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Public Statements

Red Tape Reduction and Small Business Job Creation Act

Floor Speech

By:
Date:
Location: Washington, DC

Ms. EDDIE BERNICE JOHNSON of Texas. Madam Chair, I rise in reluctant opposition to the amendment offered by the gentleman from Illinois, Mr. MANZULLO. I say reluctant, because although I am opposed to this particular amendment, I very much support the idea of ensuring that our agencies in the Federal government utilize the best available science when engaged in their activities. On its face, that would appear to be the subject of this amendment. However, the language in this amendment goes further than that, and its broad reach troubles me for several reasons.

Under this amendment, all Federal agencies would have to adopt guidelines on scientific integrity and have those guidelines approved by the Director of the Office of Science and Technology Policy, ``OSTP''. Agencies could not make policy decisions unless the OSTP Director has approved their guidelines. In addition, subsection (d) of the amendment states that any policy decisions an agency makes which do not comply with the approved guidelines ``shall be deemed to be arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.''

I am very concerned that the language in this amendment could give rise to a new cause of action against Federal agencies in their regulatory process. A longstanding principle of regulatory law is that agencies must show that their regulatory actions are not ``arbitrary and capricious'' or courts will overturn those actions. This amendment creates a new and separate cause of action against regulatory agencies who veer from their guidelines in the formulation of a regulation. This is an unnecessary addition to the legal weaponry available to challenge agency regulations since the current law already provides that agencies are prohibited from making ``arbitrary and capricious'' regulatory decisions. I do not understand why we would purposely increase our courts' load of regulatory litigation for no discernible substantive benefit.

Furthermore, the amendment does not limit these restrictions to regulatory actions. All ``policy decisions,'' specifically including ``agency guidance,'' are subject to this requirement. ``Agency guidance'' could include the posting of information on an agency website or the issuance of disaster warnings. It is troubling that we would potentially be creating a new legal cause of action against agencies for putting agency guidance on their websites. It's even more troubling that we would prohibit agencies from making disaster warnings until those agencies' scientific integrity guidelines are approved by the Director of OSTP.

Clearly, these new impositions on the Federal agencies are not without cost. However, what is the real benefit here? Early on, the Obama administration issued an order to all Federal agencies to adopt scientific integrity policies. OSTP oversaw this process, and Federal agencies now have scientific integrity policies in place. What additional benefit does this amendment provide over what the administration has already completed? Moreover, the Federal government already has well established procedures in place to ensure Federal regulations are only issued after careful review of the scientific evidence. It's hard to imagine this amendment provides any benefits to this process that would outweigh the dangers and costs I just identified.

Finally, I want to express my discomfort with placing the OSTP and the President's science advisor in a regulatory oversight role. The President of the United States needs sound scientific advice from a trusted and competent advisor. OSTP was created to provide that advice to the President. This is an office that has typically maintained bipartisan support over the years. I would hate for that support to erode because we've placed inappropriate responsibilities on that office. I would also note that OSTP's annual budget is relatively modest and the office is already stretched thin carrying out its current duties. This amendment provides no funding for the newly mandated duties, and it is unclear how OSTP is supposed to fund these new responsibilities.

I do think it is important that the Federal government use the best available science when it does its work. Unfortunately, for the reasons I've outlined, I don't think this amendment is the way to achieve that goal, and I must oppose the amendment.


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