119-S-148 Investigative Journalist Impact Analysis

Summary

What changes: S.148 prohibits agencies and OMB from using any non‑monetized or unquantified factor in regulatory impact analyses (RIAs) or benefit‑cost analyses (BCAs), requires publication of methodologies, and authorizes courts to invalidate rules if such factors were relied upon—applying to rules issued on or after November 9, 2023. A Senate Small Business & Entrepreneurship Committee hearing was held on November 19, 2025. [1]Library of Congress — Text - S.148 - 119th Congress (2025-2026): RED TAPE Act |…[2]Library of Congress — All Info - S.148 - 119th Congress (2025-2026): RED TAPE A…

• Baseline today: Federal analysis under EOs 12866 and 13563 allows quantitative and qualitative benefits/costs; EO 14094 and the 2023 revision of OMB Circular A‑4 strengthened treatment of hard‑to‑monetize and distributional effects. S.148 would override that analytic latitude. [3]UCSB/AP Project — Executive Order 12866—Regulatory Planning and Review | Americ…[4]White House Archives — Executive Order 13563 — Improving Regulation and Regulat…[6]Federal Register / govinfo.gov — Federal Register citation of EO 14094 (88 FR 2…[5]OMB (White House Archives) — Biden-Harris Administration Releases Final Guidanc…[7]Congressional Research Service — CRS In Focus: Cost-Benefit Analysis in Federal…
• Context: After Chevron deference was overruled in Loper Bright (June 28, 2024), courts exercise independent judgment over agency interpretations. S.148’s new cause of action and invalidation remedy would further heighten litigation exposure. [8]LII (Cornell Law) — Loper Bright Enterprises v. Raimondo (June 28, 2024)

Economic Effects

Likely consequences for markets, firms, workers, and public finances, emphasizing evidence on regulatory analysis practice and judicial posture.

Notes: A‑4’s 2023 update set a 2% default real discount rate for regulatory analysis; A‑94 guidance for federal investments was reverted to a 7% real rate in April 2025. Many major rules historically do not fully monetize both benefits and costs; and OIRA’s formal review time is capped at 90 days (extendable). These parameters shape feasibility and timing once monetization becomes mandatory. [5]OMB (White House Archives) — Biden-Harris Administration Releases Final Guidanc…[9]FEMA — FEMA: News and Notes About Benefit‑Cost Analysis – A‑94 discount rate up…[10]Association of State Floodplain Managers — ASFPM: FEMA Rolls Back BCA Rates for…[11]Congressional Research Service — CRS Report: Methods of Estimating the Total Co…[12]Congressional Research Service — CRS Report: Counting Regulations (R43056) – OI…

• Compliance and analytical costs: Agencies would need to develop defensible dollar valuations for effects previously treated qualitatively (e.g., security, privacy, ecosystem services). GAO has documented frequent challenges monetizing benefits due to data and conceptual limits, implying higher analytic costs and longer timelines. [13]U.S. Government Accountability Office — GAO-14-714: Agencies’ cost-benefit anal…
• Rule attrition and narrowing: Because only monetized or quantified effects could be considered in RIAs/BCAs, rules with large but hard‑to‑price benefits risk failing net‑benefit tests or facing invalidation, shifting the regulatory mix toward domains with market‑priced outcomes. OMB’s A‑4 recognized the need to present significant non‑monetized effects; removing them biases decisions. [5]OMB (White House Archives) — Biden-Harris Administration Releases Final Guidanc…
• Litigation exposure and uncertainty: The bill’s retroactive trigger (Nov 9, 2023) plus a mandatory invalidation remedy invites challenges to rules finalized since that date. Post‑Chevron, courts scrutinize agencies more closely, increasing expected litigation costs for both agencies and regulated parties. [1]Library of Congress — Text - S.148 - 119th Congress (2025-2026): RED TAPE Act |…[2]Library of Congress — All Info - S.148 - 119th Congress (2025-2026): RED TAPE A…[8]LII (Cornell Law) — Loper Bright Enterprises v. Raimondo (June 28, 2024)
• Capital allocation: Monetization‑only analysis may reduce perceived benefits of long‑horizon or diffuse public goods (e.g., resilience), potentially tilting investment toward short‑payback private returns; the higher A‑94 rate for programs (7%) further lowers present value of distant public benefits. [9]FEMA — FEMA: News and Notes About Benefit‑Cost Analysis – A‑94 discount rate up…[10]Association of State Floodplain Managers — ASFPM: FEMA Rolls Back BCA Rates for…
• Small entity impacts: Agencies would have to monetize small‑business effects more systematically under the RFA context; GAO finds uneven RFA practices and limited training, suggesting transition frictions and potential certification disputes. [14]U.S. Government Accountability Office — GAO-25-106950: Regulatory Flexibility A…[15]U.S. Government Accountability Office — GAO-25-106950 (full report HTML)

Social Effects

Distributional outcomes for communities and vulnerable groups.

• Equity and dignity: EO 13563 explicitly allows qualitative consideration of equity, human dignity, and fairness when quantification is infeasible. By barring non‑monetized factors in RIAs/BCAs, S.148 would down‑weight these effects unless converted to dollars, potentially reducing their salience in decision records. [4]White House Archives — Executive Order 13563 — Improving Regulation and Regulat…
• Small business process burden: SBA Advocacy and GAO highlight gaps in agencies’ RFA analyses; forcing monetization could improve transparency but also strain data capacity, especially where agencies historically relied on qualitative descriptions. [14]U.S. Government Accountability Office — GAO-25-106950: Regulatory Flexibility A…[16]U.S. Small Business Administration – Office of Advocacy — SBA Office of Advocac…
• Public participation and transparency: The bill requires publishing methodologies and analyses in the Federal Register, which could enhance transparency but also provide more litigable targets over valuation choices and distributional assumptions. [1]Library of Congress — Text - S.148 - 119th Congress (2025-2026): RED TAPE Act |…
• Cyber/privacy rules: FTC’s commercial surveillance proceeding underscores that many salient outcomes (consumer autonomy, dignity, chilling effects) are hard to quantify; under S.148 they could be excluded unless monetized, affecting protective baselines. [17]Federal Trade Commission — FTC Commercial Surveillance and Data Security Rulema…

Environmental Effects

Implications for sustainability, emissions, and ecosystem outcomes where nonmarket values loom large.

• Nonmarket valuation gap: National Academies and EPA guidance note that ecosystem services and some health endpoints are difficult to monetize; A‑4 (2023) advises structured presentation of such non‑monetized effects. Prohibiting their consideration in RIAs/BCAs risks undercounting environmental benefits. [18]National Academies Press — National Academies: Valuing Ecosystem Services (2005)[19]U.S. Environmental Protection Agency — EPA Guidelines for Preparing Economic An…[5]OMB (White House Archives) — Biden-Harris Administration Releases Final Guidanc…
• Climate and long‑horizon benefits: Lower A‑4 discounting (2%) increases the present value of future benefits, but if key climate co‑benefits (biodiversity, extreme‑risk reduction) are non‑monetized, they would be excluded—attenuating the discount‑rate change’s effect. [5]OMB (White House Archives) — Biden-Harris Administration Releases Final Guidanc…
• Programmatic investments: For federal mitigation grants and similar programs governed by A‑94, the April 2025 reversion to a 7% rate reduces present value of long‑term resilience benefits, raising thresholds for cost‑effectiveness. [9]FEMA — FEMA: News and Notes About Benefit‑Cost Analysis – A‑94 discount rate up…[10]Association of State Floodplain Managers — ASFPM: FEMA Rolls Back BCA Rates for…

Temporal Analysis

Short‑term transition vs. longer‑term structural effects.

• 0–2 years (transition): Agencies re‑scope ongoing rules to monetize previously qualitative effects; OIRA review remains time‑bounded but added valuation work likely lengthens development before submission. GAO/CRS identify complexity, data gaps, and review layers as drivers of delay. [12]Congressional Research Service — CRS Report: Counting Regulations (R43056) – OI…[20]Web search · turn 4 #3
• 2–5 years (litigation cycle): Expect a wave of challenges to post‑Nov 2023 rules citing S.148, interacting with the no‑Chevron landscape and unsettled vacatur doctrine, creating compliance whiplash if rules are invalidated. [8]LII (Cornell Law) — Loper Bright Enterprises v. Raimondo (June 28, 2024)[21]Congressional Research Service — CRS Legal Sidebar: “Set Aside” and Vacatur Und…
• 5+ years (equilibrium): Agencies internalize monetization requirements; fields with robust pricing (e.g., energy efficiency with market data) see smoother rulemaking; areas reliant on nonmarket valuation (ecosystems, privacy) see fewer or narrower rules unless valuation methods mature. [18]National Academies Press — National Academies: Valuing Ecosystem Services (2005)[13]U.S. Government Accountability Office — GAO-14-714: Agencies’ cost-benefit anal…

Unintended Consequences

Risks or second‑order effects supported in the record.

• Remedy volatility: Courts differ on the scope of vacatur under the APA; expanding challenges to analytic content could increase nationwide vacaturs, amplifying regulatory uncertainty for both firms and beneficiaries. [21]Congressional Research Service — CRS Legal Sidebar: “Set Aside” and Vacatur Und…
• Method gaming and model risk: Strict monetization may incentivize strategic assumptions (e.g., benefit valuation ranges) becoming focal points for litigation rather than underlying safety or environmental performance. A‑4’s emphasis on non‑monetized effects aimed to counter that bias. [5]OMB (White House Archives) — Biden-Harris Administration Releases Final Guidanc…
• Resource diversion: Agencies may redirect limited staff from enforcement/implementation to economic valuation exercises; GAO reports limited RFA training and uneven analytical policies across agencies, indicating capacity constraints. [14]U.S. Government Accountability Office — GAO-25-106950: Regulatory Flexibility A…

Assessment

Analytical summary (not advocacy).

Overall stance: Neutral. On balance, S.148 would increase transparency and consistency for monetized impacts but systematically deprioritize socially significant, hard‑to‑price effects that current executive guidance permits agencies to weigh qualitatively. In the near term it likely raises analysis and litigation costs and slows complex rulemaking; long‑term effects hinge on whether credible monetization methods emerge for nonmarket harms. Post‑Chevron judicial dynamics and S.148’s retroactivity materially increase the risk of rule invalidation and policy whiplash. [3]UCSB/AP Project — Executive Order 12866—Regulatory Planning and Review | Americ…[4]White House Archives — Executive Order 13563 — Improving Regulation and Regulat…[5]OMB (White House Archives) — Biden-Harris Administration Releases Final Guidanc…[8]LII (Cornell Law) — Loper Bright Enterprises v. Raimondo (June 28, 2024)[2]Library of Congress — All Info - S.148 - 119th Congress (2025-2026): RED TAPE A…

Sourcing and Notes

• Bill text/status and retroactivity window: Congress.gov pages for S.148 (text and all‑info, including 11/19/2025 hearing). [1]Library of Congress — Text - S.148 - 119th Congress (2025-2026): RED TAPE Act |…[2]Library of Congress — All Info - S.148 - 119th Congress (2025-2026): RED TAPE A…
• Executive baseline: EO 12866 (regulatory philosophy permitting qualitative measures) and EO 13563 (explicitly allows considering equity and dignity qualitatively); EO 14094 (modernizing regulatory review). [3]UCSB/AP Project — Executive Order 12866—Regulatory Planning and Review | Americ…[4]White House Archives — Executive Order 13563 — Improving Regulation and Regulat…[6]Federal Register / govinfo.gov — Federal Register citation of EO 14094 (88 FR 2…
• OMB guidance: 2023 A‑4 update (2% default rate; structured treatment of non‑monetized effects); A‑94 updates/Appendix C notice (2023) and 2025 reversion to 7% for program analyses (FEMA/ASFPM notes). [5]OMB (White House Archives) — Biden-Harris Administration Releases Final Guidanc…[22]Federal Register / govinfo.gov — Federal Register (Dec. 29, 2023): OMB Circular…[9]FEMA — FEMA: News and Notes About Benefit‑Cost Analysis – A‑94 discount rate up…[10]Association of State Floodplain Managers — ASFPM: FEMA Rolls Back BCA Rates for…
• Practice evidence: GAO/CRS on difficulties monetizing and the share of rules with fully monetized benefits and costs; OIRA timing parameters. [13]U.S. Government Accountability Office — GAO-14-714: Agencies’ cost-benefit anal…[11]Congressional Research Service — CRS Report: Methods of Estimating the Total Co…[12]Congressional Research Service — CRS Report: Counting Regulations (R43056) – OI…
• Judicial backdrop: Loper Bright ending Chevron deference; CRS Legal Sidebar on vacatur under the APA. [8]LII (Cornell Law) — Loper Bright Enterprises v. Raimondo (June 28, 2024)[21]Congressional Research Service — CRS Legal Sidebar: “Set Aside” and Vacatur Und…
• Environmental valuation context: National Academies (ecosystem services) and EPA Economic Analysis Guidelines (2024 update). [18]National Academies Press — National Academies: Valuing Ecosystem Services (2005)[19]U.S. Environmental Protection Agency — EPA Guidelines for Preparing Economic An…