Beyond cost-benefit analysis: A pragmatic reorientation

Harvard Environmental Law Review

Volumn 32, Issue 2, 2008, Pages 433-502

  Shapiro, Sidney A ^a   Schroeder, Christopher H ^b  

^a WAKE FOREST UNIVERSITY   (United States)

^b DUKE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

COST-BENEFIT ANALYSIS; ENVIRONMENTAL ECONOMICS; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL POLICY; ENVIRONMENTAL PROTECTION; PARADIGM SHIFT; POLICY IMPLEMENTATION;

EID: 50349092537     PISSN: 01478257     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (508)

1. James Farr et al., The Policy Scientist of Democracy: The Discipline of Harold D. Lasswell, 100 AM. POL. SCI. REV. 579, 582 (2006) ("[T]he policy scientist was (to be) a practitioner of a kind of science that took the lawyer's or doctor's practice as its model, putting the methods and findings of a general science to work in solving real-world problems.").
2. FRANK FISCHER, REFRAMING PUBLIC POLICY 3 (2003);
3. see also Douglas Torgerson, Contextual Orientation in Policy Analysis: The Contribution of Harold D. Lasswell, 18 POL'Y SCI. 241, 251 (1985).
4. E.g., Harold D. Lasswell, The Policy Orientation, in THE POLICY SCIENCES 3, 10 (Daniel Lerner & Harold D. Lasswell eds., 1951) (internal quotation marks omitted). Lasswell apparently referred to the new field using the plural "policy sciences" to highlight the interdisciplinary nature of his proposal.
5. Torgerson, supra note 2, at 242 n.4.
6. Lasswell's own work is admittedly not easy to follow, given his penchant for continually repackaging his concepts inside ever changing neologisms, and for their lack of clarity on several key points. See Farr et al., supra note 1, at 583. Still, the failure to follow Lasswell's ideas is traceable to many more significant factors than his obscurantism - or so we argue here.
7. William Ascher, Editorial, Policy Sciences and the Economic Approach in a "Post-Positivist" Era, 20 POL'Y SCI. 3, 4 (1987).
8. See infra note 246 and accompanying text.
9. See EDWARD A. PURCELL, JR., THE CRISIS OF DEMOCRATIC THEORY 6-12 (1973);
10. see also RICHARD HOFSTADTER, THE AGE OF REFORM 148-62 (1955).
11. Progressives assumed that "once the society knew, really knew, the facts and figures of social disorganization, corrective action would inevitably follow" as enlightened citizens "[rose] up to demand and ensure action." Carol H. Weiss, Ideology, Interests, and Information: The Basis of Policy Positions, in ETHICS, THE SOCIAL SCIENCES AND POLICY ANALYSIS 213, 214 (Daniel Callahan & Bruce Jennings eds., 1983).
12. Id. at 215.
13. But see infra Part II.D (discussing the demise of the assumption that science could trump political concerns).
14. See Barry D. Karl, Presidential Planning and Social Science Research: Mr. Hoover's Experts, in III PERSPECTIVES IN AMERICAN HISTORY 347, 350 (Donald Fleming & Bernard Bailyn eds., 1969).
15. Id. at 408.
16. ELLIOT A. ROSEN, HOOVER, ROOSEVELT, AND THE BRAINS TRUST 329-61 (1977).
17. PETER DELEON, ADVICE AND CONSENT: THE DEVELOPMENT OF THE POLICY SCIENCES 57 (1988);
18. see also ANNE LARASON SCHNEIDER & HELEN INGRAM, POLICY DESIGN FOR DEMOCRACY 29-30 (1997).
19. See HAROLD LASSWELL, A PRE-VIEW OF POLICY SCIENCES xiii, 4 (1971);
20. YEHEZKEL DROR, DESIGN FOR POLICY SCIENCES 51 (1971).
21. Lasswell argued that a new field was necessary because traditional disciplines did not pay sufficient attention to "the fundamental problems of man in society." Lasswell, supra note 3, at 8.
22. DELEON, supra note 13, at 29 (Lasswell and others were interested in both "knowledge of and in the policy process").
23. Id. at 8.
24. Lasswell, supra note 3, at 14.
25. See supra notes 2-3 and accompanying text; see also LASSWELL, supra note 14, at 3-4.
26. According to Dror, "The main test of policy science is better policy making, which produces better policies; these, in turn, are defined as policies which provide increased achievement of goals that are preferred after careful consideration." DROR, supra note 14, at 51.
27. PETER DELEON, DEMOCRACY AND THE POLICY SCIENCES 7 (1997).
28. See, e.g., Exec. Order No. 12,291, 46 Fed. Reg. 13,193 (Feb. 17, 1981). The current order is Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Sept. 30, 1993), as amended by Exec. Order No. 13,258, 67 Fed. Reg. 9385 (Feb. 26, 2002) and Exec. Order No. 13,422, 72 Fed. Reg. 2763 (Jan. 18, 2007).
29. See THOMAS O. MCGARITY, REINVENTING RATIONALITY: THE ROLE OF REGULATORY ANALYSIS IN THE FEDERAL BUREAUCRACY 6 (1991) (discussing the role of "program offices" in the context of rulemaking).
30. See DELEON, supra note 19, at 98 ("The 'day to day' policy sciences (especially under the rubric of policy analysis) have ... adopted an expertise, whatever the discipline, based on positivism, 'instrumental rationality,' ... and technocracy.").
31. Max Neiman & Stephen J. Stambough, Rational Choice Theory and the Evaluation of Public Policy, 26 POL. STUDIES J. 449, 450 (1998).
32. PURCELL, supra note 7, at 15.
33. Systems analysts and operations researchers did some of the first work and they were followed by analysts trained as economists. DELEON , supra note 13, at 23-24.
34. See FISCHER, supra note 2, at 118.
35. Id. at 119 (noting importance of neutrality and objectivity in logical empiricism);
36. GIANDOMENICO MAJONE, EVIDENCE, ARGUMENT AND PERSUASION IN THE POLICY PROCESS 34-35 (1989) (same).
37. PURCELL, supra note 7, at 22 ("A fact existed and could be observed, and it was the social scientist's function to separate the verifiable, objective facts from the confused and subjectively colored interpretations that men habitually gave them.").
38. Id. at 35.
39. Id.
40. DAVID C. PARIS & JAMES F. REYNOLDS, THE LOGIC OF POLICY INQUIRY 22 (1983).
41. PURCELL, supra note 7, at 25-28.
42. Id.
43. Id.
44. Id.
45. Id. at 25 ("striking use of propaganda during the war brought psychologists, political scientists, and sociologists to a new emphasis on human irrationality and the manipulative procedures employed by dominant social groups");
46. SCHNEIDER & INGRAM, supra note 13, at 30 (discussing Popper).
47. Theodore H. White, The Action Intellectuals, LIFE, June 16, 1967, at 43;
48. see also FISCHER, supra note 2, at 6 (the policy community became "professionally consumed" devising new programs for President Johnson's Great Society).
49. FISCHER, supra note 2, at 7.
50. Weiss, supra note 8, at 216 (evaluations indicated only "fitful success in solving social problems");
51. see also FISCHER, supra note 2, at 7 ("there was far less to show for these programs than the Johnson administration and its supporters had promised").
52. JEFFREY L. PRESSMAN & AARON B. WILDAVKSY, IMPLEMENTATION (1973) (demonstrating how policy implementation remains intertwined with the political process after a law is enacted and how the political process can distort the original policy goals of the legislation).
53. Giandomenico Majone & Aaron Wildavsky, Implementation as Evolution, in IMPLEMENTATION (Jeffrey Pressman & Aaron Wildavsky eds., 1984) (proposing that the content of policy evolves as interest groups seek to influence the outcome and that the outcome is influenced by negotiations between interested parties).
54. FISCHER, supra note 2, at 9.
55. "The defense community was at the forefront of the development of analytical techniques for guiding management and policy" dating back to statistical analysis of bombing by the Air Force in World War II. Id.
56. Id.
57. DAVID HALBERSTAM, THE BEST AND THE BRIGHTEST (1972) (documenting how prointerventionist officials pushed faulty analyses and suppressed assessments that contradicted these assessments);
58. NEIL SHEEHAN, A BRIGHT SHINING LIE: JOHN PAUL VANN AND AMERICA IN VIETNAM (1988) (illustrating the self-deceiving illusions of the American military and civilian bureaucracy).
59. FISCHER, supra note 2, at 10.
60. DELEON, supra note 13, at 70.
61. See Michael Thompson, Among the Energy Tribes: A Cultural Framework for the Analysis and Design of Energy Policy, 17 POL'Y SCI. 321, 321 (1984).
62. When we refer to political assumptions, we mean this in the broad sense employed by Thompson, who describes energy experts as disagreeing because they embrace "alternative assumptions about the nature of the world, about the nature of man, and about the nature of the relationship between man and the world," all of which are "socially constructed." Id. at 328.
63. Alternative assumptions may map onto partisan political distinctions such as between Republicans and Democrats, but that is not a subject we explore here. Policies toward risk - a primary concern in crafting environmental, health and safety rules - exhibit similar sets of alternative assumptions. Indeed, it was in thinking about risk policy that Thompson and others first developed the hypothesis that "political culture" shapes how any individual approaches a policy question. See Michael Thompson & Aaron Wildavsky, A Proposal to Create a Cultural Theory of Risk, in THE RISK ANALYSIS CONTROVERSY: AN INSTITUTIONAL PERSPECTIVE 146 (Howard C. Kunreuther & Eryl V. Ley eds., 1982).
64. FISCHER, supra note 2, at 10;
65. see, e.g., Martin Rein, Value-Critical Policy Analysis, in ETHICS, THE SOCIAL SCIENCES AND POLICY ANALYSIS, supra note 8, at 83.
66. A similar reassessment occurred in political science. See, e.g., IAN SHAPIRO, THE FLIGHT FROM REALITY IN THE HUMAN SCIENCES (2005);
67. DONALD R. GREEN & IAN SHAPIRO, PATHOLOGIES OF RATIONAL CHOICE: A CRITIQUE OF APPLICATIONS IN POLITICAL SCIENCE (1994);
68. JANE J. MANSBRIDGE, BEYOND SELF-INTEREST (1990);
69. STEPHEN KELMAN, MAKING PUBLIC POLICY: A HOPEFUL VIEW OF AMERICAN GOVERNMENT (1987);
70. JON ELSTER, RATIONAL CHOICE (1986);
71. Lawrence A. Schaff & Helen M. Ingram, Politics, Policy, and Public Choice: A Critique and a Proposal, 19 POLITY 613 (1986).
72. Donald Green and Ian Shapiro, for example, have found that public choice analyses using empirical analysis, economic assumptions and rational choice methodologies have been largely unable to explain key political events. GREEN & SHAPIRO, supra, at 6.
73. For example, the theory predicts that, rationally, no one will vote because it is so improbable that any one person's vote will decide an election. Since the costs of voting outweigh the extremely negligible benefits, a rational person will stay at home. The reality, however, is that millions of persons do vote. Id. at 50-52.
74. Shapiro therefore calls for a political science discipline that employs diverse methodologies, such as history and psychology, as well as economic theory, to build explanations that fit the facts on the ground. Shapiro and other like-minded scholars have joined the "Perestroika" movement in political science to object to the hegemonic role that rational choice methodologies have taken on in research, publication and teaching. The movement seeks greater plurality in the field. See Catarina Kinnvall, Not Here, Not Now: The Absence of a European Perestroika Movement, in PERESTROIKA: THE RAUCOUS REBELLION IN POLITICAL SCIENCE 21 (Kristen Renwick Monroe ed., 2005) (describing the movement).
75. THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (1970);
76. see also MICHAEL POLANYI, PERSONAL KNOWLEDGE (1958).
77. FISCHER, supra note 2, at 124.
78. Id.
79. Id.;
80. see LARRY LAUDAN, SCIENCE & RELATIVISM: SOME KEY CONTROVERSIES IN THE POLICY OF SCIENCE 64-65 (1990) (describing the post-empiricist realist position).
81. See LAUDAN, supra note 52, at 67.
82. DEBORAH STONE, POLICY PARADOX: THE ART OF POLITICAL DECISIONMAKING 9 (1997).
83. Post-empiricists argue there is also a deeper ideological problem: the belief that science is nonideological and neutral is profoundly ideological and political. Robert Bellah explains, "I believe it is not fortuitous that so many of the 'useful' technologies, practices, and concepts ... turn out to be manipulative instruments in the hands of political and economic power. It is precisely a science that imagines itself uninvolved in society, that sees itself as operating under no ethical norm other than the pursuit of knowledge, that will produce instruments of manipulation for anyone who can afford to put them into practice." Robert A. Bellah, Social Science as Practical Reason, in ETHICS, THE SOCIAL SCIENCES AND POLICY ANALYSIS, supra note 8 at 37, 41.
84. See infra note 210 and accompanying text.
85. STONE, supra note 54, at 10.
86. Id. at 12.
87. FISCHER, supra note 2, at 131.
88. See Marie Danziger, Policy Analysis Postmodernized: Some Political and Pedagogical Ramifications, 23 POL'Y STUD. J. 435, 445-47 (1995).
89. FISCHER, supra note 2, at 130-31.
90. Steven J. Burton, Law As Practical Reason, 62 S. CAL. L. REV. 747, 747 (1989) (defining "practical reason" as individuals' capacity to take intentional actions based on reasons for action which are linked to social norms);
91. see also Bellah, supra note 55, at 54-64 (explaining practical reason);
92. SCHNEIDER & INGRAM, supra note 13, at 57-58 (same). For additional discussion of "practical reason," see infra notes 231-238 and accompanying text.
93. Frank Fischer, Beyond Empiricism: Policy Analysis as Deliberative Practice, in DELIBERATIVE POLICY ANALYSIS: UNDERSTANDING GOVERNMENTS IN THE NETWORK SOCIETY 209, 218 (Maarten Hajer & Hendrik Wagenaar eds., 2003).
94. Id.
95. Id. Fischer explains: Through the processes of deliberation and debate, a consensus emerges among particular researchers concerning what will be taken as a valid explanation .... [I]t is the practical judgment of the community of researchers and not the data themselves that establishes the accepted explanation. Such practical judgments, rather than supposed reliance on proof unto itself, provides the mechanism for not only identifying the incompetent charlatan, but investigating the more subtle errors in our sophisticated approximations of reality.
96. Id. at 220-21.
97. See SCHNEIDER & INGRAM, supra note 13, at 52 (listing examples).
98. See, e.g., MICHAEL M. HARMON, PUBLIC ADMINISTRATION'S FINAL EXAM: A PRAGMATIST RESTRUCTURING OF THE PROFESSION AND THE DISCIPLINE (2006);
99. JOHN FORESTER, CRITICAL THEORY, PUBLIC POLICY AND PLANNING PRACTICE: TOWARD A CRITICAL PRAGMATISM (1993);
100. CRITICAL THEORY AND PUBLIC LIFE (John Forester ed., 1985);
101. ROBERT P. DENHARDT, THEORIES OF PUBLIC ORGANIZATION (1984).
102. See, e.g., JOHN S. DRYZEK, RATIONAL ECOLOGY: ENVIRONMENT AND POLITICAL ECONOMY (1987).
103. See, e.g., STONE, supra note 54;
104. JOHN GAVENTA, POWER AND POWERLESSNESS (1980).
105. See, e.g., FISCHER, supra note 2;
106. DELEON, supra note 13;
107. SCHNEIDER & INGRAM, supra note 13;
108. MAJONE, supra note 27;
109. Weiss, supra note 8;
110. Fischer, supra note 63;
111. HUGH T. MILLER, POSTMODERN PUBLIC POLICY (2002);
112. WILLIAM DUNN, PUBLIC POLICY ANALYSIS: AN INTRODUCTION (1981);
113. THE ARGUMENTATIVE TURN IN POLICY ANALYSIS (Frank Fischer & John Forester eds., 1993);
114. M.E. HAWKESWORTH, THEORETICAL ISSUES IN POLICY ANALYSIS (1988);
115. DAVIS B. BOBROW & JOHN S. DRYZEK, POLICY ANALYSIS BY DESIGN (1987).
116. JOHN DRYZEK, DEMOCRACY IN CAPITALIST TIMES (1996);
117. JOHN DRYZEK, DISCURSIVE DEMOCRACY (1990).
118. DELEON, supra note 19, at 111-14.
119. See, e.g., Torgerson, supra note 2, at 242-43.
120. One of the primary defenses of CBA against its critics is the charge that any other way of approaching policy problems is irrational, subjective, or subject to the "vagaries" of politics. We defend our pragmatic approach against charges of irrationality below. See infra Part IV.A.
121. The Nixon, Ford, and Carter Administrations mandated a regulatory analysis process that was less comprehensive than the current process and involved an interagency review of an agency's analysis. President Ford required the use of CBA, but President Carter did not. See MCGARITY, supra note 21, at 18 (Nixon and Ford administration); Exec. Order No. 12,044, 43 Fed. Reg. 12,661 (Mar. 23, 1978) (Carter Administration).
122. President Reagan ordered agencies to prepare a comprehensive RIA, to use CBA, and to submit the RIA to OIRA for oversight. Exec. Order No. 12,291, 46 Fed. Reg. 13,193 (Feb. 17, 1981).
123. The first Bush Administration left the Reagan approach largely intact. MCGARITY, supra note 21, at 18.
124. President Clinton adopted a similar process, and, unlike President Carter, mandated the use of CBA. Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Sept. 30, 1993).
125. President Bush initially adopted the Clinton order without significant changes, although he later extended the requirement of assessing costs and benefits to significant agency guidance documents. Exec. Order No. 13,422, 72 Fed. Reg. 2763 (Jan. 18, 2007).
126. John Forester, Bounded Rationality and the Politics of Muddling Through, PUB. ADMIN. REV., Jan./Feb. 1984, at 23, 26.
127. MCGARITY, supra note 21, at 10-11;
128. Colin S. Diver, Policymaking Paradigms in Administrative Law, 95 HARV. L. REV. 393, 396-99 (1981).
129. MCGARITY, supra note 21, at 6.
130. Id. at 7.
131. Exec. Order No. 12,866, 58 Fed. Reg. 51,735-36, (Sept. 30, 1993).
132. MCGARITY, supra note 21, at xiv.
133. John F. Morrall III, A Review of the Record, 10 REGULATION 25 (1986).
134. Robert W. Hahn, Regulatory Reform: What Do the Government's Numbers Tell Us?, in RISKS, COSTS, AND LIVES SAVED: GETTING BETTER RESULTS FROM REGULATION 208, 239 (Robert W. Hahn ed., 1996).
135. Tammy O. Tengs & John D. Graham, The Opportunity Costs of Haphazard Social Investments in Life-Saving, in RISKS, COSTS, AND LIVES SAVED: GETTING BETTER RESULTS FROM REGULATION, supra note 83, at 167, 177-78.
136. Lisa Heinzerling, Regulatory Costs of Mythic Proportions, 107 YALE L.J. 1981, 1994-95 (1998) (documenting citations of Morrall).
137. See, e.g., ROBERT W. CRANDALL, CHRISOPHER DEMUTH, ROBERT H. HAHN, ROBERT E. LITAN, PIETRO S. NIVOLA, & PAUL R. PORTNOY, AN AGENDA FOR FEDERAL REGULATORY REFORM (1997).
138. See Frank Ackerman, The Unbearable Lightness of Regulatory Costs, 33 FORDHAM URB. L.J. 1071, 1075 (2006) (discussing claim of "statistical murder" by Graham and others).
139. Flood Control Act of 1936, 49 Stat. 1570;
140. see RICHARD N. L. ANDREWS, MANAGING THE ENVIRONMENT, MANAGING OURSELVES: A HISTORY OF AMERICAN ENVIRONMENTAL POLICY 166 (2006);
141. see also THEODORE PORTER, TRUST IN NUMBERS 148-61 (1995).
142. Whether the 1936 Act's cost-benefit requirement accomplished its goal is debatable. See infra note 155 and accompanying text.
143. See, e.g., Christopher C. DeMuth & Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 HARV. L. REV. 1075, 1080 (1986) ("regulation tends to be excessively cautious (forcing investments in risk reduction far in excess of the value that individuals place on avoiding the risks involved)").
144. See Mathew D. Adler & Eric A. Posner, Rethinking Cost-Benefit Analysis, 109 YALE L.J. 165, 170 (1999) (describing this change as a breakthrough). Pareto proposed as a principle of evaluation that a project should be undertaken if it makes at least one person better off and no one worse off. This criterion is difficult to satisfy because almost every government project has winners and losers and compensating the losers is usually not feasible. Kaldor and Hicks proposed that a project should be undertaken if the beneficiaries are enriched sufficiently that they could compensate those who are hurt by the project even though no compensation is actually paid.
145. See Amy Sinden, In Defense of Absolutes: Combating the Politics of Power in Environmental Law, 90 IOWA L. REV. 1405, 1413-16 (2005) (describing this theoretical switch).
146. E.J. MISHAN, COST-BENEFIT ANALYSIS 298-309 (1976);
147. see infra note 132 and accompanying text (discussing the use of WTP in regulatory impact analysis).
148. STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION (1993);
149. Cass R. Sunstein, Cognition and Cost-Benefit Analysis, 29 J. LEGAL STUD. 1059 (2000).
150. See Christopher H. Schroeder, The Story of American Trucking: The Blockbuster That Misfired, in ENVIRONMENTAL LAW STORIES 321, 331-40 (2005) (explaining how economic efficiency provided the framework for business interests seeking deregulation);
151. Sidney A. Shapiro, Administrative Law After the Counter-Reformation: Restoring Faith in Pragmatic Government, 48 KAN. L. REV. 689, 697-706 (2000) (same).
152. MCGARITY, supra note 21, at 4.
153. Exec. Order No. 12,291, 46 Fed. Reg. 13,193, 13,196 (Feb. 17, 1981).
154. See David M. Driesen, Is Cost-Benefit Neutral?, 77 COLORADO L. REV. 335, 355 (2006) (citing case studies reaching this conclusion).
155. See, e.g., Richard D. Morgenstern & Marc K. Landy, Economic Analysis: Benefits, Costs, and Implications, in ECONOMIC ANALYSIS AT EPA 458 (Richard D. Morgenstern ed., 1997).
156. Driesen, supra note 97, at 354-64 (disputing claims that OIRA seeks stronger regulation).
157. Driesen looked at twenty-five rules that a GAO study found had been significantly affected by OMB between June 2001 and July 2002. In twenty-four of the twenty-five rules, OMB's recommended changes would have reduced regulatory protections, while the remaining case was neutral. Id. at 365.
158. Bressman and Vandenbergh studied the impact of OMB review by interviewing top political officials at EPA during the first Bush and Clinton administrations. Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 MICH. L. REV. 47, 49 (2006).
159. They found that OIRA "regularly skews rulemaking in a deregulatory direction," id. at 50,
160. and concluded that OIRA "may be using cost-benefit analysis to impose its own normative preference for deregulation." Id. at 75.
161. Croley found that politically controversial rules are usually changed in the White House review process, which he thinks contradicts the claim that OMB review is purely technocratic. Steven Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U. CHI. L. REV. 821, 877 (2003) ("If OIRA review is indeed primarily technocratic, then political controversy should not be the dominant engine prompting changes in submitted rules."). On the other hand, he found no statistical correlation between whether a rule was changed or approved by OIRA without change and written submissions by various types of interest groups. He also found that the type of interest group that attended a meeting with OIRA officials did not predict whether OIRA would change the rule or accept it as is. Croley suggests these results create doubt that the White House regularly uses the review process to deliver benefits to powerful interests. Id. at 858-60.
162. See, e.g., Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260 (2006) ("OIRA's denials notwithstanding, there is substantial evidence that emphasizing the cost side of the cost-benefit ledger remains a pervasive and entrenched feature of OIRA review.");
163. Lisa Heinzerling, Statutory Interpretation in the Era of OIRA, 33 FORDHAM URB. L.J. 1097, 1100 (2006) (describing "unidirectional nature" of OIRA review).
164. Supporters justify White House review on the basis of public choice theory, which predicts that self-interested administrators will seek to maximize the significance of their agency and the size of its budget. DENNIS C. MUELLER, PUBLIC CHOICE II 250-57 (1989).
165. This means an agency charged with the responsibility of protecting people or the environment will inevitably attempt to spend too much on its goals. See, e.g., DeMuth & Ginsberg, supra note 90, at 1081.
166. White House review by an office with no program responsibilities and answerable to the President responds to this tendency because the office is more likely than any agency to take a broad viewpoint of the value of a proposed regulation. Id. at 1081-82.
167. See Heinzerling, supra note 85, at 1983-86 (analyzing Morrall);
168. Richard W. Parker, Grading the Government, 70 U. CHI. L. REV. 1345 (2003) (analyzing Hahn);
169. Lisa Heinzerling, Five-Hundred Life-Saving Interventions and Their Misuse in the Debate Over Regulatory Reform, 13 RISK 151 (2002) (analyzing Graham);
170. see also SIDNEY A. SHAPIRO & ROBERT L. GLICKSMAN, RISK REGULATION AT RISK: RESTORING A PRAGMATIC APPROACH 80-91 (2003) (summarizing Heinzerling's critiques of Morrall and Graham and offering additional criticism).
171. Bagley & Revesz, supra note 103, at 1262.
172. Id. at 1284-87.
173. See Parker, supra note 105, at 1417 ("Retrospective studies, though difficult, are indispensable tools for capturing the impact of waivers, variances, and other uses of official discretion; detecting errant predictions of costs and benefits; identifying important sources of estimation error; calibrating ex ante estimates; and, most of all, identifying needed changes to rules.").
174. See Thomas O. McGarity & Ruth Ruttenberg, Counting the Cost of Health, Safety, and Environmental Regulation, 80 TEX. L. REV. 1997, 2039 (2002) (explaining why retrospective studies are difficult).
175. For an RIA, agencies normally have to rely on regulated entities for estimates of regulatory costs, and these entities have an incentive to overstate compliance costs. SHAPIRO & GLICKSMAN, supra note 105, at 106.
176. Estimates of regulatory compliance costs costs may also be too high because forecasters fail to anticipate competitive pressures that will cause firms to find less expensive methods of compliance and because there can be less compliance with a regulation than an agency estimates, Id. at 108.
177. Although there is limited retrospective evidence, what evidence exists indicates that estimates of regulatory costs range from too high to much too high. Id. at 106-07 (describing the studies and their findings that costs are overestimated);
178. FRANK ACKERMAN & LISA HEINZERLING, PRICELESS: ON KNOWING THE PRICE OF EVERYTHING AND THE VALUE OF NOTHING 37-39 (2004) (same);
179. McGarity & Ruttenberg, supra note 109, at 2042-44 (same).
180. The imprecision of CBA also permits the White House to object to any regulation it finds politically objectionable.
181. See supra note 110 and accompanying text;
182. Thomas O. McGarity, Professor Sunstein's Fuzzy Math, 90 GEO. L.J. 2341, 2344 (2002).
183. See SHAPIRO & GLICKSMAN, supra note 105, at 94-95;
184. Sinden, supra note 91, at 1425;
185. Douglas A. Kysar, It Might Have Been: Risk Precaution and Opportunity Costs, 22 J. LAND USE & ENVTL. L. 1, 15 (2006);
186. McGarity, supra note 112, at 2344.
187. SHAPIRO & GLICKSMAN, supra note 105, at 94, Most risk assessments are subject to uncertainty, but the degree of uncertainty varies. The evaluation of safety risks, for example, may be more accurate than the evaluation of cancer risks because there is better evidence about cause and relationships between risk and injuries and about the size of the exposed population. Id.
188. Cass R. Sunstein, The Arithmetic of Arsenic, 90 GEO. L.J. 2255, 2258 (2002).
189. Id. at 2302.
190. Holly Doremus, Of Salmon, the Sound, and the Shifting Sands of Environmental Law - A National Perspective, 82 WASH. L. REV. 547, 564 (2007);
191. see also McGarity, supra note 112, at 2366 ("At the end of the day, one is left with a pressing need to know why a person of Professor Sunstein's obvious intelligence and even disposition would conclude that all of this occasionally incomprehensible, but frequently preposterous and always manipulable number spinning, could possibly lead to better decisionmaking in the real world.").
192. Two such analyses are "Delphi" and "Monte Carlo." When analysts use Delphi analysis, they gather subjective assessments of unknown risks from a survey of experts in the relevant field. The goal is to use Bayesian probability theory to find a point of convergence among the responses, thereby generating a basis for calculating expected outcomes. David E. Adelman, Scientific Activism and Restraint: The Interplay of Statistics, Judgment, and Procedure in Environmental Law, 79 NOTRE DAME L. REV. 497, 567-82 (2004).
193. Although the expert responses are subjective, the assumption is that objective results independent of the original estimates will be produced as more data are collected. Id. at 573.
194. The technique, however, has limited power to harmonize divergent opinions about human and environmental risks, which magnifies the significance of an expert's starting distribution. As a result, "[s]cientists' subjectively derived prior distributions are ... bound to influence greatly, if not determine, the outcome of Bayesian assessments in fields like environmental science where data are often very limited." Id. at 577.
195. Monte Carlo analysis generates hypothetical distributions of unknown probabilities. These techniques study the effects of policy proposals under thousands of different states of the world with the goal of locating policy prescriptions that predominate over a wide range of possible conditions. See Susan R. Poulter, Monte Carlo Procedures in Environmental Risk Assessment - Science, Policy and Legal Issues, 9 RISK 7 (1998) (describing and explaining these simulations). As Douglas Kysar notes, however, these "techniques depend ... on the specification of certain assumptions about the theoretical nature of unknown probabilities .... When applied to systems that behave, instead, according to the laws of complexity, such assumptions can lead to dramatically erroneous policy advice, despite the great technological sophistication of the Monte Carlo procedure."
196. Kysar, supra note 113, at 20.
197. ACKERMAN & HEINZERLING, supra note 110, at 207.
198. Id.
199. SHAPIRO & GLICKSMAN, supra note 105, at 98.
200. THOMAS O. MCGARITY & SIDNEY A. SHAPIRO, WORKERS AT RISK: THE FAILED PROMISE OF THE OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION 271 (1993).
201. See SHAPIRO & GLICKSMAN, supra note 105, at 99-100 (discussing that workers lack sufficiently accurate information about risks to bargain for appropriate risk premiums, and many workers, especially minority workers, lack sufficient bargaining power to obtain fully compensating risk premiums or even any premiums at all);
202. ACKERMAN & HEINZERLING, supra note 110, at 77-78 (same);
203. see also Kysar, supra note 113, at 30-31 ("Thus, what the CBA analyst regards as choice (and hence preference ... ), may actually capture in part the analyst's inclination to treat pre-existing power relations in employment markets as normatively privileged,").
204. See W. Kip Viscusi & Joseph E. Aldy, The Value of a Statistical Life: A Critical Review of Market Estimates Throughout the World, 27 J. RISK & UNCERTAINTY 5, 22 (2003) ("most hedonic labor market studies focus on the risk of accidental death or accidental injury").
205. SHAPIRO & GLICKSMAN, supra note 105, at 102.
206. See, e.g., George Tolley, Donald Kenkel & Robert Fabian, State-of-the-Art Health Values, in VALUING HEALTH FOR POLICY: AN ECONOMIC APPROACH 323, 340-41 (George Tolley et al. eds., 1994);
207. see also Ian Savage, An Empirical Investigation into the Effect of Psychological Perceptions on the Willingness-to-Pay to Reduce Risk, 6 J. RISK & UNCERTAINTY 75, 85 (1993).
208. Richard L. Revesz, Environmental Regulation, Cost-Benefit Analysis and the Discounting of Human Lives, 99 COLUM. L. REV. 941, 971 (1999). Analysts have sought to overcome contextual problems by the use of contingent evaluation, but this methodology also lacks accuracy.
209. See infra notes 135-137 and accompanying text.
210. ACKERMAN & HEINZERLING, supra note 110, at 78.
211. Id. at 78-79.
212. SHAPIRO & GLICKSMAN, supra note 105, at 59;
213. Sinden, supra note 91, at 1424-25.
214. See Karine Nyborg, Homo Economicus and Homo Politicus: Interpretation and Aggregation of Environmental Values, 42 J. ECON. BEHAV. & ORG. 305, 306 (2000).
215. As noted, analysts rely on wage premiums to estimate the amount that individuals are willing to pay to prevent a premature death. See supra note 121 and accompanying text.
216. When a worker moves to a safer job, he or she gives up the wage premium. This indicates that the person is "willing to pay" in terms of foregone compensation the amount of the wage premium to avoid the risk. SHAPIRO & GLICKSMAN, supra note 105, at 98.
217. Id. at 97-98;
218. Sinden, supra note 91, at 1426-27.
219. Moreover, as discussed in the next section, economics lacks any neutral principle to justify the use of WTP to monetize regulatory benefits. See infra note 146 and accompanying text.
220. See, e.g., Bernie J. O'Brien et al., Is There a Kink in Consumers' Threshold Value for Cost-Effectiveness in Health Care?, 11 HEALTH ECON. 175 (2002). The two measures might also differ if the value of the asset an individual was being asked to purchase or sell was sufficiently large to generate a wealth effect. The magnitude of the observed discrepancy between the measures in experimental situations is, however, too large to be explained by wealth effects.
221. SHAPIRO & GLICKSMAN, supra note 105, at 104.
222. For example, while there is market evidence of how much money people spend to visit the Grand Canyon, which is some evidence of its "use" value, this approach fails to account for the fact that many people value protection of the Grand Canyon even though they have no plans to visit the area, which is its nonuse" or "existence" value. Id.
223. See id. at 104 (describing the problems with contingent evaluation);
224. Sinden, supra note 91, at 1429-30 (same).
225. This problem is not avoided by asking questions of a representative pool of persons who have different amounts of wealth. If regulatory benefits were measured by WTS, rather than WTP, the regulatory benefits would be greater. See supra note 133 and accompanying text.
226. See, e.g., STEVEN E. RHODES, THE ECONOMIST'S VIEW OF THE WORLD: GOVERNMENT, MARKETS & PUBLIC POLICY 135 (1985) (noting that a "fairly wide variation in results is still precise enough to suggest skepticism about the OSHA standards costing tens or hundreds of millions of dollars per death averted ...").
227. See supra note 105 and accompanying text.
228. Cass Sunstein, In Praise of Numbers: A Reply, 90 GEO. L.J. 2379, 2384 (2002).
229. CBA critics note that this means CBA fails its own test since the benefits of CBA do not justify the considerable costs. See, e.g., Robert Verchick, The Case Against Cost-Benefit Analysis, 32 ECOLOGY L.Q. 349, 369-77 (2005)
230. (reviewing ACKERMAN & HEINZERLING, supra note 110).
231. See, e.g., ACKERMAN & HEINZERLING, supra note 110, at 218 ("Washington think tanks render precise, hostile, quantitative judgments which ... guarantee that environmental policies and regulations will fail cost-benefit tests.").
232. Alvin Weinberg, Science or Trans-Science, 10 MINERVA 209 (1972).
233. See SHAPIRO & GLICKSMAN, supra note 105, at 113-15 (describing and explaining the divergent approaches to discount rates).
234. See supra note 92 and accompanying text.
235. See supra note 134 and accompanying text.
236. Weinberg, supra note 143.
237. See Catherine A. O'Neill, Alternative Approaches to Regulatory Impact Analysis: Clean Air Mercury Rule (Jan. 31, 2008 draft), in ALTERNATIVES TO REGULATORY IMPACT ANALYSIS (Lisa Heinzerling et al. eds.), at Part II (forthcoming) (tentatively titled) (reviewing different cost-benefit studies of regulating mercury emissions from coal-fired power plants and discussing how different inferential bridges change the net benefits by orders of magnitude) (on file with the Harvard Environmental Law Review).
238. Sunstein, supra note 115, at 2290.
239. Hahn, supra note 83, at 218.
240. Parker, supra note 105, at 1382-83.
241. He also assigned a zero-value to benefits that were quantified and monetized if they did not fall into a select category of benefits that he included within his study. Id.
242. Robert W. Hahn, The Economic Analysis of Regulation: A Response to the Critics, 71 U. CHI. L. REV. 1021 (2004).
243. William F. Pederson, Regulation and Information Disclosure: Parallel Universes and Beyond, 25 HARV. ENVTL. L. REV. 151, 202-03 (2001).
244. Cf. Lawrence Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 HARV. L. REV. 1329, 1362 (1971) ("Readily quantifiable factors are easier to process - and hence more likely to be recognized and then reflected in the outcome - than are factors that resist ready quantification.").
245. See supra notes 156-57 and accompanying text.
246. See supra Part II.E.
247. See supra note 54 and accompanying text.
248. See, e.g., Thomas O. McGarity, A Cost-Benefit State, 50 ADMIN. L. REV. 7, 72-73 (1998).
249. See Christopher H. Schroeder, Rights Against Risk, 86 COLUM. L. REV. 495, 508 (1986).
250. As Lisa Heinzerling explains, "[d]eciding to allow one person to harm, even kill, another person on the basis of how much it costs the person doing the harm to refrain from doing it denies the person harmed a right against harm. It makes the person's freedom from harm, indeed her life, contingent upon the financial profile of the life-threatening activity." Lisa Heinzerling, The Rights of Statistical People, 24 HARV. ENVTL. L. REV. 189, 189 (2000).
251. See SHAPIRO & GLICKSMAN, supra note 105, at 130 (supporters of impact analysis typically oppose regulation at least in its current design and seek to educate agencies and the public about "the potentially deleterious effects of risk regulation on economic development and other important considerations).
252. See, e.g., Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. CHI. L. REV. 1, 74 (1995).
253. See Thomas O. McGarity & Sidney A. Shapiro, OSHA's Critics and Regulatory Reform, 31 WAKE FOREST L. REV. 587, 631-33 (1996) (identifying conflict between CBA and decisionmaking criterion in the Occupational Safety and Health Act).
254. HARMON, supra note 67, at 55.
255. See supra notes 50-53 and accompanying text (noting that some post-empiricists consider empirical results as a mixture of empiricism and social construction, while others deny that empiricism can identify reality in light of its social construction).
256. DEIRDRE N. MCCLOSKEY, THE RHETORIC OF ECONOMICS xix-xxi (2d ed. 1998).
257. Id. at 147.
258. Id.
259. Id.
260. See infra Part IV.A.1.
261. See supra note 88 and accompanying text.
262. See PORTER, supra note 88, at 155-62.
263. Id. at 162.
264. Oral Testimony of Carol M. Browner, Administrator, U.S. Environmental Protection Agency before the Subcommittee on Energy and Environment of the Committee on Science U.S. House of Representatives, May 21, 1997, available at http://yosemite.epa.gov/opa/admpress.nsf/ 7a69cfa127d8396585257359004l0226/ f59da70ee33f70d28525701a0052e3c7!OpenDocument.
265. See Wendy Wagner, The Science Charade in Toxic Risk Regulation, 95 COLUM. L. REV. 1613, 1640-44 (1995) (discussing the use of science to deflect criticism of policy decisions).
266. A conversation with one of the co-authors (Schroeder) in the fall of 1980.
267. See generally PORTER, supra note 88, at 89-90 (describing how abandoning of "reliance on expert judgment in the name of public standards and objective rules ... [is] never a voluntary affair, but emerge[s] always from a sense of intense pressure or bitter rivlary." Thus, as consumer interests and others who stand outside the traditional iron-triangles seek more public accountability for agency decisions, "rigorous quantification is demanded ... because subjective discretion has become suspect. Mechanical objectivity serves as an alternative to personal trust.").
268. Shapiro, supra note 94, at 695.
269. Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 639-40 (1980) ("Only after the Secretary has made the threshold determination that [a significant] risk exists with respect to a toxic substance" is the Secretary authorized to regulate under the statute).
270. Id. at 655.
271. Id.
272. See, e.g., John F. Martonik et al., The History of OSHA's Asbestos Rulemakings and Some Distinctive Approaches That They Introduced for Regulating Occupational Exposure to Toxic Substances, 62 AM. INDUS. HYGIENE ASS'N J. 208, 213 (2001) (observing that "quantitative assessment of risk was the result of the Supreme Court's benzene decision requiring OSHA to perform such an analysis when appropriate data are available").
273. See ZYGMUNT J.B. PLATER ET AL., ENVIRONMENTAL LAW AND POLICY: NATURE, LAW, AND SOCIETY 400 (3d ed. 2004) (identifying as an underlying theme of environmental law the penetration of an iron triangle of "private construction and industrial interests, government agencies that service the industry, and congressional delegations that want to attract particular public expenditures into their backyards").
274. See supra Part III.A.3 (discussion of regulatory relief).
275. See supra Part III.B.1.
276. In one analysis of CBA, Richard Andrews notes "the use of ... requirements [such as CBA] as a weapon for oversight and control of regulatory decisions by the president." Richard N. L. Andrews, Economics and Environmental Decisions, Past and Present Analysis, in ENVIRONMENTAL POLICY UNDER REAGAN'S EXECUTIVE ORDER: THE ROLE OF COST-BENEFIT ANALYSIS 43, 45 (V. Kerry Smith ed., 1984).
277. See supra note 25 and accompanying text.
278. See Robert W. Hahn & Cass R. Sunstein, A New Executive Order for Improving Federal Regulation? Deeper and Wider Cost-Benefit Analysis, 150 U. PA. L. REV. 1489, 1497 n.34 (2002) (comparing OIRA's small staff of about fifty and the large number of regulations it reviews).
279. Exec. Order 12,291, 46 Fed. Reg. 13,193 (Feb. 17, 1981).
280. See supra note 75.
281. See supra Part II.E.
282. Theodore M. Porter, Objectivity as Standardization: The Rhetoric of Impersonality in Measurement, Statistics, and Cost-Benefit Analysis, in RETHINKING OBJECTIVITY 197, 197 (Allan Megill ed., 1994).
283. Id. at 210 (citation omitted).
284. See supra notes 88-89 and accompanying text.
285. Ollie Houck, for one, has described the Army Corps of Engineers as "a federal agency housed within the United States Army that worked directly for the United States Congress. It is described in the literature as an 'iron triangle,' composed of your local congressmen, your local Corps, and your local shippers, real estate developers and other beneficiaries who contributed generously to these same congressmen, and received generously in return." Oliver Houck, Can We Save New Orleans?, 19 TUL. ENVTL. L.J. 1, 13 (2006).
286. Theodore Porter is a little more positive. PORTER, supra note 88, at 155 ("When, now more rarely, really disgraceful projects were authorized [after the 1936 Act], a modest standard of decorum was maintained. Official economic analyses helped to cut off debate and bargaining in Congress.").
287. See JOHN R. HIBBING & ELIZABETH THEISS-MORSE, CONGRESS AS PUBLIC ENEMY 147 (1995) ("A surprising number of people, it seems, dislike being exposed to processes endemic to democratic government. People profess a devotion to democracy in the abstract but have little or no appreciation for what a practicing democracy invariably brings with it.... People do not wish to see uncertainty, conflicting opinions, long debate, competing interests, confusion, bargaining, and compromised, imperfect solutions. They want government to do its job quietly and efficiently, sans conflict and sans fuss.").
288. See, e.g., supra notes 150-152 and accompanying text.
289. See Christopher H. Schroeder, Clear Consensus, Ambiguous Commitment, 98 MICH. L. REV. 1876, 1912-13 (2000).
290. The "Straight Talk" memorandum written by Frank Luntz, a prominent Republican strategist, urges candidates to "[s]tay away from 'risk assessment,' 'cost-benefit analysis,' and the other traditional environmental terminology used by industry and corporations" and to "[p]ut the costs of regulations in human terms," emphasizing job losses and changes in lifestyle. Memorandum from Frank Luntz, The Luntz Research Cos. 131, 139-40 (2002), excerpt available at http://www2.bc.edu/~plater/Newpublicsite06/suppmats /02.6.pdf.
291. See supra Part II.F.
292. The use of pragmatism to design a regulatory analysis methodology is hardly a new idea. Philosophical pragmatism, as originally conceived by John Dewey, William James, and others, became the dominant mode of social analysis in the early decades of the twentieth century. SHAPIRO & GLICKSMAN, supra note 105, at xi.
293. Although pragmatism was eclipsed by the turn in the social sciences toward positivism, it has enjoyed a strong comeback, including as a basis for designing and implementing environmental, health, and safety policy. See, e.g., SHAPIRO & GLICKSMAN, supra note 105;
294. DANIEL A. FARBER, ECO-PRAGMATISM (1999);
295. ENVIRONMENTAL PRAGMATISM (Andrew Light & Eric Katz eds., 1996);
296. Christopher H. Schroeder, Prophets, Priests, and Pragmatists, 87 MINN. L. REV. 1065 (2003).
297. PRAGMATISM: A READER, at xiv (Louis Menand ed., 1997).
298. SHAPIRO & GLICKSMAN, supra note 105, at 15.
299. Id. at 16.
300. Id. at 16-17.
301. See supra Part III.B.
302. See supra notes 138, 140 and accompanying text.
303. See supra Part III.A.1.
304. Gene R. Shreve, Rhetoric, Pragmatism and the Interdisciplinary Turn in Legal Criticism - A Study of Altruistic Judicial Argument, 46 AM. J. Comp. L. 41, 58 (1998).
305. See supra Parts II.D and II.E.
306. See Morris Dickstein, Introduction: Pragmatism Then and Now, in THE REVIVAL OF PRAGMATISM: NEW ESSAYS ON SOCIAL THOUGHT, LAW, AND CULTURE 1, 5 (Morris Dickstein ed., 1999) (explaining that pragmatists reject concepts such as "truth" because "truth is provisional, grounded in history and experience, not fixed in the nature of things");
307. John Stick, Can Nihilism Be Pragmatic?, 100 HARV. L. REV. 332, 340 (1986).
308. Dewey would not have denied that science advances deep human interests when it is able to provide better explanations of how the world works and what consequences various actions might have. See SHAPIRO & GLICKSMAN, supra note 105, at 16-17 (describing Dewey's views on science);
309. see also Robert R.M. Verchick, Feathers or Gold?: A Civic Economics for Environmental Law, 25 HARV. ENVTL. L. REV. 95, 127 (2001) (explaining that pragmatism "endorses the scientific method as a means of identifying useful insights from many perspectives").
310. Lasswell proposed the field of policy sciences because he did not believe that the social sciences were focused on the social problems that democracy was trying to resolve. See supra note 18 and accompanying text.
311. See infra note 246 and accompanying text.
312. SHAPIRO, supra note 48, at 28.
313. OFFICE OF MGMT. & BUDGET, CIRCULAR A-4, Sept. 17, 2003, http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf.
314. But see supra Part III.B.1.
315. See infra Part IV.C.
316. SHAPIRO & GLICKSMAN, supra note 105, at 21.
317. E.g., FISCHER, supra note 2, at 191-98;
318. DUNN, supra note 70, at 20-23;
319. William N. Dunn, Justifying Policy Arguments: Criteria for Practical Discourse, 13 EVALUATION & POL. PLAN. 221 (1990).
320. These analysts rely on the work of Stephen Toulmin. See STEPHEN TOULMIN, THE USES OF ARGUMENT (1958);
321. see also STEPHEN TOULMIN, RICHARD RIEKE & ALLAN JANIK, AN INTRODUCTION TO REASONING (2d ed. 1984).
322. MAJONE, supra note 27, at 46-47.
323. Majone's work taps into a literature on rhetoric dating back to Aristotle that "defines rationality not in instrumental terms, but as the ability to provide acceptable reasons for one's choices and actions." Id. at 23.
324. Id. at 47.
325. Id.
326. Id.
327. Id. at 67.
328. FISCHER, supra note 2, at 133;
329. MAJONE, supra note 27, at 42-46;
330. DUNN, supra note 70, at 2-3;
331. see also ACKERMAN & HEINZERLING, supra note 110, at 209 (stating that the development of an alternative to CBA "begins with the recognition that there is no formula").
332. MAJONE, supra note 27, at 48-49.
333. Id. at 49.
334. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
335. Id. at 43 (internal quotation omitted).
336. See supra note 62 and accompanying text (describing "practical reason" in post-empiricist policy analysis).
337. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
338. Brett G. Scharffs, Law as Craft, 54 VAND. L. REV. 2245, 2247-50 (2001).
339. Edward L. Rubin, Jews, Truth and Critical Race Theory, 93 Nw. U. L. REV. 525, 540 (1999) (book review).
340. Burton, supra note 62, at 789-90.
341. Scharffs, supra note 231, at 2247;
342. Edward L. Rubin, The Practice and Discourse of Legal Scholarship, 86 MICH. L. REV. 1835, 1878 (1988) ("[The practical reason movement] is characterized by its vision of the law as an embedded social practice, whose provisions are supported by a complex set of norms, traditions, and pragmatic compromises that lack overarching justifications, but can be evaluated by judgment or intuition.").
343. Scharffs, supra note 231, at 2266.
344. Rubin, supra note 234, at 1878.
345. Burton, supra note 62, at 789-90.
346. THOMAS BENDER, INTELLECT AND PUBLIC LIFE: ESSAYS ON THE SOCIAL HISTORY OF ACADEMIC INTELLECTUALS IN THE UNITED STATES 137 (1993).
347. Id. (emphasis added).
348. As noted earlier, Dewey regarded the state as analogous to a scientific society in that both were critical communities of inquiry, except that citizens were the ultimate community of inquiry regarding social and policy issues. See supra note 203 and accompanying text. "For Dewey, politics in public constituted a proper source of values, purposes, and social knowledge in a democracy." BENDER, supra note 238, at 137.
349. James Boyd White, Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life, 52 U. CHI. L. REV. 684, 701 (1985).
350. DELEON, supra note 13, at 113.
351. See SHAPIRO & GLICKSMAN, supra note 105, at 31-40.
352. Id. at 33.
353. Id. at 6.
354. 42 U.S.C. § 7411(b)(1)(A) (2000).
355. SHAPIRO & GLICKSMAN, supra note 105, at 40.
356. See id. at 51-52.
357. This does not mean that costs are ignored. As explained later in this Part, Congress sometimes requires consideration of costs, but with the goal of ensuring that regulation is not overly disruptive or unreasonable.
358. As Doug Kysar explains: Lives lost under the "do the best you can" heuristic and other precautionary approaches are not viewed as efficient "tradeoffs," accepted in exchange for whatever utility has been gained. Instead, they are viewed as tragic, regrettable consequences of human fallibility and finitude - a "moral remainder" that provides enduring motivation for surviving members of society to seek ways of doing better in the future. In contrast, because it aspires to comprehensive rationality, CBA must invariably round this moral remainder to zero. In the process, it must also fail to encourage an appropriate degree of collective self-awareness regarding the deep normativity of risk regulation.
359. Kysar, supra note 113, at 41.
360. An agency will consider scientific evidence that measures the extent to which a substance or technology is harmful to individuals or the environment in order to decide whether it can meet the evidentiary burden established by the applicable risk trigger. Although this risk assessment is based on scientific evidence, it is not precise because information about the risks being studied is usually limited. See supra notes 113-114 and accompanying text.
361. See Sidney A. Shapiro, OMB and the Politicization of Risk Assessment, 37 ENVTL. L. 1083, 1089 (2007).
362. Id.
363. SHAPIRO & GLICKSMAN, supra note 105, at 95.
364. See supra note 220 and accompanying text.
365. See supra note 224 and accompanying text.
366. EPA has explained the weight of the evidence approach in the context of carcinogen risk assessment as follows: Judgment about the weight of evidence involves considerations of the quality and adequacy of data and consistency of responses induced by the agent in question. The weight of evidence judgment requires combined input of relevant disciplines. Initial views of one kind of evidence may change significantly when other information is brought to the interpretation. For example, a positive animal carcinogenicity finding may be diminished by other key data; a weak association in epidemiologic studies may be bolstered by consideration of other key data and animal findings. Factors typically considered are illustrated in figures below. Generally, no single weighing factor on either side determines the overall weight. The factors are not scored mechanically by adding pluses and minuses; they are judged in combination. Proposed Guidelines for Carcinogen Risk Assessment, 61 Fed. Reg. 17,960, 17,981 (Apr. 23, 1996).
367. Thomas O. McGarity, On the Prospect of "Daubertizing" Judicial Review of Risk Assessment, 66 LAW & CONTEMP. PROBS. 155, 165 (2003).
368. Id.
369. Id.
370. This flaw arises from the fact that CBA is methodology-driven rather than problem-driven. See supra note 214 and accompanying text.
371. See supra notes 113-114 and accompanying text.
372. SHAPIRO & GLICKSMAN, supra note 105, at 32-33 (listing statutes that use a "constrained balancing" standard).
373. Id. at 37.
374. U.S.C. § 655(b)(5) (20W) (emphasis added).
375. OCCUPATIONAL SAFETY AND HEALTH LAw 458-62 (Randy S. Rabinowitz ed., 2d ed. 2002).
376. Id.
377. Am. Textile Mfg. Inst. v. Donovan (Cotton Dust Case), 452 U.S. 490, 509 (1981).
378. SHAPIRO & GLICKSMAN, supra note 105, at 52.
379. In some statutes, Congress goes further and forces regulated entities to develop more effective technologies than are currently in use. Id.
380. Id. at 32.
381. Id. at 39.
382. U.S.C. § 136a(d)(1)(C) (2000).
383. Id. § 136(bb).
384. SHAPIRO & GLICKSMAN, supra note 105, at 39.
385. Id. at 43-44.
386. See id. at 53 (discussing "the crucial ethical distinction between preventing fatalities or injuries and compensating the victim or his or her family for a death or disability").
387. See supra Part III.13.2.
388. See supra note 154 and accompanying text.
389. See supra Part IV.13.3.
390. See supra Part III.B.2.
391. SHAPIRO & GLICKSMAN, supra note 105, at 35-36 (noting that, for example, EPA can authorize the sale of food adulterated by a pesticide if, with reasonable certainty, no harm will result from exposure to the pesticide).
392. Id. at 36 (noting the example that Congress has adopted a series of prohibitions on the production and use of chemicals harmful to the strategic ozone layer to be phased in over time).
393. See infra Part V.B (illustrating in arsenic case study how a pragmatic RIA differs from a CBA-centered RIA when a statute requires the use of CBA).
394. ACKERMAN & HEINZERLING, supra note 110, at 210-23.
395. Id. at 208-09.
396. Id. at 11.
397. Id. at 10-11, 208-23.
398. Id. at 212-13.
399. See id. at 215 ("In advocating a holistic approach to weighing costs and benefits, we have been talking about bow elected representatives and the public should think about health and environmental problems - not about how broad policies should be implemented.").
400. David M. Driesen, Distributing the Costs of Environmental, Health, and Safety Protection: The Feasibility Principle, Cost-Benefit Analysis, and Regulatory Reform, 32 B.C. ENVTL. AFF. L. REV. 1, 3 (2005).
401. Id.
402. Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units, 70 Fed. Reg. 28,606 (May 18, 2005) (codified at 40 C.F.R pts. 60, 72, and 75).
403. See Lisa Heinzerling & Rena I. Steinzor, A Perfect Storm: Mercury and the Bush Administration, 34 ENVTL. L. REP. 10,297, 10,307-10 (2004) (contending that EPA lacks legal authority for its cap and trade rule).
404. New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2009) (holding that because EPA had not followed procedures prescribed in section 112(c)(9) for delisting electric generating units ("EGUs") from the list of categories subject to section 112's standards for mercury, EPA's decision to regulate mercury emissions from EGUs exclusively under section III was erroneous).
405. See Catherine O'Neill, No Mud Pies: Risk Avoidance as Risk Regulation, 31 VT. L. REV. 273, 280 (2006) (comparing mercury reductions expected under a maximum achievable control technology standard and under EPA's final rule).
406. U.S.C. § 7412(n)(1)(A) (2000).
407. By comparison, Congress made the initial decision regarding the risk trigger for other sources of mercury pollution by listing mercury as a hazardous air pollutant subject to regulation, Id. § 7412(b)(1).
408. EPA, MERCURY STUDY REPORT TO CONGRESS, EPA 452-R-97-003, 0-4 (1997), available at http://www.epa.gov/ttn/oarpg/t3/reports/ volume1.pdf.
409. NAT'L RESEARCH COUNCIL, NAT'L ACAD. OF SCIS., TOXICOLOGICAL EFFECTS OF METHYL MERCURY 4 (2000), available at http:/ /books.nap.edu/openbook/0309071402/html/index.html.
410. Regulatory Finding on Emissions of Hazardous Air Pollutants from Electric Utility Steam-Generating Units, 65 Fed. Reg. 79,825, 79,825 (Dec. 20, 2000).
411. See Heinzerling & Steinzor, supra note 292, at 10,298, 10,300.
412. See id. at 10,298-99.
413. EPA, AMERICA'S CHILDREN AND THE ENVIRONMENT 59 (2003), available at http://www.epa.gov/opeedweb/children/ace_2003.pdf.
414. Heinzerling & Steinzor, supra note 292, at 10,300.
415. See 42 U.S.C. § 7412(d)(2) (2000).
416. Lisa Heinzerling & Rena I. Steinzor, A Perfect Storm: Mercury and the Bush Adminsitration, Part II, 34 ENVTL. L. REP. 10,485, 10,488 (2004).
417. Proposed National Emission Standards for Hazardous Air Pollutants; and, in the Alternative, Proposed Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units; Proposed Rule, 69 Fed. Reg. 4652 (Jan. 30, 2004).
418. Revision of December 2000 Regulatory Finding on the Emissions of Hazardous Air Pollutants From Electric Utility Steam Generating Units and the Removal of Coal- and Oil-Fired Electric Utility Steam Generating Units From the Section 112(c) List, 70 Fed. Reg. 15,994 (Mar. 29, 2005).
419. Heinzerling & Steinzor, supra note 304, at 10,489.
420. OFFICE OF AIR QUALITY PLANNING & STANDARDS, EPA, EPA-452 /R-05-003, REGULATORY IMPACT ANALYSIS OF THE FINAL CLEAN AIR MERCURY RULE (2005), available at http://www.epa.gov/ttn/ecas /regdata/RIAs/mercury_ria_final.pdf [hereinafter MERCURY RIA].
421. Id. at 10-11.
422. Id. at 10-11.
423. Id. at 10-3.
424. Id. at 10-47.
425. Id. at 10-47. This last adjustment is based on the fact that people with lower IQ generally have less schooling. As a result, the RIA assumed that children who are mercury poisoned will remain in school for shorter time periods and therefore might earn a few years of additional income, in addition to saving the costs of their future education.
426. Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units, 70 Fed. Reg. 28,606, 28,642 (May 18, 2005).
427. Id.
428. See supra Part IV.C.1.b).
429. EPA must "require the maximum degree of reduction in emissions" from new and existing sources, subject to adjustment based on cost and other factors listed in the statute. 42 U.S.C. § 7412(d)(2) (2000). For new sources, however, "the maximum degree of reduction ... that is deemed achievable ... shall not be less stringent than the emission control that is achieved in practice by the best controlled similar source." Id. § 7412(d)(3).
430. For existing sources, the MACT can be less stringent than the MACT for new sources, but it cannot be less stringent, and can be more stringent, than "the average emission limitation achieved by the best performing [twelve] percent of the existing sources" if there are thirty sources or more or "the average emission limitation achieved by the best performing [five] sources" if there are fewer than thirty sources. Id. § 7412(d)(3)(A)-(B).
431. See U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-05-216, CLEAN AIR ACT: EMERGING MERCURY CONTROL TECHNOLOGIES HAVE SHOWN PROMISING RESULTS, BUT DATA ON LONG-TERM PERFORMANCE ARE LIMITED 10-11 (2005) [hereinafter U.S. GAO].
432. Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units, 70 Fed. Reg. 28,606, 28,614-15 (May 18, 2005).
433. U.S. GAO, supra note 318, at 3-4, 16.
434. GAO also indicated that experts believed that the costs of achieving reductions in this range would fall over time as a market for new technologies emerged. Id. at 27.
435. At the same time, GAO noted that data on the long-term performance of mercury controls are limited because the use of mercury reduction technology was a new development and most tests have lasted less than three months. See id. at 4.
436. GAO concluded that "available data show promising results," but noted that "when power plants could rely on these technologies to achieve significant mercury reductions - such as by 2008 or later - involves professional judgment." Id. at 28.
437. Catherine A. O'Neill, Mercury, Risk and Justice, 30 ENVTL. L. REP. 11,070 (2004).
438. Id. at 11,093.
439. Id. at 11,115.
440. Id. at 11,110.
441. Id. at 11,112-13.
442. Carl F. Cranor, Risk Assessment, Susceptible Subpopulations, and Environmental Justice, in THE LAW OF ENVIRONMENTAL JUSTICE 307, 328 (Michael B. Gerrard ed., 1999) ("Cost-benefit analysis and its philosophic ancestor, utilitarianism, compared with environmental justice are simply two different and incompatible views for addressing the problems of guiding exposures to toxic substances.");
443. O'Neill, supra note 290, at 346-47 ("Rather than undertake a sober discussion whether we as a society can support these consequences - whether we can tolerate a particular instance of distributive injustice, a particular affront to human dignity or cultural integrity - decisions made by means of cost-benefit analysis are made without reference to who is affected and without reference to what is at stake from their perspective.").
444. See, e.g., Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247, 293 (1996) (proposing that CBA be modified to take into account "whether the risk is equitably distributed or concentrated on identifiable, innocent, or traditionally disadvantaged victims").
445. MERCURY RIA, supra note 308, at 10-130.
446. Id. at 10-134.
447. Id.
448. Id. at 10-134 n.29.
449. See supra notes 314-315 and accompanying text.
450. See supra notes 316-320 and accompanying text.
451. See RENA I. STEINZOR, MOTHER EARTH AND UNCLE SAM 122 (2008) ("No one but an experienced team of economists with weeks of free time on their hands could possibly hope to evaluate these or any of the other assumptions made in the Regulatory Impact Analysis.").
452. For example, EPA fails to discuss or justify the particular methodology it adopted to measure benefits, even though this choice had the impact of reducing the amount of benefits as compared to other potential methodological choices. See O'Neill, Clean Air Mercury Rule, supra note 148, at 34 ("EPA here dazzles with detail, but never engages the question begged by their approach, namely, is it appropriate to consider exposures from the narrowly circumscribed universe of 'recreationally caught freshwater fish,' when there are clearly other sources of exposure ... from mercury emitted by U.S. utilities ....").
453. See Notice of Proposed Rulemaking; National Primary Drinking Water Regulations; Arsenic and Clarifications to Compliance and New Source Contaminants Monitoring, 65 Fed. Reg. 38,888, 38,888 (June 22, 2000). The unit "ppb" is used to measure the concentration of contaminants in water and air and stands for one part per billion. One "ppb" is equal to a microgram per liter (μg/liter).
454. Final Rule: National Primary Drinking Water Regulations; Arsenic and Clarifications to Compliance and New Source Contaminants Monitoring, 66 Fed. Reg. 6976, 6976 (Jan. 22, 2001) [hereinafter Final Arsenic Rule].
455. Delay of Effective Date. National Primary Drinking Water Regulations; Arsenic and Clarifications to Compliance and New Source Contaminants Monitoring, 66 Fed. Reg. 16,134, 16,134 (Mar. 23, 2001) (sixty day delay);
456. Delay of Effective Date: National Primary Drinking Water Regulations; Arsenic and Clarifications to Compliance and New Source Contaminants Monitoring, 66 Fed. Reg. 28,342, 28,342 (May 22, 2001) (nine month delay).
457. Notice of Proposed Rulemaking: National Primary Drinking Water Regulations; Arsenic and Clarifications to Compliance and New Source Contaminants Monitoring, 66 Fed. Reg. 37,617, 37,617 (July 19, 2001).
458. See id. at 37,621-22 (describing planned review process);
459. EPA, Arsenic in Drinking Water: Rule-Making History (Sept. 13, 2006), http://epa.gov/safewater/arsenic/history.html (referring to these peer reviews) (on file with the Harvard Environmental Law Review).
460. Minor Clarification of National Primary Drinking Water Regulation for Arsenic, 68 Fed. Reg. 14,502, 14,503 (Mar. 23, 2003).
461. A longer description of the arsenic regulations and RIA can be found in ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 253-62 (5th ed. 2006).
462. U.S.C. §§ 300f to 300j-26 (2000).
463. Id. § 300g-1(b)(4)(A).
464. Id. § 300g-1(b)(4)(B).
465. "'Feasible' means feasible with the use of the best technology, treatment techniques and other means" that EPA finds available, subject to cost considerations. Id. § 300g-1(b)(4)(D).
466. Id. § 300g-1(b)(6)(A).
467. EPA may also depart from the feasible MCL if setting a particular standard would have deleterious effects on achieving other drinking water standards. Id. §300g-1(b)(5).
468. Final Arsenic Rule, supra note 337, at 7022.
469. Id.
470. Id.
471. ABT ASSOCS., EPA 815-R-00-013, PROPOSED ARSENIC IN DRINKING WATER RULE REGULATORY IMPACT ANALYSIS (2000) (prepared for U.S. EPA, Office of Ground Water and Drinking Water), available at http:// www.epa.gov/safewater/arsenic/pdfs/prop_ria.pdf;
472. ABT ASSOCS., EPA 815-R-00-026, FINAL ARSENIC IN DRINKING WATER RULE REGULATORY IMPACT ANALYSIS (2000) (prepared for U.S. EPA, Office of Ground Water and Drinking Water), available at http://www.epa.gov/safewater/arsenic/pdfs/econ_analysis.pdf [hereinafter ABT ASSOCS., FINAL RIA].
473. ABT ASSOCS., FINAL RIA, supra note 349, at 1-4.
474. See id.
475. Id. at 1-6. Economists are divided concerning what constitutes the appropriate discount rate. See supra note 144 and accompanying text.
476. ABT ASSOCS., FINAL RIA, supra note 349 at 5-11 to 5-14.
477. The analysis used a Monte Carlo simulation, Id. at 5-11;
478. see also supra note 118 (discussing this technique and its limitations).
479. ABT ASSOCS., FINAL RIA, supra note 349, at 5-23.
480. Id. at 5-24.
481. See supra Part III.B.2;
482. see also Lisa Heinzerling, Markets for Arsenic, 90 GEO. L.J. 2311 (2002) (identifying problems with the monetization process used in the Arsenic RIA).
483. ABT ASSOCS., FINAL RIA, supra note 349, at 5-23.
484. Id. at 5-24.
485. The data were based on a more than ten-year-old survey done at a Greensboro, N.C. shopping mall. ACKERMAN & HEINZERLING, supra note 110, at 96.
486. As a sensitivity analysis, the RIA did compare the medical costs of treating non-fatal bladder cancer. The numbers are not comparable ($178,405 in medical expenses versus $607,162 for WTP to avoid chronic bronchitis, ABT. ASSOCS., FINAL RIA, supra note 349, at 5-24), but the RIA again contains no additional discussion of the implications of this disparity.
487. See supra note 136 and accompanying text.
488. See ACKERMAN & HEINZERLING, supra note 110, at 96 (discussing defects of the study).
489. Id. at 97.
490. See supra note 345 and accompanying text.
491. See supra notes 88-89 and accompanying text.
492. Even outside the health and safety area, where one might suppose the use of CBA as a monitoring device would be more tractable, its record is not stellar. The installation of CBA at the Army Corps turned out to provide a layer of defense against subsequent attacks, while at the same time not greatly limiting the Corps' ability to select questionable projects. See supra note 194.
493. See supra note 197 and accompanying text.
494. EDWARD M. GRAMLICH, BENEFIT-COST ANALYSIS OF GOVERNMENT PROGRAMS 1-2 (1981) (quoting Franklin).
495. The very idea of modeling presupposes some technique for simplifying the complexities of reality. The results of the model are then interpreted to have some meaning for the reality it seeks to model. We have argued throughout this paper that the manner in which CBA achieves simplification ignores critical features of reality, claims accuracy when that is not available, and is vulnerable to manipulation. See supra Parts III.B.2-III.B.3, IV.C.2. These problems are sufficiently severe so that RIA ought to employ alternative means of recognizing and analyzing the pros and cons of health and safety decisions.
496. EPA, UNFINISHED BUSINESS: A COMPARATIVE ASSESSMENT OF ENVIRONMENTAL PROBLEMS (1987).
497. See, e.g., MICHAEL C. MUNGER, ANALYZING POLICY 6-14 (2000) (explaining the use of the "criteria-alternatives matrix" or CAM, and providing examples).
498. Alternatives are the columns, criteria the rows, and each cell contains a measure or evaluation of that row's criteria for the column's alternative. Id. at 9.
499. This kind of matrix is useful "to guide policy makers in identifying trade-offs and highlighting the importance of values." Id. at 28 n.5.
500. See, e.g, Bagley & Revesz, supra note 103, at 1312-29;
501. Sidney A. Shapiro, Political Oversight and the Deterioration of Regulatory Policy, 46 ADMIN. L. REV. 1, 30-32 (1994).
502. See Bagley & Revesz, supra note 103, at 1307-10.
503. IORA has "a professional staff of about [forty]" persons. PETER L. STRAUSS, TODD D. RAKOFF & CYNTHIA R. FARINA, ADMINISTRATIVE LAW: CASES AND COMMENTS 615 (rev. 10th ed. 2003).
504. See supra Parts III.B.1-III.B.2.
505. Shapiro, supra note 370, at 31.
506. See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2309-16 (2001).
507. Bressman & Vandenbergh, supra note 101, at 66.
508. See, e.g., Thomas O. McGarity, Media-Quality, Technology, and Cost-Benefit Balancing Strategies for Health and Environmental Regulation, 46 LAW & CONTEMP. PROBS. 159 (1983) (identifying six factors that agencies use for evaluating decisions, including political feasibility).