Drafting regulations

Aretae links to Jonathan Alder on regulation, who says:

. . . but the ultimate regulatory choices are based on normative judgments – whether it is worth imposing X amount of costs for Y benefits, whether it is fair to impose particular costs, risks or burdens on particular segments of the population, whether environmental gains in one area are worth safety or environmental losses in another, and so on. These are legislative policy judgments for which legislators should be held accountable.

First, legislators don’t make these decisions, they direct agencies to make these decisions. Agencies basically can’t be held responsible.

Second, I’ve been part of dozens of regulation-drafting processes. The only time that a cost-benefit analysis comes into play is after the regulation has been written. We’re generally required to demonstrate benefits exceed costs, but this is always done ex post. Political decisions guide the regulation-writing process. Perhaps I’ve exaggerated slightly – when drafting regulations we will argue over costs and benefits, but no systematic analysis is done. It would be a waste of time anyway, as the costs and benefits would be entirely dependent on lots of assumptions. If someone tells you that regulation writing is an exercise in balancing costs and benefits, you can be sure that the person is either: 1) an academic with no experience with drafting regulations (academics love to argue that processes which are totally unscientific have some scientific basis) or 2) lying to you.

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