DISTRIBUTING THE COSTS OF ENVIRONMENTAL, HEALTH, AND SAFETY PROTECTION: THE FEASIBILITY PRINCIPLE, COST-BENEFIT ANALYSIS, AND REGULATORY REFORM

Boston College Environmental Affairs Law Review, 2005 by Driesen, David M

This Article seeks to improve the quality of the ongoing regulatory reform debate in three ways. First, this Article corrects a key error many cost-benefit proponents make, equating consideration of cost with CBA.23 CBA involves comparing costs to benefits, but many statutory provisions authorize consideration of costs without requiring agencies to weigh them against benefits.24 This clarification shows that those who frame the debate as a debate between cost-obliviousness and CBA25 have distorted the regulatory reform debate, and invites a more informed debate about the consideration of cost in environmental law. Second, this Article takes a step toward developing a positive theory of environmental law, explaining and defending the normative values undergircling a vast array of statutory provisions.26 We sorely need a positive theory of environmental law, lest we radically revise it without adequately understanding its normative structure. In general, the lack of a positive theory has led many writers to treat environmental law as hopelessly incoherent.27 That treatment makes almost any reform proposal look attractive, at least to those not intimately familiar with the practical pitfalls of CBA and the variability of the approaches it spawns.28 Third, this Article improves the regulatory reform debate by comparing CBA to an alternative form of analysis, feasibility analysis. CBA proponents have distorted the regulatory reform debate by suggesting that the alternative to CBA is no analysis at all.29 But even without CBA, agencies regularly engage in some form of analysis.30 A comparison between feasibility and cost-benefit analysis shines fresh light on a number of the CBA proponents' key arguments.

This Article reframes the regulatory reform debate as a discussion about how to treat costs both institutionally and substantively.31 Because current treatment of costs is so poorly understood, the substantive issues have been inadequately defined in the past.

This Article begins by explaining the feasibility principle and its role in technology-based regulation. It then develops a theoretical argument in support of this approach.

The second part reviews the neoclassical economic theory that supports CBA. It then summarizes the recent legal scholarship repudiating the neoclassical foundation, but offering a mélange of alternative rationales that purport to take the distribution of cost into account.

The third part evaluates the question of whether the feasibility principle meets the requirements of the theories advanced to support CBA. It concludes that the feasibility principle fits the requirements of CBA proponents closely enough to make it impossible to understand why they prefer CBA, at least in the context of most technology-based standard setting. It calls for a debate that focuses upon how to consider cost, at least under statutory provisions that already require some cost consideration.

I. THE FEASIBILITY PRINCIPLE

This first part describes the feasibility principle's content, explains it role, and defends it normatively. I claim that this principle provides a useable heuristic, capturing a central thrust of technology-based regulation. It also provides a normatively attractive approach to taking cost into consideration in a way that is sensitive to concerns about the distribution of costs and environmental harms.