The Backdoor Discrimination of Cost-Benefit Analysis

by James Goodwin | February 20, 2009

In recent weeks, an unusual convergence of events has served to elevate somewhat the public profile of cost-benefit analysis (CBA).  Before then, CBA was an obscure and highly complex tool of policy analysis—the kind of thing that hardcore policy wonks would wonk about when the subjects of their usual policy wonkery weren’t wonkish enough.  Foreseeable future events suggest that the public profile of CBA will continue to rise.


The process began in early January when word emerged from the Obama transition team that the then-President-Elect planned to name Harvard law professor Cass Sunstein to head the Office of Information Regulatory Affairs (OIRA).  A little known but powerful bureau in the White House Office of Management and Budget (OMB), OIRA supervises the entire federal regulatory apparatus, imposing its will by individually reviewing all major federal regulations through the lens of CBA.  OIRA’s use of CBA, has been the subject of quite a bit of scholarly criticism, notably by the Members Scholars of CPR.  Since the otherwise progressive Professor Sunstein has been a prominent advocate of cost-benefit, the subject got a bit of an airing when news of his likely nomination leaked.


The public profile of CBA was given an additional boost after the announcement by President Obama that the Administration intends to revamp the whole enterprise of federal regulatory review.  In a Memorandum to Heads of Executive Departments and Agencies issued on January 30, the President launched a ...

CO2 and the Clean Air Act

by Holly Doremus | February 19, 2009
This item is cross-posted by permission from Legal Planet, "the Environment, Law and Policy Blog."    New EPA Administrator Lisa Jackson has granted the Sierra Club’s petition to reconsider a memorandum issued by outgoing Administrator Stephen Johnson in December.   Almost two years after the Supreme Court declared, in Massachusetts v. EPA, that CO2 is an “air pollutant” for purposes of the Clean Air Act, this announcement, paired with the decision to reconsider California’s request for permission to regulate greenhouse ...

CPR's Mendelson in NYT 'Debate' on CO2 Regulation

by Matthew Freeman | February 19, 2009
CPR Member Scholar Nina Mendelson has a piece today in The New York Times's "Room for Debate" feature on the news that EPA is working its way toward regulating carbon dioxide emissions under the Clean Air Act.  As The Times quite directly and correctly puts it, "Under orders from the Supreme Court, which the Bush administration ignored, President Obama’s new head of the Environmental Protection Agency is expected to determine" whether CO2 should be regulated.  Among those joining the Times ...

Doremus on Pending Decision on Chesapeake Bay Oysters

by Matthew Freeman | February 18, 2009
Over on Legal Planet, CPR Member Scholar Holly Doremus of UC-Davis and -Berkeley posted a blog Sunday on an upcoming decision on whether to introduce the Suminoe oyster, native to China and Japan, to the Chesapeake Bay. She writes: The U.S. Army Corps of Engineers issued a draft EIS last fall considering the impacts of several alternatives, including release of fertile Suminoe oysters and confined aquaculture of sterile oysters.You might wonder why federal agencies are involved at all. Virginia and ...

Cap-and-Evade: Climate Change, Environmental Justice, and the Clean Air Act

by Shana Campbell Jones | February 17, 2009
You’ve heard it before, and you’ll hear it again: climate change is different from traditional environmental problems. It’s global, for one thing. Carbon dioxide isn’t a traditional pollutant, for another. It doesn’t cause cancer. It doesn’t kill fish. Plants use it in photosynthesis; every human and animal emits it. The problem is that combustion creates it, too, which is why our modern, engine-loving world has too much.   CO2 is also fungible. One ton of CO2 is as good or ...

Scholar/Authors Discuss Their Books on Preemption, Part Four

by Matthew Freeman | February 16, 2009
Editor’s Note: Following is the last of four posts focused on federal preemption issues and featuring CPR Member Scholars Thomas McGarity and William Buzbee. In December, both published books on the issue. (The first blog post in the series includes some background on the issue. The second discussed the very real impact the outcome of the debate has on individuals. The third looked at the prospects for progress on the issue under the Obama Administration.) McGarity’s book is The Preemption ...

Scholar/Authors Discuss Their Books on Preemption, Part Three

by Matthew Freeman | February 13, 2009
Editor’s Note: Following is the third of four posts focused on federal preemption issues and featuring CPR Member Scholars Thomas McGarity and William Buzbee.  In December, both published books on the issue.  (The first blog post in the series includes some background on the issue.  The second discussed the very real impact the outcome of the debate has on individuals.)  McGarity’s book is The Preemption War: When Federal Bureaucracies Trump Local Juries.  Buzbee’s is Preemption Choice: The Theory, Law, and ...

A Modern Day Midas

by Yee Huang | February 12, 2009
From the airspace over the Indonesian gold mine Batu Hijau, it might seem as though the mythical King Midas has been resurrected in a modern, and twisted, form.  Where King Midas of Greek lore was granted the touch of gold, the modern King Midas assumes the form of a global mining company that, in a myopic and endless search for gold, turns everything it touches into a dull, deserted, and toxic wasteland.  The National Geographic’s January issue investigates the modern ...

Parks Funding in Stimulus Bill: Good for Parks and for the Economy

by Margaret Clune Giblin | February 11, 2009
Both versions of the economic stimulus package – that passed by the House and by the Senate – include funding for the National Park Service.  The bill the House passed last month would allocate $1.7 billion to the National Park Service for “projects to address critical deferred maintenance needs within the National Park System, including roads, bridges and trails,” operation of the National Park System, and for “projects related to the preservation and repair of historical and cultural resources” in ...

Cass Sunstein's 'Yes, We Can'

by Rena Steinzor | February 10, 2009
Normal 0 We’ve written a great deal about Cass Sunstein, the Harvard law professor who is expected to get the nod to be the “regulatory czar” for the Obama Administration.   In a nutshell, our concern is that Sunstein will stifle the efforts of health, safety, and environmental protection agencies to struggle to their feet after eight long years of evisceration by the Bush Administration’s regulatory czars, John Graham, and his protégé, Susan Dudley.   But, we got to thinking, just ...

Mr. Go is Gone (Almost)

by Robert Verchick | February 09, 2009
About thirty miles from my front door, heavy barges are dumping rocks into Louisiana's Mississippi River-Gulf Outlet (MRGO), hoping to permanently plug the de-commissioned shipping channel before the end of the next hurricane season. It's a big plug. The New Orleans Times-Picayune reports that the structure will weigh 430,000 tons, "with a base 450 feet wide, tapering to 12 feet wide at the top." The rock wall "will jut 7 feet from the water's surface and be 950 feet long. ...

The Scalpel or the Hatchet? Applying Common-Sense Planning to Water Management

by Margaret Clune Giblin | February 06, 2009
One logical response to the constant news of the economic recession is cutting back on discretionary purchases and developing a household budget.  That is, if we know that times are tough and that we may encounter difficulties sustaining the lifestyle we’ve grown accustomed to, we take stock of our circumstances and plan for the future.  We look at our current income and expenses, project our future income as best as we are able, and adjust future expenses in the budget ...

Out of Hibernation

by Matt Shudtz | February 05, 2009
More evidence that EPA is starting to find its bearings after eight years of hibernation: in an interim report on the year-old Nanoscale Materials Stewardship Program, EPA admits that asking companies who work on nanomaterials to voluntarily conduct and disclose research on health and environmental hazards isn’t producing much useful information. As a result, the agency is going to start considering how to use its powers under the Toxic Substances Control Act to require data submission.   The Nanoscale Materials ...

Revoking EO 13422: An Important First Step Toward Fixing the Regulatory System

by James Goodwin | February 04, 2009
Observers concerned with the current dysfunctional state of the U.S. regulatory system will be letting out a collective sigh of relief following the publication of Executive Order 13497.  Among other things, this Order officially revokes the controversial Executive Order 13422, issued during George W. Bush Administration.   Issued in 2007, Executive Order 13422 amended President Clinton’s September 1993 Executive Order 12866, which established an institutional framework for centralized regulatory review.  Generally speaking, under this framework, the Office of Information and ...

Takings Claims in the Klamath Basin

by Dan Tarlock | February 03, 2009
(Dan Tarlock files this post with CPR Member Scholar Holly Doremus.  The two are co-authors of Water War in the Klamath Basin: Macho Law, Combat Biology, and Dirty Politics, published by Island Press in 2008.)   Last week, the Oregon Supreme Court agreed to decide whether irrigators in the Klamath Basin "own" water delivered by the federal Klamath Reclamation Project. This latest development is one more twist in an ongoing property rights case that illustrates both how difficult it can ...

President Obama's FOIA Order

by Sidney Shapiro | February 02, 2009
On January 21, 2009, President Obama issued a Presidential Memorandum that I’m hopeful will be the start of undoing much of the excessive secrecy practiced by the previous administration. The memorandum, established that the Freedom of Information Act (FOIA) “should be administered with a clear presumption: In the face of doubt, openness prevails.”   A recent CPR report, By the Stroke of the Pen: Seven Executive Orders to Launch the Obama Agenda, had recommended that President Obama take this exact ...

Digital Signals E-Waste: Not In My Backyard

by Yee Huang | January 30, 2009
When analog signals for broadcast television end on February 17, one problem of the digital signal switch for televisions will remain: what to do with older televisions that are incompatible with digital signals.  While the federal government is providing rebates to purchasers of converter boxes for older televisions, the boxes are simply a stopgap measure and do not replicate digital-quality television.  For example, because of the difference in image resolution, the view for a 17-inch television with an analog signal ...

Studies Highlight Need for Natural Resource Adaptation Measures

by Margaret Clune Giblin | January 29, 2009
This week, there’s been good news from the Obama Administration regarding climate change policy.  California will likely get that waiver under the Clean Air Act allowing it to set stricter emissions standards for cars.  Additionally, Lisa Jackson, the new Administrator of EPA, indicated in an e-mail (subscription required) to agency employees that the agency will soon move to comply with the Supreme Court’s opinion in Massachusetts v. EPA.  In that opinion, the Court agreed with the plaintiffs’ arguments that EPA ...

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