Equity and Feasibility Regulation

Dov Waisman* 

 

Two major approaches to regulating industrial health risks have emerged over the past fifty or so years. Feasibility analysis—the approach required by parts of the Clean Air Act of 1970 (Clean Air Act), the Clean Water Act of 1972 (Clean Water Act),  and the Occupational Safety and Health Act of 19704 (OSH Act)—says to reduce risks to the maximum extent possible without threatening the existence or competitive stability of the regulated industries. By contrast, cost-benefit analysis (CBA)—the approach that has dominated regulatory policy since the Reagan administration—says to reduce risks to the point at which net social benefits would be maximized, that is, to invest in risk reduction up to (but not beyond) the point at which further investment would cost more than it would save in accident costs.

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* Associate Professor of Law, Southwestern Law School. A.B., Harvard College; M.A., Philosophy, U.C. San Diego; J.D., U.C.L.A. I am indebted to Alan Calnan, Michael Dorff, David Driesen, Dave Fagundes, Johann Frick, Barbara Fried, Ezra Goldschlager, Warren Grimes, Danielle Kie Hart, Aaron James, Greg Keating, Hila Keren, David Neumark, Shira Sergant, and Byron Stier for their feedback and support. My thanks also to participants in the 2014 Harvard-Stanford-Yale Junior Faculty Forum and the 2015 Southern California Junior Law Faculty Workshop. I thank Andy Lugo and Sharrel Gerlach for excellent research assistance. Of course, any errors are mine.