Rethinking Rethinking Health-Based Environmental Standards and Cost-Benefit Analysis: A Solution in Search of a Problem?

• Date: 01 August 2016

8-2016 NEWS & ANALYSIS 46 ELR 10681

C O M M E N T

Rethinking Rethinking Health-Based

Environmental Standards and Cost-

Benef‌it Analysis:

A Solution in Search of a Problem?

by Gary S. Guzy

Gary S. Guzy is Senior Of Counsel, Covington & Burling LLP, Washington, DC.

Professors Livermore and Revesz present a seemingly

well-documented call for moving beyond health-

based environmental standards to optimize public

health and environmental protections in their provocative

article. Yet I do not believe that their assessment: (1) ade-

quately reects the degree to which existing health-based

standard setting has worked well in delivering key public

health and environmental protections under the Clean Air

Act; (2) supports their conclusion that the current system is

somehow based on secret considerations that allow costs to

become “a dark and ominous presence that silently inu-

ences the proceedings”1 and thereby skews and weakens

the results; or (3) suciently confronts the challenges that

would occur from supplanting health-based standard set-

ting in favor of cost-benet considerations in instances

where those might lead to more stringent sta ndards. e

proposal, in particular, does not consider how the creation

of new categories of judicial review may impede the very

results they seek and the degree to which it would under-

mine the Environmental Protection Agency’s credibility in

the courts.

e authors’ proposal seeks to upend one of the most

signicant environmental court r ulings of the modern

environmental era, American Trucking Ass’ns v. Whitman,

531 U.S. 457 (2001). In a unanimous decision authored by

Justice Antonin Scalia, the Supreme Court agreed with the

Environmental Protection Agency (EPA) that—in deter-

mining how clean the air must be to be safe to breathe—

those air quality standards should be set, under section 109

of the Clean Air Act, based purely on the scientic evidence

of t he public health eects of pollutants, without regard

to the costs of implementing necessary pollution controls.

e Court also reversed the U.S. Court of Appeals for the

District of Columbia Circuit and agreed with EPA that it

was not unconstitutional for Congress to have delegated

1. Michael A. Livermore & Richard L. Revesz, Rethinking Health-Based Envi-

ronmental Standards, 89 N.Y.U. L. R. 1184, 1253 (2014).

to an expert administrative agency the necessarily compli-

cated and lengthy task of setting those standards.

I. Health-Based Clean Air Standards

Function Well and Serve Important

Ends

One of the fundamental changes wrought by the Clean

Air Act in 1970 was to supplant disparate state standards

with a minimum level of national protection that would be

based upon public health considerations. is assurance of

a basic national right was more than a mere convenience or

tool—it was woven into the fabric of the justication for

that transformation.

Moreover, the Clean Air Act’s basic approach—to set

protective public health standards based on the best avail-

able science, to review this science at regular intervals, to

force the development of new pollution control technolo-

gies to meet tighter standards, and to allow exibility to

nd the most cost-eective reductions—has been proven

right time and time again. It has a llowed for signi cant

protections in a way that has proven to be compatible with

continued economic growth.2

is approach has enjoyed bipartisan support from the

start. It recognizes that EPA will never have t he answer to

every possible scientic question, even when there is more

than enough information to compel action. Legislators

recognized, with this structure, that the science of air pol-

lution would evolve, but they also knew that it was essen-

tial to get on with providing protections to the A merican

public and that it would be natural for standards to evolve

2. See, e.g., e Benets and Costs of the Clean Air Act, 1970 to 1990 (U.S.

Environmental Protection Agency, Oct. 1997), https://www.epa.gov/sites/

production/les/2015-06/documents/contsetc.pdf; e Benets and Costs of

the Clean Air Act From 1990 to 2020, Final Report—Rev. A (U.S. Environ-

mental Protection Agency, Apr. 2011), https://www.epa.gov/sites/produc-

tion/les/2015-07/documents/fullreport_rev_a.pdf.

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