All Americans have an interest in a regulatory process that is transparent, is fact-based, respects the will of Congress and observes the separation of powers in the Constitution. Farm Bureau will work to prevent implementation of the current Waters of the U.S. rule and other excessive expansion of federal jurisdiction under the Clean Water Act, reform the Endangered Species Act, preserve farmers’ and land-use rights, and reform the federal regulatory process.
Federal regulations have a direct impact on farmers. Over the years, the breadth and extent of that regulatory landscape have increased. Today, agricultural producers are faced with a flurry of requirements that impact many facets of agriculture.
Often, these requirements are the result of federal regulations; sometimes they emanate from court decisions. However they are established, the result is often controversial. Stakeholders disagree on the language in the statute; affected parties disagree on the science, the data or the models underpinning one or the other.
The Administrative Procedures Act (APA) is the principal federal statute that governs how regulations are promulgated. Enacted in 1946, the law has not substantially changed in the 70 years it has been on the books – even while the federal government has expanded enormously. In 1946, when the APA was signed into law, the entire federal government raised $358 billion in revenues; in 2015, the deficit alone amounted to $439 billion. When the APA went on the books, the federal regulatory landscape did not include the Clean Water Act, the Clean Air Act, the Endangered Species Act, Superfund, wetlands regulations, Medicare, the Occupational Health and Safety Act (OSHA), banking laws such as Dodd-Frank or the Affordable Care Act. All of these statutes generate regulations that impact our everyday lives.
Policies today are also increasingly determined as the result of litigation. Beginning in the 1970s, citizen lawsuit provisions were added to many environmental statutes, and one law in particular—the ESA—has gotten pre-eminence over many other laws. In 1984 in its Chevron decision, the Supreme Court established the principle that courts must show ‘deference’ to federal agency interpretations of the statutes that they administer, even if the agency’s interpretation is not the best reading of the words of the statute. Another Supreme Court decision, Auer v. Robbins, issued in 1997, required an even higher level of deference to agency interpretations of their own regulations—essentially allowing agencies to write vague or ambiguous regulations and later interpret those rules to mean whatever the agency wants.
During the Annual Meeting in January, American Farm Bureau Federation delegates from all 50 states and Puerto Rico approved a special resolution urging Congress to enact swift, meaningful and strongly bipartisan regulatory reform. Delegates called on the federal government to adhere to series of principles, including: the use of sound science; consideration of costs and benefits to stakeholders; transparency in federal agencies and departments; reduction of abuses of the court settlement process; limiting deference granted by courts to agencies’ interpretation of law; prohibiting agency misuse of social media to lobby the public in support of agency proposals; greater congressional oversight of agencies; congressional approval of major rules; a minimum comment period for rules; and reform of the Equal Access to Justice Act.
Farm Bureau is leading a coalition of over 50 agricultural organizations that are asking for meaningful reforms to regulatory system. Targeted reforms are designed to be bipartisan and to respect the rights of all stakeholders, with the ultimate goal to help protect our environment and the agricultural landscape while helping to reinvigorate the American economy.
As part of this effort, we ask Congress to support review of – and potential changes to – the following:
• Chevron and Auer deference policies
• Agency use of science and economic data
• Agency transparency in rulemaking
• Federal-state cooperation
• The Administrative Procedures Act
• Congress’s role in rulemaking
In addition, any regulatory reform efforts should reaffirm the public’s right to know.
Farm Bureau supports H.R. 5, the Regulatory Accountability Act, which was passed by the House in early 2017. We ask Senators Casey and Toomey to cosponsor and support the S. 951, Regulatory Accountability Act of 2017.
Updated: May 2017