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• W4386915847 abstract "Regulatory review’s primary tool is economic: cost–benefit analysis. But regulation’s consequences are not just economic; they are also political. In this article, I offer a new approach to regulatory review, one with politics at its core. I show why politics matters for regulation and how policy makers can rigorously assess their decisions’ political implications over time.If regulators should think about politics, what values should guide them? To answer this question, I focus on an especially important subset of policy challenges, which I call “structural risks.” These are systemic problems that worsen over time, such as climate change. Structural risks bring into stark relief the importance of politics for regulatory review: they affect the political capacities of future generations, are exceptionally complex, and require durable political coalitions to be managed.I argue that there are strong reasons, both principled and pragmatic, to regulate these risks democratically—that is, in ways that respect and reinforce citizens’ freedom and equality. Structural-risk regulation requires defining goals across ecological, economic, and other large-scale systems. Administrators’ mandate to choose these goals demands democratic legitimation. And their policies will be less effective without the social trust that democracy can best provide.I then offer concrete suggestions for democratizing regulation. Most importantly, I argue that structural-risk regulation should be “democratically durable.” Drawing on emerging social-science research, I contend that regulators should consider not just cumulative costs and benefits but also the policy feedbacks of proposed rules. Effective regulation requires attending to how new policies create new politics. Moreover, regulators should assess these consequences in explicitly democratic terms. The result would be an administrative state better able to confront today’s systemic challenges—and with a stronger democratic claim to doing so.How should regulators assess the long-term consequences of their policy choices? With challenges including climate change, pandemic preparedness, and artificial intelligence all looming, regulating with a view toward the future seems more important than ever. Yet the prevailing approaches to this problem are incomplete.1 Scholars have long debated how much to discount future interests when projecting policies’ cumulative costs and benefits (and related questions).2 Some have further argued that cost–benefit analysis itself can misrepresent our moral relations to future generations.3 Though these debates have been illuminating, they have often neglected regulation’s distinctively political significance. When administrators promulgate climate regulations, for example, their choices both reflect and shape the distribution of political power. Commentators have not wholly missed these dynamics; all recognize that regulatory choices require political judgment. But while the Office of Information and Regulatory Affairs (OIRA) has institutionalized the economic analysis of proposed rules, no comparable infrastructure exists for their political analysis. Nor have scholars much envisaged it.4There have been some signs of change. Immediately upon taking office, President Joseph R. Biden announced an initiative to “moderniz[e]” regulatory review.5 President Biden’s memorandum called for new approaches to “environmental stewardship,” to promoting “the interests of future generations,” and to “fully account[ing] for regulatory benefits that are difficult or impossible to quantify.”6 To carry out this agenda, the President appointed to OIRA progressive scholars attentive in their writings to the politics of public policy, including Sharon Block, K. Sabeel Rahman, and (as Administrator) Richard Revesz.7These developments are promising, but they inevitably have left important matters unaddressed. For example, the memorandum sought reforms to “promote the efficiency, transparency, and inclusiveness of the interagency review process.”8 These three aims might all be understood in democratic terms. Yet they might also appear to sit in tension with one another: transparency might hinder efficiency; efficiency might tell against inclusiveness; and even inclusiveness might be served by diminished transparency. So understood, the “Modernizing Regulatory Review” memorandum suggests some expanded role for democracy in regulation while leaving substantial questions unresolved about what, exactly, that role should be.9In this article, I take the Biden memorandum as impetus to sketch a new approach to high-stakes regulation of long-term problems, one with politics at its core. I focus on what I call “structural risks,” exemplified by the climate crisis: systemic problems that tend over time both to increase in magnitude and to become more difficult to redress. Structural risks place special stress upon conceptions of regulatory review that neglect politics. Structural risks invite—indeed, require—present regulators to make decisions that can profoundly affect future generations. Structural-risk regulation also tends to be exceptionally complex. And structural-risk regulation must also be politically stable over the long haul: it is dangerous to promulgate rules one year, only to have them reversed the next.Considering, then, the central role of politics in regulating structural risks, I argue that there are good reasons, both principled and pragmatic, for structural-risk regulation to reflect and reinforce the core democratic values of citizens’ freedom and equality. For those who value democracy for its own sake, structural-risk regulations are profoundly important. They not only affect important, large-scale systems (including social and political systems) but ideally follow from contestable choices about what those systems should look like over time. Those who value democracy only instrumentally—say, as a means to effectuate good policy—also have especially strong reasons to care about democratic principles here. Failing to treat citizens as free and equal, I argue, is likely to undermine the trust and knowledge necessary to regulate structural risks effectively. Moreover, if regulators neglect the political consequences of their decisions, they are likely to miss important determinants of policy efficacy.I identify, justify, and elaborate six principles for a “democratic approach” to modernizing regulatory review.10 These principles sweep widely, addressing both the process and the substance of regulation.11 Though they leave room for structured experimentation,12 the six principles support several specific reforms: first, setting systemic policy goals before developing structural-risk regulations; second, attending to new forms of public input, such as assemblies of randomly selected citizens; and third, assessing potential regulations for their long-term political durability by drawing upon social-scientific expertise beyond economic cost–benefit analysis.The last of these proposed reforms is especially significant. Some legal scholars have certainly recognized policy feedbacks’ importance.13 But to my knowledge, none has yet analyzed in depth how to integrate consideration of those feedbacks into regulatory review writ large. I offer such an account. My discussion of policy feedbacks is grounded in the ideal of “democratic durability” and integrated into a broader vision of the regulatory process. Yet even those who reject this larger vision should want regulatory reviewers to consider policy feedbacks. Politics constrains public policy in ways not easily described as costs or benefits. Too-narrow devotion to the tools of economics risks missing both threats and opportunities for regulation.***In the analysis that follows, I take democracy, roughly speaking, to require political institutions that can be justified in terms of the freedom and equality of all citizens. Respecting citizens as equals means respecting their ability to make decisions about how political life should go—that is, their capacity for political judgment.14 This ideal is admittedly ambiguous, not least in its institutional significance. But one natural implication is that government should be equally accountable to all its citizens.15 Whether through prospective consultation, retrospective elections, or reason-giving, making government answerable to citizens’ claims seems essential to manifesting respect for their judgments.“Democracy” is, of course, a contested concept, and some will dispute my definition.16 Nonetheless, I believe it represents shared ground among many democratic theorists. For example, some ground democracy’s value in individual autonomy.17 Whatever else realizing autonomy might require, it plausibly demands institutions justifiable (in some sense) in terms of respect for citizens’ capacity for judgment. Others ground democracy in an ideal of citizens relating as social equals, without invidious hierarchies.18 This value, too, requires institutional respect of much the same sort. Seeking to remain on common terrain, I take the basic form of the existing administrative state as given and then invoke my stipulated democratic principles to develop recommendations for reform.19As for my focus on structural risks, that serves two main purposes. First, it offers analytical clarity, which facilitates specification of when and how democracy matters. Some saw President Biden’s memorandum as an opportunity “to fully account for the interests of future generations and … existential risks.”20 “Structural risk” is a single category that can capture much (though not all) of what matters about these pressing challenges.Second, “structural risk” offers a theoretical test case for my proposed reforms. I show that there are particularly strong reasons to embrace a “democratic approach” to regulating structural risks. Defining systems-level goals before regulating, for example, is advisable in addressing all systemic risks—but it is especially important when those risks exhibit substantial path dependency. Reinforcing democratic values in the process of choosing goals and developing regulations is worthwhile for all “significant regulatory action[s]”21—but particularly for those addressing risks involving profound problems of social coordination. And regulations generally should be politically durable and therefore subject to review for their potential policy feedbacks—but such review is most significant for rules likely to shape significantly the political future.My approach might also have appeal beyond this context. If my ideas seem plausible in the context of structural risk, that is more reason to investigate their potential elsewhere. And if they do not, the countervailing considerations are likely to reveal more clearly the limits of “democratizing” administrative reforms.The remainder of this article consists of three parts. Part I further defines and discusses structural risks. Part II lays out procedural and substantive principles for structural-risk regulation. Part III responds to some possible objections to my proposals.22I define structural risks as having three characteristic features:1) They threaten greater harm over time; i.e., they exhibit increasing returns with respect to harm.2) They become costlier to redress over time; i.e., they exhibit increasing returns with respect to cost of redress.3) They may cause significant and systemic harm.Two concepts here are especially important: “increasing returns” and “systemic harm.” Increasing-returns processes exist when “the probability of further steps along the same path increases with each move down that path … because the relative benefits of the current activity compared with other possible options increase over time.”23 Systemic harms are those affecting certain “regularly interacting or interdependent group[s] of items forming … unified whole[s].”24 Systemic harms are never wholly localized, but instead affect interlocked processes. Because “systems” may exist at any scale, I limit the definition of “structural risk” to those threatening “significant” harm. Significance here cannot be fully defined in advance: the point is simply to pick out risks important enough that the marginal costs of implementing the reforms I describe below could likely be justified.Together, the three features identify risks posing especially difficult problems of intertemporal political choice. Consider the climate crisis. Climate change involves greater potential damage as atmospheric greenhouse gases accumulate; its harms become more difficult to redress as new positive-feedback processes begin; and it threatens substantial harm to global economic, social, and ecological systems. By contrast, persistent pollutants, such as polyfluoroalkyl substances (PFAS), may become increasingly difficult to remediate over time, but they generally do not cause escalating harm. And though asteroid collisions threaten systemic harm, they probably do not become costlier to avoid. Decisions affecting the climate today therefore may have huge ramifications for the future, in ways decisions about PFAS or asteroids might not. These ramifications pose a normative problem, insofar as today’s policy makers ought not to leave future persons in bad positions that are difficult to redress. They also pose a motivational problem, insofar as present decision-makers perceive little interest in acting upon that moral obligation (and much pressure to act contrary to it).25Structural risks pose other distinctive challenges, as well. For one thing, because structural risks threaten systemic harm, they often exhibit nonlinearities. Systems are characteristically interdependent, so what happens in one part of a system does not usually stay there. These interactions can cascade suddenly and unpredictably, sometimes to catastrophic effect. Moreover, because the costs of redress tend to increase over time, it is preferable (all else equal) to mitigate structural risks sooner rather than later. For both these reasons, structural risks should generally be especially high priorities for regulation.In some cases, it may be unclear whether a given risk is “structural.” For example, much depends upon how “harm” is calculated. Should policy makers choose not to discount future costs and benefits at all, then PFAS discharges might well cause more harm over time, if only because more people could be exposed to the pollutant as the years pass. Similar considerations apply to determining the cost of redress. These ambiguities suggest that almost any risk could, in principle, be characterized as “structural.” In practice, such determinations will be political, in terms of both how and why they are made.26 In general, institutional context is likely to affect the production, consumption, and interpretation of information about risks.27 The same holds for categorizing risks: what might seem path-dependent and systemic from one perspective may seem fluid and localized from another.For my purposes, however, such fuzziness is not fatal. For many important risks, designating them as “structural” will be uncontroversial. However else one might characterize the risks associated with climate change or pandemics, they are clearly structural in my sense. For harder cases, scholars, politicians, and regulators can reason backward from structural risks’ policy implications. That is, they can ask whether a given problem creates particular problems of intertemporal choice, nonlinearity, and increasing cost of redress. If so, then it may be appropriate to treat that risk as structural, even if it could also be analyzed in other terms.This subpart outlines three normative principles for the process of developing structural-risk regulations. The core theoretical idea is that regulatory procedures should reinforce democracy, for reasons both principled and pragmatic. I offer some concrete suggestions for pursuing this goal, building upon recent work in democratic theory. These recommendations are not intended to be definitive: other procedural schemes may be compatible with the broad structure I propose, and experimenting with these may prove fruitful.Principle #1: Choices about systems-level goals should generally precede structural-risk regulations.Regulating systemic risks involves particular epistemic challenges. The characteristics of any particular component of a system depend substantially upon the characteristics of the system as a whole.28 It is therefore generally difficult to aggregate component-level choices to obtain particular systemic goals. For example, whether or not electrifying the automotive sector contributes to overall environmental sustainability depends upon the characteristics of electricity generation, lithium and cobalt mining, and much else. This does not mean marginal progress is impossible without perfect knowledge. But that progress may be inadequate for achieving broader objectives, even in aggregate. And because structural risks, in particular, threaten greater harms over time, they can overwhelm any gains made.When considering structural risks, policy makers should ideally determine systems-level goals before identifying possible responses.29 Doing so would allow them to choose more effectively among regulatory options. Concretely, this might mean asking the following questions, among others: What characterizes an environmentally sustainable economy? Or a society resilient against pandemics? Of course, these will generate further questions. Consider, for example, the internationally adopted Sustainable Development Goals, which include not only seventeen high-level goals but also a “shared blueprint” with 169 targets.30 In some cases, this process of goal setting and elaboration may seem easy. Net-zero greenhouse-gas emissions, for example, is surely one necessary aspect of environmental sustainability. But some dispute the value of sustainability in the first place, the net-zero ambition, or the appropriate timeline for achieving it. Even where there is broad agreement, some choices may remain difficult, especially those concerning novel risks.Though goal setting ought generally to precede policy making, this should not foreclose either swift regulatory action or iterative assessment of objectives. In some cases, it may be appropriate to impose even stringent regulations before setting all relevant objectives. For example, some have endorsed an “Anti-Catastrophe Principle,” according to which policy makers should adopt a “maximin” strategy in the face of (1) a potential catastrophe (2) the likelihood of which cannot be assigned a probability, but which (3) rises above some minimal threshold.31 In these cases, the regulatory task may consist more of preserving the status quo than of pursuing systemic change, making goal setting inapposite. In other cases, policy makers may wish to update goals set by their predecessors in light of changing conditions or new information. Setting systems-level goals may therefore be an iterative process, incorporating both new normative judgments from democratic processes and new insights from regulatory science.32Some generalist administrative body is necessary to lead the goal-setting process; OIRA is the most likely candidate today. Setting systems-level goals requires integrating information across existing administrative boundaries. For example, defining “pandemic preparedness” may involve considering, among many other things, global migration patterns, food and water supply, and state capacity. Goal setting also involves examining the interactions among systems: for some purposes, it may be appropriate to treat the climatic system and the public-health system as distinct; for others, less so. These meta-level questions demand resolution by an omnicompetent body capable of viewing systems as wholes. In the 1960s and 70s, scholars called for something similar: administrative bodies capable of taking “a systems or holistic approach” to public policy.33 But no such institution emerged with more than “relatively limited” powers.34 Despite its very different intellectual orientation, OIRA might now fill the gap. OIRA, of course “has come under sustained criticism almost since the inception of regulatory review.”35 But it nonetheless has the distinct advantage here of an existing trans-substantive mandate. Moreover, goal setting should be responsive to the regulatory review process I describe below. Therefore, any substitute for OIRA would substantially have to replicate its functions while somehow avoiding its flaws. Reform seems the easier path.Setting goals for structural-risk regulation would only extend existing practice. Since 1993, federal agency representatives have been required to coordinate their proposed rulemaking agendas for the coming year with the Executive Office of the President.36 And twice each year, OIRA publishes the Unified Agenda, which notes agencies’ planned regulatory and deregulatory activity.37 High-level, pre-rulemaking coordination structures therefore already exist. These structures could be repurposed to facilitate the creation of systems-level goals. Doing so would represent an extension of Executive Order 12,866’s stated ambition of providing for “coordination of regulations,” alongside merely “promot[ing] the President’s priorities.”38Principle #2: The process of choosing system-level goals should reinforce democratic values.There are strong reasons, magnified by the distinctive features of structural risks, for this goal-setting process to reinforce democracy. Here again, E.O. 12,866 provides a model, with its call for “maximiz[ing] consultation and the resolution of potential conflicts at an early stage” and “involv[ing] the public and its State, local, and tribal officials in regulatory planning.”39Democracies, as I claimed above, should respect citizens’ freedom and equality. But because they concern citizens as such, they should do so systemically, not necessarily in each of their constituent institutions. What matters is whether the polity as a whole is democratic, not, say, whether the Environmental Protection Agency taken alone is democratic.40 This means that “reinforcing” democracy through goal setting need not mean directly “democratizing” goal setting. Like Samuel Bagg and Udit Bhatia,41 I do not believe democracy must be “isomorphic,” replicating the same institutional principles in every case. In this sense, goal setting need not become a “forum for democratic agency,”42 even if it promotes democratic agency overall.The principled reason for reinforcing democracy through systemic goal setting is that expertise alone is generally insufficient to justify choices among system-level goals. Regulatory decisions may sometimes be defended on technocratic grounds—for example, that they efficiently achieve certain ends. But in making systemic choices, ends are not given. These decisions require determining, say, what makes an economy “sustainable” and why sustainability is valuable in the first place. Here there is likely to be reasonable, nontechnical disagreement. Some may perceive environmental justice as partly constitutive of sustainability; others may see them as distinct. Of course, “[a]gencies are themselves the products of a democratic process,” not an alien imposition.43 Regulators may therefore have sufficient normative democratic authority to make these choices. But if regulators are to answer value questions, then (all else equal) they should do so in ways that deepen democracy. That is, regulators should embrace procedures reflecting their respect for citizens’ capacity for judgment and sustaining that respect into the future.44Democracy’s importance here is increased by structural risks’ long-term significance. Because today’s regulatory decisions may decisively affect tomorrow’s prospects, policies made now may therefore appear as a “dead hand” reaching from the past to govern the future. To some extent, this is inevitable: every political choice affects the future, and none is strictly costless to reverse. But with respect to “major” decisions—and especially those whose significance tends to grow over time—democratic legitimacy is particularly important, in two respects.45 First, to the extent that perceived political identity is continuous, democratic decision-making today may help future citizens see our choices as “their own.”46 In this sense, today’s democracy may sustain desirable forms of political agency. Second, technocratic decision-making may foreclose future democratic decision-making. Institutional design itself frequently exhibits increasing returns.47 It may therefore prove difficult to recover democratic agency once lost, and citizens may find themselves unable to change regulatory course.These intertemporal considerations also suggest the pragmatic reason for endorsing democratic procedures: systemic stability requires both social trust and trust in government.48 In general, complex systems are characterized by substantial uncertainty.49 In social systems in particular, managing this uncertainty frequently requires trust: trust facilitates forbearance from conduct that may be individually rational but collectively destructive. For example, regulations concerning artificial-intelligence research, or restricting research of solar geoengineering, may be undermined by “rogue” researchers skeptical of the government’s decisions. Trust is especially important when policy makers are seeking to effect systemic change, since uncertainty is likely to be especially great during the transitional period. And after transitional periods, when decisions may be partly “locked in,” social trust facilitates citizens’ reconciliation with the status quo. Successful political institutions generally foster both social and political trust.50 In particular, citizens who value democracy place more trust in governments they perceive as highly democratic.51 And political trust, in turn, contributes to the effective implementation of public policy.52Trust and trustworthiness are especially important in view of the epistemic challenges involved in regulation. Not only is technical expertise alone unable to answer important value questions, it is crucially limited on its own terms, as political scientist Samuel DeCanio has argued. In general, the administrative state is hindered by the “singularity” of its decisions: there is “no rival organization with the authority to produce legally binding rules that are compulsory for all members of its geographically defined territory.”53 This lack of rivals means that there are “no observable policy counterfactuals within the territory the state controls.”54 It is therefore difficult to infer the causal effects of administrative decisions and hence also difficult to assess their efficiency. These concerns are exacerbated for policies affecting complex systems, given the epistemic challenges they pose even under ideal conditions. The consequence of all this is that regulatory decisions might not earn sociological legitimacy on the basis of their causal efficacy. Instead, some other means of legitimation may be necessary. Democracy, I have suggested, can help supply it.I offer three complementary ways that OIRA can reinforce democracy through the goal-setting process. These proposals reflect my contextual judgment, rather than any putatively general answer to the “democracy question.”55 I aim only to illustrate how agencies might justify procedural reforms in terms of citizens’ freedom and equality, not to settle contested theoretical and institutional debates.56First, and most ambitiously, OIRA should open goal setting to greater public participation.57 Here, there are opportunities to experiment, including by introducing “lottocratic” institutions. In recent years, some political theorists have argued that some political power should be shifted to assemblies of randomly selected citizens.58 Where they have been convened, these assemblies usually gather for specific purposes and for limited times and incorporate expert presentations. The core idea is that these lottocratic bodies may better represent what the citizenry at large wants, as compared to elected legislatures. Citizen assemblies are not perfect; indeed, they remain vulnerable to capture by special interests.59 But they may still have a limited but beneficial role within the administrative state.60 In particular, citizen assemblies may offer administrators an additional “picture” of public opinion, one less shaped by the limitations of polling or the latest developments in partisan messaging.61 And depending upon how they are structured, citizen assemblies may facilitate deliberation between citizens and administrators, encouraging greater governmental responsiveness to citizens’ reasoning.62Second, OIRA should promote deliberation among agencies in setting systems-level goals. Interagency consultation is a familiar feature of administrative law,63 and OIRA already plays a leading role in facilitating it.64 Consultation’s specifically democratic potential, however, has been underappreciated.65 In many statutory contexts, interagency consultation serves two main purposes: it ensures that decisions are made after discussion with those possessing relevant expertise and it delays actions that may have unintended consequences. In systemic goal setting, its function can be different. Like citizen assemblies, administrative agencies can be understood as representing the citizenry: they effect democratically determined purposes, working out their implications in ways that reflect both ordinary politics and enduring principles. Consultation and collaboration among agencies allow these fragmentary images of “the people” to coalesce. Together, they can provide a more complete picture.66 Whereas ordinary regulatory coordination may benefit" @default.
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• W4386915847 title "DEMOCRATICALLY DURABLE REGULATION" @default.
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