Last night, CPR Member Scholar Amy Sinden and I published an op-ed in The Hill explaining the dangers of a new rulemaking recently launched by Environmental Protection Agency (EPA) Administrator Andrew Wheeler and former air office Assistant Administrator Bill Wehrum. Through this rulemaking, Wheeler and Wehrum – both former industry lobbyists – will kick off the EPA's agency-wide effort to overhaul how it conducts cost-benefit analysis for its pending rules to ensure that this methodology remains heavily biased in favor polluters at the expense of people and our environment.
As the op-ed explains, cost-benefit analysis was always meant to provide industry with a powerful trump card in the rulemaking process. Industry expected its methodologies – while masquerading as objective and rational – would systematically favor weaker or no regulations. By and large, that held true for the nearly 40 years that cost-benefit analysis has ruled regulatory decision-making. But in the environmental policy context, two types of benefits have begun to threaten to unstack the deck that cost-benefit analysis offers to industry – those related to particulate matter and climate change. It turns out that addressing both these harms can be worth a lot of money, helping to justify clean air regulations, even when their primary purpose isn't to limit emissions of particulate matter or climate-disrupting greenhouse gases.
The Clean Air Act "benefits-busting" rule would change all that, providing the EPA with new tricks for burying or ignoring the benefits of addressing particulate matter and the climate crisis. In a recent CPR Rule Update, I explain what measures the benefits-busting rule will likely include to ensure that the EPA's Clean Air Act cost-benefit analysis remains rigged in favor of industry. The Trump EPA has already provided some hints with its egregious attempts to cook the cost-benefit analysis books to justify its extreme rollbacks of vital environmental and public health safeguards. Its proposal to disregard the co-benefits of a rule to limit mercury and other hazardous air pollution emissions from power plants provides an especially notable example.
If finalized, the Clean Air Act benefits-busting rule would make it easier for the Trump EPA to roll back existing rules. Significantly, it would also make it easier for industry to oppose any efforts by future administrations to institute stronger and more protective safeguards. This latter result will probably not go unnoticed by the now-departed Wehrum. The launch of this rule was among Wehrum's last official acts before he left EPA under an ethical cloud. If and when he returns to working as an industry lobbyist, he will find that, through the revolving door, he has handed himself a powerful new weapon to oppose sensible environmental and public health protections on behalf of his polluter clients. And that's how former Assistant Administrator Wehrum may very well have scored a big win for past-and-future polluter lobbyist Wehrum.
Top photo by the Natural Resources Defense Council, used under a Creative Commons license.
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James Goodwin | July 2, 2019
Last night, CPR Member Scholar Amy Sinden and I published an op-ed in The Hill explaining the dangers of a new rulemaking recently launched by Environmental Protection Agency (EPA) Administrator Andrew Wheeler and former air office Assistant Administrator Bill Wehrum. Through this rulemaking, Wheeler and Wehrum – both former industry lobbyists – will kick off […]
Daniel Farber | July 1, 2019
Originally published on Legal Planet. In a recent decision, four of the conservative Supreme Court Justices indicated a desire to limit the amount of discretion that Congress can give administrative agencies. If taken literally, some of the language they used would hobble the government by restricting agencies like EPA to "filling in the details" or […]
Daniel Farber | June 27, 2019
Originally published on Legal Planet. Gundy v. United States was a case involving a fairly obscure statute regulating sex offenders, but some have seen it as a harbinger of the destruction of the modern administrative state. In a 4-1-3 split, the Court turned away a constitutional challenge based on a claim that Congress had delegated […]
Alice Kaswan | June 27, 2019
The Affordable Clean Energy (ACE) rule, the Trump administration's recently released substitute for his predecessor's Clean Power Plan (CPP), has been widely criticized as an ineffectual mechanism for addressing power plants' greenhouse gas (GHG) emissions. More broadly, the rule substitutes a technocratic, plant-by-plant approach for the more comprehensive and participatory state planning required by the […]
Hannah Wiseman | June 26, 2019
The EPA released its finalized rule for carbon emissions from existing power plants last week. The agency calls the rule the "Affordable Clean Energy" (ACE) rule, but it would be better named the "Advancing Coal Energy" rule given its explicit aim to keep old, dirty coal-fired power plants running. A bit of background first for […]
Evan Isaacson | June 26, 2019
On June 21, the Environmental Protection Agency (EPA) released its evaluation of the third and final round of state Watershed Implementation Plans (WIPs) under the Chesapeake Bay restoration framework known as the "Bay TMDL" (Total Maximum Daily Load). EPA's evaluation of the seven Bay jurisdictions broke no new ground regarding the quality or contents of […]
Emily Hammond | June 18, 2019
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). The Supreme Court has concluded that Virginia's decades-old moratorium on uranium mining is not pre-empted by the Atomic Energy Act. But there is no clear answer to the question that pervaded the briefing and oral argument: […]
Lisa Heinzerling | June 17, 2019
In a recent essay posted to SSRN, I try to see, and to appreciate, the wisdom in a species of climate litigation that has many detractors. This litigation asks the courts to hold the government and private parties judicially accountable for their active promotion and pursuit of climate-endangering activities, even after they knew better – […]
Daniel Farber | June 13, 2019
Originally published on Legal Planet. When a facility installs and operates the required pollution control equipment, we normally think of the pollution problem as solved. But there still may be bursts of pollution associated with start-up, shut-down, accidents, or external events. A recent study of pollution in Texas shows that these events have substantial health […]