Hostname: page-component-78c5997874-ndw9j Total loading time: 0 Render date: 2024-11-10T16:01:50.273Z Has data issue: false hasContentIssue false
  • English
  • Français

Institutional Roles and Goals for Retrospective Regulatory Analysis

Published online by Cambridge University Press:  26 November 2021

Lori S. Bennear Open the ORCID record for Lori S. Bennear [Opens in a new window]  and
Jonathan B. Wiener
Lori S. Bennear*
Affiliation:
Nicholas School of the Environment, Duke University, Durham, NC, USA
Jonathan B. Wiener
Affiliation:
Duke Law School, Nicholas School of the Environment, Sanford School of Public Policy, Duke University, Durham, NC, USA
*
*e-mail: lori.bennear@duke.edu
Get access Rights & Permissions [Opens in a new window]

Abstract

Despite repeated calls for retrospective regulatory review by every President since the 1970s, progress on implementing such reviews has been slow. We argue that part of the explanation for the slow progress to date stems from misalignment between the goals of regulatory review and the institutional framework used for the review. We define three distinct goals of regulatory review – the rule relevance goal, the rule improvement goal, and the regulatory learning goal. We then examine the text of the Presidential Executive Orders and major Congressional legislation addressing retrospective review, and document which goals were targeted and which institutions were used to conduct the reviews. We find that the U.S. federal government has almost always sought review of one rule at a time, conducted by the agency that issued or promulgated the rule and that these reviews tend to focus on rule relevance and costs. This institutional framework for retrospective review – one rule, assessed by the promulgating agency, focused on relevance and cost – is only well-suited to a narrow interpretation of the rule improvement goal. We then review alternative institutional structures that could better meet the rule improvement goal and the broader regulatory learning goal across multiple rules and agencies, and we offer recommendations for developing new guidance and institutions to promote multiagency regulatory learning.

Keywords

regulatory impact analysisretrospective reviewex post reviewprogram evaluationadministrative proceduresregulatory learningH43H83K23K32
Type
Article
Information
Journal of Benefit-Cost Analysis , Volume 12 , Issue 3 , Fall 2021 , pp. 466 - 493
Copyright
© The Author(s), 2021. Published by Cambridge University Press on behalf of the Society for Benefit-Cost Analysis

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Aldy, Joseph Edgar. 2014. “Learning from Experience: An Assessment of the Retrospective Reviews of Agency Rules and the Evidence for Improving the Design and Implementation of Regulatory Policy.” Administrative Conference of the United States.Google Scholar
Balleisen, Edward J., Bennear, Lori S., Cheang, David, Free, Jonathon, Hayes, Megan, Pechar, Emily, and Preston, A. Catherine. 2017. “Institutional Mechanism for Investigating the Regulatory Impolications of a Major Crisis: The Commission of Inquirty and the Safety Board.” In Balleisen, Edward J., Bennear, Lori S., Krawiec, Kimberly D., and Wiener, Jonathan B. (Eds.) Policy Shock: Recalibrating Risk and Regulation after Oil Spills, Nuclear Accidents, and Financial Crises. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Bennear, Lori S., and Wiener, Jonathan B.. 2019 a. “Adaptive Regulation: A Framework for Policy Learning Over Time.” Draft.Google Scholar
Bennear, Lori S., and Wiener, Jonathan B.. 2019 b. “Built to Learn: From Static to Adaptive Environmental Policy.” In Daniel C. Esty (ed.) A Better Planet: Forty Big Ideas for a Sustainable Future. New Haven, CT: Yale University Press.Google Scholar
Bennear, Lori S., and Wiener, Jonathan B.. 2021. “Periodic Review of Agency Regulation.” In Report for the Administrative Conference of the United States. Washington, DC: Administrative Conference of the United States. https://www.acus.gov/research-projects/periodic-retrospective-review.Google Scholar
Breyer, Stephen G. 1982. Regulation and Its Reform. Cambridge, MA: Harvard University Press.CrossRefGoogle Scholar
Bull, Reeve T. 2015. “Building a Framework for Governance: Retrospective Review and Rulemaking Petitions.” Administrative Law Review, 67: 265.Google Scholar
Coglianese, Cary. 2012. “Moving Forward with Regulatory Lookback.” Yale Journal on Regulation, 30: 57.Google Scholar
Coglianese, Cary. 2013. “Thinking Ahead, Looking Back: Assessing the Value of Regulatory Impact Analysis and Procedures for Its Use.” Korean Journal of Law and Legislation, 3: 5.Google Scholar
Craik, Neil. 2008. The International Law of Environmental Impact Assessment: Process, Substance and Integration (Vol. 58). Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Cropper, Maureen, Fraas, Arthur, and Morgenstern, Richard. 2017. “Looking Backward to Move Regulations Forward.” Science, 355(6332): 1375–1376.CrossRefGoogle ScholarPubMed
Davenport, Coral. 2019. “Automakers Plan for Their Worst Nightmare: Regulatory Chaos After Trump’s Emissions Rollback.” New York Times, April 2019. https://www.nytimes.com/2019/04/10/climate/auto-emissions-cafe-rollback-trump.html.Google Scholar
Davenport, Coral, and Tabuchi, Hiroko. 2019. “Automakers, Rejecting Trump Pollution Rule, Strike a Deal With California.” New York Times, July 25, 2019. https://www.nytimes.com/2019/07/25/climate/automakers-rejecting-trump-pollution-rule-strike-a-deal-with-california.html.Google Scholar
Dudley, Susan. 2013. “A Retrospective Review of Retrospective Review.” Regulatory Studies Center, The George Washington University. https://regulatorystudies.columbian.gwu.edu/sites/g/files/zaxdzs1866/f/downloads/20130507-a-retrospective-review-of-retrospective-review.pdf.Google Scholar
Dudley, Susan E., and Mannix, Brian F.. 2018. “Improving Regulatory Benefit-Cost Analysis.” The Journal of Law and Politics, 34: 1.Google Scholar
Dudley, Susan, and Katzen, Sally. 2019. “Crossing the Aisle to Streamline Regulation.” Wall Street Journal, May 13, 2019. https://www.wsj.com/articles/crossing-the-aisle-to-streamline-regulation-11557788679.Google Scholar
Dunlop, Claire A., and Radaelli, Claudio M.. 2018. “Does Policy Learning Meet the Standards of an Analytical Framework of the Policy Process?” Policy Studies Journal, 46: S48–S68.CrossRefGoogle ScholarPubMed
Farber, Daniel A. 1993. “Environmental Protection as a Learning Experience.” Loyola of Los Angeles Law Review, 27: 791.Google Scholar
Golberg, Elizabeth. 2018. “Better Regulation: European Style.” Harvard Kennedy School, Mossavar-Rahmani Center for Business and Government Working Paper No. 98. https://www.hks.harvard.edu/centers/mrcbg/publications/awp/awp98.Google Scholar
Greenstone, Michael. 2009. “Toward a Culture of Persistent Regulatory Experimentation and Evaluation.” In Moss, David and Cisternino, John (Eds.) New Perspectives on Regulation. Cambridge, MA: The Tobin Project.Google Scholar
Gubler, Zachary J. 2014. “Experimental Rules.” Boston College Law Review, 55(1): 129–180.Google Scholar
Harrington, Winston. 2006. “Grading Estimates of the Benefits and Costs of Federal Regulation.”CrossRefGoogle Scholar
Harrington, Winston, Morgenstern, Richard D., and Nelson, Peter. 2000. “On the Accuracy of Regulatory Cost Estimates.” Journal of Policy Analysis and Management: The Journal of the Association for Public Policy Analysis and Management, 19(2): 297–322.3.0.CO;2-X>CrossRefGoogle Scholar
Lutter, Randall. 2013. “Regulatory Policy: What Role for Retrospective Analysis and Review?” Journal of Benefit-Cost Analysis, 4(1): 17–38.CrossRefGoogle Scholar
Mandel, Michael, and Carew, Diana G.. 2013. “Regulatory Improvement Commission: A Politically-Viable Approach to US Regulatory Reform.” Progressive Policy Institute, 3: 1–24.Google Scholar
McCray, Lawrence E., Oye, Kenneth A., and Petersen, Arthur C.. 2010. “Planned Adaptation in Risk Regulation: An Initial Survey of US Environmental, Health, and Safety Regulation.” Technological Forecasting and Social Change, 77(6): 951–959.CrossRefGoogle Scholar
Mendelson, Nina A., and Wiener, Jonathan B.. 2014. “Responding to Agency Avoidance of OIRA.” Harvard Journal of Law and Public Policy, 37: 447.Google Scholar
Miller, Sofie E. 2015. “Learning from Experience: Retrospective Review of Regulations in 2014.” The George Washington University Regulatory Studies Center. https://pdfs.semanticscholar.org/e959/6d4d6315c8d286bde43e9766e940d905c817.pdf.Google Scholar
Morgenstern, Richard D. 2015. “The RFF Regulatory Performance Initiative: What Have We Learned?” Resources for the Future Discussion Paper: 15–47.CrossRefGoogle Scholar
National Transportation Safety Board. 2017. “National Transportation Safety Board Marks 50 Years of Saving Lives.” https://www.ntsb.gov/news/press-releases/Pages/PR20170403.aspx.Google Scholar
OECD. 2018. “OECD Regulatory Policy Outlook 2018.” https://www.oecd-ilibrary.org/content/publication/9789264303072-en.Google Scholar
Office of Information and Regulatory Affairs. 2016. “2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act,” 6.Google Scholar
Office of the Assistant Secretary for Planning and Evaluation, U.S. Department of Health and Human Services. 2016. “Guidelines for Regulatory Impact Analysis.” Washington, DC. https://aspe.hhs.gov/system/files/pdf/242926/HHS_RIAGuidance.pdf.Google Scholar
Paperwork Reduction Act of 1995 . n.d. Title 44. Vol. Chapter 35. https://www.govinfo.gov/content/pkg/PLAW-104publ13/html/PLAW-104publ13.htm.Google Scholar
Pidot, Justin R. 2015. “Governance and Uncertainty.” Cardozo Law Review, 37: 113.Google Scholar
Radaelli, Claudio M. 2020. “Will the EU Make Its Better Regulation Strategy Truly Better?” Regulatory Review (blog), 2020. https://www.theregreview.org/2020/06/01/radaelli-will-eu-make-better-regulation-strategy-truly-better/.Google Scholar
Ranchordás, Sofia. 2015. “Sunset Clauses and Experimental Regulations: Blessing or Curse for Legal Certainty?” Statute Law Review, 36(1): 28–45.CrossRefGoogle Scholar
Renda, Andrea. 2017. “One Step Forward, Two Steps Back? The New US Regulatory Budgeting Rules in Light of the International Experience.” Journal of Benefit-Cost Analysis, 8(3): 291–304.CrossRefGoogle Scholar
Ribeiro, Daniel L. 2018. “Adaptive RIA.” SJD diss., Duke Law School.Google Scholar
Sunstein, Cass R. 2014. “The Regulatory Lookback.” Boston University Law Review, 94: 579.Google Scholar
Trnka, Daniel, and Thuerer, Yola. 2019. “One-In, X-Out: Regulatory Offsetting in Selected OECD Countries.” https://www.oecd-ilibrary.org/content/paper/67d71764-en.Google Scholar
Wagner, Wendy, West, William, McGarity, Thomas, and Peters, Lisa. 2017. “Dynamic Rulemaking.” The New York University Law Review, 92: 183.Google Scholar
White, Adam J. 2016. “Retrospective Review, for Tomorrow’s Sake.” Yale Journal on Regulation: Notice and Comment Blog (blog), November 28, 2016. http://yalejreg.com/nc/retrospective-review-for-tomorrows-sake-by-adam-j-white/.Google Scholar
Wiener, Jonathan B. 1998. “Managing the Iatrogenic Risks of Risk Management.” Risk, 9: 39.Google Scholar
Wiener, Jonathan B. 2013. “The Diffusion of Regulatory Oversight.” In Livermore, Michael A. and Revesz, Richard L. (Eds.) The Globalization of Cost-Benefit Analysis in Environmental Policy. Oxford: Oxford University Press.Google Scholar
Wiener, Jonathan B., and Ribeiro, Daniel L.. 2016a. “Environmental Regulation Going Retro.” Journal of Land Use & Environmental Law, 32(1): 1–74.Google Scholar
Wiener, Jonathan B., and Ribeiro, Daniel L.. 2016b. “Impact Assessment: Diffusion and Integration.” In Bignami, Francesca and Zaring, David (Eds.) Comparative Law and Regulation. Cheltenham: Edward Elgar.Google Scholar
Supplementary material: File

Bennear and Wiener supplementary material

Online Appendix

Download Bennear and Wiener supplementary material(File)
File 21.7 KB