Agencies should first ask whether cost-benefit analysis fits the statute at all

Evidence

Before using or conducting an economic costbenefi t analysis, the agency shall fi rst ascertain whether the statute being implemented is appropriate for the use of economic costbenefi t analysis at all. Relevant factors shall include: whether the Congress considered and rejected economic costbenefi t analysis when adopting the statute; whether the statute requires policy approaches, such as healthbased, technologybased, or feasibilitybased standards, that are analytically distinct from costbenefi t analysis; whether the statute evinces a congressional intent to alter the underlying market structure that gives rise to conventional costbenefi t valuations, rather than to have the statute’s implementation be determined by those valuations; whether existing scientifi c and empirical understandings of the problem to be addressed are adequate to plausibly support the costbenefi t methodology; and whether the agency’s attempt to identify costs and benefi ts for policy analysis is likely to be frustrated by endogenous effects of the policy itself. — Douglas A. Kysar, Regulating from Nowhere, 670

Categorization

• XREF: This proposed statutory ‘gateway’ codifies ch25 and ch29 claims that Congress deliberately rejected benefit-cost correlation in landmark statutes and that such statutes reject welfarist reasoning by design. — connects to: Technology standards are ecologically rational heuristics for non-optimizable settings. — Douglas A. Kysar, Regulating from Nowhere: Environmental…, 529; Cost-benefit analysis narrows the questions environmental law can ask — Douglas A. Kysar, Regulating from Nowhere: Environmental…, 317; A statute’s purpose is qualified by the costs its legislature contemplated — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 1432 (+1 more)

Broader Connections

• Cost-benefit analysis narrows the questions environmental law can ask #qualifies (0.82) — Douglas A. Kysar, Regulating from Nowhere, 317
• A statute’s purpose is qualified by the costs its legislature contemplated #qualifies (0.75) — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 1432
• Formalized systems like cost-benefit analysis must inherently be incomplete. #qualifies (0.72) — Douglas A. Kysar, Regulating from Nowhere, 443