EPA's 'Benefit-Busting' Proposal Would Add to Trump's Anti-Safeguard Legacy

James Goodwin

July 22, 2020

Donald Trump is no stranger to leaving things worse off than he found them, and this is precisely what his administration now aims to do with the Environmental Protection Agency (EPA), not just one of the most successful government institutions in the history of the United States, but indeed the world. Having worked quickly, if not sloppily, to dismantle every vestige of the Obama administration's efforts to promote cleaner air and water, the Trump EPA is now heading down a path of self-destruction. The agency's proposed "benefits-busting" rule, released early last month, is a big part of this campaign.

The benefits-busting rule is nominally about overhauling how the EPA does cost-benefit analysis for its Clean Air Act rules, but make no mistake: This action is really about putting that foundational law into concrete boots and shoving it into the nearest body of water. Future efforts to fulfill its protective goals of promoting public health and environmental integrity will be defeated before they're even started.

The public interest community can and must fight back against this dangerous action. To support this effort, my colleagues and I have prepared a new memo that provides a topline analysis of the benefits-busting rule. As the memo explains, the thinly concealed objective of the benefits-busting rule is to rig cost-benefit analysis so that it is even more biased against protective safeguards. Specifically, it would change the methodology for conducting these analyses so as to overemphasize costs and make it even more difficult, if not impossible, to account for benefits. In reality, a rule might deliver huge public health and environmental benefits, save thousands of lives, prevent even more illnesses, and do it all for extremely reasonable costs. But on paper, under this scheme, the rule would look like a huge economic drain.

Worse still, the benefits-busting proposal seeks to weaponize the cost-benefit analysis process to make it easier for corporate polluters to successfully challenge Clean Air Act rules in court. The proposal doesn't just establish an excessively burdensome, one-size-fits-all set of analytical requirements that EPA must follow for its rules; it would also codify them as an enforceable regulation. So, even a minor deviation from these requirements could give industry all the ammunition it needs to block any rule it finds inconvenient to its bottom line.

If the strategy behind the benefits-busting proposal sounds familiar, that's because the Trump EPA has already drawn from this page of the anti-safeguards playbook with its "censored science" rule. In that action, the agency sought to rig what kind of science it could use as means for systematically blocking future EPA safeguards. Given the influence that science and cost-benefit analysis wields in EPA's regulatory implementation efforts, the combined effect of these two rules would all but render the agency impotent. And the Clean Air Act itself would be reduced to mere words on paper.

There's a theme here, of course. Under Donald Trump, the EPA is focused on liberating polluters from statutory requirements that they prevent or clean up their pollution, so that they can squeeze every last bit of profit out of their polluting practices. Of course, that profit comes at the cost of harming the environment and killing Americans whose only complicity is to draw breath or drink water. When Trump and his people talk about reducing regulatory costs, it's important to remember that somebody's paying the bill for industry's pollution one way or another: Either industry pays to clean it up, or Americans pay with their health and lives.

I encourage public interest allies to take action against the benefits-busting proposal by submitting comments and telling their own stories about the dangers it would pose. Our hope is that the analysis memo supports these efforts. Comments may be submitted online at regulations.gov and are due by midnight on Monday, August 3. If you have any questions, please don't hesitate to reach out to me at this address.

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