Top Ten Regulatory Policy Stories to Look Out for in 2021 — Part II

In my previous post, I began my review of 10 key regulatory policy stories to watch out for as 2021 gets underway. In this piece, I wrap up that list and offer some closing thoughts.

1. How will Congress oversee the Biden-Harris administration's regulatory actions? When Republicans regained control of the U.S. House in 2010, they wasted little time challenging the Obama administration's regulatory policies, regularly holding bombastic hearings for show and rolling out new bills meant to throttle the regulatory system. If Republicans win either or both Georgia runoffs for U.S. Senate tomorrow, they will retain control of the chamber and will likely borrow a page from this playbook. Whether the Biden-Harris administration vigorously defends its regulatory agenda or cowers like the Obama administration will determine how much progress it makes on its policy priorities. On the flipside, House Democrats have a crucial opportunity to hold the Biden-Harris administration accountable for promoting the public interest through regulation. This would be a departure for congressional Democrats, who, in recent decades have been reluctant to criticize presidents of their party.


2. Will the pandemic have lasting effects on public views of government and regulation? It's often hard for people to "see" the value of government as they go about their daily lives. The COVID-19 pandemic provides a vivid lesson on the importance of responsive, effective government — and how the absence of government protections can leave the public facing unacceptable risks, especially historically disenfranchised populations. We need a strong, collective response to public health catastrophes, as well as their economic consequences. Indeed, that's precisely why governments exist. But years of conservative attacks on our public institutions have left them ill-equipped to respond to crisis — a problem compounded by the Trump administration's dangerous mix of incompetence and corruption. The Biden-Harris administration has a once-in-a-generation opportunity to rebuild public trust in our democratic institutions, including federal regulations. Through dedicated and competent implementation of its policy agenda, it can show the American people how government policies and regulations improve our lives and safeguard us from harms we can't address ourselves. Will the new administration seize the moment?


3. Will Congress continue to pursue legislative changes to regulatory policy? Legislative efforts to overhaul regulatory policy have become common in recent years, particularly among conservatives looking to erect new procedural hurdles to slow down or block essential safeguards. Perennial favorites include the REINS Act, which would bar new "major rules" from taking effect until they are approved by Congress, and the Regulatory Accountability Act, which would add dozens of wasteful new rulemaking requirements to existing law. But progressive lawmakers can and should play on this playground, too. They should advance the SCRAP Act, which would repeal the law that allows Congress to overturn agency rules, and the Anti-Corruption and Public Integrity Act, which would limit corporate influence in the rulemaking process.


4. Will the growing environmental justice movement impact regulatory policy? The environmental justice movement had a breakout year in 2020 and is poised to have a major influence on the Biden-Harris administration's environmental policies in the year ahead. One important step is replacing or supplementing Executive Order 12898, a Clinton-era directive that attempts to better orient federal actions toward environmental justice. This order never lived up to its promise, and the Trump administration exposed its toothlessness. The Biden-Harris administration should also undo Trump administration rollbacks of the National Environmental Policy Act (NEPA) and, during this process, put environmental justice at the heart of the law. Finally, it should direct agencies through an executive order or implementing memoranda from the White House Office of Information and Regulatory Affairs (OIRA) to improve outreach to historically disenfranchised communities as it develops and implements new regulations.


5. Will the Biden-Harris administration restore scientific integrity at federal agencies? Public esteem for the federal government's use of science cratered under President Trump. Restoring the credibility of the federal government's scientific enterprise will likely take years, but the process should begin immediately. The Biden-Harris administration should make scientific integrity a key pillar of its efforts to overhaul the OIRA review process by pledging to bar White House interference in scientific determinations and abandoning the use of the prevailing form of hyper-formalistic cost-benefit analysis in assessments of public protections. It should also repopulate scientific advisory boards with independent experts and direct agencies to strengthen their scientific integrity policies. Biden should also push to enact the Scientific Integrity Act, which would standardize scientific integrity policies across all regulatory agencies and make those policies legally enforceable.

The Trump administration has been a disaster for the U.S. regulatory system, and it would be a tragedy if we, as a nation, failed to learn from the experience. The Biden-Harris administration and progressives in Congress have the opportunity to help our nation recover from this ordeal by building a more just, people-centered regulatory system, as called for in CPR’s Policy for a Just America initiative.

The American public expects government leaders to work on their behalf to achieve a more sustainable future, build a more responsive government, and enforce essential public protections. Let’s hope we can look back on 2021 as the year when that work began in earnest.