Sunstein: Justice Scalia is right about cost-benefit analysis

Editor’s Note: For information on the origins of OMB review of independent agency regulatory actions, see the 1987 National Journal article here.

From: The Salt Lake Tribune

By Cass Sunstein Bloomberg View

Last week’s Supreme Court decision striking down a federal regulation on mercury and other pollutants from coal-fired power plants is a temporary setback for those who seek to reduce air pollution. At the same time, however, it should be welcomed as a ringing endorsement of cost- benefit analysis by government agencies. It’s a kind of rifle shot, with potentially major effects on a host of future regulations that have nothing to do with the environment. (Disclosure: As administrator of the White House Office of Information and Regulatory Affairs from 2009 to 2012, I worked on the regulation that the court invalidated.)


More importantly, the court has now given a strong signal to independent regulatory agencies such as the FTC, the FCC, the Commodity Futures Trading Commission and the Federal Reserve. If they don’t weigh costs against benefits, they might well find themselves in legal jeopardy. For those who seek rational regulation and who are concerned about unjustified economic burdens, that is a major step forward.

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