Biden White House Can Make the Regulatory System Anti-Racist. Here’s How.

The White House is asking for input on how the federal government can advance equity and better support underserved groups. As a policy analyst who has studied the federal regulatory system for more than a dozen years, I have some answers — and I submitted them today. My recommendations focus on the White House rulemaking process and offer the Biden administration a comprehensive blueprint for promoting racial justice and equity through agencies’ regulatory decision-making.

To put it bluntly, the U.S. regulatory system is racist.

Key institutions and procedures throughout the rulemaking process contribute to structural racism in our society, resulting in policies that exacerbate racial injustice and inequity. We can’t have truly equitable regulatory policy unless and until these features of the regulatory system are reformed or eliminated.

To make good on its promise to advance equity, the Biden administration must overhaul two interrelated components of the regulatory system: how agencies go about evaluating draft regulations and how they go about obtaining policy-relevant information.

The predominant form of regulatory evaluation is a controversial form of cost-benefit analysis that, through its theoretical assumptions and methodologies, embeds racism in regulatory decision-making. As this practice has grown in influence, it has displaced the “precautionary principle,” which lays out a moral vision of regulation that supports racial justice and, as such, is at odds with that of cost-benefit analysis.

The rise of cost-benefit analysis has accompanied a broader trend in which the regulatory system has become overwhelmingly technocratic (that is, regulatory policymaking has become too focused on resolving technical questions such that important human values, such as fairness and justice, are increasingly being ignored). The upshot is that the rulemaking process is becoming less democratic, excluding all who lack formal legal or other technical expertise (and all who lack the resources to access it).

Three needed reforms

Accordingly, I propose three reforms:

• Formally bar the use of cost-benefit analysis to the extent permitted by law;
• Reinvigorate the precautionary principle’s role in regulatory policy development and implementation; and
• Invite members of the public to express their views on pending rules through art (a concept I have described elsewhere as People’s Regulatory Impact Analyses).

Another big factor in regulatory decision-making is the availability — or lack thereof — of policy-relevant information. As Mustafa Santiago Ali, the former top environmental justice official at the U.S. Environmental Protection Agency (EPA), noted, “Data drives policy, and the lack of data drives policy.”

In other words, agencies will only tackle risks of harm that disproportionately impact marginalized communities if policy-related information is available to do so. Existing regulatory institutions and incentives, however, discourage the generation of such information, further reinforcing the inequitable results of the regulatory system.

Address information injustice

I coined the term “information injustice” to describe this unfortunate dynamic. My recommendations call on the Biden administration to lead an effort to align federal research and data gathering efforts with the principles and goals of information justice. It should:

• Affirmatively prioritize research targeted at understanding public health, safety, environmental, and financial security risks that disproportionately impact marginalized communities, and
• Rescind existing unnecessary legal obstacles to the principles of information justice.

Read more about these proposed reforms in my full set of recommendations. (Today was the last day to submit comments.)

OMB’s information request was carried out in conjunction with Executive Order 13895, which President Biden issued on his first day in office in an effort to advance racial equity throughout the federal government. OMB says it will use what it learns from responses” to this request for information as it expands equity-assessment methods and approaches across the federal government.

This action by OMB is closely related to another effort that it is carrying out: implementation of Biden’s memorandum on “Modernizing Regulatory Review,” which he also issued on his first day in office. OMB should approach these parallel efforts as complementary and develop recommendations for both that are consistent and coordinated.

I’ll follow OMB’s work in implementing Executive Order 13895 and will report on whether it develops regulatory process reforms along the lines contained in my recommendations.