Preliminary Steps Taken to Nullify EPA Endocrine Disruptor Screening Program
After the Congressional Research Service (CRS) questioned the validity of agency regulations that had not been submitted as required by law to Congress and the Government Accountability Office (GAO), the Center for Regulatory Effectiveness wrote to House and Senate leaders asking Congress to advise the Environmental Protection Agency (EPA) that its endocrine disruptor screening program “is not in
effect” until the required notice is provided. More information about the CRS report appears in issue 332 of this Update.
According to a news source, EPA’s program, mandated under the Food Quality Protection Act, was designed to identify pesticides that might cause adverse effects on human health and the environment. The center, a business-backed think tank, cited the CRS report in making its case to nullify the program. An EPA spokesperson reportedly responded that its action describing the agency’s endocrine disruptor policies and procedures and announcing the list of chemicals to receive testing orders was not a regulation under the Congressional Review Act (CRA) and thus did not require submission to Congress and the GAO. A center board member apparently disputed that contention, claiming that the law broadly defines “rule” to include any “agency statement . . . designed to implement, interpret, or prescribe law or policy.”
Of the few courts that have reportedly considered whether federal regulations can be nullified for agency failure to comply with the CRA, most have determined that the law expressly bars judicial review, despite any legislative history to the contrary. Still, at least one federal district court has concluded that the judicial bar was “ambiguous” and declined to dismiss a challenge to agency action on this basis. According to the court, the CRA “has no enforcement mechanism, and to read it to preclude a court from reviewing whether an agency rule is in effect . . . would render the statute ineffectual.” See U.S. Law Week, January 19, 2010.
