Editor’s Note: Benefit-cost analyses relied on by agencies in rulemakings must comply with the requirements of the Data Quality Act.
Caroline Cecot & W. Kip Viscusi
[W]hen an agency decides to rely on a cost-benefit analysis as part of its rulemaking, a serious flaw undermining that analysis can render the rule unreasonable.1
However, we would be reluctant to seize upon a single apparently erroneous datum in a very complex rulemaking and announce that the error undermines the entire rule . . . .2
This Article has evaluated how courts review agency BCAs. It has discussed the conditions that trigger judicial review of agency BCAs and the standards that govern the review. Against this backdrop, it presented specific examples of how courts analyze BCAs. It found that courts are most comfortable evaluating BCAs in light of statutory guidance. That said, courts have been willing to question BCA methodology and assumptions, and request more transparency on these issues. In addition, BCAs prepared pursuant to executive order can be used against the agency in certain situations, even if the agency does not and need not rely on the BCA. The performance of the courts has been sufficiently competent that entrusting greater responsibility to courts may be beneficial. There is no evidence of courts overstepping their proper scope of authority in this area. [Emphasis added]