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July 23, 2019 by Rena Steinzor

Cost-Benefit Analysis According to the Trump Administration

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 and their allies in the business community to an exclusive focus on costs without any mention of benefits. They talked as if society had decided to take huge bundles of money and set them on fire for no good reason. The other troubling sign on the cost side was that many economists maintained …

July 22, 2019 by Joel Mintz
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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 …

July 2, 2019 by James Goodwin
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Last night, CPR Member Scholar Amy Sinden and I published an op-ed in The Hill explaining the dangers of a new rulemaking recently launched by Environmental Protection Agency (EPA) Administrator Andrew Wheeler and former air office Assistant Administrator Bill Wehrum. Through this rulemaking, Wheeler and Wehrum – both former industry lobbyists – will kick off the EPA's agency-wide effort to overhaul how it conducts cost-benefit analysis for its pending rules to ensure that this methodology remains heavily biased in favor polluters at the expense of people and our environment.

As the op-ed explains, cost-benefit analysis was always meant to provide industry with a powerful trump card in the rulemaking process. Industry expected its methodologies – while masquerading as objective and rational – would systematically favor weaker or no regulations. By and large, that held true for the nearly 40 years that cost-benefit analysis has ruled regulatory decision-making. But in the environmental …

June 13, 2019 by Daniel Farber
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Originally published on Legal Planet.

When a facility installs and operates the required pollution control equipment, we normally think of the pollution problem as solved. But there still may be bursts of pollution associated with start-up, shut-down, accidents, or external events. A recent study of pollution in Texas shows that these events have substantial health impacts, involving significant deaths and overall costs of about a quarter billion dollars a year in that state. Ironically, the study comes out at the same time as Trump's EPA has proposed to approve Texas's lax treatment of these "exceptional events." Texas purports to bar federal courts from even considering civil penalties for permit violations due to those events.

These events may be exceptional, but that does not make them harmless. The study by researchers at the University of Indiana proved that excess emissions from exceptional events impact public health. According …

June 10, 2019 by Daniel Farber
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Originally published on Legal Planet.

The Trump administration's hostile attitude toward science has continued unabated. The administration has used a triad of strategies: efforts to defund research, suppression of scientific findings, and embrace of fringe science.

  1. Budget. The administration continues to favor deep cuts in research support. Its initial 2020 budget proposal calls for a 13 percent cut to the National Science Foundation, a 12 percent cut at the National Institutes of Health, and elimination of the Energy Department's research support for advanced energy technologies (ARPA-E) and EPA's climate change research office. The proposal would also eliminate funding for the Sea Grant program, which funds environmental research on the coasts. The budget proposal is unlikely to become law, given that similar proposals were rejected even when the Republicans controlled both houses of Congress. But they are indicative of the administration's values.  
  2. Toxic chemical risks. A report by …

May 20, 2019 by James Goodwin
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The annual Duke Law Journal Administrative Law Symposium has long served as one of the most prestigious fora for cutting-edge administrative law scholarship. This year's event, which featured the leadership and contributions of six CPR Member Scholars, was no exception. Each symposium is built around a theme, and this year's topic was "Deregulatory Games," which examined how the Trump administration's aggressive and often bizarre assault on our system of regulatory safeguards has tested the long-standing doctrines, norms, and institutions of U.S. administrative law. Last week, the Duke Law Journal published a compilation of articles derived from the presentations at this year's symposium.

It's safe to say no aspect of the Trump administration has been normal, and that especially rings true with regulation. While undermining the regulatory system has long been a goal of conservative policymakers and their corporate interest allies, the manner in which …

April 18, 2019 by James Goodwin
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One of the most successful environmental regulations in U.S. history is under attack from the Trump EPA – and its demise might be accomplished by shady bookkeeping. That is the conclusion of comments filed by Center for Progressive Reform Member Scholars and staff on April 17.

Since it was issued in 2011, the Mercury and Air Toxics Standard (MATS), which establishes rigorous technology-based standards to limit hazardous air pollution from fossil-fueled power plants – has reduced electric utilities' emissions of neurotoxic mercury by 81 percent. Significantly, the rule has achieved these reductions at less than a third of its projected costs while delivering public health savings estimated at billions of dollars each year.

The attack has come in the form of a proposal to undo what is known as the "appropriate and necessary" finding that undergirds the rule. In the provision of the Clean Air Act that authorized …

April 16, 2019 by Bill Funk
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Last week, the acting director of the Office of Management and Budget (OMB) issued a memorandum to all agencies regarding compliance with the Congressional Review Act (CRA). This memo supersedes one issued in 1999 and pulls independent regulatory agencies – specifically designed by Congress to be less prone to political interference than executive agencies – into a far more centralized CRA review process.

The CRA requires federal agencies to send newly adopted rules to the House and Senate before the rules become effective. This enables both houses the opportunity to adopt a joint resolution disapproving the rule. If both houses adopt such a resolution, it is sent to the President for his signature or veto. Although only one rule was disapproved under the CRA in its first 20 years of existence, in the first year of the Trump administration, some 14 regulations were disapproved under the CRA.

The CRA …

April 15, 2019 by Matt Shudtz
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The federal Clean Water Act has been a resounding success as a tool for restoring our nation's waterways and preserving wetlands and other vital components of our ecosystems. But that success depends, in part, on restricting development in ecologically sensitive areas. That's why the Trump administration has proposed to narrow the scope of the Clean Water Act's protections. Not by amending the law, mind you – that wasn't possible when Republicans controlled both houses of Congress, much less now. Instead, the Trump administration is trying to weaken the Clean Water Act by redefining what it means for something to be a "water of the United States."

If history is any guide, and CPR Member Scholars' assessment of the proposal suggests it will be, the Trump administration's proposal will fail. It will fail because, as Member Scholar William Buzbee recently put it to a Washington Post reporter inquiring …

April 12, 2019 by Daniel Farber
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Originally published on Legal Planet.

Every day, it seems that there is a headline about some investigation involving campaign finance violations, the White House, or the actions of some foreign power. Perhaps that's all the bandwidth that Congress has. But there are other areas calling out for inquiry. Here are just a few:

CAFE Standards. The car industry asked for delays and modifications in fuel efficiency standards. The administration came back with a drastic rollback that went far beyond what industry requested, to the dismay of at least some major car firms. How did that happen? Outside economists scoff at the analysis Department of Transportation officials ran roughshod over EPA staff, whose complaints were squelched by the White House. Who exactly was responsible for those decisions? And what role did the oil companies play behind the scenes? There are already indications that oil companies were somewhat involved …

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