Thank you for the opportunity to comment on the proposed rule published by the Environmental Protection Agency (EPA) to refine and standardize cost benefit analysis procedures under the Clean Air Act. I am making these comments as an individual and not on behalf of any entity or organization. I am a lawyer who has been practicing environmental law since the early 1970s, usually representing business interests. I have worked on many of the original EPA Clean Air Act critical regulations, including State Implementation Plans, New Source Review, Interstate Air Pollution, various National Ambient Air Quality and attainment and nonattainment designations, the definition of Best Available Technology, Lowest Available Emission Rate, and Reasonably Available Control Technology. I have been involved in EPA cases in the Sixth, Seventh, Fourth and D.C. Circuits, as well as counsel of record in the United States Supreme Court in the Chevron case. Over my years, I fully recognize the need for balance, credibility, transparency, and full public participation in EPA standards setting. This current rulemaking is particularly important to the sound implementation of the Clean Air Act, because it will codify best scientific and economic practices to protect public health and the economic lifeblood of the nation and emphasize the importance of sound CBA processes. My comments will address some ideas on transparency and “particularized” approaches to consistency. I support the EPA’s effort to codify this important idea.
Importance of Cost Benefit. Cost benefit analysis (CBA) is one of the most important tools in the regulator’s toolbox. It is a primary tool to address the overarching question of why should we regulate and how far should the regulation go. Environmental protection is a national, shared priority, and countless business operations critical to national economic vitality fall under the jurisdiction of the EPA. Already, the EPA’s regulations account for 80% of benefits and 70% of costs for all regulations from 2007 to 2016. CBA has been used often by EPA but, as Administrator Wheeler mentioned last year, costs and benefits within the EPA have “historically been treated differently depending on the media office and the underlying authority,” alongside “various concepts of benefits, costs and other factors” in the regulatory decision making process that yield sub-optimal outcomes. Too often regulations are enacted even when costs outweigh benefits. The result is heightened regulatory burdens on private industry and enterprise, both large and small. When regulations impose compliance costs that significantly outstrip benefits, it may incentivize to engage in avoidance mechanisms, loopholes, or move production offshore.