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Jan. 9, 2019 by Daniel Farber

How Trump Officials Abuse Cost-Benefit Analysis to Attack Regulations

This op-ed was orignally published in the Washington Monthly.

In December of 2017, Donald Trump gathered the press for a variation on a familiar activity from his real estate mogul days. Stretched between a tower of paper taller than himself, representing all current federal regulations, and a small stack labeled "1960," was a thick piece of red ribbon – red tape, if you will. The president promised that "we're going to get back below that 1960s level." With his daughter Ivanka and other advisors by his side, Trump used comically large scissors to cut the ribbon.

Cutting regulations has been a priority for nearly every Republican politician since at least the 1980s. But the Trump-era GOP, unsatisfied with the existing deregulatory toolkit, has found a bigger pair of scissors. Call it cost-cost analysis: to justify getting rid of regulations they dislike, Republicans have decided to systematically ignore their benefits.

Since the Reagan era, there has been a consensus among conservatives that cost-benefit analysis is the gold standard for evaluating regulations. It requires quantifying the benefits and costs of a proposed regulation, expressed in monetary terms. If its benefits exceed the costs, a regulation is justified, but not otherwise. For …

Dec. 10, 2018 by Daniel Farber
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Cross-posted from Legal Planet.

In terms of regulatory policy, the second half of Trump's term is shaping up to look a lot like Obama's final two years in office. Congress won't be doing much to advance Trump's environment and energy agenda, as was the case with Obama. So, like Obama, Trump's focus will be on administrative action, particularly regulatory initiatives (or deregulatory ones, in Trump's case). The big question is how these efforts will fare in court. I want to discuss three aspects of that question: timing, judicial review of statutory issues, and judicial review of policy analysis.

Timing. The Trump people are keenly aware that some of Obama's most important rules were still in the litigation process when he left office, which has kept those rules hanging in the wind for the two years since Trump took office. They seem desperate to avoid the same fate …

Dec. 6, 2018 by Daniel Farber
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Cross-posted from Legal Planet.

This is the second of three posts assessing the first two years of the Trump administration. You can read the first post here.

We all seem to be subscribed to the "All Trump News, All the Time" newsfeed. It may be helpful to step back a bit and compare Trump with his last Republican predecessor, George W. Bush.

How do the two stack up? Bush and Trump were very different in character and style, but their regulatory aims were similar. Bush and Trump were both trying to steer the country in the same directions in terms of regulatory policy: increased use of fossil fuels, less environmental regulation. But the Republican Party has been radicalized since Bush's day, and in environmental affairs, the Trump administration reflects that radicalization.

For instance, whereas Bush actually created important ocean national monuments (though it was a bit out …

Dec. 3, 2018 by Daniel Farber
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Cross-posted from Legal Planet.

In September 2017 – that seems so long ago! – Eric Biber and I released a report assessing the state of play in environmental issues 200 days into the Trump administration, based on an earlier series of blog posts. As we end Trump's second year, it's time to bring that assessment up to date. This is the first of three posts examining what Trump has done (and hasn't done) in terms of environment and energy.

For this first post, I'll follow the same outline as the 9/17 report but omit a lot of the detail.

Legislation. Eric and I considered substantive legislative changes very unlikely although potentially very damaging. Almost no substantive changes have made it through Congress. The one exception was the provision in the Senate tax bill for opening up ANWR for drilling, which was able to use reconciliation procedures since it …

Oct. 11, 2018 by Lisa Heinzerling
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This post was originally published as part of a symposium on ACSblog, the blog of the American Constitution Society. Reprinted with permission.

Presidents since Ronald Reagan have, by executive order, required agencies to submit significant regulatory actions to the White House for review. Academic and public interest observers have variously criticized this review as slow, opaque, chaotic, lawless, and power-grabbing. Yet every president in the intervening years has not only embraced but also deepened the control of the White House over individual regulations.

Even President Obama, who announced early in his first term that he was conducting a top-to-bottom review of this process, ultimately embraced strict White House control over the rulemaking proceedings of the executive agencies. President Trump has taken White House control over rules to a whole different dimension by ordering agencies to revoke two existing rules for every new rule they issue and by …

Nov. 2, 2017 by Katie Tracy
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Scott Mugno, Vice President for Safety, Sustainability, and Vehicle Maintenance at Fed Ex Ground in Pittsburgh, Pennsylvania, is President Trump's pick to head the Occupational Safety and Health Administration (OSHA). Although whispers of Mugno's possible nomination had spread across Washington, D.C., over the past several months, not much has been said about his credentials for the job. One major concern is Mugno's connection to the notoriously anti-regulatory U.S. Chamber of Commerce, for which he is currently the chairman of the OSHA subcommittee of the group's Labor Relations Committee. And as Jordan Barab, former Deputy Assistant Secretary of Labor at OSHA, highlights in his excellent blog post on the nomination, Mugno expressed interest in sunsetting OSHA standards in comments he made at a Chamber event last year. 

When Mugno goes before the Senate Health, Education, Labor and Pensions Committee for confirmation hearings, it will be imperative …

Sept. 5, 2017 by Evan Isaacson
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Last month, Secretary of the Interior Ryan Zinke submitted his long-anticipated report to President Trump that recommends dismantling and looting some of America's treasured monuments and antiquities. (This was interesting timing, given that the president stood firmly behind the preservation of some other, far less-cherished monuments.)

In anticipation of the report, Theodore Roosevelt IV, the 26th president's great-grandson, wrote a letter to the editor in the Houston Chronicle telling Zinke that his actions have failed to live up to the legacy of Teddy Roosevelt, whom the Secretary of the Interior claims to admire. The lifelong Republican wrote that, in stark contrast to Zinke and Trump, his great-grandfather had a "fierce determination to take on profiteers who were seeking to exploit public lands for private gains."

Picking up where Roosevelt IV left off, it is worth exploring this point a little further, as it reveals perhaps the …

June 14, 2017 by Evan Isaacson
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With a massive, proposed 31 percent cut to his agency looming in the background, EPA Administrator Scott Pruitt is preparing to visit Capitol Hill for an appearance before a House Appropriations subcommittee on Thursday. Lawmakers, their staff, and others are likely and understandably focused on the Paris climate agreement withdrawal, the Trump administration's proposal to end federal financial support for programs that help protect and restore a variety of Great Waters like the Chesapeake Bay and the Great Lakes, and damaging staff cuts that would cripple the agency's ability to protect our health and our environment. But we should be looking beyond the big-ticket items to fully assess the damage that Pruitt and President Trump are proposing to do. 

As someone who focuses on the vitality and sustainability of the Chesapeake Bay and other Great Waters in the United States, I'm convinced that the president's plans to …

Feb. 27, 2017 by Evan Isaacson
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The ascension of Scott Pruitt as Administrator of the Environmental Protection Agency (EPA) ushers in a new chapter in the long story of cooperative federalism in the administration of U.S. environmental laws. Pruitt's words and actions as the Attorney General of Oklahoma suggest that, as much as any other issue, idea, or policy, federalism will be a recurring theme.

But are the cries about federalism really about finding the proper balance of state and federal roles in implementation of our environmental laws? Or is federalism merely a tool in the conservative toolbox used to achieve their real aim: dismantling environmental regulation?

To be sure, a focus on federalism has long been one of the core values of conservatives as they argue for devolution of power to state and local governments. Indeed, the U.S. Supreme Court has recognized federalism as one of the oldest and most …

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