William H. Rodgers, Jr., Benefits, Costs, and Risks: Oversight of Health and Environmental Decisionmaking, 4 Harv. Envtl. L. Rev. 191 (1980), https://digitalcommons.law.uw.edu/faculty-articles/271
Harvard Environmental Law Review
This article considers problems of "regulatory reform" in the context of environmental and health decisionmaking. Specifically, in Part I, this article defines cost-benefit analysis, explores its advantages and limitations, and assays cost-benefit practice in light of descriptive theoretical and practical demands of formal decisionmaking within administrative agencies.
The two remaining sections of this article focus on the question of how Congress and the courts can, do, and should structure environmental and health regulation. In Part II, the article explores legislative models for agency consideration of costs and benefits in promulgating regulations. It examines four alternative models, and identifies normative considerations influencing the choice of formulation. Structuring agency consideration of costs in promulgating regulations, however, is but a partial solution. Under any model of cost consideration, critical policy issues remain—the resolution of uncertainty and the protection of agencies' predictive judgments. Decisions of whether to regulate, and to what degree, often depend as much upon what to do when facts are unavailable as upon assessment of statutory criteria.
Therefore, Part III looks at standards of judicial review, and the assignment of burdens of production and proof as techniques of addressing uncertainty.