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On May 1, the U.S. Supreme Court agreed to hear a case on whether the U.S. Department of Commerce has the authority to require fishermen to allow inspectors on board. At stake is the ability of agencies to write regulations that reasonably interpret laws even when they are ambiguous.   

Testifying before Congress, releasing new books, engaging with the news media — our Member Scholars packed virtually a year’s worth of advocacy on climate justice, clean air and water, and worker health and safety into the first three months of 2023.

Ever since the Supreme Court decided West Virginia v. EPA, conservatives and industry interests have claimed that just about every new regulation violates the major question doctrine. When the Biden administration ramped up fuel efficiency requirements through 2026, ideologues such as the Heritage Foundation and states like Texas were quick to wheel out this attack. No doubt the same attack will be made on the administration's ambitious proposed post-2026 standard. Maybe Judge Kacsmaryk in Amarillo, crusader against abortion pills and all things liberal, would buy that argument. But opponents won’t be able to handpick their judge this time, and the chances that this argument will win in the D.C. Circuit are slim to none.

On April 18, congressional conservatives turned their favorite anti-regulatory weapon toward a new target: the Endangered Species Act (ESA). At a hearing of the Water, Wildlife and Fisheries Subcommittee of the House Natural Resources Committee, the majority pushed no less than three Congressional Review Act (CRA) resolutions aimed at blocking ESA protections. Testifying at the hearing in response to these attacks was Center for Progressive Reform Member Scholar Rob Fischman, a law professor at Indiana University Maurer School of Law and a widely recognized ESA expert.

As you’ve probably heard, the Biden administration has proposed aggressive new targets for greenhouse gas emissions from new vehicles. That’s great news. One really important aspect of the proposal relates to the justification for the proposal rather than the proposal itself. Following a recent trend, the justification is based on the factors specified by Congress rather than on a purely economic analysis. That may not sound like much, but it’s a really big deal. Among other things, this will shift influence on the regulatory process somewhat away from economists and toward lawyers.

On April 6, the Biden White House released proposed changes in the way the government does cost-benefit analysis (CBA). CBA has been a key part of rulemaking for 40 years. The proposal is very technical and low-key, but the upshot will be that efforts to reduce carbon emissions will get a leg up. In particular, the changes will support higher estimates of the harm done by each ton of carbon emissions (the “social cost of carbon” in economics lingo).

The American public has lost faith in expertise. The reason why, as author and national security expert Tom Nichols points out in his 2017 book The Death of Expertise, includes the transformation of the news industry into a 24-hour entertainment machine, the number of “low-information voters,” political leaders who traffic in “alternative facts,” and, as Nichols puts it, a “Google-fueled, Wikipedia-based, blog-sodden collapse of any division between professionals and lay people, students and teachers, knowers and wonderers — in other words between those of any achievement in an area and those with none at all.” Bill Araiza offers another important insight in his book, Rebuilding Expertise: Increasing legal and political efforts to oversee agencies have resulted in the deterioration of civil service expertise and, with it, of public faith in government. On the front end, these efforts send a message that expertise can’t be trusted. On the back end, when the government stumbles in carrying out its functions, the message is that experts are not so expert after all. What is missed, as Liz Fisher and I contend in our book, Administrative Competence, is that law and politics can hold agencies accountable and still facilitate their capacity to do their job. Araiza’s last chapter ably discusses how this can be done.

The regulatory policy world is often a sleepy one — I’m the first to admit that — but last week was a notable exception. In addition to a U.S. House Judiciary subcommittee hearing on regulations, the Biden administration’s Office of Information and Regulatory Affairs (OIRA) wrapped up efforts to solicit public input on its recommendations for broadening public input in the regulatory process.

The regulatory system is a vital part of our constitutional democracy; with smart reforms, it can empower the public and continue enforcing policies that make us all safer, healthier, and freer. That was the message that Member Scholars of the Center for Progressive Reform successfully conveyed during last Friday’s subcommittee hearing of the U.S. House Judiciary Committee.