Will Pruitt Math Harm Your Air and Water?

Stakes Are High as EPA Tries to Push Through a Wonky Process Change

By Celia Wexler

But his legacy could be far more lasting. Pruitt plans to fundamentally change how EPA does business, critics charge. And he’s doing it in the weeds of government process so deep and wonky, it may escape much public attention.

Last week, 10 public interest groups asked Pruitt for an extension of that comment period to permit their “meaningful feedback” on the proposal which has the “potential to significantly alter the manner in which EPA carries out its statutory mandates to protect people and the environment against unacceptable risks of harm.” Several other environmental and scientific integrity groups made the same request.

They charge that Pruitt wants to simply devalue the public benefits of rules so he can justify why he drops them, endangering both the planet and public health.

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Pruitt’s proposal is “sophisticated sabotage,” James Goodwin told WhoWhatWhy. Goodwin, senior policy analyst for the Center for Progressive Reform, explained that it’s far easier to change a procedure than to try to weaken laws like the Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act, which have overwhelming popular support. All those laws “impose significant costs on industry,” he noted, but weakening these laws would provoke “a huge outcry.”

“The general public loves these [laws] because we love being able to get drinking water from our faucets and giving it to our children without worrying” and we want to be able to “go outside and breathe the air without worrying what it’s going to do to us.”

While getting Congress to change these landmark laws may be difficult, Goodwin added, “what you can do is amend them without amending them.” That’s what the Pruitt proposal aims to do, he said. The reason Pruitt might win, he suggested, is that most people don’t have a clue about what cost-benefit analysis is, how the method “rigs things” even how to devalue public protections, and why Pruitt’s changes could “rig things even worse.”

Here’s the problem, progressive advocates say: The practice of cost-benefit analysis has been framed as just common sense. “Who would object to requiring policies that generate more benefits than costs?” Goodwin said.

But cost-benefit analysis has always been the tool that industry used to make it more difficult for agencies to regulate. This dates back to the business backlash from “the enormous wave” of public interest laws passed in the 1970s, said Amy Sinden, a Temple University environmental law professor. “For the first time industry was being asked to clean up their own messes,” she said. “They didn’t like it.”

Business lobbyists convinced Ronald Reagan to require agencies to consider the costs and benefits when they proposed major new regulations, and that directive, somewhat softened by President Bill Clinton, largely has remained in place, Sinden said. She adds, however, that Congress, in its landmark laws, did not require cost-benefit analysis, and even prohibited it for laws setting standards for air quality and protections for endangered species. Executive orders don’t have the force of law, but they do affect how agencies do their work.

Businesses would like to pass a cost-benefit law, Sinden charged, but Congress to date has resisted those efforts. Getting the Pruitt rule through would be the “next best thing,” she said.

And initially the cost-benefit directive had the impact that businesses wanted, Sinden said. “They figured that at a minimum at least we’ll delay regulation, we’ll bollix it up in the agencies while they’re scratching their heads trying to figure out how are they going to put a dollar figure on things like public health and environmental benefits.”

Benefits are more difficult because they are often far less tangible. “You can only count what you can count,” Goodwin said.

“If somebody came to you and said, ‘Can I kill your husband for $10 million?’ how would you respond?” Goodwin asked, pointing out that valuing life cannot be reduced to purely economic terms; it’s an ethical question. Even on economic grounds, he said, tying the value of life to higher pay for dangerous jobs presumes that workers have more power in the labor market than they actually do.

Despite all the limits of cost-benefit analysis, the Obama EPA was able to come up with strong rules whose benefits exceeded their costs, Goodwin said. So Pruitt now wants to make cost-benefit analysis “even more deregulatory,” he charged.

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Deciding not to count these benefits is a big deal. And it pretty much tells you what Pruitt is really after, his critics say: He wants to justify gutting rules that would protect the air and water and address climate change.

Clean water could also be at risk, critics warn. Last year, even before he proposed changing the rules on cost-benefit analysis, Pruitt unilaterally ordered staff to drop some estimated benefits of the clean water rule.

EPA had done a careful cost-benefit analysis of the rule demonstrating that the benefits of the rule far outweighed the costs to regulated parties, including agribusiness and developers, she said. The solution? “Delete the benefits of preserving wetlands,” Southerland said.

“Once he [Pruitt] had us delete the wetlands benefits, EPA claimed the costs [of the rule] were excessive,” she said. The 30-year EPA veteran called the action “unprecedented.”

“We don’t know exactly what the proposed [cost-benefit] proposal is going to look like, Sinden said. Her “fear,” she added, is that Pruitt wants all EPA’s standard setting to be based on costs and very limited benefits. “If they do that, it will violate lots of statutory provisions,” she said. “But it will require litigation to resolve those questions and get such a regulation struck down.”

“EPA thinks this is a winning issue because it’s so hard to fight against … it’s technical, it’s obscure,” Goodwin added. If public interest groups “sit on their hands and nobody challenges this,” EPA may be able to get this change through, he said. But “even if they do the best advocacy job in the world, and the courts get some hack judge hell-bent on advancing a deregulatory agenda, nothing is sure on any of this.”

Editor’s note: On July 2, EPA extended the comment period for the cost-benefit proposal for an additional 30 days.

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