Governors' Wind Energy Coalition

Since Jan. 30, 2017, the Trump administration’s approach to federal regulation has been defined by a simple requirement: “one in, two out.” The basic idea, set out in one of President Trump’s first executive orders, is that whenever a federal agency issues one regulation, it has to take at least two regulations away — and produce an incremental cost, on the private sector, of zero.

The idea was absurd from the very start.

It was profoundly demoralizing to experts in federal agencies, who know a lot about science and who have plenty of good ideas about how to protect public health and safety. But its absurdity has been put in a whole new light by the Covid-19 pandemic, which demonstrates that the regulatory state is no enemy of the people — and that smart safeguards, designed by specialists, save lives.

It is true that to many people, the one-in, two-out idea has a lot of intuitive appeal. For one thing, it instructs regulators — at the Environmental Protection Agency, the Department of Transportation, the Department of Health and Human Services and elsewhere — to get rid of outmoded or dumb regulations.

If we want to free up the private sector from regulations that do more harm than good, it might make sense to insist: If you want to do something new, you had better get rid of something old.

But there is a subtler point. Mr. Trump clearly wanted to slow the issuance of new regulations. The one-in, two-out principle is well suited to achieving that goal.

If agency heads know that they have to eliminate two regulations for every one they issue, they have a strong disincentive to issue new regulations. What if eliminating two regulations is unlawful? What if it turns out to be tough to find two old regulations, equal in cost to the new one, that really don’t make sense?

Since 2017, the one-in, two-out principle seems to have done just what it was intended to do.

A report from the Office of Management and Budget, issued late last year, found that the total costs of federal regulations in 2018 and 2019 were spectacularly low — the lowest, in fact, going all the way back to 2001. (Any official report should, of course, be taken with many grains of salt, but the actual numbers — here for costs and benefits representing fiscal years — are produced by civil servants, not political appointees, and they provide a valuable picture of differences across administrations.)

Under President Bill Clinton, for example, the costs of regulation were in the vicinity of $7 billion in the 2005 fiscal year. Under President George W. Bush, they were around $14 billion in the 2007 fiscal year. Under President Barack Obama, they were around $7 billion in the 2015 fiscal year.

Under President Trump, the flow of new regulations was greatly slowed, and their costs were much lower — a maximum of $300 million in 2018, and a maximum of $600 million in 2019.

But there’s a big problem. When regulations aren’t issued, people are going to get hurt, especially if health and safety are involved.

Worker safety regulations prevent illnesses and death. Air pollution regulations protect public health. Regulations intended to prevent the spread of the coronavirus save lives.

The Office of Management and Budget’s own report confirms that point. Under Mr. Trump, the benefits of federal regulations were also, by far, the lowest on record: a maximum of $600 million in 2018 and somewhere between $200 million and $3.7 billion in 2019. That compares with benefits in excess of $40 billion in both 2005 and 2007, and in excess of $28 billion in 2015.

It’s crucial to point out that those numbers, capturing the benefits of regulation, are not limited to purely economic savings. They are meant to include deaths, injuries and illnesses prevented. When Republican and Democratic administrations issued expensive regulations, they also saved a lot of lives.

The Covid-19 pandemic is vividly making that point. For example, recent work finds that air pollution makes the disease significantly more deadly. Even a small increase in exposure to particulate matter — one of the most harmful air pollutants — produces a big increase in the Covid-19 death rate. That finding is consistent with an earlier one, to the effect that in China, deaths from SARS were significantly elevated in areas with high levels of air pollution.

That is especially bad news, because levels of particulate matter in the ambient air have spiked under Mr. Trump (after significant decreases from 2009 to 2016). In 2018 alone, that spike was estimated to have caused 9,700 additional deaths.

Consider in this light the Trump administration’s decision to finalize its rollback of fuel economy standards — a decision announced, in a kind of cruel irony, during the early stages of the pandemic in the U.S. The new rule is highly likely to produce significant increases in air pollution (including greenhouse gases). For that reason, it will produce more illness and more death.

Or consider the Trump administration’s proposal not to tighten regulation of particulate matter, even in the face of scientific evidence, compiled before the pandemic, suggesting that doing that would prevent over 10,000 premature deaths annually. In view of the pandemic, that number might well be too low.

Any administration, Republican or Democratic, should be scrutinizing existing regulations and eliminating those that no longer make sense. That is an urgent project, because many regulatory requirements impose “sludge” — paperwork requirements and administrative burdens that make it tough for people to get economic assistance to which they are entitled, or that impose pointless obstacles to those seeking medical help.

Right now, doctors, nurses and hospitals could benefit a lot from clearing out regulatory sludge. So could small business owners, whose ability to obtain financial help from the recent stimulus package has been badly undermined by sludge, including paperwork burdens.

At the same time, regulations designed to protect health, safety and the environment should be immediately freed from the one-in, two-out rule. They should also be exempt from any other kind of gimmick that focuses on the costs of regulations while turning a blind eye to the benefits.

In a pandemic, we need regulatory safeguards in a hurry. Whenever their benefits exceed their costs, they should be welcomed. And even when the pandemic is over, the president of the United States should celebrate, rather than stymie, the efforts of experts, in regulatory agencies and elsewhere, to use their knowledge to prevent unnecessary illnesses, accidents and deaths — and to protect the most vulnerable members of society.

Cass R. Sunstein, a professor at Harvard Law School, served as administrator of the Office of Information and Regulatory Affairs during the Obama administration.