As EPA rolls out controversial regulations on power plant emissions of greenhouse gases, a vocal group of legislators, industry groups, and legal and economic scholars are crying foul, arguing EPA didn’t “follow the rules” when it conducted its cost-benefit analyses of these regulations.
This article traces the origin of these cost-benefit rules, finding that the methodological handbook alleged to be the “worldwide gold standard” was actually developed through a fundamentally flawed process, one that intentionally excluded majority viewpoints in several relevant academic disciplines. Unsurprisingly, it also contains serious methodological mistakes. If these mistakes were to be applied to regulations addressing domestic greenhouse gas emissions (that is, if EPA and other executive agencies do “follow the rules,” as demanded by the critics of these regulations in Congress, academia and regulated industry), this injection of both outright irrationality and arguably unethical subjective biases into domestic regulatory policy would threaten to derail substantive U.S. action on climate change.
This article also describes how the executive order that spawned these rules is impossible to comply with literally, because it creates a series of “max/min” problems with no common solution. This creates a conundrum that, over and over again, is resolved under these costbenefit rules in favor of maximizing quantifiable, monetized “net benefits,” at the expense of promoting a set of competing yet also important rights- and duty-based factors that the text of the parent executive order ostensibly puts on equal footing.
Melissa J. Luttrell, The Social Cost of Inertia: How Cost-Benefit Incoherence Threatens to Derail U.S. Climate Action, 25 Duke Environmental Law & Policy Forum 131-183 (2014)
Available at: http://scholarship.law.duke.edu/delpf/vol25/iss1/4