Back Door Cost-Benefit Analysis Under A Safety-first Clean Air Act

The Clean Air Act is widely recognized as a legislative command to provide the benefits associated with cleaner air without explicit balancing of associated costs. A quantified cost-benefit analysis is not required - the protection of the public is the paramount consideration of the Act. It is widely accepted that the Clean Air Act mandates a safety-first approach to investment in air quality, and simply does not allow a cost-benefit approach. Safety has not always come first, however, in implementing the Clean Air Act. Considerations other than safety, some of which may be broadly dominated economic costs, have prevented full, complete, and perfect enforcement of Clean Air Act provisions. This article explores how budgeted enforcement expenditures can be manipulated to contradict safety-first pronouncements and to result in standards resembling those that might be determined under a cost-benefit approach. It also explores the equivalency of direct cost-benefit balancing and balancing through budgetary control; how it might be accomplished and the potential for differences in the outcome. Throughout, the article focuses on federal enforcement of pollution control regulations applicable to stationary pollution sources.