Yesterday, I joined a group of CPR Member Scholars and staff in submitting comments on the Environmental Protection Agency's (EPA) "benefits-busting" proposal, which would drastically overhaul how the agency performs cost-benefit analysis on its biggest Clean Air Act rules. As we explain in our comments, the action is a thinly veiled effort to rig the results of those analyses – more so than they already are – to make it harder to issue appropriately strong safeguards, thereby sabotaging the effective and timely implementation of the Clean Air Act.
Our comments lay out in detail several shortcomings of the benefits-busting proposal. To begin, the EPA lacks legal authority to issue a binding rule of this kind. But even if the agency did have such authority, the proposal would do little, if anything, to improve its regulatory decision-making given that cost-benefit analysis is either superfluous to or even prohibited by the Clean Air Act's provisions.
The proposal's provisions are excessively burdensome and many would be impossible to satisfy in practice. Conveniently for corporate polluters, these provisions would be judicially enforceable, handing them a powerful tool to block any Clean Air Act rules they find too inconvenient to their bottom lines. To avoid such risky litigation, the EPA is likely to resort to a kind of strategic self-censorship by issuing rules that are weaker than what the Clean Air Act requires.
In addition, the proposal's requirements are conspicuously aimed either at putting a thumb on the cost side of the scale or at forcing the EPA to disregard benefits altogether, producing results that are systematically and intentionally skewed against protective safeguards. To accomplish this objective, the proposal wades deep into the agency's risk assessment practices. Many of these provisions would so arbitrarily depart from scientific norms, bias assessment outcomes, and undermine their usefulness for Clean Air Act rulemakings that they risk contaminating the quality and scientific integrity of the EPA's risk assessment practices for decades to come.
Another significant provision of the benefits-busting proposal seeks to skew the EPA's cost-benefit analysis by forcing the agency to include in its final rule preambles a novel new cost-benefit analysis table that would exclude so-called "co-benefits." Such arbitrary treatment of these benefits has no basis in economic theory, but it would have the intended effect of making many of the EPA's Clean Air Act rules look like big economic losers on paper.
That the benefits-busting proposal is intended to rig the EPA's cost-benefit analysis methodologies against strong Clean Air Act rules is further confirmed by the fact that it ignores several real shortcomings in the practice of cost-benefit analysis. Doubtless that's because reforms to address these shortcomings would likely have the effect of generating cost-benefit analyses that are even more supportive of stronger regulatory protections than what the agency legitimately produced until the Trump administration took office in 2017.
In light of these significant flaws, and given the more pressing challenges that the EPA faces in effectuating the goals of the Clean Air Act, we concluded our comments by calling on the agency to abandon this misguided proposal. We further note that with the agency already engaged in a process to update its Guidelines for Preparing Economic Analysis, a document that has long guided its cost-benefit analysis practices, it would be better off dedicating its limited resources to that effort instead, and in particular by pursuing our recommendations for addressing the actual shortcomings in cost-benefit analysis.
I was joined in submitting these comments by CPR Member Scholars Catherine O'Neill, Sid Shapiro, and Amy Sinden and by CPR Policy Analyst Darya Minovi.
In addition to these organizational comments, CPR also led a set of public interest community comments opposing the benefits-busting proposal. In all, a diverse group of eight public interest, labor, and grassroots organizations signed on.
To learn more about the benefits-busting proposal, check out this handy memo that contains a topline analysis of its major provisions.
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James Goodwin | August 4, 2020
Yesterday, I joined a group of CPR Member Scholars and staff in submitting comments on the Environmental Protection Agency's (EPA) "benefits-busting" proposal, which would drastically overhaul how the agency performs cost-benefit analysis on its biggest Clean Air Act rules. As we explain in our comments, the action is a thinly veiled effort to rig the results of those analyses – more so than they already are – to make it harder to issue appropriately strong safeguards, thereby sabotaging the effective and timely implementation of the Clean Air Act.
Matt Shudtz | August 3, 2020
The nation is finally beginning to grapple with the widespread disparities in public health, economic opportunity, and community well-being across race and class that stem from longstanding systems of oppression and injustice. As systems thinkers, CPR's Board, staff, and Member Scholars have devoted considerable time to researching and understanding the roots of these inequities, considering the disproportionate impacts on frontline communities, and advocating for just policy reform.
Brian Gumm, Matt Shudtz | August 3, 2020
Based on its current projected path, Tropical Storm Isaias could bring heavy rains up and down the East Coast, from the Carolinas and Virginia to the Delmarva Peninsula, Pennsylvania, and New Jersey. Along the way, the storm could swamp industrial facilities, coal ash ponds, concentrated animal feeding operations (CAFOs), and more. From Hurricane Florence to Hurricane Harvey and beyond, in the past 15 years, we've seen numerous tropical storms flood unprepared facilities. This has caused significant infrastructure damage and unleashed toxic floodwaters into nearby communities and waterways, threatening public health and making residents sick.
Katie Tracy | July 29, 2020
Workers presently have no right to bring a lawsuit against employers under the Occupational Safety and Health Act (OSH Act) for failing to provide safe and healthy working conditions. If an employer exposes workers to toxic chemicals or fails to guard a dangerous machine, for example, they must rely on the Occupational Safety and Health Administration (OSHA) to inspect, find a violation, and issue a citation. This omission in the 1970 statute is especially troubling in the context of COVID-19, as workers across the United States continue to face a massive workplace health crisis without any meaningful support from OSHA or most of its state and territorial counterparts. As the pandemic makes crystal clear, workers need and deserve the right to step up and enforce the law when OSHA is unable or unwilling to do its job. In a new CPR report, CPR Member Scholars Michael Duff, Thomas McGarity, Sidney Shapiro, Rena Steinzor, and I call on Congress to update the OSH Act and provide workers with a private right of action.
Joel A. Mintz | July 29, 2020
In an article headlined, "Dozens of facilities skipping out on EPA pollution monitoring have prior offenses," The Hill reported the following on Wednesday: "More than 50 facilities across the country that have faced enforcement actions for alleged Clean Water Act violations are among those taking advantage of an Environmental Protection Agency (EPA) policy that lets companies forgo pollution monitoring during the pandemic, an analysis by The Hill found. The temporary EPA policy, announced in March, says industrial, municipal and other facilities do not have to report pollution discharges if they can demonstrate their ability to do so has been limited by the coronavirus. The Hill first reported that 352 facilities have skipped water pollution monitoring requirements under the policy, which applies to air pollution as well. Of those facilities, 55 have faced formal enforcement actions in the past five years from either the EPA or state regulators." As disturbing as this news is, it is absolutely no surprise.
James Goodwin | July 28, 2020
Today, a group of 136 law professors from across the United States, including 31 Center for Progressive Reform (CPR) Member Scholars, will send a letter to congressional leaders urging them to “ensure that our courthouse doors remain open to all Americans for injuries they suffer from negligence during the COVID-19 pandemic.” The letter, spearheaded by CPR Member Scholars Dan Farber and Michael Duff, comes in response to a push by the U.S. Chamber of Commerce and other corporate special interests to include a “federal liability shield” in the next COVID relief bill, which is now being negotiated in Congress. This shield would prevent ordinary Americans from holding corporations accountable in the civil courts when their unreasonably dangerous actions cause people to become sick with the virus.
James Goodwin | July 22, 2020
Donald Trump is no stranger to leaving things worse off than he found them, and this is precisely what his administration now aims to do with the Environmental Protection Agency (EPA), not just one of the most successful government institutions in the history of the United States, but indeed the world. Having worked quickly, if not sloppily, to dismantle every vestige of the Obama administration's efforts to promote cleaner air and water, the Trump EPA is now heading down a path of self-destruction. The agency's proposed "benefits-busting" rule, released early last month, is a big part of this campaign.
Katlyn Schmitt | July 21, 2020
The Maryland Department of the Environment recently issued a general discharge permit that covers pollution from most livestock farms, including concentrated animal feeding operations, across the state through July 2025. Unfortunately, the permit, which went into effect on July 8th, will likely jeopardize the 2025 nitrogen reduction goals under the Chesapeake Bay Total Maximum Daily Load and does not align with Maryland’s Phase III Watershed Implementation Plan commitments.
Alexandra Klass | July 21, 2020
In late June, Minnesota Attorney General Keith Ellison acted in the state's tradition of guarding the public interest when he filed a consumer protection lawsuit against three of the nation’s largest fossil fuel entities — ExxonMobil, Koch Industries, and the American Petroleum Institute (API). In the lawsuit, he seeks to recover civil penalties and restitution for the harm to Minnesotans caused by these companies’ decades-long efforts to intentionally mislead the public about the relationship between fossil fuels, the climate crisis, and the resulting harm to public health, agriculture, infrastructure, and the environment.