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Oct. 15, 2020 by James Goodwin

New Web Article Explores the Racism of Regulatory Cost-Benefit Analysis

Recently, the Center for Progressive Reform (CPR) launched its Beyond 12866 initiative, which seeks to promote progressive regulatory reform as a key component of the progressive movement’s efforts to build a more socially just and equitable America. To accomplish this goal, though, we must come to grips with how the regulatory system is perpetuating racial injustice and reinforcing race-based inequities. In a new web article, I take this first step by sketching out some of the ways in which cost-benefit analysis has contributed to structural racism in the broader regulatory system.

As the piece explains, regulatory cost-benefit analysis purports to adhere to a kind of “moral objectivity,” which precludes considerations of important American values like equity, justice, and fairness. Conveniently, this studied “see no evil” approach has rendered the methodology an effective conduit for injecting racism into regulatory decision-making – much as facile claims of “color blindness” have helped provide cover for policies with racist effects. In particular, false objectivity enables racism to be smuggled in at two key steps in the cost-benefit analysis process: (1) constructing the analytical baseline and (2) the identification and evaluation of discrete potential policy impacts.

Another defining feature of cost-benefit analysis contributes to its …

Oct. 5, 2020 by Darya Minovi
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Amidst the president and First Lady testing positive for COVID-19, an embarrassing spectacle of a presidential "debate," and a pandemic that has now claimed more than 200,000 lives in the United States and 1 million worldwide, the West Coast wildfires have lost the attention of the national news cycle. But California and nearby states are still very much ablaze.

As I write, 70 active large fires are raging in 10 western states. More than a third of these are in California, where more than 2 million acres of land are currently burning (an area larger than the state of Delaware). Four of the five largest fires in the state’s history started in the last two months.

These historic fires have already killed at least 35 people, forced thousands to evacuate, and exposed hundreds of thousands to extremely hazardous levels of fine particulate matter, or …

Oct. 1, 2020 by James Goodwin
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This is the second part of a two-post set. Read the first post here.

In yesterday's post, I discussed the essentially undemocratic ways that conservatives have come to the brink of a 6-3 majority on the Supreme Court and examined one significant implication for regulatory policy: the likely effect on the Court's view on Chevron deference. In this second post, I explore several other ways the Court could undermine the essential democratic character of the regulatory system.

Nondelegation. Progressives dodged a big bullet in 2019 when the Supreme Court handed down its decision in Gundy v. United States. In the case, conservatives sought to resuscitate a long-dormant doctrine known as nondelegation, which generally prohibits Congress from transferring its legislative authority to another branch, but again fell one vote short of doing so. Similar to Chevron deference, conservatives believe that the federal courts’ failure to enforce a more …

Sept. 30, 2020 by James Goodwin
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This is the first part of a two-post set. The second post is available here.

Last week, Matthew Yglesias published an important piece at Vox explaining the many ways conservatives have succeeded in exploiting fundamentally undemocratic features of our constitutional structure of government to advance their policy agenda. This strategy will have reached its grotesque culmination if they manage to seat Judge Amy Coney Barrett on the U.S. Supreme Court.

He’s rightfully angry about the situation – as should we all be – but the story he tells, thorough and infuriating as it is, misses an important point: It could actually get much worse. That’s because it's likely that Barrett will be a reliable vote in support of advancing the conservatives’ dream of stripping the U.S. regulatory system of its essential democratic features, transforming it into yet another vacuum cleaner with which the nation’s …

Sept. 28, 2020 by Michele Janin
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As many of our allies and supporters know, CPR is now in the midst of a nationwide search for our next executive director. Earlier this month, with the start of the school year, Matt Shudtz left us to be a full-time parent of young home-bound children whose schools and daycare are restricted to virtual learning.

So, it's time for us to find new staff leadership. We're looking for a dynamic leader prepared to guide our nearly 20-year-old organization into its next stage of growth and impact. Since the days in the early aughts when you could squeeze all our Member Scholars and staff around a medium-sized conference table, we've grown to have more than 60 Member Scholars across the nation and a permanent staff of eight, all working virtually even before the pandemic. And, importantly, we've had and continue to have real impact on a number of …

Sept. 25, 2020 by David Flores
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An extraordinary Atlantic hurricane season is still underway, one that has seen the National Hurricane Center exhaust its supply of names and resort to Greek alphabet for remaining storms. This month was the worst September on record in terms of the number of named storms, and 2020 overall is second only to 2005’s devastating succession of hurricanes (which included Katrina) in the number of named storms over the entire season.

There's no mystery as to why: Climate change is driving an increase in the frequency and strength of Atlantic hurricanes. And it's doing it at a time when affected communities – especially Black, Brown, and low-income communities – are all the more vulnerable to natural disaster due to the Trump administration’s rollbacks of environmental safeguards and its reckless response to the COVID-19 pandemic. While Trump is pouring fuel on the fire, 2020’s portent of a future …

Sept. 25, 2020 by Robert Verchick
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Grappling with a contentious dispute over cross-state air pollution, Justice Ruth Bader Ginsburg, writing for the majority in Environmental Protection Agency v. EME Homer City Generation, first consulted the King James Bible. “‘The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth,’ she wrote, “In crafting a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind.”

It was 2014, and at stake was a complicated, science-driven plan crafted by the EPA to limit air pollution that wafts from one state to endanger communities in another. The plan, which budgeted air emissions in certain states, promised to save thousands of lives and bring cleaner air to poor and minority neighborhoods. But in so doing, it would force several aging coal plants to close. Industry cried foul, saying …

Sept. 24, 2020 by James Goodwin
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An underappreciated side effect of the modern conservative movement now epitomized by Trumpism is its dogged pursuit of any legal argument to support “the cause,” no matter how ridiculous or specious. Long-settled questions like nondelegation and the constitutionality of independent regulatory agencies are suddenly, if bizarrely, up for grabs again. Add to this list a new line of argument – now germinating like a mushroom spore in horse manure – that posits that citizen suit provisions, such as those included in the Clean Air Act and Clean Water Act, are unconstitutional infringements upon the so-called unitary executive.

Earlier this month CPR Member Scholar Joel Mintz demolished this argument in a pair of posts published here. In this post, I want to move the ball forward and argue that citizen suits offer an essential opportunity for public engagement in regulatory implementation and thus should be extended universally across the entire …

Sept. 22, 2020 by Daniel Farber
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With Sen. Mitt Romney’s announcement this morning that he would support consideration of a nominee before the election, it now seems virtually certain that President Trump will be able to appoint a sixth conservative justice. How will that affect future climate policy? Here is a preliminary threat assessment.

The answer varies, depending on what policies we’re talking about. Overall, the implications of a 6-3 Court are bad. But they’re probably not as dire for environmental law as for other issues like racial equality or reproductive rights.

As a quick preliminary take on this, I’ll sort heightened legal risks of climate actions into high, medium, low, and wildcard. The wildcard risks actually worry me the most.

High Risk

Innovative regulations like Obama’s Clean Power Plan. Regulations by EPA that use existing statutory …

Sept. 21, 2020 by Rebecca Bratspies
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Recently, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler spoke to commemorate the 50th anniversary of the EPA's founding. He used the opportunity to reiterate the agency's commitment to its “straightforward” mission to “protect human health and the environment.” He also emphasized that the agency’s mission meant “ensuring that all Americans – regardless of their zip code – have clean air to breathe, clean water to drink, and clean land to live, work, and play upon.”

Why did Wheeler refer to zip code? Because decades of research have documented that pollution, and its adverse health effects, are not spread equally across the country. Instead, polluting industry tends to be concentrated in certain zip codes that, due to a history of racist redlining and housing discrimination, are predominantly the home of Black and Brown Americans.

The groundbreaking 1987 study Toxic Waste and Race in the United States first …

CPR HOMEPAGE
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Oct. 29, 2020

New Web Article Exposes the Pseudoscience of Cost-Benefit Analysis

Oct. 28, 2020

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