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Rethinking Rethinking Health-Based Environmental Standards and Cost- Benefit Analysis: A Solution in Search of a Problem?

August 2016

Citation: 46 ELR 10681

Issue: 8

Author: Gary S. Guzy

Professors Livermore and Revesz present a seemingly well-documented call for moving beyond health-based environmental standards to optimize public health and environmental protections in their provocative article. Yet I do not believe that their assessment: (1) adequately reflects the degree to which existing health-based standard setting has worked well in delivering key public health and environmental protections under the Clean Air Act; (2) supports their conclusion that the current system is somehow based on secret considerations that allow costs to become “a dark and ominous presence that silently influences the proceedings” and thereby skews and weakens the results; or (3) sufficiently confronts the challenges that would occur from supplanting health-based standard setting in favor of cost-benefit considerations in instances where those might lead to more stringent standards. The proposal, in particular, does not consider how the creation of new categories of judicial review may impede the very results they seek and the degree to which it would undermine EPA’s credibility in the courts.

Gary S. Guzy is Senior Of Counsel, Covington & Burling LLP, Washington, DC.

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