Chevronizing Around Cost-Benefit Analysis

Abstract

The Trump administration’s efforts to weaken regulations are in tension with cost-benefit analysis, which in many cases supports those regulations or otherwise fails to support the administration’s deregulatory objectives. Rather than attempting to justify its actions as a matter of policy preferences, the administration has responded by erecting procedural hurdles to new regulations, concocting flawed cost-benefit analyses, and interpreting statutes so as to evade cost-benefit analysis. We evaluate these efforts, and conclude that the procedural hurdles may well be an effective means for slowing down regulation but not for eliminating existing regulations; that courts are unlikely to approve deregulation based on flawed cost-benefit analyses; and (most importantly) that the statutory interpretation route — which we call “Chevronizing around cost-benefit analysis" — creates novel challenges for courts, as it pits traditional Chevron deference against a trend in favor of pushing agencies to regulate based on cost-benefit analysis.