EPA Considering Fundamentally Altering How Costs and Benefits of Regulations are Determined.
New York, NY - August 14, 2018 - Attorney General Barbara D. Underwood, leading a coalition of 13 Attorneys General and State Agencies, called on the Environmental Protection Agency (EPA) to drop its proposed overhaul of how the Agency values environmental and public health protections. The coalition’s call was made in comments submitted to Acting EPA Administrator Andrew Wheeler on an “advance notice of proposed rulemaking” ostensibly aimed at increasing consistency and transparency in how the Agency addresses benefits and costs in its rulemakings.
The coalition charges that the changes to EPA’s “cost-benefit” analysis contemplated in the notice – which was issued by former EPA Administrator Scott Pruitt – are “unnecessary, ill-conceived, and unworkable.” Coupled with the Trump EPA’s proposed rule to limit the use of scientific evidence in rulemakings, and former Administrator Pruitt’s directive forbidding many of the most qualified experts to sit on EPA science advisory panels, the Attorneys General argue that the Administrator’s notice signals yet another effort by the Trump Administration to undermine EPA’s mission to protect public health and the environment.
“The Trump EPA’s ‘cost-benefit’ proposal is a classic example of a solution in search of a problem,” said Attorney General Underwood. “EPA says its proposal would increase consistency and transparency in its decision making – but there’s absolutely no evidence in the notice that previous EPA’s analyses lacked consistency or transparency. Environmental and health protections have consistently proven their enormous value to New Yorkers and all Americans. The EPA shouldn’t be searching for ways to cook its books to favor polluters over the public.”
Joining Attorney General Underwood in the comments are the Attorneys General of California, Illinois, Iowa, Maryland, Massachusetts, New Jersey, Oregon, Vermont, Washington, and the District of Columbia, as well as Minnesota (by and through its Minnesota Pollution Control Agency) and the Pennsylvania Department of Environmental Protection.
The comments point out that, although the notice expresses a desire to promote increased consistency and transparency in EPA’s consideration of benefits and costs in rulemaking proceedings, nowhere in the notice does EPA identify examples of Agency actions where there was a lack of consistency or transparency. Ample guidance from the federal Office of Management and Budget and EPA itself promotes consistency and transparency in analyzing the benefits and costs of environmental regulations. The notice identifies no instances where EPA has failed to adhere to this guidance.
The comments also fault the notice’s contemplation of a one-size-fits-all approach to imposing new consistency and transparency measures on cost-benefit analyses. A large number of these analyses conducted by EPA are done pursuant to statutory programs – programs governed by the Clean Air Act, Clean Water Act, the Resource Conservation and Recovery Act, the Federal Insecticide, Fungicide and Rodenticide Act, and other statutes – and the possibilities for imposing consistency on these analyses may well be extremely limited. Further, the notice contemplates interpreting certain statutory criteria, such as “reasonableness,” to require use of cost-benefit analysis in regulatory decision making – without providing any statutory basis for such interpretations.
This matter is being handled for Attorney General Underwood by Assistant Attorneys General Mihir Desai and Andrew Frank of the Environmental Protection Bureau, and Chief Economist Dr. Peter A. Malaspina. The Environmental Protection Bureau is led by Bureau Chief Lemuel M. Srolovic and is part of the Division of Social Justice, which is led by Executive Deputy Attorney General for Social Justice Matthew Colangelo.