Agency Use of Indirect Benefits to Justify Regulation

Authors

Abe Eichner, University of Michigan Law School

Abstract

Executive agencies have long used indirect benefits—meaning benefits beyond the express purpose of a regulation—to justify their rulemakings. However, the statutes that provide agencies with regulatory authority rarely explicitly direct agencies to consider indirect benefits. Lower courts disagree over whether consideration of indirect benefits is permissible, and the Supreme Court has reserved the question for a future case. Courts and existing scholarship have largely asked whether particular statutory provisions authorize consideration of indirect benefits. This Note contends that, even without such statutory authorization, indirect benefits are presumptively permissible because they further three traditional administrative law values: rational decisionmaking, transparency, and accountability. It then argues that, even if statutory authorization was required, the Clean Air Act (CAA)—the statute at the center of the indirect benefits controversy—provides the Environmental Protection Agency (EPA) with unmistakable authority to consider indirect benefits. Finally, this Note recommends two lines of judicial review to prevent agency abuses of indirect benefits.

Recommended Citation

Abe Eichner, Agency Use of Indirect Benefits to Justify Regulation, 122 Mich. L. Rev. 1687 (2024).
Available at: https://repository.law.umich.edu/mlr/vol122/iss8/4