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Introduction
In this Advance Notice of Proposed Rulemaking, the Environmental Protection Agency sets a worthwhile goal of improving the consistency and transparency of the agency’s use of economic analyses to inform its rulemaking decisions. As noted in the request for comment, the agency already has detailed guidelines for economic analysis that have been developed internally, as well as applicable guidance from the Office of Management and Budget. Yet, in practice, the analyses that accompany EPA’s regulations are often controversial, and sometimes are found by courts to have flaws serious enough to undermine the legality of the agency’s actions.
This comment will begin by exploring the reasons why EPA might choose to conduct a rulemaking on the general topic of how it considers benefits and costs, and then will discuss some of the legal considerations that should be brought to bear on the effort.