The Regulatory Accountability Act Would Spread the Asbestos Problem

By Alison Cassady and Sam Berger

On April 26, 2017, the Senate quietly introduced President Donald Trump’s Regulatory Accountability Act, or RAA. The bill has an innocuous name but would have profound consequences for the nation’s ability to protect people from threats to both their lives and livelihoods. Also known as the License to Kill Bill, the RAA is part of Trump’s grand strategy: Use every available tool to strip people of important health, safety, and consumer protections and then prevent federal agencies from being able to protect people from these and future harms, all in the name of increasing corporate profits.

It is not an exaggeration to say that this bill would cause sickness, injury, and death. The proof lies in the United States’ tragic history of asbestos—history that could repeat itself across the nation if the RAA becomes law.

The Regulatory Accountability Act: Background

The RAA has a singular goal: Tilt the playing field toward big business and away from everyday people, making it next to impossible for federal agencies to move forward with commonsense protections. The bill would hamstring almost every agency charged with protecting the public interest—from the Environmental Protection Agency, or EPA, to the Federal Aviation Administration to the Food and Drug Administration.

Several organizations have written detailed analyses of the ways in which the RAA would grind to a halt the nation’s proven system for protecting Americans from risks to their health and safety. The bill would require federal agencies to engage in endless analysis of their proposed safeguards, well beyond the months or even years of extensive analysis that agencies already undertake before issuing a rule. It would also require agencies to hold, at industry’s request, time-consuming and expensive trial-like proceedings over any minor technical point, delaying action without the promise of eliciting new information. And the bill would grant judges new power to second-guess all agency decisions when big businesses seek to slow down protections in court. In short, the RAA is the definition of paralysis by analysis.

Who would want to build such an unworkable system? The powerful corporations that stand to profit from weak or nonexistent federal safeguards and the elected officials they hold sway over. According to a recent Center for American Progress analysis, during the first three months of 2017, at least 72 corporations and trade associations spent millions of dollars lobbying Congress to pass the RAA.

Asbestos: The RAA would doom us to repeat history

The tragic story behind asbestos regulation in the United States shows the terrible dangers that the RAA poses.

Decades of science have proven beyond a doubt that asbestos is a known human carcinogen. The EPA first listed asbestos as a hazardous air pollutant in 1971, given its link to lung cancer, asbestosis, and mesothelioma. In 1979, the EPA began a rule-making under the Toxic Substances Control Act, or TSCA, to “reduce the risk to human health posed by exposure to asbestos.” A full decade later, the agency finalized a rule to phase out asbestos after reviewing hundreds of studies and concluding that “exposure to asbestos during the life cycles of many asbestos-containing products poses an unreasonable risk of injury to human health.”

Despite this decades-long record, as of 2017, asbestos still is not banned in the United States. After the EPA finalized its rule, asbestos manufacturers sued to block it. The U.S. Court of Appeals for the 5th Circuit agreed with the manufacturers and remanded the rule to the EPA to be rewritten. Concluding that it could never meet the TSCA’s onerous standards as interpreted by the court, the EPA took no additional action to eliminate the use and distribution of asbestos-containing products for more than 25 years.

The EPA’s inability to act has had real-world consequences. From 1999 to 2013, 12,000 to 15,000 people died every year in the United States from diseases related to asbestos exposure.

In 2016, Congress reformed the TSCA with rare bipartisan support. In November, the EPA announced that it would review asbestos for potential risks to human health under the revised law. The RAA, however, could very well hinder this new process and block the EPA from taking long-overdue action to mitigate asbestos’s risks.

Importantly, the RAA would not only thwart future action on asbestos. It would also apply the impossible-to-meet standards that prevented the EPA from banning asbestos more than 25 years ago to efforts to protect Americans from a host of other public health, safety, and consumer threats. This would put us at risk of repeating the worst kind of history.

Endless analysis of costs to industry

When the EPA tried to ban asbestos, the TSCA required the agency to choose the “least burdensome” option when deciding how to protect human health and the environment from the risks posed by a toxic substance. In this case, “burden” refers to the costs to manufacturers and users of limiting that toxic substance—not the cost to the public of being exposed to a substance posing significant health risks. The EPA chose to phase out the use of asbestos, but the 5th Circuit determined that the agency failed to demonstrate that this was the least burdensome means of mitigating asbestos’s risk to human health. The court said that the EPA should have considered “each regulatory option, beginning with the least burdensome, and the costs and benefits of regulation under each option.” This is a prohibitively onerous process and a daunting threshold to meet, as industry could identify endless alternatives that merit consideration.

Recognizing this danger, Congress removed this language when it reformed the TSCA in 2016. But the RAA inexplicably revives this standard and applies it even more broadly to almost every context in which agencies seek to implement commonsense protections.

Language in the RAA requires a federal agency to adopt the “most cost-effective” option when finalizing a rule to address problems facing public health, consumers, workers, or the environment. This means that an agency would be required to put compliance costs above public benefits in an endless, looping assessment of alternatives. The RAA directs each agency to consider a “reasonable number” of alternatives, including “substantial alternatives or other responses identified by interested persons”—such as the corporate interests that have the most to gain from the weakest protections. If protections would have a significant effect on the economy, as most protections with significant health or safety benefits would, an agency must conduct a time-consuming cost-benefit analysis of each alternative. In the inevitable litigation to challenge a rule, the agency would have to prove that it examined enough alternatives to be sure of choosing the most cost-effective one.

This is a recipe for decades of delay—while people’s health and safety suffer.

An impossible burden of proof

Before Congress revised the TSCA in 2016, the law specified that courts should set aside any rule that “is not supported by substantial evidence.” Some courts have interpreted this innocuous-sounding language as setting a standard that is very difficult for protections to meet, regardless of the evidence of risk to the public or the need to act quickly. For example, despite decades of science supporting the EPA’s position on asbestos, the 5th Circuit concluded that “the EPA failed to muster substantial evidence” in support of its asbestos phaseout. Under the RAA, this same standard would be applied to all protections with the most economic impact. And as with asbestos, this would make it difficult for agencies to address these problems.

Endless analysis and impossible-to-meet burdens of proof are just two of the RAA’s problems. For example, the bill brings back the trial-like hearings requirements that significantly slowed the EPA’s efforts to protect people from toxic chemicals under the TSCA. And it subjects independent agencies, including those tasked with preventing the next financial crisis, to potential partisan political pressure that would undermine their work to protect the public.

The effort to revive these failed requirements makes clear that the real purpose of this bill is not to create “regulatory accountability” but rather to make sure that industry can play by its own set of rules, regardless of the price paid by the people who will suffer. The RAA would recreate the asbestos crisis in thousands of ways across thousands of communities. The only ones standing between the public and Trump’s License to Kill Bill are lawmakers willing to put people’s lives over company profits.


This was reposted from CAP.