46 ELR 10934 ENVIRONMENTAL LAW REPORTER 11-2016
marks the rst time the Supreme Court has actually forced
cost considerations on an unwilling agency.
Nonetheless, we should not rush too quickly to ring in
Professor Sunstein’s cost-benet state. Appeara nces can be
deceiving. e term “cost-benet a nalysis” can refer to a
broad range of decisionmaking techniques, and an even
longer list of methods involve agencies “considering costs”
in one way or another. ere remains a fa irly wide gu lf
between the kinds of analysis the Court endorsed in these
cases and the par ticular brand of CBA that Professor Sun-
stein advocates. ere is, in fact, good reason to believe
that the Court remains quite skeptical of Professor Sun-
stein’s cost-benet state.
Agencies have many ways of considering costs in regula-
tory decisionmaking that are entirely distinct from CBA.7
e U.S. Congress has f requently, for example, directed
agencies to set environmental standards through the use of
various forms of feasibility ana lysis.8 ese kinds of analy-
ses consider costs in order to identify the most stringent
level of environmental protection that is economically and
technologically feasible, but do not balance costs against
benets as CBA does. Cost-eectiveness analysis—a nother
common tool used by agencies—considers costs but does
not involve CBA either.9 It takes a single regulatory goal
(like saving a human life) and compares the costs of reach-
ing that goal under various regulatory alternatives. So,
when the Supreme Court suggests a presumption in favor
of considering costs, as it did in Michigan, that is a very dif-
ferent matter from t he Court endorsing a presumption in
favor of cost-benet analysis, as Professor Sunstein claims.10
Even CBA itself comes in many forms —from an infor-
mal, intuitive balancing of qualitatively described pros and
cons, to a formal, quantied method grounded in wel-
fare economics.11 Congress and the courts have generally
favored the informal kind.12 Yet, the CBA that Professor
Sunstein envisions for the cost-benet state is well toward
the formal end of the spectrum.13
At its most formal, CBA requires quantify ing and mon-
etizing all of the social costs and benets of a regulation and
a host of incrementally varying alternatives, discounting
to present net va lue, and nding the point of net benets
maximization where the marginal cost curve intersects the
marginal benets curve. is is the kind of CBA embodied
in the CBA Executive Orders and promoted by the White
House Oce of Information and Regu latory Aairs
7. Amy Sinden, Cost-Benet Analysis, in E E E
E L, V II, E D M
(Glicksman & Paddock eds., forthcoming).
8. See generally David M. Driesen, Distributing the Costs of Environmental,
Health, and Safety Protection: e Feasibility Principle, Cost-Benet Analysis,
and Regulatory Reform, 32 B.C. E. A. L. R. 1 (2005).
9. See, e.g., E J. M E Q, C-B A 8
(5th ed. 2007).
10. Sunstein, Cost-Benet Analysis and Arbitrariness Review, supra note 3. See also
Driesen, supra note 8, at 6 (noting that CBA is often erroneously equated
with consideration of costs).
11. Amy Sinden, Formality and Informality in Cost-Benet Analysis, 2015 U
L. R. 93 (2015).
12. Id. at 129-47.
13. Id. at 164-65.
(OIRA).14 It is also the kind that has generated enormous
controversy for decades because it requires putting a dollar
value on intangibles, like good health and a clean environ-
ment, that are impossible to measure in monetary terms.
It was undoubtedly these kinds of concerns that led the
Supreme Court to apply a presumption against CBA in a
number of cases in the 1980s, 1990s, and early 2000s.15
Indeed, its 2009 decision in Riverkeeper, upholding EPA’s
cooling water rule for power plants, marked the rst time
the Court had ever upheld an environmental agency’s use
of CBA.16 is was a big deal. But it was not as big a deal as
some have made it out to be.17 e Court did not employ
its earlier anti-CBA presumption, but neither did it cre-
ate a new pro-CBA presumption, as some have argued.18
Notably, the Court did not require A gency use of CBA
at all. It merely gave EPA discretion to use a n informal
CBA if it chooses to, but also left it free to choose other
forms of analysis entirely. Moreover, the Court was careful
in Riverkeeper to conne its endorsement of CBA to the
most informal varieties and act ually went out of its way to
express skepticism about more formal brands of CBA.19 In
so doing, it left the door wide open for a continuing pre-
sumption against formal CBA.
Nor did the Court’s subsequent decisions in Homer City
and Michigan close the door to a presumption against for-
mal CBA or create a new pro-CBA presumption. Indeed,
EME Homer City did not actually involve CBA at all.20
And in Michigan, all the Court said was that agencies
should generally consider costs in regulatory decisionmak-
ing, but that “[i]t w ill be up to the agency to decide . ..
how to account for cost.”21 us, while it’s possible to read
Michigan as gesturing toward a presumption in favor of cost
consideration, that’s a very dierent matter from the kind
of presumption in favor of formal CBA that would herald
the dawning of the cost-benet state. Indeed, in Michigan,
both the majority and the dissent took pains to make clear
that they were not requiring agencies “to conduct a formal
cost-benet analysis in which each advantage and disad-
vantage is assigned a monetary value.”22
is Article proceeds in four parts. Part I denes terms,
identifying the broad set of decisionmaking techniques
that can be described as involving some “consideration of
costs” and that include but are not limited to the various
varieties of CBA, formal and informal. Drawing on ideas
laid out more f ully in my previous work,23 this part also
provides an analytic framework for conceptualizing the
variety of methods that are usually lumped together under
the umbrella term “cost-benet a nalysis” and for arrang-
14. Id. at 147-52.
15. See supra note 4.
16. Entergy Corp. v. Riverkeeper, 556 U.S. 208, 226, 39 ELR 20067 (2009).
17. Graham & Noe, supra note 3.
19. Riverkeeper, 556 U.S. at 223.
20. See infra notes 189 to 191 and accompanying text.
21. Michigan v. Environmental Prot. Agency, 135 S. Ct. 2699, 2711, 45 ELR
22. Id. at 2711. See also id. at 2717 (Kagan, J., dissenting).
23. See Sinden, Formality and Informality in Cost-Benet Analysis, supra note 11.
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.