform and work with small businesses. In addition, SBREFA amended and strengthened the Regulatory Flexibility Act, which requires agencies to make a variety of important information on pending actions available to the public.
In setting out the standards we discuss today, EPA exempted itself from these important procedures. EPA did not analyze the effects of its actions on small business as required by the Regulatory Flexibility Act. EPA did not consult with small businesses as required by SBREFA. EPA did not consider the effects of its rule on State and local governments as required by the Unfunded Mandates law.
There has been a great deal of controversy surrounding these rules, in part because of this expedited and ad hoc rulemaking process. The result, I hasten to add, is not just the content of the rules, which, it is alleged, are based on defective premises. It is the air of suspicion that surrounds them.
We are skeptical of the rules because we are skeptical of the process used to come up with them. I believe that this alone is grounds for rejecting them and sending EPA back to the drawing board.
If EPA believes in the rules it has cobbled together, it would be willing to promulgate them using the open process federal law requires. So, today, instead of celebrating the clean air progress this nation continues to achieve, we must try to clear the air with hearings like this.