Supreme Court?s Mercury Decision Did Not Usher in Sunstein?s 'Cost-Benefit State'

In Michigan v. EPA, handed down two weeks ago, the Supreme Court waded into the decades-long debate over the use of cost-benefit analysis (CBA) in agency rulemaking. The decision struck down EPA's limits on mercury emissions from power plants for the agency's failure to consider costs, and so appears, superficially at least, like a win for the pro-CBA camp. Indeed, Professor Cass Sunstein of Harvard - President Obama's former "regulatory czar" and one of CBA's most prominent cheerleaders - has been crowing about the opinion, hailing it as "a rifle shot," ringing in the arrival of "the Cost-Benefit State." But Sunstein's celebration is a bit premature; his so-called "cost-benefit state" remains mostly in his imagination. In fact, there is good reason to believe that the Court remains quite skeptical of the particular brand of CBA that Professor Sunstein advocates. And that's very good news for the rest of us.