EPA is seeking public comment on how it should consider costs and benefits in its rulemakings through a recently published advanced notice of proposed rulemaking (ANPRM) entitled Increasing Consistency and Transparency in Considering Costs and Benefits in the Rulemaking Process. Among other things, EPA specifically asks if it should promulgate regulations detailing its cost-benefit approach in setting pollution standards. EPA states that the statutes it implements use terms such as “practicable,” “achievable,” and “feasible” with little guidance as to what meets these standards. EPA asks if there is value in a consistent approach, and if so, should there be uniformity within a particular program, within one statute, or across multiple statutes. EPA also asks about how to weigh “co-benefits” of a rule (a benefit of the rule that is not the purpose of the rulemaking, such as a reduction in a pollutant other than the target pollutant) and how to handle uncertainty.
In the press release accompanying the ANPRM, Administrator Pruitt targeted the Obama Administration’s cost-benefit analyses, stating that “[m]any have complained that the previous administration inflated the benefits and underestimated the costs of its regulations through questionable cost-benefit analysis.” One particular motivator of the ANPRM is apparently EPA’s prior use of co-benefits—for example, reductions in particulate matter by a rule directly targeting mercury—in analyzing the impacts of Clean Air Act rules. EPA says that it is now looking for “ways to codify common-sense, best practices for cost-benefit analysis.”
Comments are currently due by July 13, 2018, and can be submitted in a number of ways, including online.