HR 5443 Introduced – PHMSA Accountability

Earlier this month Rep. Speier (D,CA) introduced HR 5443, the PHMSA Accountability Act. The bill would provide for mandamus actions under 49 USC Chapter 601, the Pipeline Safety Regulations.

The bill would amend 49 USC 601021 by adding:

“(e) Mandamus.—A person may bring a civil action in an appropriate district court of the United States to compel the Secretary to perform a nondiscretionary duty under this chapter that the Secretary has failed to perform.”

Moving Forward

Speier and five of her seven Democrat co-sponsors serve on the House Energy and Commerce Committee, one of the three committees to which this bill was referred for consideration. This means that there is at least some chance that the bill could be considered by that Committee. This bill is, however, controversial enough that I doubt that it will be considered this late in the session.

Even if the bill were considered in the Energy and Commerce Committee, I doubt that the Chairs of the Judiciary or Transportation and Infrastructure Committees would allow the bill to move to the floor of the House without their committee acting on the bill. Such actions are very unlikely to be forthcoming with no bill sponsors on those committees.

Commentary

Section 601021 already provides for brining “a civil action in an appropriate district court of the United States for an injunction against another person (including the United States Government and other governmental authorities to the extent permitted under the 11th amendment to the Constitution) for a violation of this chapter or a regulation prescribed or order issued under this chapter”. All this bill does is provide specific authority for the court to issue a writ of mandamus to the Secretary.

Environmental activists have been very successful in using similar suits against the Administrator of the Environmental Protection Agency to undertake rulemaking activities required by legislation, but that have been stalled in the bureaucracy for any of a number of reasons. The number and complexity of the rulemaking activities required by Congress can frequently overload the limited resources of government agencies such as PHMSA. Administrators then have to pick and choose which rulemakings upon which they intend to expend their limited resources. This bill would provide a mechanism for ‘adjusting’ that prioritization.

Many business owners and conservative politicians are afraid that activist judges could issue writs mandating legally questionable rulemaking activities that a liberal administration might not actively fight if the rulemaking fit their political agenda. While the same could happen with a conservative political alignment, business owners seldom call for additional regulations upon their operations.

This is one of those issues that is not as clear cut as either side would like to argue. Technically this process is already allowed under §601021, but Courts are generally loath to order actions by the Executive Branch due to separation of powers issues. Those concerns are eased when Congress provides specific authorization to issue writs of mandamus.