In the News

Jointly penned by the nonprofit Environmental Defense Fund and New York University School of Law's Institute for Policy Integrity, a new report said the current quality of firms' climate risk disclosures is not at the same level as that for other forms of risks that publicly traded companies routinely disclose. It calls on the U.S. government to improve and mandate its current disclosure regime because it will "help not only investors deciding how to allocate capital across corporations but also the corporations themselves."

Guidance on voluntary disclosures the Securities and Exchange Commission issued in 2010 hasn’t led to “comparable, specific, and decision-useful” climate-risk reporting from companies, the New York University School of Law’s Institute for Policy Integrity and the Environmental Defense Fund said in the report released Thursday. “We’re trying to make a clear case for why additional regulation is needed, despite the popularity of voluntary programs, despite the existing guidance,” said report co-author Jack Lienke, the regulatory policy director at the Institute for Policy Integrity.

The Department of Health and Human Services' insidious new policy, known as the Sunset Rule, commits it to reassessing the economic impacts of almost every one of the department’s existing regulations and establishes an extreme penalty for noncompliance: If a regulation is not reviewed by its 10th anniversary, it simply blinks out of existence. HHS claims the power to repeal thousands of rules at once without so much as explaining what they do, much less justifying the harm that could arise in their absence.

The impending power shift in the Senate means Congress will once again turn to the Congressional Review Act to scrap a bevy of regulations. Hill Republicans and President Trump used the CRA to kill 16 Obama-era rules in 2017. Democrats, in contrast, have never deployed the CRA. "It's the quickest way to get rid of policies that will cause significant harms to the health of Americans and to the quality of our environment," said Ricky Revesz, a New York University professor whose name has been mentioned as a possible Biden regulatory chief.

EPA Administrator Wheeler said the Congressional Review Act can’t be used because the rule is “an internal housekeeping regulation that does not affect external people to the agency,” and because it isn’t economically significant, meaning it isn’t expected to have an annual effect on the economy of at least $100 million. But Richard Revesz cast doubt on that analysis. “Whether a rule qualifies for disapproval is up to Congress to determine,” Revesz said. “Wheeler’s views are entitled to no deference. The decision is not up to him.”

For decades, there has been a bipartisan consensus that federal agencies should base their decisions on evidence, expertise, and analysis. But under the Trump Administration, inconvenient evidence has often been ignored, experts have been sidelined, and analysis has been misused to intentionally obscure important truths. In this episode, we talk to Prof. Michael Livermore (University of Virginia School of Law) and Prof. Richard Revesz (New York University School of Law) to discuss current challenges as well as considerations for the road ahead. Their new book, Reviving Rationality: Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health, offers analysis on critical aspects of the regulatory process and calls for the reinstatement of expertise, sound cost-benefit analysis, and the rule of law in public administration.

In 2008, Michael Livermore and Richard Revesz wrote Retaking Rationality, a book arguing that cost-benefit analysis of regulations should be recognized not as an anti-regulatory weapon, but rather a nonideological tool for promoting good government. Now they return with a new book, Reviving Rationality, which analyzes developments since 2008, and proposes further reforms for cost-benefit analysis going forward. They discuss it with the C. Boyden Gray Center for the Administrative State’s Executive Director, Adam White.

Multiple amicus briefs were filed in support of Attorney General Becerra’s challenge of the Trump Administration’s “Healthcare Refusal Rule." The Institute for Policy Integrity wrote that "It is difficult to imagine how a rule could cause more workers to assert a right to deny care without also causing an increase in denials of care. HHS cannot have it both ways."

What are we to make of this seeming sea change in corporate social responsibility? Critics are correct in pointing out that these measures fall far short of what is needed to avoid catastrophic levels of warming. But to observers of corporate governance, this level of climate activism is unprecedented, almost shocking—and without an analytical vocabulary to make sense of it. To understand this recent rise in institutional investor activism, one has to look at the shifting composition of the major players in capital markets over the past decade.

The Trump administration is inept. Evidence for this can be found in the administration’s victory record in the lower courts, where more run-of-the-mill cases are decided than in the Supreme Court. There, an astonishing statistic reveals itself: According to the Institute for Policy Integrity at New York University Law School, only 11 percent of Trump administration regulatory actions prevailed in the lower courts; the other 89 percent were blocked by courts or withdrawn. In contrast, academic research indicates that earlier presidents, since the 1990s or so, have prevailed 60 to 70 percent of the time on regulatory matters in the lower courts.