Statutory Purpose in the Rollback Wars (original) (raw)
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Ecology Law Quarterly, 2020
Occasionally during his presidency, Trump has suggested that he cares deeply about clean air and water, even as he expresses deep skepticism about climate change. But the specifics of Trump’s deregulatory approach tell a different story. The Trump administration has undertaken a series of regulatory moves to weaken the analytical foundation for clean air and water regulations, thereby seeking to eliminate or undercut precisely those regulations that bring the biggest health benefits. The clean air regulations under the Clean Air Act, which account for the overwhelming majority of all quantified and monetized benefits of all federal regulation, are under particular threat. Four specific analytical moves are particularly troubling: first, shifting focus to costs and ignoring benefits of regulation; second, erasing public health science; third, reviving discredited scientific models; and fourth, eliminating indirect benefits from regulatory impact analysis. Individually, each of these four strategies, if fully enacted, would significantly harm the health and welfare of Americans. Together, they threaten a truly monumental reshaping of environmental and public health protection in the United States. These four moves—manifested in rules currently proposed or already promulgated by the EPA and other agencies—represent a concerted attack on rational economic analysis of regulation that has received little comprehensive academic discussion date. When put together, these disparate deregulatory thrusts paint a picture of a truly monumental assault on rational policymaking.
In the spring of 2007, the U.S. Supreme Court ruled in Massachusetts v. EPA that the U.S. Environmental Protection Agency (EPA) must promulgate automobile tailpipe C02 emission standards under Section 202 of the Clean Air Act (CAA). American environmentalists hailed the Supreme Court's decision as an important victory in the battle to curb global warming. This article argues to the contrary that: 1) a large body of economic work demonstrates that the likely pattern of costs and benefits from climate change in the United States bears no resemblance to the pollution problems that Congress intended to deal with in the Clean Air Act, with moderate climate change predominantly benefiting, rather than harming, the U.S. -- so that that the Clean Air Act cannot reasonably be interpreted to cover greenhouse gas emissions; 2) By effectively forcing the EPA to regulate ghg emissions under a statute that was never intended to cover the very different problem of climate change, the Court has...