The application of cost-benefit analysis to environmental and health regulation is a highly charged issue that has embroiled both Congress and the regulatory agencies in recent years.¹ Because the United States Supreme Court had never been brought into the hostilities, it created quite a stir when it announced last year that it would review the Fifth Circuit's ruling in American Petroleum Institute v. Occupational Safety and Health Administration.² Since that decision struck down the Occupational Safety and Health Administration's (OSHA's) workplace standard limiting exposure to benzene primarily on the grounds that the agency had failed to quantify and compare the costs and benefits of the standard, observers expected the High Court to determine the propriety of cost-benefit methodology, at least as applied to rule making under the OccupationalSafety and Health Act (OSH Act)³ and quite possibly under other regulatory laws as well.

These expectations were not borne out. The badly split decision in Industrial Union Department, AFL-CIO v. Marshall (Benzene)⁴ can scarcely be considered a determination of anything other than that the benzene standard is invalid. Though the five separate opinions handed down by the Court do indeed shed light on several difficult areas of regulatory law and policy, such dicta failed to attract a majority with any apparent durability. More important, the crucial issues of cost-benefit analysis and generic regulation of carcinogens were discussed only in the concurrence of Justice Powell.