52 Experiments with Regulatory Review The Political and Economic Inputs into State Rulemakings Jason A Schwartz Report No. 6 November 2010 Copyright © 2010 by the Institute for Policy Integrity. All rights reserved. Printed in the United States of America. Institute for Policy Integrity New York University School of Law 139 MacDougal Street, Third Floor New York, New York 10012 Contents Executive Summary .................................................................................ii Introduction .............................................................................................1 PART ONE: Where We’ve Been and Where We’re Trying To Go 1. Weighing the Options ...................................................................................10 2. History and Models .......................................................................................31 3. Previous Studies on State Practices ............................................................44 4. Lessons from Federal Practice .....................................................................54 5. Principles for Evaluation and Comparison ...............................................67 PART TWO: Where We Are Now 6. Research Methodology .................................................................................73 7. Grades and Comparative Charts .................................................................79 8. State-by-State Summaries ...........................................................................146 PART THREE: Where to Go and How to Get There 9. Innovatve Practices ....................................................................................418 10. Recommendations ...................................................................................421 Appendix ...............................................................................................426 Acknowledgments Special thanks to Stephanie Tatham for her invaluable contributions to designing and coordinating the early research phases of this project. Special thanks also to Jennifer Gómez for her careful proofreading. Thanks to Julia Brown, Meghan Dwyer, Elliott Farren, Ryan Reiffert, James Thompson, and John Wood for their hard work conducting surveys, collecting research materials, and drafting select state summaries. Thanks to Bryant Cannon, Brandon Cunningham, Yoo-Soo Ho, Annie Jhun, Nathaniel Kane, Melissa Lang, Maggie Macdonald, Kristina Portner, Neil Rutledge, Jeff Seddon, David Seitzer, Megan Turek, and especially Jon Kalmuss-Katz for their assistance conducting surveys. This project could not have been completed without the guidance and supervision of Richard L. Revesz and Michael A. Livermore, and the support of Edna Ishayik. Executive Summary The Problem Nearly twenty percent of the American economy is directly regulated by the states. State agencies wield tremendous power over nearly every facet of economic life, from insurance to land use to health care—industries whose financial footprints easily climb into the billions of dollars each. Given the expanding scope of state regulatory programs and the present economic climate, there has never been a more important time to understand how state regulations are developed. Yet bureaucrats issue the decrees that shape people’s lives from deep within the labyrinthine halls of government, often sheltered from the scrutiny of the press and public. Inadequate decisionmaking procedures can lead to too much regulation—stifling economic growth—or too little, exposing the public to unnecessary risks. To ensure that agencies are making good decisions, systems of economic analysis and regulatory review are needed so that the costs and benefits of action are properly weighted. In reality, approaches to regulatory decisionmaking in the states vary greatly in form, quality, and effectiveness. Some states have adopted relatively sophisticated strategies, while others have little or no way to ensure that their agencies are genuinely promoting the public good. In a time of continuing economic uncertainty, when the country faces a range of economic, environmental, and social risks, systems to promote rational decisionmaking by state agencies are profoundly important. The Research Focusing on the political and economic review of state-level regulatory decisionmaking, this report takes a snapshot of current practices and offers a comprehensive comparative analysis of how states are doing. Through research into the states’ requirements “on the books” as well as their actual practice of economic analysis and regulatory review, this report examines how well states have set up their regulatory processes, and uncovers whether their systems of regulatory review and analysis are up to the task of ensuring high-quality protections at low costs. To compile data for the report, dozens of researchers at New York University School of Law studied the laws and regulations governing agency decisionmaking in all 50 states, plus Washington D.C. and Puerto Rico. In addition, surveys were circulated to individuals in state government, as well as representatives from the business and public interest communities, with over 120 responses ultimately collected. The results were synthesized, and states were compared against each other to judge how well they conformed to the best practices for promoting sound and rational regulatory decisionmaking. 52 Experiments with Regulatory Review | Executive Summary ii Key Findings • States directly regulate 20% of the economy. Poorly designed regulations threaten economic growth and fail to efficiently protect the environment, public health, and safety. • Powerful tools exist for states to promote rational and efficient regulatory decisions. Most states choose the wrong tools or wield them ineffectively. • In many states, regulatory review only creates another access point for private interests who oppose new regulations; very few states use the review process to calibrate decisions and get the most out of regulatory proposals. • Almost no states have mechanisms to check if necessary regulations are missing or to coordinate inter-agency conflicts. • Almost no states have balanced or meaningful processes to check the ongoing efficiency of existing regulations. • With exceedingly few (if any) trained economists, limited time, and strained budgets, most state agencies struggle to assess the basic costs of regulations—and completely forgo any rigorous analysis of benefits or alternative policy choices. • Based on a fifteen-point scale, no state scores an A; the average grade nationwide is a D+; seven states score the lowest possible grade of a D-. • By following a simple, step-by-step course of reforms (transparency, training, inter-state sharing, resource prioritization, new guidance documents, revised statutes, and ongoing reevaluation), all states can improve the rationality and effectiveness of their regulatory systems. How the States Stack Up Distilled from existing literature on how best to conduct regulatory review and channel agency decisionmaking, fifteen principles were used to evaluate state practices: #1: Regulatory review requirements should be realistic given resources. #2: Regulatory review should calibrate rules, not simply be a check against them. #3: Regulatory review should not unnecessarily delay or deter rulemaking. #4: Regulatory review should be exercised consistently, not only on an ad hoc basis. #5: Regulatory review should be guided by substantive standards, to ensure consistency and to increase accountability. #6: At least part of the review process should be devoted to helping agencies coordinate. #7: At least part of the review process should be devoted to combating agency inaction. #8: Regulatory review should promote transparency and public participation. #9: Periodic reviews of existing regulations should be guided by substantive standards. #10: Periodic reviews of existing regulations should be balanced, consistent, and meaningful. 52 Experiments with Regulatory Review | Executive Summary iii #11: Impact analyses should give balanced treatment to both costs and benefits. #12: Impact analyses should be meaningfully incorporated into the rulemaking process. #13: Impact analyses should focus on maximizing net benefits, not just on minimizing compliance costs. #14: Impact analyses should consider a range of policy alternatives. #15: Impact analyses should include a meaningful and balanced distributional analysis. These principles were applied to grade the states’ regulatory review As 0 states structures on a fifteen-point scale—practices consistent with these principles earned states points, which were then translated into B+ 1 state letter grades: twelve points or more earned an A, while states with practices that matched three of fewer guiding principles received B 2 states a D. B- 4 states Seven states scored in the B range: Iowa (B+); Vermont and Washington (B); and Michigan, New Hampshire, Pennsylvania, C+ 6 states and Virginia (B-). Seven jurisdictions also scored a D-, having met none of the guiding principles: Alaska, Delaware, the District of C 10 states Columbia, Georgia, Louisiana, New Mexico, and Texas. C- 2 states The average grade was about a D+, and the most frequently awarded grade was a D. Across the nation, regulatory review structures are D+ 5 states in clear need of an overhaul. D 15 states The Diagnosis Some problems persistently and universally plague state regulatory D- 7 states practices: a lack of resources to conduct analysis and review rules; overly complex,