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In 1971, Iowa highway construction workers uncovered 28 human remains. Of these, 26 were white, and two, a mother and her baby, were Native American. The white remains were buried in a local graveyard, while the Native American remains were sent to a local university for study. This decision was typical in the context of the past centuries' patrimonial laws, scientific racism, and outright genocide. In this case, however, a tribal member named Maria Pearson successfully pushed for both the return and proper burial of the Native American remains and the passage of a state law guaranteeing equal treatment of the remains of Native Americans and other peoples. Pearson and other advocates continued lobbying for federal protection of their cultural items. In 1990, because of their efforts, Congress passed the Native American Graves and Repatriation Act ("NAGPRA"), which provides a framework for federally recognized Native American tribes and Native Hawaiian Organizations to reclaim ancestral remains and associated objects from entities that receive federal funding.

The Trump administration left a trail of regulatory destruction behind it. Cleaning up the mess and issuing new regulations is Priority #1 for the Biden administration. Under U.S. Environmental Protection Agency (EPA) head Michael Regan, the effort is beginning to pick up steam.

Virginia Gov. Glenn Youngkin (R) recently made a statement bashing the Regional Greenhouse Gas Initiative (RGGI), the East Coast's regional cap-and-trade program intended to reduce climate pollution and energy costs for low-income households. In attacking the program, Youngkin repeated questionable claims about its costs, impacts, and benefits and made clear his desire to move the Commonwealth backwards on climate policy and the clean energy transition.

On the day before President Biden’s inauguration, the Department of Health and Human Services (HHS) adopted the Securing Updated and Necessary Statutory Evaluations Timely rule, colloquially known as the SUNSET Rule, because it would sunset any regulation that had not been assessed and, where required, reviewed within a specific timetable. Everyone is now expecting HHS to rescind the SUNSET Rule in the near future, and the agency should indeed take this action.

The regulatory system, contrary to the claims of its conservative critics, is an indispensable part of the broader civic infrastructure on which our democracy is built. Significantly, the ability to exercise voting rights -- the most visible and potent act of civic engagement -- necessitates a stronger and more inclusive regulatory system.

In describing cost-benefit analysis to students, I've often told them that the "cost" side of the equation is pretty simple. And it does seem simple: just get some engineers to figure out how industry can comply and run some spreadsheets of the costs. But this seemingly simple calculation turns out to be riddled with uncertainties, particularly when you're talking about regulating the energy industry. Those uncertainties need more attention in designing regulations.

When it comes to historically marginalized groups, an “out of sight and out of mind” approach has too often infected agency policymaking. Agencies have responded with outreach to marginalized communities, but regulatory policymaking is hardly inclusive. Last January, President Biden required the government to increase engagement “with community-based organizations and civil rights organizations,” and the Administrative Conference of the United States responded with a multiday forum on underserved communities and the regulatory process. Addressing the lack of participation by marginalized communities in regulatory decision-making is crucial, but there is another fundamental issue. The input of marginalized communities will not matter if agencies ignore or devalue it because these insights are not expressed using the standard narratives of policymaking.

Arguments and judicial reasoning in administrative law cases usually focus on the case at hand. Indeed, the Administrative Procedure Act (APA) commands that narrow focus. The APA does not give the courts any role in shaping the laws governing administrative agencies, for that is what Congress does. Instead, it gives the courts a modest, albeit difficult responsibility: They may determine whether a particular agency action is arbitrary and capricious or contrary to law. Therefore, parties challenging an agency rule they disapprove of generally argue that the agency has violated some restraint stated in the statute or exercised its discretion in an arbitrary way. But in the U.S. Supreme Court case heard last week about the scope of EPA's authority to regulate greenhouse gas emissions (West Virginia v. EPA), coal companies relied heavily on a "parade of horribles" argument — a listing of bad things that might happen in future cases if the Court upheld EPA's interpretation of the Clean Air Act in the case before the Court.

Imagine you're in the market for a new furnace. You decide to buy a more fuel-efficient system -- even though the price tag is higher -- because it will lower your monthly heating bills. Another selling point: The fuel-efficient furnace emits less carbon into the atmosphere -- a benefit you can't quite quantify but that you value nonetheless for its small salubrious effect on the planet. Policymakers go through a similar -- though much more complex -- process when implementing laws. But an obscure federal mandate known as cost-benefit analysis renders them unable to fully account for costs and benefits that are difficult to measure in dollars and cents, like the large-scale value to society of federal rules that protect public and environmental health. Despite its name, a true analysis of a rule's full benefits is impossible.