“It has the potential to be the most significant action Biden took on day one.” That’s what Senior Policy Analyst James Goodwin of the Center for Progressive Reform said about the executive order called Modernizing Regulatory Review (MRR)—although he recognized such a statement might sound “absurd” given everything else the new president did on that day. Goodwin was talking about an executive order (EO) that got little attention from mainstream journalists other than the HuffPost reporter who interviewed him. I initially heard about it thanks to Tim Corrimal’s show, but the Brookings Institute’s in-depth analysis of the MRR also generally tracks with the optimistic assessment from Goodwin. Cass Sunstein, who ran the Office of Information and Regulatory Affairs (OIRA) during President Obama’s first term, also strongly praised the change in a post at Bloomberg.
The memo directs the OIRA, which is housed in the Office of Management and Budget (OMB), to take a new approach when doing its job—namely reviewing regulations proposed by the executive branch. I know that the previous sentence may have left some of you nodding off into a dream about drowning in alphabet soup. (There are worse ways to go.) But trust me, if you breathe air, drink water, or buy, well, anything, there’s a pretty decent chance that what Biden just did will help you and yours stay safer and healthier—or maybe even just stay alive.
The key section of the document calls for the appropriate offices to “provide concrete suggestions on how the regulatory review process can promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.”
In addition to those important priorities, this Biden-Harris EO mandates that the review of regulations “promotes policies that reflect new developments in scientific and economic understanding, fully accounts for regulatory benefits that are difficult or impossible to quantify, and does not have harmful anti-regulatory or deregulatory effects.”
Finally, the memo requires that any such review “ensure[s] that regulatory initiatives appropriately benefit and do not inappropriately burden disadvantaged, vulnerable, or marginalized communities.”
One might think all this would be obvious to anyone with a sense of fairness, an interest in actually getting things right based on the best available information, and a concern for justice. One who harbors such illusions clearly hasn’t dealt with Republicans.
Biden’s MRR differs from most of the other executive actions he has taken thus far in that it doesn’t target rules created by his immediate predecessor. Instead, the 46th president is going after a structure created by the godfather of modern conservatism in all its forms (including virulent race-baiting, although that’s not the topic of this post): Ronald Reagan.
With EO 12291 on Feb. 17, 1981, Reagan created the OIRA. Its goal was simple: Find ways to block regulations. The guts of the EO are contained in this section: “(R)egulatory action shall not be undertaken unless the potential benefits to society from the regulation outweigh the potential costs to society.” Sounds reasonable ... until it’s time to define benefits and costs to society. Those definitions have rested solely on the basis of dollars and cents. If saving lives costs too much money, well, to paraphrase Col. Jessup from A Few Good Men, “people die.”
At the time, progressives knew what Reagan’s order would mean. Richard Ayres, a leading environmental activist who co-founded the Natural Resources Defense Council, called this approach to assessing the value of regulations “basically fraudulent.” Going further, he noted: “They are trying to put into numbers something that doesn't fit into numbers, like the value of clean air to our grandchildren. Cost benefit analysis discounts the future. It allows costs to flow to small groups and benefits to large groups and vice versa. It is concerned with efficiency but not with equity. It is deceivingly precise and ignores ethical and moral choices.''
How’s that for a slogan that sums up an entire movement: “Conservatism: We’ve been ignoring ethical and moral choices for more than 40 years!”
California Rep. Henry Waxman, a long-time progressive champion, added: “It is very dangerous to think we can quantify the way we make policy judgments. We don't know how to measure the true cost of health or disease.” Waxman was very clear about why this EO was one of the first actions taken during the Reagan presidency: It would enable Republicans to “use cost-benefit analysis to reach decisions that will favor business and industry in this country rather than the public.” Waxman couldn’t have been more right, either about this specific action Reagan took or about Republican priorities across the board.
President Bill Clinton issued a change in 1993 that reduced OIRA’s scope, but unfortunately left the basic framework relatively intact. Other tweaks have been made, including in 2011 under the Obama-Biden administration. But the order issued by the new Biden-Harris administration will, hopefully, usher in a new era for OIRA, one that differs not just by degree, but by kind.
By broadening the definition of costs and benefits beyond what can be calculated on a balance sheet, Biden’s MMR makes enactment possible for far-reaching protections likely to be blocked under the old system. Stuart Shapiro, a public policy professor at Rutgers University who used to work at OMB, explained that the previous approach to regulatory review stifled necessary measures: “Because the benefits are harder to measure, cost-benefit analysis always puts regulation at a disadvantage.” It’s more concrete to say that a specific environmental rule will cost businesses X dollars. However, what is the exact benefit in dollars to a life saved—or a life improved, for that matter? Those benefits are very real to actual people but were not given the proper weight because of the way the costs and benefits had been defined—until Biden came along, that is.
Don’t just take the word of progressives on how much of an impact this new policy will have; listen to how much conservatives despise it. The so-called Competitive Enterprise Institute is a libertarian think tank that, for all intents and purposes, never met a regulation it didn’t hate—especially on the environment. They published a post by Clyde Wayne Crews, a senior fellow and vice president for policy, which squealed that Biden’s MMR would end up “gutting the restraint of the past four years” and “effectively do away with cost-benefit analysis altogether.” Based on how that analysis operated, I’d say good riddance.
As for the last four years, the core of the twice-impeached president’s regulatory review policy was typical of the thoughtlessness of his administration in general. Rather than establish some kind of objective standards to measure the effectiveness of regulations—standards that would certainly favor corporate fat cats—the disgraced despot just said, “If there’s a new regulation, they have to knock out two.” That’s a direct quote—I’m not kidding. In a nutshell, that really was his new rule.
More broadly, The Man Who Tried To Overturn An Election He Lost seriously weakened environmental protections and totally hamstrung our country’s efforts to combat climate change. Hana V. Vizcarra, who researches environmental policy at Harvard, characterized what Trump did over four years as a “very aggressive attempt to rewrite our laws and reinterpret the meaning of environmental protections.” Trump’s anti-regulation regime went beyond the environment, including attacks on labor protections, health protections, education-related protections, and more.
The one wide-ranging piece of legislation enacted by the Republicans under Trump was the Rich Man’s Tax Cut, and Biden certainly needs to undo that giveaway to millionaires and billionaires as quickly as possible. But the other major policy “accomplishments” that need to be undone are in the area of regulation, where Trump had more room to operate by executive order and other executive branch actions. Now President Biden has that same authority, and his new MMR makes clear he knows how to use it.
We’ll likely be seeing one example of the impact of Biden’s executive order when he issues regulations—which we expect to see very soon—on so-called “forever chemicals.” The real name for them is per- and polyfluoroalkyl substances (PFAS), but their nickname derives from the fact that they “never break down in the environment,” as the Environmental Working Group explained. That’s not all:
Very small doses of PFAS have been linked to cancer, reproductive and immune system harm, and other diseases.
For decades, chemical companies covered up evidence of PFAS’ health hazards. Today nearly all Americans, including newborn babies, have PFAS in their blood, and up to 110 million people may be drinking PFAS-tainted water. What began as a “miracle of modern chemistry” is now a national crisis.
During his 2020 campaign, Biden promised to take action on PFAS as part of a wide-ranging plan to “secure environmental justice and equitable economic opportunity.” This is the first step among what will be many, but much of his agenda would likely have been neutered or even blocked under the old regulatory review rules. His new MMR was thus a vital first step in clearing the path for the specific changes he will carry out to protect all Americans’ health, safety, and much more.
It’s very important to remember that what Trump did was no different than what other Republicans have done going back four decades. Conservatives, over and over, wrongly decry as “red tape” the very rules that prevent a relatively small number of immoral, greedy sharks from causing real injury in the blind pursuit of profit—not to mention making it that much harder for the honest business owners who act morally to successfully compete.
Since long before the Orange Menace moved into the White House, his party has been in thrall to corporate interests, and hostile to the interests of consumers—also known as the American people. Even if Republicans purge Trumpism and the Trumpists from their party—something they absolutely must do for the sake of our democracy—the conflict between the parties on regulatory issues will not go away.
When it comes to regulations, one party favors the powerful and the wealthy, and the other works for all of us. It really is as simple as that.
Ian Reifowitz is the author of The Tribalization of Politics: How Rush Limbaugh's Race-Baiting Rhetoric on the Obama Presidency Paved the Way for Trump (Foreword by Markos Moulitsas)