Cost-benefit analysis purports to calibrate regulation. But the way administrative agencies practice cost-benefit analysis can, at best, calibrate a rule at the moment of its promulgation. As scientific knowledge of regulated health, safety, and environmental risks accumulates—and as technology becomes more affordable—the assumptions underlying a rule’s cost-benefit analysis can rapidly obsolesce. Because of the structural incentives towards agency inaction, pressure from regulated firms, or attention to other priorities, outdated rules persist.

De-extinction, an emerging suite of selective breeding or biotechnological processes for reviving and releasing into the environment members or facsimiles of an extinct species, has been the subject of a recent surge of analysis in popular, scientific, and legal literature. Unfortunately, conservation laws likely to govern the revival and introduction of de-extinct species like the Dodo largely remain premised on outdated assumptions of nature as static and firmly divisible from human activity.

As Welton’s article illuminates, the electric sector is not as organized as it appears. Welton references the recent Supreme Court decision, FERC v. Elec. Power Supply Ass’n, and suggests that the case may provide FERC with not only the authority, “but ‘indeed, the duty’” to ensure just and reasonable rates through non-traditional means, such as true parity in treatment of non-transmission alternatives. Welton’s analysis is accurate, however both FERC v. Elec.

Shelley Welton’s Non-Transmission Alternatives is a timely examination of an important issue in energy and environmental policy: What regulatory and business structures would best enable the Nation to plan, build, and pay for the right mix of electric transmission and alternative facilities? The Article explores reasons why the regional transmission planning process required by the Federal Energy Regulatory Commission’s Order No. 10002 is not up to that task. This Comment notes ways FERC could clarify key terms used in Order No.

Current transmission planning processes are unlikely to result in selection and implementation of non-transmission solutions, even where they are demonstrably superior. This shortcoming is obviously bad for proponents of distributed energy. It is also bad for those who hope to implement significant but thoughtful grid expansion in the coming decades. More transmission is critically needed to update infrastructure and to keep pace with renewable resource development, but each transmission line is also a fractious, expensive, and environmentally damaging endeavor.

This extraordinarily well-written, well-researched article by Michael Livermore and Ricky Revesz makes a significant contribution to the literature and public policy debates by challenging conventional wisdom—namely, that health-based NAAQS are more stringent (and hence more protective) than those that would be set were we to consider the costs of achieving those standards.

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.

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.

At bottom, Eric Biber and J.B. Ruhl argue in their recent article that general permits are a panacea for many of the difficult permitting issues that modern administrative agencies face. We have no quarrel with their conclusion in theory; however, in practice—at least in the environmental arena—agencies such as the U.S. Army Corps of Engineers often abuse general permits.

Co-authors Eric Biber and J.B. Ruhl should be commended for providing a thoughtful framework for when agencies should consider individual versus general permitting regimes. They presented a similar framework for the Administrative Conference of the United States, which is a helpful forum for airing perspectives on important administrative law topics.