Judicial Review and Cost-Benefit Analysis
For the last few years now, CPR’s Member Scholars have made the case that cost-benefit analysis is, by itself, fundamentally deregulatory in nature. Unfortunately, other institutions in our federal government tend to exacerbate the deregulatory nature of cost-benefit analysis. Whether by design or dumb luck, cost-benefit analysis allows regulatory opponents to use those institutions—most notably judicial review—to further their deregulatory agendas.
The Clean Air Mercury Rule (CAMR) case is a good example. In February, the Supreme Court decided not to accept an appeal of a case on CAMR, which was the Bush Administration’s feeble regulatory plan for addressing air mercury pollution from power plants. The story of CAMR demonstrates how judicial review has been used to amplify the deregulatory impact of cost-benefit analysis, and it's emblematic of the deregulatory synergy between cost-benefit analysis and judicial review. This synergy typically plays itself out through a 4-step pattern that has repeated itself many times over the last few years.
In the first step, an environmental, health, or safety agency promulgates a rule, either preemptively or at the direction of OIRA, that is far weaker than what is called for under the relevant statute. From beginning to end, the …
The large earthquake that struck central Italy on Monday is devastating not only for the immense human suffering—people killed and injured, and communities disrupted—but also for the priceless losses of Italian cultural heritage. The Italian Ministry of culture has reported that the earthquake damaged a number of buildings of immeasurable historical significance, including the Basilica di Santa Maria di Collemaggio—the site of a papal coronation in 1294—and an archway built in the 16th century to honor Holy Roman Emperor Charles V.
Unfortunately, historical sites throughout the world are suffering from similar irreparable damage. The difference: this damage is the result of the effects of global climate change, which, unlike earthquakes and other natural disasters, is traceable to human causes and is therefore preventable.
Historians, archeologists, and anthropologists around the world report that with each passing day the effects of global climate change are …
More than 100 groups and individuals have accepted the invitation from the Office of Management and Budget (OMB) to comment on the new Executive Order on Regulatory Review that the Obama Administration is currently considering. The extended submission deadline is March 31. So far, the comments reflect a strikingly wide dividing line between regulatory opponents, on the one side, and individuals and groups committed to protecting the public’s interest in health, safety, and environmental sustainability, on the other.
On the side of regulatory opponents, many conservative scholars (e.g., W. Kip Viscusi and Matthew D. Adler), free market think tanks and advocacy groups (e.g., Center for Regulatory Effectiveness and the Heritage Foundation), and various trade associations (e.g., American Chemistry Council, American Petroleum Institute, and American Trucking Association) have submitted comments pressing their support for the current institution of centralized regulatory review—overseen by the …
On Monday, the U.S. Supreme Court announced that it would not be accepting an appeal of a case involving the Bush Administration’s regulatory plan for reducing air mercury emissions from power plants. For the last two decades, the regulation of mercury air pollution has been caught up in a long and winding journey reminiscent of Homer’s Odyssey. With the Supreme Court’s announcement, however, it appears that the mercury air pollution saga may soon be reaching its long-awaited conclusion.
This story began in 1990 when Congress, frustrated by EPA’s past failure to regulate toxic pollution effectively, amended the Clean Air Act to put regulation of a number of specific toxic pollutants on the fast-track. In particular, these amendments directed EPA to undertake particular regulatory actions, and they set strict deadlines for EPA to achieve these actions. Among the pollutants specifically targeted by these …
In recent weeks, an unusual convergence of events has served to elevate somewhat the public profile of cost-benefit analysis (CBA). Before then, CBA was an obscure and highly complex tool of policy analysis—the kind of thing that hardcore policy wonks would wonk about when the subjects of their usual policy wonkery weren’t wonkish enough. Foreseeable future events suggest that the public profile of CBA will continue to rise.
The process began in early January when word emerged from the Obama transition team that the then-President-Elect planned to name Harvard law professor Cass Sunstein to head the Office of Information Regulatory Affairs (OIRA). A little known but powerful bureau in the White House Office of Management and Budget (OMB), OIRA supervises the entire federal regulatory apparatus, imposing its will by individually reviewing all major federal regulations through the lens of CBA. OIRA’s use of CBA …
Observers concerned with the current dysfunctional state of the U.S. regulatory system will be letting out a collective sigh of relief following the publication of Executive Order 13497. Among other things, this Order officially revokes the controversial Executive Order 13422, issued during George W. Bush Administration.
Issued in 2007, Executive Order 13422 amended President Clinton’s September 1993 Executive Order 12866, which established an institutional framework for centralized regulatory review. Generally speaking, under this framework, the Office of Information and Regulatory Affairs (OIRA)—an obscure but influential bureau in the White House Office of Management and Budget (OMB)—is authorized to review all major federal regulations and to do so through the lens of cost-benefit analysis.
Since its original publication, Executive Order 13422 has been criticized by many environmental, public health, and safety advocates, CPR Member Scholars among them, for creating an unnecessary barrier to the …
The past few weeks, Congress has been working on an economic stimulus bill intended to jolt the U.S. economy back to life. Earlier in the week, Speaker of the House Nancy Pelosi projected that the bill will combine roughly $400 billion in infrastructure spending with roughly $200 billion of targeted tax cuts.
According to its proponents, one of the big goals of the stimulus plan is to create 2.5 million jobs over the next few years. A growing chorus of observers is calling on Congress to ensure that as many of those job as possible are “green jobs,” and the Democratic leadership in Congress seems happy to oblige. In a recent interview, Speaker Pelosi explained that the stimulus plan sought to create a large number of jobs by directing a significant portion of the infrastructure spending toward the construction of a “smart, modern grid that …
All last week, USA Today published a series of articles detailing the findings of its investigation into the toxic air pollutants afflicting many of the schools throughout the United States. Using models developed by EPA for tracking toxic chemicals, USA Today investigators evaluated and ranked air quality for some 127,800 schools. In particular, these models were able—through the use of computer simulations—to predict the dispersal of toxic chemicals released by 20,000 industrial polluters during roughly the last decade. By combining these models with a map containing the locations of the various schools, investigators were able to predict the likely air quality outside the schools, and determine how air quality has changed over time.
The findings of this investigation were startling, to say the least. At roughly one-quarter of the schools studied, the toxic air pollution levels increased significantly over the course of 10 …
One of many areas in which the Bush Administration has sought to throw sand in the gears of the regulatory process is by tampering with the methods of risk assessment used by regulatory agencies as part of their process of gauging how much regulation, if any, is needed in a certain area.
More specifically, risk assessment in this context is the process by which scientists try to evaluate and quantify risks associated with human or environmental exposure to chemicals and pollutants in the air, water, food, or consumer products. The goal is to summarize, based on the weight of all available scientific evidence, the risks posed by particular chemicals or pollutants. Policymakers then decide, based on statutory directives and the available science (as characterized through the risk assessment process), whether and how to regulate the particular chemical or pollutant.
When done correctly, risk assessments bridge between the …
Perhaps no other consequence of global climate change kindles the public’s fears like the prospect of catastrophic sea-level rise. For years now, climate scientists have recognized the potential for increasing global surface temperatures to produce certain kinds of feedback loops that would accelerate the collapse of massive ice shelves in Greenland and Antarctica, leading to a rise in sea level in the range of 6 to 20 feet by the end of the century. Such a development would wipe entire island nations off the map and inundate major cities like New York City, dislocating hundreds of millions of people around the world.
In short, whether or not massive ice shelf collapses occur could mean the difference between a rise in sea level of only a few inches versus a rise in sea level of many feet. The problem is that, until recently, scientists have had no …
