Originally published by The Regulatory Review. Reprinted with permission.

As the United States slogs through year three of a deregulatory implosion, one truth has become clear: As practiced by the Trump administration, cost-benefit analysis has become a perversion of a neutral approach to policymaking.

To be forthright, I was never a fan of the number crunching. I thought it created the false impression that numerical estimates were precise, drastically understated benefits, buried controversial value judgments behind barricades of formulas, and depended on unreliable indicators of how much real people valued risk. But I understood it was here to stay when Cass Sunstein persuaded President Barack Obama to embrace it. The task for people like me became understanding how the methodology was practiced by economists so that we could make arguments critiquing its harsh applications.

The first sign of a crumbling structure was the shift among congressional conservatives …

Originally published by The Regulatory Review. Reprinted with permission.

When it comes to the need for federal regulation, the American political system is currently deeply divided along ideological and partisan lines. This division has a number of causes, but a good part of the division can unquestionably be attributed to what Professor Thomas McGarity has referred to as the anti-regulatory "idea infrastructure" and the "influence infrastructure" constructed by conservatives in the early 1970s and continued thereafter—ideas intended to block and roll back public protections along with tactics for implementing those anti-regulatory ideas.

That conservative effort has succeeded for many years, but the country has paid a steep price in terms of increased risks from the unbridled pursuit of profit. The 2018 congressional election may portend a looming backlash against the political right, with its own intransigent opposition to common sense public protections leading to its demise …

Originally published by The George Washington Law Review. Reprinted with permission.

Imagine a world in which administrative agencies whose actions are challenged in court are afforded little respect and even less deference from reviewing courts. Imagine further that congressional efforts to vest authority in these agencies to act as guardians of public health and safety, environmental integrity, consumer interests, and economic security are viewed as alarming threats to liberty and to the very foundations of the separation of governmental authority enshrined in the Constitution. Finally, imagine a jurisprudence in which judges are committed to fashioning (or refashioning) administrative law doctrine to shackle the authority of agencies to which Congress has delegated regulatory authority at every opportunity. That is the world to which some members of the Supreme Court appear to aspire.1

In the waning days of the Supreme Court’s 2018–2019 term, a four-Justice plurality …

Originally published on Legal Planet.

The Supreme Court’s recent opinion in Kisor v. Wilkie was eagerly awaited by administrative law experts. It is one skirmish in the ongoing war over deference to agencies. In this case, the issue was whether to overrule the Auer doctrine, which requires courts to defer to an agency’s reasonable interpretation of its own regulations. This doctrine, like its big brother, the Chevron doctrine, has become a target for conservative scholars and judges. The Auer doctrine has obvious relevance to environmental law, where agencies like EPA frequently have to interpret their own regulations in making decisions about permits or enforcement.

Kisor v. Wilkie seems like an unpromising vehicle for a major Supreme Court opinion. The case involves a mundane dispute over the start date for a combat veteran’s claim for compensation for his PTSD. The facts are explained in detail …

Last night, CPR Member Scholar Amy Sinden and I published an op-ed in The Hill explaining the dangers of a new rulemaking recently launched by Environmental Protection Agency (EPA) Administrator Andrew Wheeler and former air office Assistant Administrator Bill Wehrum. Through this rulemaking, Wheeler and Wehrum – both former industry lobbyists – will kick off the EPA's agency-wide effort to overhaul how it conducts cost-benefit analysis for its pending rules to ensure that this methodology remains heavily biased in favor polluters at the expense of people and our environment.

As the op-ed explains, cost-benefit analysis was always meant to provide industry with a powerful trump card in the rulemaking process. Industry expected its methodologies – while masquerading as objective and rational – would systematically favor weaker or no regulations. By and large, that held true for the nearly 40 years that cost-benefit analysis has ruled regulatory decision-making. But in the environmental …

Originally published on Legal Planet.

In a recent decision, four of the conservative Supreme Court Justices indicated a desire to limit the amount of discretion that Congress can give administrative agencies. If taken literally, some of the language they used would hobble the government by restricting agencies like EPA to "filling in the details" or making purely factual determinations. Some observers have feared that the conservatives were on the verge of dismantling modern administrative law. As I indicated in a blog post on Thursday, I think this is something of an overreaction.

As it happens, later that same day, the Supreme Court gave another signal that it is happy to allow a great deal of administrative discretion. The issue in the census case (Dept. of Commerce v. New York) was whether it was legal for the Commerce Secretary to add a question about citizenship to the census …

Originally published on Legal Planet.

Gundy v. United States was a case involving a fairly obscure statute regulating sex offenders, but some have seen it as a harbinger of the destruction of the modern administrative state. In a 4-1-3 split, the Court turned away a constitutional challenge based on a claim that Congress had delegated too much authority to the executive branch. But there were ominous signs that at least four Justices are willing to change the ground rules in order to slash the authority of administrative agencies. What we don't know yet is whether they can get a fifth vote, and how far they are willing to go.

The issue before the Court was whether the statute was an unconstitutional delegation of legislative power to the Attorney General. For almost 90 years, the test has been whether a statute contains an "intelligible principle" limiting executive discretion …

This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

The Supreme Court has concluded that Virginia's decades-old moratorium on uranium mining is not pre-empted by the Atomic Energy Act. But there is no clear answer to the question that pervaded the briefing and oral argument: What is the proper role for state legislative purpose in a pre-emption analysis?

Monday's judgment was accompanied by three opinions: a lead opinion written by Justice Neil Gorsuch and joined by Justices Clarence Thomas and Brett Kavanaugh; a concurring opinion by Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan; and a dissenting opinion by Chief Justice John Roberts, joined by Justices Stephen Breyer and Samuel Alito. The Gorsuch opinion stated that state legislative purpose has no place in pre-emption analyses, whereas the Ginsburg opinion expressed discomfort …

Next Wednesday, June 5, CPR is hosting a first-of-its-kind conference on Regulation as Social Justice: Empowering People Through Public Protections, which will bring together a diverse group of several dozen advocates working to advance social justice to serve as a wellspring for the development of a progressive vision for the future of U.S. regulatory policy. Much of the day’s proceedings will be dedicated to an innovative form of small group discussion sessions that we refer to as “Idea Exchanges,” which will call on participants to share their experiences working with federal government program implementation and offer ideas on how agencies can do a better job of promoting social justice and addressing unmet community needs as part of their work.

To help prompt thinking ahead of the conference, we have produced a briefing memo that introduces the major issues that will be discussed throughout the day …