Blog - Center for Progressive Reform

Which Effects Count?

This post was originally published on Legal Planet. Reprinted with permission.

Not that long ago, conservatives demanded that the government balance costs and benefits. They still do, but with a twist: They demand special limits on consideration of environmental effects. But that makes no sense. Whatever rules we have about costs should apply to all types of costs, and the same with benefits. The result of skewing the analysis is, not surprisingly, that we get conservative results more often.

Take a recent U.S. Supreme Court case, Seven County Infrastructure. The case involved the construction of a small length of track that would for the first time allow the huge oil resources in a mountain basin to reach market. The Court said that the environmental impact statement for the project shouldn’t consider the environmental impacts of the surge in oil production or the pollution from refineries it would cause. But in determining the benefits of the project, the agency approving the track had naturally pointed to the economic benefits of a big increase in oil production and its positive impact on the local economy. The Court said that the drilling was too remote from the track construction to consider its environmental impacts, but not too remote to consider its economic impacts?

Another example is the treatment of co-benefits. When we try to control one pollutant from an industry, there’s often an additional benefit in the reduction of other pollutants. For instance, reducing carbon dioxide or mercury pollution from coal-fired power plants reduces the level of dangerous particulates. Conservatives insist it’s not fair to count the health benefits from the particulate reduction because that isn’t the target pollutant. And somehow, the enormous health benefits — and the related savings in health care costs — from reducing coal pollution got no mention whatsoever. But when it comes to considering the downsides of regulation, they are far more generous.

For instance, in considering whether to regulate carbon dioxide from power plants, the Trump EPA relied on one of Trump’s executive orders. The executive order contained findings that “beautiful clean coal resources will be critical to meeting the rise in electricity demand due to the resurgence of domestic manufacturing and the construction of artificial intelligence data processing centers” and “to increasing ‘energy supply,’ lowering ‘electricity costs,’ stabilizing the power grid, creating ‘high paying jobs,’ supporting ‘burgeoning industries,’ and assisting allies abroad.” In considering the relation between the industry’s carbon dioxide emissions and climate change, EPA relied on “background legal principles of proximate cause” to downplay any climate effects. Those background principles were not applied, however, to the far-flung and indirect supposed benefits of promoting coal.

Like all double standards, this one has a not-so-secret agenda. Consideration of some specific effect of a policy is good when it supports conservative goals, and bad otherwise — and especially bad if it would lead to greater protection of the environment.

Where I grew up, we had a simpler approach: “What’s sauce for the goose is sauce for the gander.”

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