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Oct. 14, 2021 by James Goodwin

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

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. This theory holds maximized economic growth as its prime directive, to the exclusion of other important social values, such as justice and fairness. Cost-benefit analysis purports to increase welfare by promoting "socially optimal" regulations—that is, regulations that are designed to achieve maximum net benefits.

How do we determine which regulations meet this …

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 …

Sept. 30, 2021 by Lisa Heinzerling
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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.

President Biden has made climate change and racial justice central themes of his presidency. No doubt with these problems in mind, he has signaled a desire to rethink the process and substance of White House review of agencies' regulatory actions. On his very first day in office, Biden ordered administrative agencies to ensure that this review does not squelch regulatory initiatives nor brush aside "racial justice, environmental stewardship, human dignity, equity, and the interests of future generations." At the same time, however, Biden reaffirmed the "basic principles" of a Clinton-era executive order on White House regulatory review, subjecting agencies' major rules to a cost-benefit test.

These twin inclinations – toward acting boldly on climate change and racial justice, and toward judging regulation using cost-benefit …

Sept. 30, 2021 by Clarissa Libertelli
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Hurricane season hit Maryland hard this year, and even as it comes to a close, heavy rains continue to cause highway shutdowns and spread toxic floodwater. With the Maryland Department of the Environment (MDE) currently updating its rules and permits regarding stormwater, Marylanders have an opportunity to protect their communities against one of the most pernicious problems climate change poses for the region. 

Stormwater pollution occurs when heavy rain or snow is not absorbed by the ground due to oversaturated soil or impervious surfaces. The runoff sometimes reaches dangerous volumes, turning roadways into rivers and causing flash floods.

It also pollutes our environment: When runoff flows over rooftops, streets, and storm sewers, it collects trash, chemicals, bacteria, sediment, and other toxic and harmful substances that are carried into our waterways. Along the way, the polluted water passes through communities, evaporating and coating the surrounding environment with toxins …

Sept. 29, 2021 by M. Isabelle Chaudry
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A recent Maryland law requires the state's Commissioner of Labor and Industry, in consultation with its Occupational Safety and Health Advisory Board, to develop and adopt regulations that require employers to protect employees from heat-related illness caused by heat stress. Those standards are due by October 2022.

The law also requires the state to hold four public meetings to collect input from residents. This month, the Maryland Occupational Safety and Health Division (MOSH) scheduled those meetings, and I testified at the September 20 session.

As I stated during the hearing, CPR is pleased that Maryland will issue a standard requiring employers to protect workers from heat-related illnesses this session. I and other advocates urged MOSH to address the dangers of working in the heat and the immediate need for the standard.

As noted in my testimony, farmworkers are predominantly Black and brown, and many are from Indigenous …

Sept. 23, 2021 by Joel Mintz
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Addresses by national leaders to the United Nations General Assembly are often broad expressions of lofty ideals, and President Joe Biden's speech Tuesday fell squarely into that category. It covered an extraordinary panoply of global challenges and policy concerns, including controlling the COVID-19 pandemic, rebuilding and strengthening global alliances and regional initiatives, curbing terrorism, protecting human rights (including the rights of women and workers) and lifting up democracy. Biden also committed the United States to advancing human dignity, combating corruption and seeking peace in areas of conflict around the world.

Of particular importance were Biden's remarks regarding the global climate change crisis. Observing that "we stand at an inflection point in history," Biden outlined a stark choice between "meeting the threat of climate change" or suffering "the merciless march of ever-worsening droughts and floods, more intense fires …

Sept. 22, 2021 by Clarissa Libertelli
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Amid the latest wave of voter suppression laws across the nation, Senate Democrats last week unveiled new voting rights legislation.

This legislation aims to safeguard the voting rights of millions of Americans. Ensuring access to the ballot for all eligible citizens is, of course, crucial to the health and integrity of American democracy. More than that, though, it is an essential precondition for the effective functioning of our regulatory system. Put simply: When voters’ voices are suppressed, lawmakers and agency officials may be less responsive to their needs — and more likely to favor those of corporations and other special interests. 

Public support for regulations

Corporations often fight any regulations that threaten to restrict their profits; the general public, however, strongly supports protective regulations across the political spectrum. 

This is true even of issues that provoke sharp disagreements among elected officials. When it comes to addressing pollution and …

Sept. 21, 2021 by Katlyn Schmitt, Natalia Cabrera
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This post was originally published by the Chesapeake Accountability Project. Reprinted with permission.

Maryland is home to more than 1,000 industrial facilities, including landfills, auto salvage yards, hazardous waste treatment, storage sites, and various types of manufacturing and processing plants. When it rains or snows, toxic pollution often runs off these facilities and enters nearby waterways and groundwater resources, negatively impacting aquatic life, nearby communities, and drinking water sources.

The problem — known as industrial stormwater pollution — is dire in Maryland. More industrial facilities are being built in the state, and precipitation intensity is increasing more quickly in the Chesapeake Bay region than elsewhere in the United States, threatening public and environmental health. Low-income people and communities of color are at heightened risk.

The Maryland Department of the Environment (MDE) requires industrial facilities not covered by individual permits to obtain a general permit for industrial stormwater. This …

Sept. 14, 2021 by Martha McCluskey
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This post was originally published on LPE Blog as part of a symposium on vulnerability theory and law and political economy (LPE). Reprinted with permission.

Assumptions about the human condition shape the legal rules and institutions that structure the economy and state. By re-centering law on a clearer understanding of the human subject, vulnerability theory can strengthen law and political economy (LPE) efforts to address accelerating threats to democracy, equality, and the environment. In particular, vulnerability theory responds to neoliberalism’s use of the liberal ideal of individual autonomy to undermine liberal goals of democracy, human rights, and equality. Those goals can be better advanced and defended by affirming the universal human fact and societal value of embodied, embedded beings.

Law plays a leading role in disseminating and legitimating neoliberal ideas. Yet, legal theory has lagged in addressing neoliberalism as a paradigm shift. As Corinne Blalock astutely …

CPR HOMEPAGE
More on CPR's Work & Scholars.
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

Sept. 30, 2021

When It Rains, It Pours: Maryland Has a Growing Climate Justice Problem in Stormwater

Sept. 30, 2021

Climate Change, Racial Justice, and Cost-Benefit Analysis

Sept. 29, 2021

Pushing for a Heat Stress Standard in Maryland and Beyond

Sept. 23, 2021

The Hill Op-ed: Biden's Idealistic UN Message on Climate Change