White_House_wide.JPG
Oct. 10, 2019 by James Goodwin

The Trump Administration's New Anti-Safeguard Executive Orders on Guidance, Explicated

Last week, President Trump unleashed the latest volley in his administration's efforts to bring about the "deconstruction of the administrative state" with the signing of two new executive orders relating to agency issuance and use of "guidance documents." The first purports to ensure "improved agency guidance," while the second claims to promote "transparency and fairness" in the use of guidance for enforcement actions. The bottom line for the orders is that, with a few potentially big exceptions, they are unlikely to have much practical impact. Instead, this is mostly a messaging exercise by the Trump administration aimed at advancing the broader conservative campaign to delegitimize the regulatory system by propagating the tired old myth that regulatory agencies are unaccountable and pose a threat to our society.

Before diving into orders' substance, two housekeeping points need to be addressed. First, what are guidance documents anyway? They are best understood as a conceptual catchall term describing nearly anything that agencies put in writing that's not a rule (i.e., that does not have the independent force of law). According to this understanding, guidance documents cover a huge universe of diverse things – emails, webpages, warning posters, and so on – making efforts …

Oct. 4, 2019 by Robert Glicksman, Alejandro Camacho
WorkerSafetyCollage_wide.jpg

Originally published in The Revelator. Reprinted under Creative Commons license CC BY-NC-ND 3.0.

For five decades California and the federal government have worked together in an innovative exercise in federalism aimed at achieving cleaner air. California has played an important role in controlling greenhouse gas emissions that contribute to climate change, particularly from motor vehicles.

But now, contrary to law and in a massive departure from past practice, President Donald Trump has announced that his administration is pulling the rug out from under California's feet by divesting it of its longstanding authority to adopt auto emission controls more stringent than the Environmental Protection Agency's.

The action, implemented jointly by the EPA and the National Highway Traffic Administration, couldn't come at a worse time. Less than a year ago, the Intergovernmental Panel on Climate Change called "ambitious mitigation actions" indispensable to limiting warming to 1.5 degrees …

Sept. 23, 2019 by James Goodwin
RegPolicyCollage_wide.JPG

Last week's televised climate town hall saw several Democratic presidential candidates outline an impressive array of policies that, if implemented effectively, offer some measure of hope for averting the worst consequences of the climate crisis for us and future generations. The operative concept there – lurking in the background and too often taken for granted – is effective implementation. The fact of the matter is that meeting our country's greatest challenges – climate change, economic inequality, systemic racism, access to quality health care – will require effective implementation, and that in turn will require a more robust, modernized, and inclusive regulatory system than we currently have.

Conservatives have long vilified the U.S. system of regulatory safeguards, while establishment Democrats – when not trying to ignore it altogether – have at best accepted regulation only grudgingly and apologetically. As demonstrated at a June CPR conference, though, progressives are staking out a new, more …

Sept. 16, 2019 by Amy Sinden
WHouseGreySkies.jpg

Originally published in The Revelator. Reprinted under Creative Commons license CC BY-NC-ND 3.0.

The Trump EPA last month proposed a new plan to remove oil and gas developers’ responsibility for detecting and fixing methane leaks in their wells, pipelines and storage operations. This proposal to axe the Obama-era methane rule is notable for two reasons. First, it is a huge step backward in the race to stabilize the climate, just at the moment scientists warn we need to move forward with unprecedented speed. Second, it’s the latest in a growing list of Trump rollbacks opposed by the very industries they’re purportedly intended to help.

The Obama EPA put the methane rule in place for good reason: Methane is a powerful driver of climate disruption. While it doesn’t linger in the atmosphere as long as carbon dioxide, for the 10 or 20 years it …

Sept. 5, 2019 by Daniel Farber
White_House_wide.JPG

Originally published on Legal Planet.

Under executive orders dating back to President Ronald Reagan, regulatory agencies like EPA are supposed to follow cost-benefit analysis when making decisions. Under the Trump administration, however, cost-benefit analysis has barely even served as window-dressing for its deregulatory actions. It has launched a series of efforts to prevent full counting of regulatory benefits, as well as committing any number of sins against economic principles, as I detailed in a post in January. Essentially, the administration has had a laser-like focus on the costs of regulation, which it often exaggerates, while making every effort to ignore or minimize possible benefits. If Trump is reelected, that will continue.

But what if the Democrats win? Then things are more complicated. A lot depends on the identity of the Democratic nominee. Regardless of who that person may be, however, some parts of cost-benefit analysis will survive …

Aug. 19, 2019 by Thomas McGarity
WHouseGreySkies.jpg

In response to this month's mass shootings in El Paso, Texas, and Dayton, Ohio, President Donald Trump urged legislators to enact "red flag" laws to prevent future tragedies. Red flag laws allow police or family members to seek court orders (sometimes called "extreme risk protection orders") that temporarily remove firearms from individuals who present a danger to themselves or others. But do these laws and regulations distract from the larger point about gun violence and mass shootings in the United States?

Trump urged lawmakers to "make sure that those judged to pose a grave risk to public safety do not have access to firearms and that if they do those firearms can be taken through rapid due process." On first hearing, this sounds like a call for the government to protect the public from potentially dangerous individuals. But don't be deceived. The president doesn't really want …

Aug. 5, 2019 by James Goodwin
music-microphone-wide.jpg

Originally published by The Regulatory Review. Reprinted with permission.

Public participation is one of the cornerstones of U.S. administrative law, and perhaps nothing better exemplifies its value than the notice-and-comment rulemaking process through which stakeholders can provide input on a proposed rule. Yet there remains an inherent tension in the democratic potential of this process. In reviewing final rules, courts demand that agencies demonstrate that those rules are responsive to any substantive comments they receive. But courts generally limit this requirement to comments containing legal or technical information.

This approach to judicial supervision of agency rulemaking is just one of many forces that have helped transform what should be a democratic rulemaking process into a technocratic exercise. On the plus side, expertise-centered rulemaking has substantially improved regulatory quality. These gains, however, have come with some important unintended consequences.

For one, the growing hegemony of technocratic decision-making …

July 26, 2019 by Amy Sinden
epa-hq-cc-nrdc-wide.jpg

This commentary was originally published by The American Prospect.

Everyone in communications knows how to bury a news story: release it late on a Friday. So it was with the White House’s annual report on federal regulations, released months behind schedule on a Friday in February. As it has for many years, the report pegged the benefits of federal regulation in the hundreds of billions of dollars, swamping the calculated costs of compliance by at least 2 to 1 and possibly as much as 12 to 1—awkward results for the Trump communications team, to say the least. How to square these numbers with the “job-killing regulations” trope was a real head-scratcher.

It might seem like good news that regulatory safeguards actually do save a lot of lives, not to mention preventing a lot of diseases, accidents, and other bad things. But these big numbers on …

July 23, 2019 by Rena Steinzor
WHouseGreySkies.jpg

Originally published by The Regulatory Review. Reprinted with permission.

As the United States slogs through year three of a deregulatory implosion, one truth has become clear: As practiced by the Trump administration, cost-benefit analysis has become a perversion of a neutral approach to policymaking.

To be forthright, I was never a fan of the number crunching. I thought it created the false impression that numerical estimates were precise, drastically understated benefits, buried controversial value judgments behind barricades of formulas, and depended on unreliable indicators of how much real people valued risk. But I understood it was here to stay when Cass Sunstein persuaded President Barack Obama to embrace it. The task for people like me became understanding how the methodology was practiced by economists so that we could make arguments critiquing its harsh applications.

The first sign of a crumbling structure was the shift among congressional conservatives …

July 22, 2019 by Joel Mintz
USCapitol_wide.JPG

Originally published by The Regulatory Review. Reprinted with permission.

When it comes to the need for federal regulation, the American political system is currently deeply divided along ideological and partisan lines. This division has a number of causes, but a good part of the division can unquestionably be attributed to what Professor Thomas McGarity has referred to as the anti-regulatory "idea infrastructure" and the "influence infrastructure" constructed by conservatives in the early 1970s and continued thereafter—ideas intended to block and roll back public protections along with tactics for implementing those anti-regulatory ideas.

That conservative effort has succeeded for many years, but the country has paid a steep price in terms of increased risks from the unbridled pursuit of profit. The 2018 congressional election may portend a looming backlash against the political right, with its own intransigent opposition to common sense public protections leading to its demise …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Sept. 22, 2020

Fighting Global Warming in a Chilly Judicial Climate

Sept. 17, 2020

Pandemic Spawns Dangerous Relaxation of Environmental Regulations

Sept. 16, 2020

The Pandemic's Toll on Science

Sept. 8, 2020

Pandemic's Other Casualty: Expertise

Sept. 1, 2020

Trump Deregulation Ignores Both Science and Law

Aug. 27, 2020

The Trump Administration's Latest Unconstitutional Power Grab

Aug. 25, 2020

Beyond 12866: New CPR Initiative to Promote Administrative Agenda for Progressive Regulatory Reform