After taking their oaths of office in January, newly minted President Joe Biden and Vice President Kamala Harris will face a number of daunting challenges: the ongoing pandemic and economic downturn; structural racial and ethnic injustice; widening economic inequality; inadequate access to affordable health care; and climate change. And Congress, facing the prospect of divided control, is unlikely to respond with robust legislative solutions that the American people expect and deserve.
The good news is that Biden and Harris will be able to meet these challenges head on by revitalizing governance and making effective use of the federal regulatory system. Better still, they can do so in a way that delivers justice and equity for all Americans.
Using the regulatory system as a policy tool is not easy under ideal circumstances, let alone during difficult times like these. For the last four years, the Trump administration has waged all-out war on “protector agencies” like the Environmental Protection Agency and the Food and Drug Administration, seeking to demolish them from the inside out. This assault comes after decades of neglect and underinvestment by previous administrations.
Biden and Harris can repair and rebuild the nation’s system of standards and safeguards. But they can and should do more — they should build it back better. In a series of memos to the Biden-Harris transition team, CPR Member Scholars Catherine O’Neill and Sid Shapiro join us in explaining how they can do so. Our comprehensive plan lays out how they can tackle the policy challenges ahead and steer our country toward a more just and equitable future.
Our recommendations focus on a new executive order to replace Executive Order 12866, which establishes the current framework for regulatory policy across executive branch agencies. Specifically, the new administration should overhaul (1) how the White House Office of Information and Regulatory Affairs (OIRA) reviews proposed protections and (2) how agencies assess the impacts of the rules they develop.
Top 10 Recommendations
To build a more just regulatory system, we urge Biden and Harris to make the following 10 reforms:
- Put significant curbs on OIRA’s authority. OIRA should only review the largest agency rules, and it should be restricted to a limited “quality check.” OIRA should also be explicitly prohibited from weighing in on science or other complex policy matters best left to agency experts.
- Direct OIRA to shift its focus from individual rule reviews to more administration-wide coordination of individual agencies’ regulatory agendas, with the goal of promoting cohesive policy and preventing potential conflicts.
- Direct OIRA to (1) embrace and promote a more positive and constructive vision of regulation and (2) advance this vision through efforts to help agencies elevate social justice and equity through the effective pursuit of their missions.
- Make OIRA’s review process more transparent by making available to the public all meeting summaries and written communications on individual rule reviews.
- Direct agencies to use the context-specific methods included in the laws they’re implementing when deciding how to evaluate the costs and benefits of their rules.
- Prohibit agencies from “monetizing” regulatory impacts — in other words, placing a monetary value on things that are not bought and sold in the marketplace, such as preventing deaths or protecting unique ecosystems — as part of their regulatory analysis except when they are explicitly required by law to do so.
- Direct agencies to (1) develop and implement specific practices that elevate non-monetized benefits and costs and (2) give them the same level of attention and consideration accorded to monetized ones.
- Direct agencies to develop and implement specific practices that ensure meaningful consideration of the cumulative and disproportionate harms that historically disadvantaged communities experience, as well as the potential unfairness that results when industries shift the costs of their harmful activities to the public.
- Nominate an OIRA administrator who has a demonstrated commitment to advancing the public interest through standards and safeguards.
- Increase diversity among OIRA personnel, not only across disciplinary expertise but also across key demographics (like race and ethnicity) and life experiences.
We lay out each recommendation in greater detail in the following six memos:
- Reorienting OIRA to Support Progressive Regulation
- Restoring Progressive Values to Cost-Benefit Analysis
- De-Politicizing OIRA Review
- Affirmatively Supporting Regulation: New Responsibilities for OIRA
- Data Gaps Plague Cost-Benefit Analysis
- Restoring Rationality to Regulatory Analysis
These memos were developed in conjunction with CPR’s Beyond 12866 initiative, a project designed to create a more just regulatory system.