In a new regulatory effort, the Trump Administration’s Environmental Protection Agency (EPA) claims to be working to increase consistency and transparency in how it considers costs and benefits in the rulemaking process.
Don’t be fooled.
Under the cover of these anodyne goals, the agency is in fact trying to pursue something far more nefarious. Indeed, what the EPA is actually working to do is formalize a process whereby the decision of whether or not to go ahead with a rule is permanently tilted in industry’s favor. How? By slashing away at what the agency can count as “benefits,” resulting in a full-on broadside to public health.
EPA handcuffs itself to let industry roam free
Though it may seem obscure, the implications of this fiddling are anything but.
That’s because EPA regularly engages in what’s known as “cost-benefit analysis,” or a comparison of the costs of implementing a rule to the benefits that are expected to result. This doesn’t always shape how a standard gets set—for some air pollutants, for example, Congress actually requires the agency to specifically not develop standards based on cost, but rather based on health, to ensure that the public stays sufficiently protected. Other regulations weigh costs at varying levels of import, related to the specifics of the issue at hand.
Still, cost-benefit analysis is widely used, even when it describes rather than informs. The process lends context to rulemaking efforts, though it certainly isn’t perfect: cost-benefit analysis faces challenges, especially in quantifying those impacts that don’t lend themselves well to quantitative reductions. But on either side serious practitioners agree: this new effort by EPA is ill-conceived.
And the consequence of EPA’s proposed manipulations? Well, when the agency next goes to tally up the impacts of a rule, the traditionally towering benefits of its regulations could suddenly be cut way down in size. Not because public health is suddenly fixed, but just because it’s the only way to get the equation to solve in favor of industry time after time.
What’s more, alongside this effort EPA is simultaneously endeavoring to place untenable restrictions on the data and research the agency can consider in its rulemaking process, effectively hamstringing its own ability to fully and adequately evaluate impacts to public health.
Together, the net result would be a regulatory framework aggressively biased in industry’s favor, and a Trump Administration suddenly able to claim that public health protections are just not worth the cost.
To industry, with love
The good news is that this nascent proposal is incredibly hard to defend—on morals, and on merits.
The bad news is that the Trump Administration is highly motivated to do everything it can to find in favor of industry, so it’s still sure to be a fight.
Here, three key points to note:
- Ignoring co-benefits would permanently tilt the scales—and just does not make sense. One of the primary ways EPA is looking to shirk its regulatory responsibilities is by attempting to exclude the consideration of “co-benefits,” or those that arise as a result of a rule but not from the target pollutant itself, during its cost-benefit evaluations. Absurd. Although these indirect benefits—the avoided ER visits, the precluded asthma attacks, the workdays still in play—are just as real as indirect costs, under this proposal only the latter would continue to stay in the ledger.
- Requiring consistency across agency actions goes against EPA’s statutory requirements. The EPA is suggesting that cost-benefit methodologies should be applied uniformly across rulemaking efforts. This not only fails to recognize that not all protections should be evaluated in the same ways, but also that Congress itself outlined differences in how the agency should evaluate proposals depending on specific circumstances. As a result, the agency isn’t even allowed to do what it’s trying to do. And even worse than this nonsense standardization? The fact that the agency is trying to implement the requirement at the level least protective of public health.
- EPA already tried this out, and those efforts were roundly denounced. Prior to this proposal, EPA actually made a preliminary attempt at using a co-benefits-limited approach in its proposed repeal of the Clean Power Plan. There, it attempted to separate out and consider only the benefits that accrued from carbon dioxide emissions reductions, despite the billions of dollars of additional health benefits anticipated to come from indirect benefits of the rule. This action was taken alongside a slew of other discriminatory accounting maneuvers, revealing an agency desperately doing anything it could to deliver for industry, including by tipping the scales.
This regulatory effort was carefully constructed to conceal intentions and motivations, but it’s clear from the agency’s surrounding narrative and parallel policy initiatives that it is being advanced in strict pursuit of an industry-favored finding.
Where to next?
Let’s not forget the mission of the EPA: to protect human health and the environment.
From that frame, it’s hard to see what good this effort would do. It doesn’t bring EPA closer to an objective analytical truth, it doesn’t elevate and further that which is in the public’s interest, and it certainly doesn’t suggest an agency doing everything it can to advance its one core mission.
Instead, what we see is EPA displaying shockingly overt piety to industry over public, and in the process, failing to defend the very thing the agency was created to protect.
We’ve filed comments with EPA to call this rigged process out, and we’ll continue to stand up for the mission of the agency even when EPA lets it slide.
Because this demands a fight.
A fight for an agency that fights for the public, and a fight for a ledger that pulls people and places out of the red, not permanently cements them in it.
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