Cost-benefit default principles

Courts should be reluctant to apply the literal terms of a statute to manda te pointless expenditures of effort.... Unless Congress has been extraordin arily rigid, there is likely a basis for an implication of de minimis autho rity to provide exemption when the burdens of regulation yield a gain of tr ivial or no value.(1) It seems bizarre that a statute intended to improve human health would... l ock the agency into looking at only one half of a substance's health effect s in determining the maximum level for that (2) substance. [I]t is only where there is "clear congressional intent to preclude conside ration of cost" that we find agencies barred from considering Costs.(3) In order better to achieve regulatory goals - for example, to allocate reso urces so that they save more lives or produce a cleaner environment - regul ators must often take account of all of a proposed regulation's adverse eff ects, at least where those effects clearly threaten serious and disproporti onate public harm. Hence, I believe that, other things being equal, we shou ld read silences or ambiguities in the language of regulatory statutes as p ermitting, not forbidding, this type of rational regulation.(4) The rule-implicit valuation of a life is high - about $4 million - but not so astronomical, certainly by regulatory standards, as to call the rational ity of the rule seriously into question, especially when we consider that n either Hepatitis B nor AIDS is a disease of old people. These diseases are no respecters of youth; they cut off people in their working years, and thu s in their prime, and it is natural to set a high value on the lost years.( 5).