Economic Analysis For The Proposed Section 316b Rule For Phase Iii Facilities

Drawing insight from a diverse array of sources -- including moral philosophy, political theory, cognitive psychology, ecology, and science and technology studies -- Douglas Kysar offers a new theoretical basis for understanding environmental law and policy. He exposes a critical flaw in the dominant policy paradigm of risk assessment and cost-benefit analysis, which asks policymakers to, in essence, "regulate from nowhere." As Kysar shows, such an objectivist stance fails to adequately motivate ethical engagement with the most pressing and challenging aspects of environmental law and policy, which concern how we relate to future generations, foreign nations, and other forms of life. Indeed, world governments struggle to address climate change and other pressing environmental issues in large part because dominant methods of policy analysis obscure the central reasons for acting to ensure environmental sustainability. To compensate for these shortcomings, Kysar first offers a novel defense of the precautionary principle and other commonly misunderstood features of environmental law and policy. He then concludes by advocating a movement toward environmental constitutionalism in which the ability of life to flourish is always regarded as a luxury we "can" afford.

Over the past decades, considerable debate has emerged surrounding the use of cost-benefit analysis (CBA) to analyze and make recommendations for environmental and safety regulations. Critics argue that CBA forces values on unquantifiable factors, that it does not adequately measure benefits across generations, and that it is not adaptable in situations of uncertainty. Proponents, on the other hand, believe that a well-done CBA provides useful, albeit imperfect, information to policymakers precisely because of the standard metrics that are applied across the analysis. Largely absent from the debate have been practical questions about how the use of CBA could be improved. Relying on the assumption that CBA will remain an important component in the regulatory process, this new work from Resources for the Future brings together experts representing both sides of the debate to analyze the use of CBA in three key case studies: the Clean Air Interstate Rule, the Clean Air Mercury Rule, and the Cooling Water Intake Structure Rule (Phase II). Each of the case studies is accompanied by critiques from both an opponent and a proponent of CBA and includes consideration of complementary analyses that could have been employed. The work's editors - two CBA supporters and one critic - conclude the report by offering concrete recommendations for improving the use of CBA, focusing on five areas: technical quality of the analyses, relevance to the agency decision-making process, transparency of the analyses, treatment of new scientific findings, and balance in both the analyses and associated processes, including the treatment of distributional consequences.