This post is the second in a three-part series. Read the first part here.
In the first post of this series, I began detailing President Donald’s Trump’s comprehensive effort to build from a scratch a new regulatory system that systematically favors his administration’s antiregulatory agenda. As I explained, he has issued several executive orders that fundamentally distort the key building blocks that comprise our regulatory system: law; science; economics; and the career civil service.
In the first post, I examined the executive orders specifically affecting the “law” building block. In this post, I examine the next two building blocks: science and economics.
Science
Properly understood, regulatory decision-making involves a mixture of legal and policy analysis. If legal analysis tells what the agency can or must do, policy analysis helps us to understand what the effects of the action would be (though, obviously, the two lines are necessarily intertwined.)
For many regulations, science — understood broadly to include the various branches of natural and physical sciences as well as statistics — often forms one of the key ingredients in policy analysis. It provides us with the tools for understanding the problems that a regulation is intended to solve and for working out effective ways for redressing those problems.
As with any human tool, though, science is not perfect. Often, it helps us reduce uncertainty around policy problems, but rarely, if ever, can we eliminate uncertainty altogether. For policymakers, then, there must be humility over what science can accomplish.
At the same time, though, science can only help policymakers if it is allowed to be conducted free of politicized interference. It is only in overcoming the uncertainty that remains, which science cannot completely resolve, that more subjective considerations like values and ethics pick up the baton to carry regulatory decision-making over the finish line.
Trump’s defining executive order on science, euphemistically referred to as “Restoring Gold Standard Science,” rejects all of these ideas about the proper role of science in regulatory decision-making. Instead, it establishes across-the-board requirements for agencies to follow when developing or using scientific studies to inform these decisions. It rescinds all previously existing scientific integrity policies from the Biden administration, laying to rest any doubts about whether this is a political document. (And if you still harbor any doubts on this score, the order’s gratuitous attack on respect for DEI principles in science should fully unburden you.)
Notably, these requirements appear to embrace the verbiage of broadly accepted scientific integrity principles, but, upon closer inspection, actually subvert them in ways intended to reinforce anti-regulatory actions. For example, the order invokes the importance of accounting for uncertainty in science. But rather than use this matter to refine or improve decision-making, the likely goal is to stifle all regulations by denying agencies any ability to take precautionary measures to protect the public, even when the underlying science for a given rule lacks complete certainty.
The real tell that Trump’s science order is not a serious commitment to scientific integrity principles is that it commits supervision and enforcement of its requirements to political appointees at agencies. If the bottom line of scientific integrity is to insulate apolitical science from political interference, this is the last thing you would do.
Economics
As with science, economics is another key ingredient in policy analysis and development. This, of course, is not meant to endorse the use of cost-benefit analysis. Rather, nearly all authorizing statutes for regulations require agencies to consider economic impacts of rules — both good and bad — in some form. And, as no less than former U.S. Supreme Court Justice Antonin Scalia noted, how those impacts are accounted are often committed to the discretion of the agency by the authorizing statute.
Also, as with science, economic analysis can be manipulated to systematically favor certain substantive ends. Unsurprisingly, the Trump administration is taking steps toward controlling how agencies account for the economic impacts of their planned rules so as to deliver reliably anti-regulatory results.
The basic strategy isn’t merely to force agencies to adhere to strict cost-benefit analysis requirements — which is anti-regulatory enough — but to pervert its methodologies so that they are even more heavily tilted against effective safeguards. To that end, in the “Ensuring Accountability for All Agencies” executive order referred to in the previous post, Trump took the step of formally subjecting independent agencies (as distinct from executive branch agencies) to cost-benefit analysis requirements supervised by the White House Office of Information Regulatory Affairs. Historically, these agencies were exempted from these requirements, out of respect for congressional design to insulate these agencies from politicized interference by the president.
Beyond this, Trump has issued two more executive orders that rig the rules of how agencies conduct cost-benefit analysis to reinforce its anti-regulatory orientation. Among its many provisions, the 10-out, 1-in executive order noted in the previous post revoked the Biden administration’s updates to Circular A-4, a kind of instruction manual for agencies to follow when conducting cost-benefit analysis on their rules. As such, it reinstated the prior version from 2003. This is significant because the Biden revisions included several methodological changes that helped mitigate the inherent anti-regulatory bias of cost-benefit analysis.
For instance, it gave agencies greater freedom to avoid monetizing non-market regulatory impacts, provided new tools for considering the distributional impacts of regulations, and offered expanded justifications for regulations beyond conventional market failure concerns, such as promoting civil rights and social equity.
In addition, Trump’s Day One executive order on “Unleashing American Energy” contained several provisions aimed at eliminating potential regulatory barriers to fossil fuel development and use in the United States. Tellingly, one of these provisions called on the EPA to consider ending the use of the social cost of carbon (SCC), which is used in cost-benefit analysis to account for the value of halting greenhouse gas emissions. (A guidance formally ending the use of the SCC was issued in May.) The upshot is that when the administration moves to eliminate an existing rule to limit greenhouse gas emissions, it will appear to have no “costs” in the cost-benefit analysis (i.e., no costs that take the form of “forgone benefits” of not preventing climate change), but it will have “benefits” in the form of regulatory costs averted. This will obviously make it easier to defend these rollbacks on economic grounds.
In the final post in this series, I will look at the impact of Trump’s executive orders affecting the use of the career civil service to advance his administration’s deregulatory agenda.
