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Oct. 19, 2021 by Amy Sinden

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

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 such staying power?

Decades ago, political scientist Charles Lindblom observed that proponents of what he called “the synoptic ideal”—the idea that we can comprehensively assess the pros and cons of every conceivable alternative and choose the optimum—inevitably talk as though this approach is the only rational decision-making process. That tendency is …

Oct. 14, 2021 by James Goodwin
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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
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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 …

Oct. 1, 2021 by Robin Kundis Craig
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This post was originally published on SCOTUSblog. Reprinted under Creative Commons license CC BY-NC-ND 3.0.

Mississippi v. Tennessee is not only the Supreme Court’s first oral argument of the 2021-22 term, but it is also the first time that states have asked the court to weigh in on how they should share an interstate aquifer. The court’s decision could fundamentally restructure interstate groundwater law in the United States for decades — or the case could be dismissed immediately on the grounds that Mississippi has failed to allege the proper cause of action.

The case will be argued on Monday, and it will be the court’s first in-person argument in a year and a half. In March 2020, the justices stopped meeting in person due to the coronavirus pandemic, and since then, all arguments have been conducted by phone. But the justices are returning to …

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CPR HOMEPAGE
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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

Oct. 1, 2021

In Term-Opener, Justices Will Hear Mississippi’s Complaint that Tennessee Is Stealing Its Groundwater