On Balance: Major Questions about West Virginia v. EPA and Benefit-Cost Analysis
On June 30, 2022, the Supreme Court of the United States decided West Virginia v. Environmental Protection Agency. The case was about whether EPA in the Clean Power Plan could set the carbon emissions standard for existing power plants at a level that would require the power plants to reduce coal use and shift to or subsidize natural gas or renewable-energy electricity generation (referred to as “generation shifting”). But the focus was not on whether such a level would be benefit-cost justified—but rather on whether the agency was allowed to set a standard requires generation shifting for compliance under this provision of the Clean Air Act. Writing for the majority, Chief Justice Roberts applied the “major questions” doctrine and concluded that EPA could not do this despite reasonable textual support for it; on issues like this one, which have “vast economic and political significance,” Congress must clearly authorize an agency to act in this way.
It is tempting to conclude that this decision about statutory interpretation has no relevance for benefit-cost analysis (BCA). But unfortunately, the decision contains language that suggests the Court misunderstands and disregards the value of using BCA in federal regulatory policy.
The trouble starts when the Court appears to ignore how BCA can help agencies set stringency levels for various standards. The Clean Power Plan, for example, was supported by a BCA that concluded that the rule’s benefits to society would dwarf its costs, with $22.6 billion worth of net health and safety benefits each year in likely scenarios (EPA 2015). But the majority opinion refers to this analysis to highlight only the expected costs of EPA’s approach—without mentioning the expected benefits at all (p. 10). And more concerning, when the EPA argued that its discretion to set an emissions standard is bounded by the fact that it must consider costs, the Court suggested that this admission is itself somehow evidence that EPA’s authority was too vast (p. 25). In fact, the Court seemed to not understand how BCA could reasonably inform and constrain the agency’s choice of the stringency level—or, as the Court called it, the “emissions cap” (p. 29). The Court appeared to think EPA was unconstrained in setting the cap, calling it a cap set to “wherever the Agency sees fit” as opposed to a cap “based on some scientific, objective criterion” (p. 29-30).