The Sounds of Silence: Cost-Benefit Canons In Entergy Corp. V. Riverkeeper, Inc.

Abstract

The debate over the use of cost-benefit analysis (CBA) in environmental, health and safety regulation represents an important divide in the political culture. Environmentalists and other pro-regulatory interests argue that CBA is anti-regulatory in design and implementation, crowds out non-welfarist values, and impoverishes the political discourse. Proponents of CBA argue that is essential for balanced, welfare-enhancing regulatory decisions, is neutral between pro- and anti-regulatory outcomes, and contributes to transparency and informed political debate. Executive branch practice in both Republican and Democratic administrations has generally been pro-CBA, while Congress has been more skeptical of the methodology in regulatory enactments.

This paper interprets Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498 (2009,) in light of this cultural and institutional divide. It finds that the Court’s opinion by Justice Scalia in that case, with a concurrence by Justice Breyer, represents a shift in judicial presumption in cases where legislation is silent or ambiguous on the question of whether CBA may be used in agency decisionmaking. By contrast to earlier decisions, which suggest a presumption against consideration of cost-benefit comparisons in cases of legislative silence or ambiguity, Entergy arguably employs a pro-CBA presumption. This presumption, however, may be limited to a rudimentary form of CBA rather than the more developed form common in modern practice and encouraged by executive branch guidelines. The paper concludes that the Court’s shift to a presumption favoring this basic form of CBA is a defensible move by the Court and represents an appropriate but provisional resting point in the evolution of the judicial treatment of CBA.