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Rethinking Health-Based Environmental Standards and Cost-Benefit Analysis

August 2016

Citation: ELR 10674

Author: Michael A. Livermore and Richard L. Revesz

Whitman v. American Trucking Associations, Inc., is understood by advocates and commentators across the political spectrum to hold that EPA may not consider costs when setting NAAQS under the CAA. But American Trucking should not be interpreted as standing in the way of using cost-benefit analysis as a regulatory floor. Rather, we argue that health-based standards should never be less stringent than the standards determined by cost-benefit analysis. The central justification for health-based standards is that the level of regulatory protection should not be compromised by cost considerations. The current status quo turns this argument on its head, producing health-based standards that are less stringent than those that would result had cost been properly considered

Michael A. Livermore is an Associate Professor of Law, University of Virginia Law School and Richard L. Revesz is the Lawrence King Professor of Law and Dean Emeritus, New York University School of Law.

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