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Aug. 25, 2020 by James Goodwin

Beyond 12866: New CPR Initiative to Promote Administrative Agenda for Progressive Regulatory Reform

This week, CPR is launching its Beyond 12866 initiative, an online platform focused on promoting a progressive vision for rebuilding the U.S. regulatory system. Such a regulatory system will be essential not only to achieving the progressive vision of a more just and equitable society; it will also do the heavy practical lifting needed for implementing key elements of a progressive policy agenda, such as the Green New Deal, Medicare for All, and Black Lives Matter movement.

This initiative begins from the recognition that in the near term, such progressive regulatory reform will need to be accomplished administratively, as opposed to legislatively, given the divisive politics of the issue and ongoing congressional dysfunction more generally. Using such administrative tools as executive orders and memoranda, the president in particular has considerable influence over how the regulatory system operates, and appropriately so given his (gendered language intended, unfortunately) position in our constitutional system.

Unfortunately, even nominally "liberal" presidents have wielded this influence in decidedly conservative, anti-regulatory ways.

Nowhere is this better exemplified than in Executive Order 12866, which along with the Administrative Procedure Act, essentially functions as a part of the "constitution" of our regulatory system. Put in place in 1993 …

Aug. 4, 2020 by James Goodwin
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Yesterday, I joined a group of CPR Member Scholars and staff in submitting comments on the Environmental Protection Agency's (EPA) "benefits-busting" proposal, which would drastically overhaul how the agency performs cost-benefit analysis on its biggest Clean Air Act rules. As we explain in our comments, the action is a thinly veiled effort to rig the results of those analyses – more so than they already are – to make it harder to issue appropriately strong safeguards, thereby sabotaging the effective and timely implementation of the Clean Air Act.

Our comments lay out in detail several shortcomings of the benefits-busting proposal. To begin, the EPA lacks legal authority to issue a binding rule of this kind. But even if the agency did have such authority, the proposal would do little, if anything, to improve its regulatory decision-making given that cost-benefit analysis is either superfluous to or even prohibited by the …

July 22, 2020 by James Goodwin
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Donald Trump is no stranger to leaving things worse off than he found them, and this is precisely what his administration now aims to do with the Environmental Protection Agency (EPA), not just one of the most successful government institutions in the history of the United States, but indeed the world. Having worked quickly, if not sloppily, to dismantle every vestige of the Obama administration's efforts to promote cleaner air and water, the Trump EPA is now heading down a path of self-destruction. The agency's proposed "benefits-busting" rule, released early last month, is a big part of this campaign.

The benefits-busting rule is nominally about overhauling how the EPA does cost-benefit analysis for its Clean Air Act rules, but make no mistake: This action is really about putting that foundational law into concrete boots and shoving it into the nearest body of water. Future efforts to fulfill …

June 18, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

On June 16, the D.C. Circuit Court of Appeals decided two cases that add to the legal difficulties the Trump EPA will face in court. The difficulties relate to two proposed EPA rules that attempt to hamstring future efforts to impose tighter restrictions on pollution. Both EPA rules rely on vague, general grants of rulemaking authority from Congress. That just became more tenuous.

One of the EPA proposals is the so-called "science transparency rule," which is perversely designed to limit EPA's future ability to utilize well-regarded scientific studies. The other proposal will reduce the agency's flexibility in conducting cost-benefit analysis of future regulations.

In attempting to find legal authority for these rules, EPA has looked to general grants of rulemaking authority. One such law is the Federal Housekeeping Act. That law (which may not actually apply to …

Nov. 25, 2019 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

The idea of low-hanging fruit is ubiquitous in environmental policy – sometimes in the form of a simple metaphor, other times expressed in more sophisticated terms as an assumption of rising marginal costs of pollution reduction. It's an arresting metaphor, and one that can often be illuminating. But like many powerful metaphors, it can also mislead us badly.

The idea behind the metaphor can be expressed in various ways, which can be equally arresting for those attuned to them. The same idea can be incorporated into graphs showing the cost of additional pollution reductions rapidly rising as the level of removal increases. If you google something like "marginal costs pollution reduction," graphs like that will pop up immediately along with verbal statements of the same concept. Combined with the assumption that the harm done by a unit of pollution …

Sept. 5, 2019 by Daniel Farber
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Originally published on Legal Planet.

Under executive orders dating back to President Ronald Reagan, regulatory agencies like EPA are supposed to follow cost-benefit analysis when making decisions. Under the Trump administration, however, cost-benefit analysis has barely even served as window-dressing for its deregulatory actions. It has launched a series of efforts to prevent full counting of regulatory benefits, as well as committing any number of sins against economic principles, as I detailed in a post in January. Essentially, the administration has had a laser-like focus on the costs of regulation, which it often exaggerates, while making every effort to ignore or minimize possible benefits. If Trump is reelected, that will continue.

But what if the Democrats win? Then things are more complicated. A lot depends on the identity of the Democratic nominee. Regardless of who that person may be, however, some parts of cost-benefit analysis will survive …

July 26, 2019 by Amy Sinden
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This commentary was originally published by The American Prospect.

Everyone in communications knows how to bury a news story: release it late on a Friday. So it was with the White House’s annual report on federal regulations, released months behind schedule on a Friday in February. As it has for many years, the report pegged the benefits of federal regulation in the hundreds of billions of dollars, swamping the calculated costs of compliance by at least 2 to 1 and possibly as much as 12 to 1—awkward results for the Trump communications team, to say the least. How to square these numbers with the “job-killing regulations” trope was a real head-scratcher.

It might seem like good news that regulatory safeguards actually do save a lot of lives, not to mention preventing a lot of diseases, accidents, and other bad things. But these big numbers on …

July 23, 2019 by Rena Steinzor
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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 …

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 …

May 22, 2019 by James Goodwin
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In a memo sent last week but just now released, EPA Administrator Andrew Wheeler backtracked a bit on one of the administration's initiatives to undercut sensible safeguards. His May 13 memo abandons the agency's push last year to establish uniform standards for bending agency decision making in favor of cost-benefit analysis, regardless of statutory directives, and instead directs that this effort follow a statute-by-statute approach.

Wheeler’s retreat on this particular effort to ignore the life-saving benefits of environmental rules is good news. He acceded to the concerns raised by CPR and other legal experts that the Clean Air Act, Clean Water Act, and various other environmental laws impose different requirements, making a one-size-fits-all approach to cost-benefit analysis both impractical and unlikely to survive legal challenge. But as with everything this administration does when it comes to health, safety, and the environment, when Wheeler talks about improving …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Aug. 25, 2020

Beyond 12866: New CPR Initiative to Promote Administrative Agenda for Progressive Regulatory Reform

Aug. 4, 2020

CPR Comments Deliver Scathing Critique of EPA 'Benefits-Busting' Rule

July 22, 2020

EPA's 'Benefit-Busting' Proposal Would Add to Trump's Anti-Safeguard Legacy

June 18, 2020

D.C. Circuit Restricts 'Housekeeping' Regulations

Nov. 25, 2019

Low-Hanging Fruit

Sept. 5, 2019

Cost-Benefit Analysis and the Next President

July 26, 2019

The Cost-Benefit Boomerang