The Appropriate Role of Costs in Environmental Regulation

Abstract

In Whitman v. American Trucking Association, 121 S. Ct. 903 (2001), the Court held that EPA cannot consider costs in any way in setting air quality standards. The Court's opinion raises many more questions than it answers. This article discusses three of those questions: (1) which of three competing canons of constructions should courts use when they interpret ambiguous provisions in regulatory statutes; (2) how can an agency make and defend its line-drawing decisions when it is prohibited from considering costs in any way: and, (3) how can courts review an agency's decisions when the agency is prohibited from considering costs.