A Post-Neoliberal Regulatory Analysis for a Post-Neoliberal World
This post was originally published on LPE Blog and is part of a symposium on the future of cost-benefit analysis. Reprinted with permission.
Over the last 40 years, the U.S. regulatory system has played an increasingly influential role in redefining our political and economic relationships in fundamentally neoliberal terms. A key but often overlooked institutional force behind this development is the peculiar form of cost-benefit analysis that now predominates in regulatory practice. Building a new regulatory system befitting our vision of a post-neoliberal America requires a formal rejection of prevailing cost-benefit analysis in favor of a radically different approach—one that invites public participation, permits open and fair contestation of competing values at the heart of policy debates, and recognizes and honors our social interdependencies.
The predominant form of cost-benefit analysis—one embraced by neoliberals—finds its theoretical underpinning in the controversial ideology of welfare economics. This theory holds maximized economic growth as its prime directive, to the exclusion of other important social values, such as justice and fairness. Cost-benefit analysis purports to increase welfare by promoting "socially optimal" regulations—that is, regulations that are designed to achieve maximum net benefits.
How do we determine which regulations meet this …
This post was originally published on LPE Blog as part of a symposium on vulnerability theory and law and political economy (LPE). Reprinted with permission.
Assumptions about the human condition shape the legal rules and institutions that structure the economy and state. By re-centering law on a clearer understanding of the human subject, vulnerability theory can strengthen law and political economy (LPE) efforts to address accelerating threats to democracy, equality, and the environment. In particular, vulnerability theory responds to neoliberalism’s use of the liberal ideal of individual autonomy to undermine liberal goals of democracy, human rights, and equality. Those goals can be better advanced and defended by affirming the universal human fact and societal value of embodied, embedded beings.
Law plays a leading role in disseminating and legitimating neoliberal ideas. Yet, legal theory has lagged in addressing neoliberalism as a paradigm shift. As Corinne Blalock astutely …
This post was originally published on Legal Planet. Reprinted with permission.
The Biden administration is looking to make big regulatory changes, not least regarding climate change. Yet the White House office overseeing regulations is vacant. The obscurely named Office of Regulatory Affairs and Information (OIRA) has to sign off on all significant regulations. Even the dilatory Donald Trump had nominated a permanent administrator by July of his first year. Biden's delay in filling this important office is hard to defend.
The main reason for the delay is probably that Biden doesn't have the OIRA administrator's boss in place, either. Biden's nominee to head the Office of Management and Budget (OMB) had to be withdrawn when her Senate support evaporated. That was on March 2, however, and there's still no new OMB nomination six months later. Maybe the reason is an inability to find a candidate who can …
This op-ed was originally published in The Hill.
The surging COVID-19 delta variant is sending thousands of people to the hospital, killing others, and straining several states' hospital systems to their breaking point. The climate crisis is hurting people, communities and countries as we write this piece, with apocalyptic wildfires, crippling droughts and raging floodwaters. Systemic racism continues unabated, leading to vast economic and environmental injustices. It's beyond time for urgent action, but to get there, the federal government must reform the opaque, biased method it uses to evaluate our nation's public health, economic and environmental protections.
The day President Joe Biden took office, he ordered executive branch agencies to evaluate and reform the regulatory review process to “ensure swift and effective Federal action” to address the urgent problems we currently face. The administration is unlikely to live up to this goal unless the White House addresses …
To read the policy brief related to this post, click here.
Update: Read Senior Policy Analyst David Flores and Policy Analyst Darya Minovi's July 8 testimony to EPA.
Four years ago, Hurricane Harvey slammed into the coast of Texas, causing severe flooding in the Houston area and leading to a loss of electrical power throughout the region. During the blackout, a local chemical plant lost its ability to keep volatile chemicals stored onsite cool, and a secondary disaster ensued: A series of explosions endangered the lives of workers and first responders and spurred mass evacuations of nearby residents.
This infamous incident was a classic "double disaster" — a natural disaster, like a storm or earthquake, followed by a technical disaster, like a chemical release or explosion.
Also known as "natech" disasters, these events pose a severe and growing threat to public and environmental health — and to workers …
This post was originally published on Legal Planet. Republished with permission.
In its closing days, the Trump administration issued a rule designed to tilt EPA's cost-benefit analysis of air pollution regulations in favor of industry. Recently, the agency rescinded the rule. The rescission was no surprise, given that the criticisms of the Trump rule by economists as well as environmentalists. EPA's explanation for the rescission was illuminating, however. It sheds some important light on how the agency views the role of cost-benefit analysis in its decisions.
The Trump rule contained an industry wish list of provisions, all of them designed to make regulation more difficult. At the time, the provision that got the most attention related to co-benefits. Co-benefits are the beneficial side effects of a regulation. For example, a regulation designed to reduce mercury emissions from power plants also cut emissions of fine particulates, thereby saving …
This post was originally published on Legal Planet. Reprinted with permission.
April 30 marks President Biden's first 100 days in office. He's appointed a great climate team and is negotiating an infrastructure bill that focuses on climate change. With luck, those actions will produce major environmental gains down the road. There are also some solid gains in the form of actions that have already come to fruition. Here's where things stand.
Executive orders. Former President Trump seemed to delight in issuing anti-environmental executive orders. All of those are gone now, replaced with Biden's environment-friendly substitute. In one important move, Biden restored former President Obama's estimate of the social cost of carbon, which Trump had slashed.
Foreign affairs. Here the big news is that Biden has taken the United States back into the Paris agreement and has submitted a commitment cut emissions by 50 percent from 2005 levels …
President Joe Biden's April 28 speech to a joint session of Congress — his first major address since his inauguration — offers him a chance to outline and defend his policy priorities. He should use this opportunity to articulate a positive vision of regulation as an institution within our democracy and to champion the crucial role it plays in promoting the public interest.
Biden will likely focus much of his speech on his ambitious infrastructure plan, from which he can easily pivot to regulation. After all, robust regulations are essential to the success of the U.S. economy, no different from traditional "gray" infrastructure like roads, bridges, pipelines, and power lines.
Strong regulatory protections provide a foundation of trust, which is critical for keeping our economy humming. Imagine, for example, if the Biden administration's Occupational Safety and Health Administration (OSHA) issued its long overdue emergency temporary standard to protect …
This commentary was originally published by The Regulatory Review. Reprinted with permission.
A citizen of the Laguna Pueblo, Deborah Haaland is the first Native American woman to serve as Secretary of the U.S. Department of the Interior.
Haaland will oversee the federal agencies that manage nearly 480 million acres of federal public lands, while the head of the U.S. Forest Service in the U.S. Department of Agriculture (USDA) manages the remaining 190 million acres.
Haaland and her colleague, Secretary of Agriculture Tom Vilsack, have a tall double-order ahead. In his flurry of first-day executive orders, President Joe Biden announced the entwined goals of addressing racial, economic, and other forms of injustice, as well as tackling the country's most serious environmental challenges. Reflecting these goals, during his confirmation hearing, Vilsack pledged to address "discrimination in all its forms across USDA agencies," and "to root …
In a little-noticed move on Day One, President Joe Biden issued a memo designed to institute a more progressive process for developing new regulations. Such an effort is essential, given that timely, effective regulations will play a key role in achieving Biden-Harris administration's policy agenda. To succeed, however, it must also tackle the conservative philosophy that guides our government's rulemaking process.
Biden's memo focuses on the mechanics of the rulemaking process, and especially two institutions that heavily influence regulatory decisions: centralized, White House review of proposed rules and economics-focused assessments of them. President Reagan and his successors have issued a string of executive orders to govern these institutions. Biden's memo addresses flaws in the current iteration, Executive Order 12866 (along with some other, related orders). Fixing these flaws is necessary to create a more progressive regulatory system that better protects people and the planet.
