Public Interest Comment: Increasing Transparency in Considering Costs and Benefits in the Rulemaking Process

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By: Brian F. Mannix

August 14, 2018

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The George Washington University Regulatory Studies Center improves regulatory policy through research, education, and outreach. As part of its mission, the Center conducts careful and independent analyses to assess rulemaking proposals from the perspective of the public interest. This comment on the Environmental Protection Agency’s advanced notice of rulemaking (ANPRM) on “increasing consistency and transparency in considering costs and benefits in the rulemaking process” does not represent the views of any particular affected party or special interest, but is designed to evaluate the effect of EPA’s rulemaking process on the welfare implications of future regulations.


In this ANPRM, EPA seeks comment on the appropriate role for regulatory analysis in decisions authorized by the different statutes EPA administers. It explicitly does not seek comment on “how best to conduct the underlying analysis of regulatory actions.” The notice recognizes that most statutory provisions require or allow some consideration of cost and benefits when setting regulatory standards to achieve public health and environmental benefits, but there can be a significant variation in terminology and specificity provided in each law regarding the nature and scope of cost and benefit considerations. For example, some statutes direct EPA to set standards that are “appropriate,” “reasonable,” “practicable,” “achievable,” “feasible,” etc, and others refer to available technologies. Even different sections of the same statute can use different terminology, leading to consideration of “a variety of concepts of ‘costs’.” The ANPRM seeks comment on the “perceived inconsistency and lack of transparency in how the Agency considers costs and benefits in rulemaking, potential approaches for addressing these concerns, and the scope for issuing regulations to govern EPA’s approach in future rulemakings.”

This comment explores the reasons why the Environmental Protection Agency might choose to conduct a rulemaking on the general topic of how it considers benefits and costs, reviews some of the legal considerations that should be brought to bear on that effort, and recommends that the administration consider encouraging this type of activity in other agencies.  The comment cites a recent Supreme Court Economic Review article authored by Brian Mannix, "Benefit-Cost Analysis as a Check on Administrative Discretion," attached herein.

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Read Susan E. Dudley's comment on this ANPRM here.

Read Joseph J. Cordes' comment on this ANPRM here.

Read Brian F. Mannix's Benefit-Cost Analysis as a Check on Administrative Discretion here.

Read Consumer’s Guide to Regulatory Impact Analysis: Ten Tips for Being an Informed Policymaker here.