In an era of legislative gridlock, policy by administrative action has expanded, with major swings occurring when the political party of the presidency changes. These policy disputes have spilled into the third branch with a concomitant increase in legal challenges seeking judicial review of such actions. At the same time, both Republican and Democratic Administrations have made cost-benefit analysis the currency of federal rulemaking in the executive branch.

The combination of the expansion of cost-benefit analysis and the increased litigation over rulemaking has increased the importance of economic and scientific justifications in both the promulgation and revision of administrative actions. However, despite their importance to the administrative process, the actual economic and scientific analyses which underlie cost benefit studies are often not at the front and center of regulatory action or of legal challenges. To more transparently understand the legality of administrative actions and thus to push for better regulatory actions, these underlying data should be better presented in agency actions. Though attorneys may not believe themselves well versed in the minutiae of such studies, underlying economic and scientific data should be analyzed closely in any legal rulemaking challenges. Administrative decisions that rely on an improper use of data or on flawed data are likely to be arbitrary and capricious, which could void a rulemaking and/or provide support for its repeal or replacement.

In this article, we use the economic analyses accompanying the Trump Administration’s National Waters Protection Rule rulemaking under the Clean Water Act as a case study to demonstrate the importance of such data and administrative actions and discuss approaches for how to accommodate this moving forward.


Administrative Law, Clean Water Act, Cost-Benefit Analysis, Administrative Procedure Act

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