Regulatory Policy

Regulatory safeguards play a vital role in protecting us from hazards and ensuring that companies that pollute, make unsafe products, and create workplace hazards bear the cost of cleaning up their messes and preventing injuries and deaths. Still, the regulatory system is far from perfect: Rules take too long to develop; enforcement is often feeble; and political pressure from regulated industries has led to weak safeguards.

These systemic problems are made all the more severe by the determination of the Trump administration to undercut sensible safeguards across virtually all aspects of federal regulation. Moreover, the President and his team have taken aim at the the process by which such safeguards are developed, aiming to take a system already slanted in favor of industry profit at the expense of health, safety and the environment, and make it even less protective. For example, where critics of the use of cost-benefit analysis see a system that understates the value of safeguards and overstates the cost of implementing them -- making it difficult to adopt needed protections -- the Trump administration seeks simply to ignore benefits of safeguards, pretending they do not exist. The result is a regulatory system that fails to enforce landmark laws like the Clean Air Act, Clean Water Act and more.

CPR exposes and opposes efforts by opponents of sensible safeguards to undermine the regulatory system, fighting back against knee-jerk opposition to environmental, health, and safety protections. Below, see what CPR Members Scholars and staff have had to say in reports, testimony, op-eds and more. Use the search box to narrow the list.

Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question

The Constitution’s federalist structures protect states’ sovereignty but also create a powerful federal government that can preempt and thereby displace the authority of state and local governments and courts to respond to a social challenge. Despite this preemptive power, Congress and agencies have seldom preempted state power. Instead, they typically have embraced concurrent, overlapping power. Recent legislative, agency, and court actions, however, reveal a newly aggressive use of federal preemption, sometimes even preempting more protective state law. Preemption choice fundamentally involves issues of institutional choice and regulatory design: should federal actors displace or work in conjunction with other legal institutions? This book moves logically through each preemption choice step, ranging from underlying theory to constitutional history, to preemption doctrine, to assessment of when preemptive regimes make sense and when state regulation and common law should retain latitude for dynamism and innovation.

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Author(s): William Buzbee
The Preemption War: When Federal Bureaucracies Trump Local Juries

For the last decade, Americans’ right to sue manufacturers whose products cause them injury or harm has been under attack. It’s been a quiet war, but it has been fierce, raging simultaneously in the courts, federal regulatory agencies, and Congress. The conflict is over what is called agency preemption, and the fundamental question is whether and under what circumstances regulations by federal agencies may preempt – which is to say, trump – state laws allowing victims to bring suit against companies whose actions cause them harm. Read about Thomas McGarity's book on the topic.

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Author(s): Thomas McGarity
Court Takes Up Preemption Doctrine

Court Takes Up Preemption Doctrine, op-ed by Thomas McGarity

Type: Op-Eds (Nov. 28, 2008)
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Author(s): Thomas McGarity
Limiting Federal Agency Preemption: Recommendations for a New Federalism Executive Order
Type: Reports (Nov. 19, 2008)
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Author(s): Thomas McGarity, Nina Mendelson, Sidney Shapiro, David Vladeck, Matt Shudtz, James Goodwin
Protecting Public Health and the Environment by the Stroke of a Presidential Pen: Seven Executive Orders for the President's First 100 Days

Protecting Public Health and the Environment by the Stroke of a Presidential Pen: Seven Executive Orders for the President's First 100 Days, By CPR Member Scholars Rebecca M. Bratspies, David M. Driesen, Robert L. Fischman, Sheila Foster, Eileen Gauna, Robert L. Glicksman, Alexandra B. Klass, Catherine A. O’Neill, Sidney Shapiro, Amy Sinden, Rena Steinzor, Robert R.M. Verchick, and Wendy Wagner, and CPR Policy Analyst James Goodwin

Type: Reports (Nov. 13, 2008)
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The Truth About Torts: Regulatory Preemption at the Consumer Product Safety Commission

The Truth About Torts: Regulatory Preemption at the Consumer Product Safety Commission, CPR White Paper 807.

Type: Reports (Nov. 5, 2008)
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Author(s): Bill Funk, Thomas McGarity, Nina Mendelson, Sidney Shapiro, David Vladeck, Matt Shudtz
Saving Science from Politics: Nine Essential Reforms of the Legal System

Saving Science from Politics: Nine Essential Reforms of the Legal System, White Paper 805, July 2008.

Type: Reports (July 16, 2008)
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Author(s): Rena Steinzor, Wendy Wagner, Matt Shudtz
Poisoned for Pennies: The Economics of Toxics and Precaution

The term, “Cost-benefit analysis,” is used so frequently that we rarely stop to think about it. But relying on it can lead to some dubious conclusions, as Frank Ackerman points out in this eye-opening book. Inventing dollar values for human life and health, endangered species, and fragile ecosystems does not guide us to better policies, he maintains. Cost-benefit analysis, as practiced today, could have led to damming the Grand Canyon for hydroelectric power, leaving lead in gasoline, and other absurd and harmful decisions. In Poisoned for Pennies, Ackerman uses clear, understandable language to describe an alternative, precautionary approach to making decisions under uncertainty.

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Author(s): Frank Ackerman

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