Rethinking Health-Based Environmental Standards and Cost-Benefit Analysis

Abstract

Under the Clean Air Act, the U.S. Environmental Protection Agency (EPA) is required to determine the stringency of the National Ambient Air Quality Standards (NAAQS), arguably the most important federal environmental program, without considering the costs of achieving these standards. Instead, it must rely exclusively on health-related criteria. This Essay summarizes and updates arguments introduced in Rethinking Health Based Standards, 89 N.Y.U. L. Rev. 1184 (2014) that health-based standards like the NAAQS generate stopping-point problems and inadequacy paradoxes. Stopping-point problems arise because there is no coherent, defensible way for EPA to set the permissible level of pollution based on health considerations alone. Inadequacy paradoxes arise when health-based standards are set at levels that are less stringent than those that would result from the application of cost-benefit analysis. The NAAQS provide a case study of both pathologies at work.