Practitioners Of The Darks Arts To Explore Biden Administration Regulatory Policy

Expectations Of Biden’s Use Of Executive Power Are Running Way Ahead of Reality

Regulatory Policy Is The Cornerstone of Response To The Climate Emergency

Will Biden Restore “The Administrative State”?

[Updates below]

The Beltway economic research outfit Resources For the Future, whose mission is “to improve environmental, energy, and natural resource decisions through impartial economic research and policy engagement” has assembled a panel of experts who will discuss

• Looking Ahead: Benefit-Cost Analysis for Environmental Regulation

The Trump administration introduced several changes to the conduct and use of benefit-cost analysis for environmental regulation, some of which are likely to be revisited by the Biden administration. What is the future of this important policy analysis tool, and why does it matter?

This is a very important discussion, if only because aggressive use of federal regulatory power is at the center of any possibility of responding to the climate emergency and “cost-benefit analysis” (CBA) – like risk assessment – has served as a brake on the exercise of regulatory power.

Those CBA brakes are applied primarily through the Office of Management and Budget’s (OMB) review of federal agency’s regulatory proposals, before they are made public. OMB is the back door for corporate and industry lobbyists to kill or scale back regulatory initiatives and they often use CBA as their weapon.

Conventional political wisdom right now is that the Biden administration will be forced to rely on Executive power due to a likely continuation of a Republican veto in Mitch McConnell’s Senate.

But even if the Democrats win both upcoming special election Georgia Senate seats, it is highly unlikely that Democratic Senators from fossil producing states like Joe Manchin of West Virginia, will support aggressive climate legislation.

So, Biden will be forced to use Executive power, primarily regulatory power, to implement his climate, environmental, energy, and environmental justice agendas.

Frankly, I don’t see that happening, for a number of reasons, i.e.: politics; policy; personnel; institutions; and law.

Biden is a corporate Neoliberal, who relies heavily on pro-corporate market based policies. He has been hostile to regulation. His transition teams were corporate and Neoliberal dominated, with few (if any) real progressive voices.

Biden’s OMB nominee, Neera Tanden  – infamous for her support that the US “Bomb Libya and Take its Oil” – is a fellow corporate Neoliberal Democrat and she lacks the requisite intellectual firepower of a Cass Sunstein to make things happen. She has harshly criticized the Green new Deal.

Biden’s likely EPA head is also a moderate and a champion of market approach and alternatives to regulation like cap and trade.

Biden’s likely energy department head presided over the Obama administration’s “all of the above” energy policy, which produced record US oil and gas production as well as installed miles of fossil pipeline infrastructure. Obama openly bragged about this.

Biden’s “climate envoy”, while he believes in climate change and is being praised by some moderate environmental groups, has characterized the climate emergency chiefly as a “national security” issue (and he led Obama in gutting Climate Accords, as voluntary individual national non-binding targets instead of collective enforceable mandates). I see Kerry being used by Biden as an attack dog on China and Russia (and a cover for restoration of corporate trade policies like TPP) more than a climate activist. I agree with Wenonah Hauter:

Kerry has been an apologist for fracking and a promoter of false climate solutions like market-based carbon-trading schemes. …

the Obama administration — with Kerry at the helm of the State Department — viewed exporting fracked gas from the United States as a powerful foreign policy tool that would undercut adversaries, strikingly similar to Trump’s “freedom gas” campaign a few years later.

Jeff ST. Clair captures it perfectly:

Joe Biden’s cabinet is shaping up to be the most diverse group of ideological clones ever assembled.

On top of all that, there are structural impediments and barriers being erected by the right wing federal courts, including the 6-3 conservative pro-corporate anti-regulatory Supreme Court. 

So, I think the expectations for a Biden onslaught of Executive power and regulations far exceed the reality and there will be lots of disappointed climate activists in places like The Sunrise Movement (who foolishly got co-opted and joined the Biden-Sanders deal).

I assume that the RFF panel will discuss all this is some detail.

The RFF panel announcement solicited questions from the public, so I submitted the following questions for the panel, which were favorably received:

Hi – I have 3 broad questions:

1) How do the experts see the Biden OMB (Neera Tanden) differing from the Obama OMB under Cass Sunstein? Does Ms. Tanden have adequate knowledge and experience?

2) How will the current focus on environmental justice effect Cost-Benefit Analysis methodology and policy with respect to integration in agency decisions? I’m particularly focused on EPA and tensions with disproportionate & disparate impact analyses and the balances between justice, health and economics that are implicit in CBA.

3) Do experts see any problems on the horizon with a 6-3 conservative US Supreme Court that seems to be rethinking the Chevron doctrine (judicial deference), non-delegation doctrine, and overall executive power?

My sense is that the court will heighten scrutiny and thereby raise technical and policy expectations for CBA, rule making and “the administrative state”.

We’ll listen in on the panel’s discussion and keep you posted.

I urge any other fellow regulatory wonks out there to sign up and ask questions too!

[End Note: We must note the role of Jersey Girl Heather Zichal. We’ve written about Ms. Zichal, a former NJ Sierra Club volunteer who also worked for Green New Deal sandbagger NJ Congressman Frank Pallone, John Kerry (as well as the Obama White House), see:

• Jersey Girl Goes All In For Biden – Exposes Corporate Power And Revolving Door

We were pleased to see Wenonah Hauter say this about Zichal::

After advising on John Kerry’s presidential campaign, Heather Zichal served the Obama administration in a role one publication calledthe “chief ambassador to oil and gas companies.” Zichal left public service and went to work for the industry, joining the board of Cheniere Energy, a company heavily invested in the fracked gas exports business. Zichal has long preached a “middle ground” approach to climate policy; indeed, in 2019, she drew the ire of climate activists for suggesting Biden had to adopt a middle ground plan that, instead of moving away from fossil fuels, would embrace natural gas, nuclear energy and technology to reduce carbon emissions. ~~~ end]

[Update #3: 12/24/20 – another we told you so: (WaPo) (emphasis mine)

Biden also said that, as a president who wants to avoid inflaming a closely divided Congress, he plans to tread lightly when it comes to using his executive power — a declaration that no doubt will cause some heartburn on the left, where such caution is considered naive.

[Update #2: 12/11/20 – We told you so! Biden says progressive Executive power “way beyond the bounds” (The Intercept reported:

So there’s some things that I’m going to be able to do by executive order. I’m not going to hesitate to do it, but what I’m not going to do is I’m not going to do what used to — Vanita [Gupta], you probably used to get angry with me during the debates, when you’d have some of the people you were supporting saying, ‘On Day 1, I’m gonna have an executive order to do this!’ Not within the constitutional authority. I am not going to violate the Constitution. Executive authority that my progressive friends talk about is way beyond the bounds. And as one of you said, maybe it was you, Reverend Al [Sharpton], whether it’s far left or far right, there is a Constitution. It’s our only hope. Our only hope and the way to deal with it is, where I have executive authority, I will use it to undo every single damn thing this guy has done by executive authority, but I’m not going to exercise executive authority where it’s a question, where I can come along and say, ‘I can do away with assault weapons.’ There’s no executive authority to do away that. And no one has fought harder to get rid of assault weapons than me, me, but you can’t do it by executive order. We do that, next guy comes along and says, Well, guess what? By executive order, I guess everybody can have machine guns again. So we gotta be careful.  ~~~ end update]

Update #1: 12/7/20 – The NY Times runs a story today that illustrates exactly the wildly inflated expectations I am referring to:

Already, president-elect Joseph R. Biden Jr. is planning to move forward quickly in his first months in office to reinstate and strengthen many of the environmental rules rolled back by Mr. Trump.

This NYT claim is made without any factual support and – if you read the NYT story closely – a few paragraphs later the Biden Transition team explicitly contradicts the claim (by refusing to make exactly a commitment to “reinstate and strengthen” environmental rules rolled back by Trump:

“Given the deadly nature of this pollutant, my advice to the new administration would be to very quickly embark on the process to make the standard more stringent,” said Richard Revesz, an expert on environmental law at New York University.

A spokesman for the Biden transition team declined to say whether the Biden administration would do that, but he noted that when the Harvard study came out in April, Mr. Biden wrote on Twitter, “We’re starting to see evidence that long-term exposure to air pollution — which disproportionately affects communities of color & low-income communities — is linked to COVID-19 death rates.”

But not only did Biden transition fail to make a commitment to strengthen the PM2.5 standards. Obviously, the NYT reporter knows the difference between a vague and non-committal Biden campaign statement and a specific commitment on a specific regulatory standard, after the election and during the transition period.

And it was no accident that West Virginia officials were involved in the Trump EPA press event – obviously that’s a shot across the bow to Biden, who knows that Senator Joe Manchin will not support any stronger Biden EPA rules.

I call bullshit on this kind of misleading reporting.  At best it is wishful thinking and it gives Biden and his incoming EPA Administrator nominee a huge pass. ~~~ end update]