A “Cost-Benefit State”? Reports of Its Birth Have Been Greatly Exaggerated

Abstract

In a spate of recent cases (Michigan v. EPA, EME Homer City v. EPA, and Entergy Corp. v. Riverkeeper), the U.S. Supreme Court has been widely viewed as abruptly changing course in its treatment of cost-benefit analysis (CBA) in environmental decisionmaking. In fact, these cases represent less of a change in course than is commonly believed. They did not so much eliminate the Court’s previously emerging anti-cost presumption as narrow and perhaps more clearly define it. The term “cost-benefit analysis” can refer to a broad range of decisionmaking techniques, and an even longer list of methods involve agencies “considering costs” in one way or another. These cases indicate that the Court’s anti-cost presumption no longer applies to informal CBA or feasibility analysis, but they do nothing to disturb the presumption as applied to other cost consideration tools. Indeed, Riverkeeper can be read to at least gesture in the direction of a continuing presumption against formal CBA. It is not entirely clear that Michigan articulated a pro-cost presumption at all, but to the extent it did, that presumption can be read to exclude or at least de-emphasize formal CBA.