Amicus Brief of Economists Ackerman et al. in Entergy v. Riverkeepers

53 Pages Posted: 28 Oct 2008 Last revised: 25 Feb 2009

See all articles by Douglas A. Kysar

Douglas A. Kysar

Yale University - Law School

David M. Driesen

Syracuse University College of Law

Date Written: October 6, 2008

Abstract

A group of academic economists filed this amicus brief in a pending Supreme Court case, Entergy v. Riverkeepers. The amicus brief addresses questions pertaining to the nature and limits of cost-benefit analysis (CBA) and thus contributes to the ongoing scholarly debate about CBA's role in environmental law. The case raises the question of whether EPA may consider CBA in writing standards based on the "best technology available for minimizing environmental impacts" from intake of water to cool industrial facilities. This intake kills fish and disrupts eco-systems. The brief explains that cost-benefit balancing may be inappropriate for an agency implementing foundational normative commitments embodied in the constitution or legislation. It then argues that engineering analysis identifies the best technology and financial analysis comparing costs to the regulated industry's economic capabilities (rather than to benefits) assesses a technology's availability. Finally, the brief explains that the radical incompleteness of the CBA done in this case could have been avoided by using a traditional technology-based approach.

Keywords: cost-benefit analysis, BAT, technology-based standards, water pollution, supreme court, feasibility

JEL Classification: G33, K32

Suggested Citation

Kysar, Douglas A. and Driesen, David M., Amicus Brief of Economists Ackerman et al. in Entergy v. Riverkeepers (October 6, 2008). Available at SSRN: https://ssrn.com/abstract=1288830 or http://dx.doi.org/10.2139/ssrn.1288830

Douglas A. Kysar

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

David M. Driesen (Contact Author)

Syracuse University College of Law ( email )

Dineen Hall
950 Irving Ave.
Syracuse, NY, NY 13244
United States
315-443-4218 (Phone)
315-443-4141 (Fax)

HOME PAGE: http://www.law.syr.edu/faculty/facultymember.asp?fac=12

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