David Cay Johnston: “There will be a level of discretion between a minimal list interpretation and a maximum interpretation where the agency…”

“There will be a level of discretion between a minimal list interpretation and a maximum interpretation where the agency can pick that interpretation and is not overruled unless their judgment is arbitrary and capricious or an abuse of discretion. So, in the first instance, they can pick that interpretation; that is to say, they can pick that level of cost. Now they must meet the test of the benefits justifying the cost. But when you meet the test of the benefits justifying the cost, you use the definition of benefits as found on page--I think it is 621, subsection (5)--which says that benefits include both quantifiable and nonquantifiable benefits to health, safety and the environment. So that, if it is quantifiable, then you pick it up in the first instance of benefits justifying the cost. But we wanted to be sure that sometimes there will be some lagniappe, some nonquantifiable benefits to health, safety and the environment. I believe that clean air is not quantifiable as a benefit. I believe that the benefits of health are non-quantifiable.”