Critiques of Regulatory Policy
Regulatory Analysis
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What is CBA?
 Why is CBA sometimes very controversial,
especially for environmental regulations?
What is the value of regulatory analysis?
What is PBA?
 (political benefit analysis)
 Why does it always trump CBA?
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Cost Benefit Analysis
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How much should we spend to save a life?
 Why does Congress refuse to put a price on
human life?
 Why does this make CBA more difficult?
How much to prevent injury?
How much should personal responsibility matter?
 personal protective gear?
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Cost-benefit and Risk-benefit analysis
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Justice Breyer's tunnel vision problem
 Each rule is seen without reference to all the
other regulations
 Thus each new safety rule may be cost
effective, but the aggregate is not
Disaster Decision Making
 This is always an issue after a disaster when
politicians want to show they are doing
something.
 Paralyzed thinking after Katrina
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Environmental Cleanup Example
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Why is this a problem in environmental law?
 The cost of removing the last 5% of crap
What about asbestos and brown fields?
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Where does CBA fail?
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Do the costs and benefits always fall on the same
group?
Why does HHS and the state continue to favor high
tech medicine over primary care?
 What is the CBA?
 What is the disconnect between the costs and the
benefits?
How does the diffuse and long term nature of benefits
complicate CBA?
Should we use CBA at all for health regulations?
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Regulatory Successes
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Food and drug safety - compared to 1900
Environmental regulation
 Through the 1980s
Workplace safety
Civil rights
Banking
 Lots of moral hazard problems, which blew up in 2008
 No one lost insured deposits
 Lots of folks lost retirement savings that were in the
market.
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Where are We Better Off?
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What has improved over the past 50 years?
 Pollution?
 Health?
 Racism?
 Do more people have more stuff?
 What does it mean to be poor in the US over the past 100
years?
What has gotten worse?
 Income disparities?
 Distributive justice?
 Comparison with Europe or China?
 Role of expectations?
Are things absolutely worse, or worse in comparison with other
individuals and countries?
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Who wins and who loses in economic regulations?
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Small towns and rural areas?
Small business?
 Why is small business at greater risk?
 Do you want to have less regulation for small
business?
 How does the risk they pose differ from big business?
Big business?
Unions?
The Rich?
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How Do We Make Political Choices?
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Response to a crisis
 Can work for specific narrow issues
 Tends to not consider unintended
consequences
Driven by lobbyists
 Works best when it is not publically vetted
 Think tax code
Cost-Benefit decisionmaking
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Why Doesn't the Public Trust Agencies?
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What are examples of public distrust of agencies?
 Oysters
Are these justified?
What is the impact of this distrust?
How is this distrust transformed used to justify not being taxed?
 What about when there is a local problem?
How do the politics shift for national security?
 What does Ron Paul say?
What happens to small government views when there is a
disaster?
 Or someone wants a levee, dam, etc.?
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CBA Costs - Tables from Saving Lives: A
Review of the Record
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What is the problem with lives saved analysis?
Are they the same lives for different risks?
What about disability?
What are the most cost effective regulations?
 Interesting that vaccinations and clean drinking
water are not here
What are the most costly regulations?
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Could We Spend the Money More Wisely?
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What type of risks do we spend the most on with the least
return?
 Asbestos abatement of stable asbestos in buildings
 Superfund risks
 Toxic exposures in general
 Is there an LA cancer corridor?
What risks get the least attention?
 Smoking?
 Immunizations?
 Primary care?
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Should we do CBA at All?
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Why not prevent all possible risks?
 Precautionary principle
What are the trade offs?
How does the US concern with risks affect our cost of
business production?
When can preventing one risk cause another?
 Natural pesticides
 Smaller, lighter cars
 More expensive power?
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Where does the Court Stand on Requiring
CBA?
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The enabling act is controlling
 In AFL-CIO v. API, 448 U.S. 607 (1980), the court
found that OSHA enabling act required CBA on
standards for benzene
 In American Textile Mfrs. Institute v. Donovan,
452 U.S. 490 (1981), the court found that OSHA
did not have to do CBA for cotton dust
standards because it was not required by the
statute directing regulation of cotton dust.
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Non-Agency Regulation: Tort and
Compensation Law
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How is tort law a regulatory process?
Is it a democratic process?
 What is the public input?
 Who protects the public's interest in tort cases?
What are the standards for scientific decisionmaking?
 Breast implants?
 Erin Brockovich?
What are the standards for CBA?
What if later evidence shows that the verdict or
settlement was wrong?
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Regulatory Dilemmas
FDA
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What are the tradeoffs in FDA regulation?
 Safety/Effectiveness
 Should cost be part of the equation?
Why are consumers in a poor position to judge drugs?
 Background Information?
 Timeframe of action?
 Comparison with other drugs?
What is drug lag?
 Why not let the market sort it out?
 What is the market mechanism - think Vioxx
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Economic Incentives and Taxes for
Environmental Risks
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Tradeable permits for a fixed amount of pollution
 Looks at total pollution or greenhouse gas, not
process of control
 Lets industry see who can do it the most efficiently
What if you are downwind?
 Does an aggregate reduction, which benefits more
people, make you any happier?
Carbon Tax
 Goes to the heart of the CO2 program
 What are the downsides?
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CBA - Federal Flood Insurance
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Should the feds provide flood insurance?
Why does it not work in the private market?
Why are the political pressures on the feds?
 Do local communities really want accurate flood
maps?
 Do people really want accurate storm probability
predictions?
 Are the feds really going to charge accurate
premiums?
What are the perverse incentives of the program?
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