The Flight from Evidence-Based Regulation

Daniel Farber

March 26, 2020

Originally published on Legal Planet. Reprinted with permission.

The Trump administration's major deregulatory efforts share a common theme. They assiduously avoid having to rely on scientific or economic evidence. Confronting that evidence is time-consuming and difficult, particularly when it often comes out the other way. Instead, the administration has come up with clever strategies to shut out the evidence.

The effort to repeal the Clean Power Plan illustrates some of these strategies. The Obama administration's plan would have cut carbon emissions from power plants along with destructive particulate emissions from those plants. The Trump administration didn't have much of a policy argument against the plan. So instead, it argued that the Clean Air Act just didn't give EPA the power to take sensible measures against climate change. As the old trial lawyer's saying puts it, "If the evidence is against you, argue the law."

The Clean Power Plan repeal also illustrates another strategy: Come up with a rationale for ignoring evidence that you don't like. This strategy wasn't part of the formal justification for repealing the Clean Power Plan. Instead, it was used in the cost-benefit analysis accompanying the formal repeal, where EPA chose to rely on calculations that didn't include key health benefits. EPA's proposed new science policy takes a similar approach. The proposal is that EPA completely ignore scientific studies unless all of the data can be made public, which conveniently eliminates a lot of public health studies involving confidential patient information.

A combined version of the two strategies argues that certain environmental harms must be ignored as legally irrelevant. For example, in reconsidering a regulation limiting mercury emissions from power plants, EPA argues that it is legally required to ignore evidence that the regulation would save thousands of lives. Why? Because those lives will be saved for the wrong reason: Not directly from the reduction in mercury but because cutting mercury automatically cuts other deadly pollutants. Rather than seeing this as "two for the price of one," EPA proposes to close its eyes to the evidence. Another example is the proposal to reform the way that environmental impact statements are done. Based on some tenuous legal arguments, the proposal calls for ignoring serious impacts that happen to be delayed, at a distance, or due to complicated chains of causation. Again, the point is to eliminate consideration of evidence that any policy analyst would consider highly relevant.

This desperate attempt to avoid the evidence might almost suggest that the administration has an ulterior motive. Which of course it does: Promoting activities that harm the environment but enrich industry.

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