Andrew Wheeler’s Trojan Horse for Clean Air Act Regulation

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