This post was originally published by the Yale Journal on Regulation's Notice & Comment blog. Reprinted with permission.
T’was the season of gift-giving and on December 9, outgoing EPA Administrator Andrew Wheeler delivered a parting gift for his successor in the form of a new regulation: Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process.
The new Rule is offered as a simple housekeeping measure designed “to ensure consistent, high-quality analyses [and to] codif[y] best practices for benefit-cost analysis in rulemaking.” Some observers find it relatively harmless; but others are not so sanguine. We view it as a sort of Trojan Horse—seemingly innocuous on its face, but harboring content that will hamper, and may undermine, EPA’s efforts to confront the climate crisis and protect the safety of the air we breathe. Here are a few reasons we came to that view.
The problems begin with the word “codify.” For many years, EPA’s Cost-Benefit Analyses (CBAs) have been governed by non-binding guidelines. Readers of this blog will appreciate that guidelines can be adjusted to fit the circumstances of individual rules, and adapted over time as scientific understanding of …