Last week I discussed how the institution of judicial review has been used to amplify the deregulatory nature of cost-benefit analysis.  This week, I'll talk about some possible remedies.

An unusual synergy exists between the institutions of cost-benefit analysis and judicial review.  Under most circumstances, the institution of judicial review is arguably neutral with regard to regulatory issues.  When judicial review is applied to a case involving a regulation that has been weakened by cost-benefit analysis, however, the once neutral institution is transformed into one that that can have no other impact than to aid and abet the deregulatory agenda of cost-benefit analysis.  This is because when an agency is forced by cost-benefit analysis to promulgate a rule that is too weak to be supported by the underlying statute, any public interest groups concerned with public health, safety, and the environment is left with a difficult decision …

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 …

Inside the Washington Beltway, we are awash in stories about President Obama’s first 100 days. Some are comparative—how is Obama doing in relationship to Franklin Roosevelt at the same point in his first term? Some are pure spin—“we’re competent and we love each other!" opines Rahm Emanuel, the obviously biased Obama chief of staff. And some are substantive—has he kept his campaign promises and, if not, how many more miles does he have to go before he sleeps?

On the issues in our bailiwick, the President gets an “A” for effort, a “B” for execution, and an “incomplete” for the course as a whole.

First, the big picture. Just hearing a President talk about environmental protection again as if it were a very important item on the national agenda is enormously exciting, especially because the President has targeted climate change, the …

According to media accounts, President Obama today nominated Harvard law professor Cass Sunstein to be the director of OMB's Office of Information and Regulatory Affairs -- the so-called "regulatory czar."  CPR President Rena Steinzor reacts to the news:

I welcome Cass Sunstein’s nomination to be the Obama Administration’s regulatory czar. His past support for cost-benefit analysis as a method of regulatory impact analysis – even as practiced by the Bush Administration – raises a host of questions about the direction in which he’ll lead the Office of Information and Regulatory Affairs. The core issue: will Sunstein’s OIRA allow cost-benefit to continue to be a stumbling block for much-needed regulatory protections for health, safety and the environment? Will OIRA be a place where needed regulations get watered down and bottled up? Or, as I hope, will Professor Sunstein put his years of study of the issue …

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 …

The Office of Management and Budget (OMB) invited public comments on the design of its new Executive Order on regulatory review, and CPR has now submitted our recommendations.

We urged the Obama Administration to make fundamental changes in how OMB and prospective “regulatory czar” Cass Sunstein operate. We're hopeful that the new Administration will convert OMB from a regulatory Siberia into the guarantor of dramatically improved government protection of public health, safety, and the environment.

If we have learned anything from the financial meltdown paralyzing the world’s economy, it is that large industries should never be placed in the position of making money, controlling their own greed, and adopting ethics to protect the public interest all at the same time. Because the government cop was off the beat on too many fronts, strange new “derivatives,” toxic mortgage loans, hedge funds, and Ponzi schemes brought multi-billion multinationals …

Late last week, I sent a letter to Peter Orszag, Director of the White House Office of Management and Budget that, among other things, called on OMB to allow for public participation in the design of its new Executive Order governing federal regulatory review. I’m happy to see that OMB has decided to do just that, with its announcement in Thursday’s Federal Register that it would “invite public comments on how to improve the process and principles governing regulation.”

As OMB observes, the White House has no obligation to seek public comment on executive orders. The Federal Register notice says:

Executive Orders are not subject to notice and comment procedures, and as a general rule, public comment is not formally sought before they are issued. In this case, however, there has been an unusually high level of public interest, and because of the evident importance …

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 …

We’ve written a great deal about Cass Sunstein, the Harvard law professor who is expected to get the nod to be the “regulatory czar” for the Obama Administration.   In a nutshell, our concern is that Sunstein will stifle the efforts of health, safety, and environmental protection agencies to struggle to their feet after eight long years of evisceration by the Bush Administration’s regulatory czars, John Graham, and his protégé, Susan Dudley.

But, we got to thinking, just because the 30-year tradition of regulatory czars is to kill regulations, leaving people to fend for themselves in the “free” market, should not mean that regulation-killing is the only thing in the job description.   What if “regulatory czar” was the person ultimately responsible for making sure the Executive Branch produces good and needed regulations, cracking the whip to make sure we had rules to make sure kids don …