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Just Regulation: Improving Distributional Analysis in Agency Rulemaking

Forthcoming in Ecology Law Quarterly

This Article seeks to understand the shortcomings of current agency practice and outline what agencies can do better. To do so, it examines fifteen significant proposed or final agency rules promulgated during the Biden-Harris Administration’s first eighteen months. This empirical analysis reveals four categories of limitations. First, agencies often pursue inconsistent goals across different regulatory initiatives. Second, they do not grapple with the core issue that distributional analysis should raise: the extent to which the better distributional consequences of one alternative should trump the higher net benefits of another alternative. Third, agencies do not apply a consistent approach to defining disadvantaged groups, which makes the analysis inconsistent and unpredictable. Fourth, the distributional analysis relies on a truncated set of costs and benefits, and thus presents an incomplete picture of the consequences of regulation on disadvantaged communities. One of the fifteen analyses, however, suggests an attractive path to fulfilling the promise of distributional analysis, though significant work remains to be done.