Document Type

Article

Publication Title

Environmental Law Review

Abstract

Distributional analysis has been a formal part of the regulatory state since 1993, when President Clinton directed agencies to consider the distributional consequences of significant regulations alongside the cost-benefit analysis of these regulations. President Obama reaffirmed and somewhat expanded this commitment. And both Presidents Clinton and Obama expressed particular concerns with distributional consequences in the environmental area, underscoring their respective commitments to environmental justice. Despite the undoubtedly good intentions embodied in these pronouncements, the analysis of the distributional consequences of regulations has never gotten off the ground. Unlike cost-benefit analysis, it has not become a meaningful part of the analysis of regulatory consequences. On his first day in office, President Biden issued a Presidential Memorandum on Modernizing Regulatory Review, which calls on the Office of Management and Budget to propose procedures for analyzing the distributional consequences of regulations. This Article focuses on what it would take for the Biden effort to succeed where the Clinton and Obama efforts failed. In particular, agencies will need to be provided with clear guidance on how to conduct distributional analysis. The lack of a standardized approach is part of the reason that the prior efforts were doomed. Moreover, agencies will need to take seriously the already existing requirement, so far honored only in the breach, of analyzing the distributional consequences of different regulatory alternatives. Otherwise, they will never be in a position to answer the key question in this area: when are the better distributional consequences of one alternative sufficient to overcome another alternative’s higher net benefits?

First Page

53

Volume

52

Publication Date

2022

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