Several prominent academic critics of regulation, most notably Cass Sunstein and Justice Stephen Breyer, claim that our regulatory system does not establish sensible priorities.² Their reform recommendations seek to correct this problem—to get our priorities straight. What, however, precisely does it mean to say that we do not have our priorities straight? This Article develops a theoretical framework to address this question.

This strand of the regulatory reform debate is of considerable importance. Congressional and academic proponents of regulatory reform have relied heavily upon claims that the regulatory system fails to establish sensible priorities to justify more reliance upon cost-benefit considerations in agency decisionmaking.³ The goal of improving priority setting sounds much more attractive than the goal many knowledgeable scholars link to cost-benefit analysis (CBA), the reduction of the stringency and scope of laws protecting public health and the environment.⁴ So reliance upon priority-setting talk helps CBA politically, giving it a neutral aura. After more than two decades of writing legislation that made protection of public health the primary goal of much of the regulatory system,⁵ the 104th Congress passed the Unfunded Mandates Reform Act of 1995,⁶ which requires CBA of major rules.⁷ Since then, Congress has regularly considered, and come close to passing, regulatory reform legislation that requires agencies to justify substantially all major regulation in [31 ELR 10004] cost-benefit terms.⁸ This involves a major change in the goals of statutes that have hitherto sought to protect public health and the environment.⁹ In general, industry has enthusiastically supported CBA, while environmentalists and consumer advocates have opposed it.¹⁰