Regulatory Triage in a Volatile Political Era

21 Pages Posted: 28 Nov 2017

Date Written: November 13, 2017

Abstract

Policymakers and administrators periodically revise or jettison rules, enforcement priorities, and agency structures for a variety of reasons. This is particularly the case when presidential administrations change, as evidenced, for example, by the transition from President Carter to President Reagan. As the current U.S. presidency undergoes one of the most monumental political changes in recent history, proposals to dramatically cut and revoke public laws — not just revise them — have taken center stage. Health care, immigration, and environmental regulations are among areas slated to receive the most attention, and executive action in these areas has already commenced. President Trump has also indicated a desire to severely slash funding for agencies like the Environmental Protection Agency.

There is a threat that as this regulatory reform rapidly progresses, typical regulatory capture problems will prevail. Substantial regulatory changes could proceed at the expense of dispersed interests that collectively have much to lose from certain changes — such as important public health and environmental protections — but individually lack the motivation or re­sources to overcome organizational transaction costs.

This Piece lumps the process of reviewing and prioritizing regu­lations into a broad term called “regulatory triage” and argues that this is an important time for deploying this type of system. Changes to rules and the agencies that write and enforce them must progress in a manner that takes into account the values of a diverse set of stakeholders, including the individuals who could be the most negatively impacted by the loss of regulatory protections. Although process alone cannot adequately address this threat, this Piece argues that agencies should build from previous lessons regarding comparative regulatory assessment and form stakeholder groups tasked with prioritizing the preservation of rules, agency offices, and enforce­ment efforts that address the greatest societal problems. Agencies, in turn, should take into account the recommendations of these groups.

Any regulatory triage approach must proceed with great caution, however. The last thing on the minds of most agency officials facing further cuts to an already understaffed and underfinanced office is a lengthy process that will only consume more time and money, taking away valuable resources from the most pressing problems.

Keywords: comparative risk assessment, regulatory priorities, rule withdrawal, administrative law, National Environmental Policy Act, environmental law, Environmental Protection Agency

Suggested Citation

Wiseman, Hannah Jacobs, Regulatory Triage in a Volatile Political Era (November 13, 2017). 117 Columbia Law Review Online 240 (2017) , FSU College of Law, Public Law Research Paper No. 866, Available at SSRN: https://ssrn.com/abstract=3076050

Hannah Jacobs Wiseman (Contact Author)

Penn State Law – University Park ( email )

Lewis Katz Building
University Park, PA 16802
United States

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