The Risk in Technology-Based Standards

56 Pages Posted: 8 Aug 2008

See all articles by Patricia Ross McCubbin

Patricia Ross McCubbin

Southern Illinois University School of Law

Date Written: Fall 2005


This article challenges the conventional belief that EPA establishes technology-based standards under the Clean Water Act and Clean Air Act simply by considering the costs of available pollution control technologies without also considering how those technologies will reduce the risks posed by harmful pollutants and benefit the public health. Instead, the author argues that, from a purely theoretical standpoint, EPA must weigh both the costs and what the author terms the "risk reduction benefits" when it sets technology-based standards - not in any formal cost-benefit analysis, but in a very rough sense. In addition, relying on an extensive review of more than 100 rulemakings from nearly three decades, the author demonstrates that EPA, in fact, does systematically consider those public health risks and the corresponding benefits of using a pollution control technology when setting its standards.

The article explains that the failure of judges to recognize the true nature of technology-based standards has enabled EPA to thwart judicial and public review of its standard-setting process in contravention of the APA. Because this very serious problem originated with ambiguous and often confused legislative histories, the author argues that statutory amendments are necessary to the Clean Water Act and the Clean Air Act in order to correct the problem and ensure EPA's public accountability and democratic legitimacy.

Keywords: environmental law, EPA, Clean Water Act, Clean Air Act, technology-based standards, cost-benefit analysis

Suggested Citation

McCubbin, Patricia Ross, The Risk in Technology-Based Standards (Fall 2005). Duke Environmental Law & Policy Forum, Vol. 16.1, 2005. Available at SSRN:

Patricia Ross McCubbin (Contact Author)

Southern Illinois University School of Law ( email )

1150 Douglas Drive
Mailcode 6804
Carbondale, IL 62901-6804
United States
618-453-8759 (Phone)


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