Wheeler Hearing Provides Opportunity to Learn More about 'Benefits-Busting' Rule

by James Goodwin

January 15, 2019

During his tenure, former Environmental Protection Agency (EPA) Administrator Scott Pruitt launched multiple assaults on environmental and public health safeguards. His attacks on clean air standards and water quality regulations made so little sense in our reality that he went to the absurd and extreme lengths of creating an alternative reality to make them look legitimate. That alternative reality is rendered in the "benefits-busting" rule, which would systematically distort the analyses EPA economists conduct to assess the economic impacts of the agency's pending rulemakings. With Acting Administrator Andrew Wheeler's Senate confirmation hearing scheduled for January 16, lawmakers will have the opportunity to learn more about this dangerous rulemaking – and hopefully call upon Wheeler to abandon it altogether.

As I explained in a previous post, the Trump EPA's benefits-busting rule is all about denying the real, positive impacts that environmental safeguards are making in our communities. Specifically, it seeks to cook the books by requiring analytical methodologies that would put a polluter-friendly thumb on the scale in the agency's cost-benefit analyses – complex and baroque documents that the agency produces to try to guess the economic impacts its rules will have once implemented – so that rules' estimated costs will be exaggerated and their benefits will be substantially shortchanged. (Not incidentally, cost-benefit analysis is already heavily stacked against public protections.) The practical effect of these distortions would be to make it harder to institute effective public protections – and easier to repeal existing ones.

Just recently, we've seen a preview of how the benefits-busting rule might operate in practice with the EPA's proposed reconsideration of the "appropriate and necessary" finding that undergirds the Mercury and Air Toxics Standard (MATS) rule. As part of that reconsideration, the EPA proposed to completely ignore the thousands of lives that the MATS rule would save – measured in billions of dollars – simply because they are "co-benefits" that result from reductions in particulate matter pollution, rather than direct benefits that result from reductions in mercury and other toxic air pollutants. Though the EPA stopped short of repealing the MATS rule, the agency has nevertheless rendered it vulnerable to legal challenge by ignoring these co-benefits. We can expect more of these shenanigans if the benefit-busting rule takes effect, since it will likely make disregard of co-benefits in cost-benefit analysis an official agency-wide policy.

The danger of the benefits-busting rule extends well beyond the effect it would have on the agency's individual rulemakings; it also risks leaving a lasting legacy at the EPA by corrupting in subtle and not-so-subtle ways how agency decisionmakers view their own rules. No doubt that the EPA officials pushing the rule intend for it to accomplish a wholesale mutation of the agency's DNA such that the EPA becomes fundamentally transformed into an anti-safeguards institution that is more attentive to polluter profits than advancing the public welfare.

In this regard, the benefits-busting rule can be seen as the economic equivalent of the agency's controversial "sequestered science" rule, which would force the EPA's decisionmakers to ignore important scientific studies that might support strong protections. Taken together, these rules provide the key pillars in support of the broader Trump/Pruitt/Wheeler project of creating an entirely new epistemic bubble in which the EPA would operate – one in which every agency decision arrives at the "logical" conclusion of weaker safeguards, weaker enforcement, or paralyzing uncertainty and inaction. This, in turn, would endanger the public and our environment to ever-growing degrees.

In light of all the outrageous things that have transpired at the EPA during the Trump administration, members of the Senate Environment and Public Works (EPW) Committee will have no shortage of matters to discuss with Wheeler, especially since the Republicans in control of the Senate have been derelict in their duty to conduct meaningful oversight of the agency during the past two years. Nevertheless, in light of the danger the benefits-busting rule poses, lawmakers should place a high priority on learning more about the rule's substance, how it was developed, and what further actions the agency plans to take on it.

Among other things, committee members should demand that Wheeler explain what problem the benefits-busting rule is intended to address with concrete examples of how the EPA's past cost-benefit analyses have fallen short and a clear and specific account of how the rule would address those problems. As part of this inquiry, they should invite Wheeler to provide an example of how the "improved" costs-benefit analyses that result from the rulemaking might lead to stronger environmental and public health protections. The members should also require Wheeler to explain how the benefits-busting rule would operate consistently with the EPA's existing legal authorities, which direct the agency to employ a wide variety of decisionmaking standards, nearly all of which are incompatible with the type of strict cost-benefit analysis favored by industry and conservatives. Finally, they should demand all records on all the outside groups – industry lobbyists, conservative activists, and so on – that the agency has been in contact with regarding the development of the rule.

If Wheeler's responses to any of these inquiries are unsatisfactory – and it is difficult to imagine how they wouldn't be – the Senate EPW Committee members should not hesitate in calling on him to abandon the rulemaking if confirmed as the next EPA administrator. After all, anyone who is committed to pursuing Scott Pruitt's dangerous benefits-busting rule is unfit to replace him as the next head of the agency. The committee members should use the confirmation hearing to make sure that Wheeler agrees.

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James Goodwin, J.D., M.P.P., is a Senior Policy Analyst with the Center for Progressive Reform. He joined CPR in May of 2008.

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