RegPolicyCollage_wide.JPG
Dec. 2, 2021 by Minor Sinclair, James Goodwin

Strengthening the 4th Branch of Government

This blog post is the second in a series outlining the Center for Progressive Reform’s new strategic direction. We published A Turning Point on Climate in November.

Over the last four decades, small government ideologues have waged a coordinated attack against government. The strategy has paid off: Public approval ratings of all three branches of government are at all-time lows.

Nevertheless, the federal government still manages to get things done on a day-to-day basis, and that is primarily due to the so-called 4th branch of government — the administrative and regulatory state that employs 2 million workers, invests trillions of dollars each year on things like air pollution monitoring and cutting-edge clean energy research, and makes rules that protect us all.

This is not to say that the administrative state hasn’t been the target of conservative attacks, too. These attacks have left federal regulatory system battered, bruised, and starved for resources. Nevertheless, the genius of its design — including such factors as a professional bureaucracy, science-based policymaking, strict transparency measures, and a commitment to public participation — has enabled it to persevere in the face of these challenges.

Simply put, the administrative state makes our lives our better, and we would …

Oct. 25, 2021 by Daniel Farber
calculator-buttons-wide.jpg

This post was originally published on Legal Planet. Reprinted with permission.

Cost-benefit analysis is required for all major regulations. It's also highly controversial, as well as being a mysterious procedure unless you're an economist. These FAQs will tell you what you need to know about how cost-benefit analysis (CBA) fits into the regulatory process, how it works, and why it's controversial.

Q: Let's start with a basic question. Exactly what is cost-benefit analysis?

A: The term cost-benefit analysis is sometimes used to mean any comparison of pros and cons, which is something we all do every day in ordinary life. For present purposes, though, it means a very rigorous way of balancing pros and cons, using economic analysis to quantify the costs and benefits of an action. Basically, everything gets converted into dollar equivalents in this process.

Q: Why do agencies conduct cost-benefit analyses?

A: A few …

Oct. 19, 2021 by Amy Sinden
stream_wide.jpg

This post was originally published on LPE Blog and is part of a symposium on the future of cost-benefit analysis. Reprinted with permission.

In the actual work of crafting the regulatory safeguards that protect our environment and health, cost-benefit analysis has been largely ineffectual and irrelevant. Indeed, its ineffectiveness has been so profound as to prompt even its most ardent practitioners and proponents to question whether it has any impact on agency decisions at all. Meanwhile, it plays at best a minor role in the legal standards that actually govern agency decision-making. Despite all this, a certain cost-benefit orthodoxy has become remarkably entrenched in environmental policy circles. Especially in an era when so many progressive ideas are in ascendance, why does the idea of regulatory review based on CBA, first brought to us half a century ago by the two Ronalds—Ronald Coase and Ronald Reagan—have …

Oct. 14, 2021 by James Goodwin
RegPolicyCollage_wide.JPG

This post was originally published on LPE Blog and is part of a symposium on the future of cost-benefit analysis. Reprinted with permission.

Over the last 40 years, the U.S. regulatory system has played an increasingly influential role in redefining our political and economic relationships in fundamentally neoliberal terms. A key but often overlooked institutional force behind this development is the peculiar form of cost-benefit analysis that now predominates in regulatory practice. Building a new regulatory system befitting our vision of a post-neoliberal America requires a formal rejection of prevailing cost-benefit analysis in favor of a radically different approach—one that invites public participation, permits open and fair contestation of competing values at the heart of policy debates, and recognizes and honors our social interdependencies.

The predominant form of cost-benefit analysis—one embraced by neoliberals—finds its theoretical underpinning in the controversial ideology of welfare economics …

Oct. 11, 2021 by Melissa Lutrell, Jorge Roman-Romero
White_House_wide.JPG

This post was originally published on LPE Blog and is part of a symposium on the future of cost-benefit analysis. Reprinted with permission.

Cost-benefit analysis (CBA) is inherently classist, racist, and ableist. Since these are foundational problems with CBA, and are not simply issues with its implementation, they can never be fixed by mere methodological improvements. Instead, the ongoing modernization of centralized regulatory analyses must focus on "moving beyond" CBA, and not on fixing it or improving it. Thus, in implementing President Biden's memorandum on Modernizing Regulatory Review (the Biden Memorandum), the Office of Management and Budget (OMB) should make explicit that regulatory review no longer requires CBA, even—as will be true in the typical case—when regulatory review does demand economic analysis as part of a holistic, multi-factor regulatory impact analysis.

The Biden memorandum endorses a series of goals that are not premised in the …

Sept. 10, 2021 by Daniel Farber
white_house_2_wide.jpg

This post was originally published on Legal Planet. Reprinted with permission.

The Biden administration is looking to make big regulatory changes, not least regarding climate change. Yet the White House office overseeing regulations is vacant. The obscurely named Office of Regulatory Affairs and Information (OIRA) has to sign off on all significant regulations. Even the dilatory Donald Trump had nominated a permanent administrator by July of his first year. Biden's delay in filling this important office is hard to defend.

The main reason for the delay is probably that Biden doesn't have the OIRA administrator's boss in place, either. Biden's nominee to head the Office of Management and Budget (OMB) had to be withdrawn when her Senate support evaporated. That was on March 2, however, and there's still no new OMB nomination six months later. Maybe the reason is an inability to find a candidate who can …

July 6, 2021 by James Goodwin
White_House_wide.JPG

The White House is asking for input on how the federal government can advance equity and better support underserved groups. As a policy analyst who has studied the federal regulatory system for more than a dozen years, I have some answers — and I submitted them today. My recommendations focus on the White House rulemaking process and offer the Biden administration a comprehensive blueprint for promoting racial justice and equity through agencies’ regulatory decision-making.

To put it bluntly, the U.S. regulatory system is racist.

Key institutions and procedures throughout the rulemaking process contribute to structural racism in our society, resulting in policies that exacerbate racial injustice and inequity. We can’t have truly equitable regulatory policy unless and until these features of the regulatory system are reformed or eliminated.

To make good on its promise to advance equity, the Biden administration must overhaul two interrelated components of …

June 25, 2021 by Daniel Farber
LawBooks_wide.jpg

This post was originally published on Legal Planet. Reprinted with permission.

Even most lawyers, let alone the rest of the population, are a bit fuzzy on how the regulatory system works. As the Biden administration is gearing up to start a slew of regulatory proceedings, here's what you need to know about the process.

Issuing Regulations

Q: Where do agencies like EPA get the power to create regulations?

A: EPA and other agencies are created by Congress. They also get the power to issue regulations from laws passed by Congress. For instance, the Clean Water Act tells EPA to issue regulations based on the "best available technology" for controlling the discharge of toxic water pollutants.

Q: Who decides whether an agency should start the process to issue a new regulation?

A: Some statutes set deadlines and require agencies to act. In those situations, a court can intervene …

March 23, 2021 by James Goodwin, Sidney Shapiro
RegPolicyCollage_wide.JPG

This op-ed originally ran in The Regulatory Review. Reprinted with permission.

To paraphrase French economist Thomas Piketty, the task of evaluating new regulations is too important to leave to just economists. Yet, since the 1980s, White House-supervised regulatory impact analysis has privileged economic efficiency as the primary and often only legitimate objective of federal regulation. The regulatory reform initiative launched by President Joseph R. Biden on his first day in office creates an opportunity to reorient regulatory analysis in ways that both reformers and the public support.

Legal and policy experts object to hyper-technical regulatory analysis, and new public opinion polling indicates that voters agree.

Far from a monolithic concept, cost-benefit analysis encompasses a wide range of approaches and techniques, all with their own theoretical underpinnings and ethical commitments. Indeed, the current version of cost-benefit analysis is grounded in the conservative discipline of welfare economics and seeks …

March 3, 2021 by Sidney Shapiro
white_house_2_wide.jpg

Amid the Sturm und Drang (storm and stress) of politics these days, one fact stands out — a large majority of Americans want more regulatory protection in a wide variety of areas, according to a recent poll of likely voters.

The results are consistent with previous polls that indicate that Americans understand the importance of government regulation in protecting them from financial and health risks beyond their control. They also indicate majority support for efforts by the Biden administration to renew government regulation — as well as a stark repudiation of former President Trump’s extreme anti-regulatory agenda.

The poll, conducted in January by Data for Progress and the Center for Progressive Reform, found that a majority of likely voters favor more regulation of drinking water pollution (74 percent); consumer product safety (71percent); privacy data (70 percent); air pollution (68 percent …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Dec. 2, 2021

Strengthening the 4th Branch of Government

Oct. 25, 2021

Cost-Benefit Analysis: FAQs

Oct. 19, 2021

The Shaky Legal and Policy Foundations of Cost-Benefit Orthodoxy in Environmental Law

Oct. 14, 2021

A Post-Neoliberal Regulatory Analysis for a Post-Neoliberal World

Oct. 11, 2021

Modernizing Regulatory Review Beyond Cost-Benefit Analysis

Sept. 10, 2021

Vacancy

July 6, 2021

Biden White House Can Make the Regulatory System Anti-Racist. Here's How.