cost-benefit analysis, BAT, technology-based standards, water pollution, supreme court, feasibility
Environmental Law | Law
A group of academic economists filed this amicus brief in a pending Supreme Court case, Entergy v. Riverkeepers. The amicus brief addresses questions pertaining to the nature and limits of cost-benefit analysis (CBA) and thus contributes to the ongoing scholarly debate about CBA's role in environmental law. The case raises the question of whether EPA may consider CBA in writing standards based on the "best technology available for minimizing environmental impacts" from intake of water to cool industrial facilities. This intake kills fish and disrupts eco-systems. The brief explains that cost-benefit balancing may be inappropriate for an agency implementing foundational normative commitments embodied in the constitution or legislation. It then argues that engineering analysis identifies the best technology and financial analysis comparing costs to the regulated industry's economic capabilities (rather than to benefits) assesses a technology's availability. Finally, the brief explains that the radical incompleteness of the CBA done in this case could have been avoided by using a traditional technology-based approach.
Kysar, Douglas A. and Driesen, David M., "Amicus Brief of Economists Ackerman et al. in Entergy v. Riverkeepers" (2008). College of Law Faculty Scholarship. 39.
Metadata from SSRN