Regulatory Reform: A Progressive Vision

A new Issue Brief provides practical proposals on how to improve regulation.

For over three decades, “regulatory reform” has been an aspiration chiefly for opponents of regulation.  Everyone agrees that regulation could be improved. But too many proposals for change are designed to undercut protection of the environment, public health, and civil rights.

What would regulatory reform look like if you actually want to improve regulation rather than destroy it? Lisa Heinzerling, Peter Shane, and I tackle that question in an issue brief for the American Constitution Society. We focused on administrative rulemaking, the primary target of contemporary conservative efforts.

Are there changes that could make regulation more evidence-based, more transparent, more inclusive, more accountable, and more efficient? We think the answer is yes.

Here is a sample of our proposals:

  • Repurpose White House regulatory review. Significant rulemakings go to the White House for review. Currently, the review process is intended to force agencies to pursue cost-benefit analysis rather than heed their statutory missions. White House review should focus instead on ensuring that agencies are effectively pursuing the goals that Congress assigned them. Generally speaking, Congress intended a thumb on the scales in favor of environmental protection, recognizing the difficulty of assessing all possible environmental harms.
  • Expand judicial review of agency inaction. One way of sabotaging an agency’s mission is to stop implementing congressional mandates. We think courts should be more willing to intervene. Agencies must have some leeway in setting priorities, given budget limitations, but this is no excuse for deliberately shirking statutory mandates.
  • Abolish the Congressional Review Act. This law, which allows Congress to kill carefully considered regulations without serious deliberation, has served only to empower special interests and knee-jerk ideologues. Some conservatives want to give Congress an even stronger rule, but it hasn’t been able to responsibly implement the more limited powers it has under this statute.
  • Reaffirm the Chevron doctrine. The Chevron doctrine gives agencies more ability to adapt statutes to changing circumstances. Ideally, Congress should codify Chevron into statute, while omitting the mischievous “major questions” exceptions that let’s courts second-guess agencies at will.  If Congress has entrusted implementation of nearly all environmental statutes to agencies, not courts. Courts should exercise deference in reviewing the actions of these agencies. this doesn’t mean a blank check, but it does mean agencies should get the benefit of the doubt.
  • Improve transparency, accountability, and public participation. At the same time they ask for public comment, agencies implementing should be required to post all underlying studies on-line along with other relevant background materials. They should also be required to log all contacts with other officials in the Executive Branch regarding a proposed rule. The current consultation process provides a backdoor for special interest and partisan politics. The least the public is entitled to is transparency.

We don’t view these proposals as in any way definitive. We would be delighted if we succeed in starting a discussion about how to improve regulation – but this time, among those who believe in the administrative state, not those who want to turn the clock back to Herbert Hoover’s world.


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Reader Comments

3 Replies to “Regulatory Reform: A Progressive Vision”

  1. I am in accord with all of this, but would add a broader suggestion. We need to draft substantive amendments to the Clean Water Act, looking down the road to a point where such a thing might be considered seriously.

    The need for this may be most apparent in the fly-over zone, from where this is being written. The broad exemptions given to field agriculture in the CWA has left us with nothing but deeply polluted rivers and rapidly declining topsoil. Perhaps in 1972 there was a reason for this exemption: practical politics combined with the fact that in 1972 our farms were smaller and typically based on mixed field and animal production. That has all changed; the land tenure system has gone through a massive consolidation, animal husbandry has left the farm and moved into vast growing barns, and growing methods have become vastly more intensive. The advent of ethanol production has added to the burden on our waterways.

    Agriculture is just one example of the need for substantive amendments to the CWA, and I will let it go at that.

    John H. Davidson
    rural South Dakota

    1. Thanks for this thoughtful comment. Congressional gridlock has prevented change in the major environmental statutes for decades. But we should be actively thinking about what to do when the opportunity for reform presents itself some day. There’s certainly room for improvement!

      1. Dan said;
        “….There’s certainly room for improvement!…..”

        Dear Dan,
        From my long professional experience in the environmental field, I believe the Trump Administration has made important progress in regulatory reform over the last two years. The Administration has instituted major changes in overall environmental regulatory policies. EPA and Corps of Engineers are now undergoing substantial reforms and implementing new directions going forward. That’s progress! I agree there’s certainly room for improvement.

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

READ more