Daniel A. Farber,
Taking Costs into Account: Mapping the Boundaries of Judicial and Agency Discretion, 40
Harv. Envtl. L. Rev.
Available at: http://scholarship.law.berkeley.edu/facpubs/2593
The Supreme Court's recent decision in Michigan v. EPA is only one if a long line if cases struggling with the same problem: when can-or must-a decision-maker consider costs? Agencies face the problem in rulemahing; courts face it in statutory injunctions. The law has developed independently in these two contexts, and cases are marked by heated judicial disagreement. Yet a deeper analysis reveals that, to a surprising extent, the same principles govern the legal relevance of costs in both areas. The areas dijftr, however, in terms if how to consider legally relevant costs: courts must use a balancing test for injunctions (eBay) while agencies have other choices (Michigan v. EPA). This dijference should be resolved in Javor of using the Michigan v. EPA approach in both settings.