Beyond 12866: A Progressive Plan for Reforming the Regulatory System

Rebuilding our regulatory system is a key though often overlooked imperative for the broader progressive movement as it works to achieve its vision of a more equitable and just society.

As a practical matter, a robust and responsive regulatory system will be essential for translating the goals of the Green New Deal, Black Lives Matter, Medicare for All, and other items on the progressive agenda into concrete policies that make a real difference in our lives. More fundamentally, though, a progressive regulatory system will be essential to address the underlying structural disparities in our society and to redistribute political power to ordinary Americans, especially the working poor and communities of color.

While building a progressive regulatory system will ultimately require legislation, considerable progress can be achieved through unilateral actions by the president, including executive orders. Building on its previous work to advance the cause of progressive regulatory reform, the Center or Progressive Reform (CPR) is launching this new webpage to compile resources and materials that should inform the development of new executive orders for progressive regulation that would replace Executive Order 12866 and any subsequent executive orders and memoranda that build off its framework. This clearinghouse of materials will specifically cover the issues of a new progressive vision for regulation, a new role for the White House Office of Information and Regulatory Affairs (OIRA), and a new approach to regulatory analysis to replace cost-benefit analysis.

We plan to update this page regularly, as developments warrant, so check back periodically if you're interested. And if you'd like us to send you an email when we post to this page between now and early next year, drop me an email, and we’ll be sure to do that.

Progressive Vision of Regulation

Regulation as Social Justice. On June 5, 2019, the Center for Progressive Reform hosted a first-of-its-kind, one-day convening that brought together a diverse group of more than 60 activists and academics for the purpose of defining a progressive vision of the U.S. regulatory system. (Here's the briefing memo distributed to participants in advance.) In this report, CPR Senior Policy Analyst James Goodwin collects the perspectives and recommendations from the various small group discussions that took place during the convening and synthesizes them into a comprehensive, action-oriented agenda for building a progressive regulatory system. The report includes several detailed reforms that focus on reestablishing the public as the locus of concern of policymaking (particularly members of marginalized communities) and empowering ordinary Americans to control of how regulations are developed, implemented, and enforced. (September 2019)

Memo to the Next President. In this report, CPR Member Scholars Alejandro Camacho, David Driesen, Robert Glicksman, Thomas McGarity, Sidney Shapiro, Joseph Tomain, and Robert Verchick, and CPR Senior Policy Analyst James Goodwin used the occasion of the 2016 presidential election to call on the two presidential candidates to develop and promote a positive vision of government and regulation as part of their broader policy agenda. While that call went unheeded, as it turns out, the principles outlined remain critical today, perhaps even more so. (August 2016)

Reforming OIRA

CPR Member Scholars and staff keep a careful eye on OIRA, posting frequently to CPRBlog about its work, and also keeping up on legislative oversight and proposals that involve OIRA. Read the most recent posts here. Peruse all of our OIRA-focused reports and white papers here.

To see what rules are currently at OIRA, check out OIRA's online dashboard. And read CPR President Robert R.M. Verchick's navigational guide to the OIRA dashboard on CPRBlog.

The Progressive Case Against OIRA. In this web article, CPR Senior Policy Analyst James Goodwin traces out the history of OIRA and the problematic role it has played in the regulatory system. It concludes by outlining some recommendations for building a new OIRA that puts people first instead, by helping agencies achieve their protective missions in a timely and effective manner. (August 2020)

Trump's OIRA. Read Trump’s New ‘Regulatory Czar’: Poised to Lead the Assault on Our Safeguards, the news release, and co-author James Goodwin’s blog post on the report. (April 2017)

The Trump War on Guidance Documents. Industry groups generally support agency guidance documents. But that hasn’t stopped conservative think tank types from trying to cast this form of agency action in a starring role in their false narrative about an “unaccountable” bureaucracy. The Trump administration followed suit by issuing a pair of executive orders meant to clamp down on these documents. James Goodwin published a blog post explaining the orders and how they might backfire. (October 2019)

CPR's Report on OIRA Meetings and Outcomes. Read Behind Closed Doors at the White House: How Politics Trumps Protection of Public Health, Worker Safety and the Environment, the first-ever study to document empirically the extent of OIRA’s interference with regulatory agencies’ statutory missions on behalf of corporate lobbyists. Read just the executive summary. (November 2011)

Reforming Regulatory Analysis

Reclaiming the Public’s Voice in Cost-Benefit Analysis. This polling memo co-released with Data for Progress examines public attitudes towards some of the common methodological techniques used in regulatory cost-benefit analysis. It finds that voters across the political spectrum disapprove of these techniques, which raises serious questions about the relevance and appropriateness of the current approach to cost-benefit analysis for evaluating regulations. (February 2021)

Reforming Cost-Benefit Analysis to Tackle Climate Change. This polling memo co-released with Data for Progress examines public attitudes toward climate change regulations and how those regulations should be developed. It finds that likely voters across the political spectrum support strong regulatory action for climate change (along with other environmental and public health risks), even if it means giving up some economic growth – a result that is at odds with how cost-benefit analysis is currently used to evaluate climate regulations. (February 2021)

Restoring Scientific Integrity to the Regulatory System Means Overhauling Cost-Benefit. In this web article, James Goodwin describes the "blind-to-reality calculations [that] are sadly commonplace" in cost-benefit calculations, and calls for specific reforms. (October 2020)

Cost-Benefit Analysis Is Racist. In this web article, James Goodwin describes the ways that cost-benefit analysis as used in the regulatory process perpetuates racial injustice and reinforces race-based inequities. (October 2020)

The Progressive Case Against Cost-Benefit Analysis. In this web article, CPR Senior Policy Analyst James Goodwin explains how economists’ formalistic approach to cost-benefit analysis has obtained its influential, albeit undeserved, role in shaping regulatory decision-making. It concludes by outlining recommendations for a new approach to regulatory analysis to replace the economists’ version of cost-benefit analysis – one that better accords with constitutional principles, legal requirements, and scientific integrity. (August 2020)

CPR Comments on EPA’s ‘Benefits-Busting’ Rule. As part of its broader efforts to sabotage the EPA, the Trump administration has proposed a dangerous rule that would fundamentally overhaul how the agency preforms cost-benefit analyses for its future Clean Air Act rules. The goal of this proposal is to mandate new procedures and techniques that would waste the EPA’s resources, make the rules more vulnerable to legal attack, and ultimately make the results of the cost-benefit analyses even more skewed against strong protections. Read CPR’s comments, which provide a detailed critique of the proposal and call on the EPA to abandon the effort. (August 2020)

The Cost-Benefit Boomerang. In this commentary, CPR Member Scholar Amy Sinden details the fraught relationship that conservatives and corporate polluters have had with cost-benefit analysis over the decades. With cost-benefit analysis, they thought they had created a nearly fail-proof tool for blocking new environmental rules. But as science has improved, the EPA has become better at accounting for the benefit of their regulations. As Sinden notes, this evolution explains the recent attempts by conservatives and industry to re-rig the rules of cost-benefit analysis so that it is again reliably opposed to environmental safeguards. (July 2019)

Is Cost-Benefit Analysis Neutral? In this white paper, CPR Member Scholar David Driesen empirically tests how OIRA used cost-benefit analysis in its review of rules during the George W. Bush administration. On the basis of this analysis, he finds that OIRA often used the results of cost-benefit analysis to justify weakening rules it reviewed and never used it to justify strengthening rules. (June 2005)