Andrew Wheeler’s Trojan Horse for Clean Air Act Regulation

Richard W. Parker and Amy Sinden, Andrew Wheeler’s Trojan Horse for Clean Air Act Regulation, YALE J. REG.: NOTICE AND COMMENT (Jan. 6, 2021)

Temple University Legal Studies Research Paper No. 2021-24

3 Pages Posted: 7 May 2021 Last revised: 11 Jun 2021

See all articles by Richard W. Parker

Richard W. Parker

University of Connecticut School of Law

Amy Sinden

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

Date Written: January 5, 2021

Abstract

On December 9, 2020, EPA issued a new rule deceptively titled, Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process. The rule has been widely and justly criticized for requiring EPA to publish numerical estimates of regulatory benefits that exclude ancillary “co-benefits.” This short essay endorses that critique but argues that this critique (and the existing literature about this rule) misses the most important and damaging accomplishment of the rule: if implemented, the rule will add at least forty-two mandatory steps that EPA must undertake -- on pain of judicial challenge and reversal in court – in the cost-benefit analysis of all new rules issued under the authority of the Clean Air Act. Many of these steps are time-consuming and burdensome. Some may be impossible to complete, due to limitations on available data and science. The foreseeable result will be paralysis by analysis, or litigation. While the Biden Administration is taking steps to overturn the rule, the rule aptly illustrates the toolkit of analytical and rhetorical techniques by which harmful law and policy may be presented as benign.

Keywords: EPA, Cost-Benefit Analysis, Regulatory Impact Assessment, Co-benefits, Clean Air Act

JEL Classification: K23, K32

Suggested Citation

Parker, Richard W. and Sinden, Amy, Andrew Wheeler’s Trojan Horse for Clean Air Act Regulation (January 5, 2021). Richard W. Parker and Amy Sinden, Andrew Wheeler’s Trojan Horse for Clean Air Act Regulation, YALE J. REG.: NOTICE AND COMMENT (Jan. 6, 2021), Temple University Legal Studies Research Paper No. 2021-24, Available at SSRN: https://ssrn.com/abstract=3837654 or http://dx.doi.org/10.2139/ssrn.3837654

Richard W. Parker (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States
202-258-2617 (Phone)

Amy Sinden

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 )

500 West Baltimore Street
Baltimore, MD 21201
United States

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