Cost-Benefit Analysis, Ben Franklin, and the Supreme Court

41 Pages Posted: 21 Jun 2015 Last revised: 8 Sep 2015

See all articles by Amy Sinden

Amy Sinden

Temple University - James E. Beasley School of Law; Center for Progressive Reform

Date Written: March 20, 2015


This article looks at the ongoing debate over the use of cost-benefit analysis in agency rulemaking through a case study of a set of EPA power plant regulations that brought that debate before the U.S. Supreme Court in 2009. In the briefing before the Court, a peculiar pattern emerged: the briefs for the environmentalists opposing CBA portrayed it as highly formal, rigid, quantitative, and technical, while the industry and think-tank briefs advocating CBA painted it as informal, based in common sense, and associated with Ben Franklin. These diverging descriptions reflect the fact that cost-benefit analysis is not a monolith but comes in many varieties on a spectrum from informal to formal. Examining the rulemakings leading up to and following the Supreme Court’s opinion, this case study illustrates the importance of clearly defining the term “CBA” and the intellectual sloppiness and irrationality that can result when policymakers fail to distinguish between these very different forms of analysis.

Keywords: cost-benefit analysis, environment, regulation, regulatory review, EPA, rulemaking, Clean Water Act, environmental law

Suggested Citation

Sinden, Amy, Cost-Benefit Analysis, Ben Franklin, and the Supreme Court (March 20, 2015). 4 UC Irvine L. Rev. 1175, 2015, Temple University Legal Studies Research Paper No. 2015-34, Available at SSRN:

Amy Sinden (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States
215-204-4969 (Phone)
215-204-1185 (Fax)

Center for Progressive Reform ( email )

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Baltimore, MD 21201
United States

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