EPA Regulations: Too Much, Too Little, or On Track?

EPA Regulations: Too Much, Too Little, or On Track?

Since the election of President Obama, the efforts to adopt and enforce environmental regulations has devolved into an ongoing battle between the President and EPA on one side and the conservative members of Congress on the other. The Congressional Research Service released a report entitled EPA Regulations: Too Much, Too Little, or On Track? on July 8, 2014 that examined EPA’s actions from 2009 through 2014. Rather than try to explain all of the EPA proposals and rules during that time, I’m going to give you some of the summary conclusions from that report.

 The report starts out by saying that since Barack Obama was sworn in as President in 2009, the Environmental Protection Agency has proposed and promulgated numerous regulations implementing the pollution control statutes enacted by Congress. The Environmental Protection Agency has proposed and promulgated numerous regulations under the 11 pollution control statutes Congress has directed it to implement. Most of those statutes have not been amended for more than a decade, yet the agency is still addressing for the first time numerous directives given it by Congress, while also addressing newly emerging pollution problems and issues. The statutes also mandate that EPA conduct periodic reviews of many of the standards it issues, and the agency is doing those reviews, as well. 

 Critics have reacted strongly. Many, both within Congress and outside of it, have accused the agency of reaching beyond the authority given it by Congress and of ignoring or underestimating the costs and economic impacts of proposed and promulgated rules.

The Wall Street Journal is, of course, a conservative, business oriented newspaper. It called the scale of EPA regulatory actions "unprecedented," and stated that the agency "has turned a regulatory firehose on U.S. business."[1]

 Regarding proposed regulatory actions affecting electric generating units, it said "the EPA’s regulatory cascade is a clear and present danger to the reliability and stability of the U.S. power system and grid."[2]

 The American Enterprise Institute stated that EPA "is engaged in a series of rule-making proceedings of extraordinary scope and ambition."[3] And the U.S. Chamber of Commerce described EPA’s actions as "a series of one-sided, politically-charged regulations that are intended to take the place of legislation that cannot achieve a consensus in the Congress."[4]

 The 111th Congress convened on January 8, 2009, and adjourned on January 3, 2011. That was the first time we saw a concentrated legislative attack on EPA’s actions. The House of Representatives saw various bills that would have delayed or prohibited EPA actions, and there were resolutions of disapproval under the Congressional Review Act, and attempts to cut EPA’s appropriations in retaliation for EPA’s actions. None of the measures passed.

 The Congressional Research Service report said that attacks on EPA increased during the 112th Congress, with several bills to prevent or delay EPA actions passed in the House, but those bills never received consideration in the Senate. The 112th Congress ran from January 3, 2011 to January 3, 2013. So for the first two sessions of Congress where the House of Representatives tried to rein in EPA’s actions, there was nothing really accomplished.

 The 113th Congress convened on January 3, 2013 and adjourned on January 3, 2015. Therefore, the Congressional Research Service report was released about half way through that session, so it’s not completely up to date. But it points out that the 113th Congress has continued the efforts of its two predecessors in attacking EPA. Much of the energy of the 113th Congress was focused on climate change and EPA’s attempts to regulate the release of greenhouse gasses. In addition to measures that targeted greenhouse gas regulations, bills passed by the House in the 112th or 113th Congress have addressed other EPA regulatory actions affecting electric power plants, industrial boilers and incinerators, coal combustion waste, cement kilns, and rural dust. None of those has passed the Senate.

 The Congressional Research Service report notes that beyond the criticism of specific regulations, there have also been calls for broad regulatory reforms in the 112th and 113th Congress to reinforce the role of economic considerations in agency decision-making, to increase Congress’s role in approving or disapproving regulatory decisions, or to require analysis of the cumulative impacts of multiple EPA regulations.

 One such broad bill is H.R. 367, the Regulations from the Executive in Need of Scrutiny ("REINS") Act, which in general provides that major rules of the executive branch shall have no force or effect unless a joint resolution of approval is enacted into law. The bill has passed the House in both the 112th and 113th Congresses.

 Other bills passed by the House in the 112th Congress proposed a number of broad regulatory reforms, including requiring agencies to adopt the least costly rule that meets relevant statutory objectives unless the benefits justify additional costs; providing for judicial review of certain requirements and determinations for which judicial review is not currently available; altering judicial deference to agency interpretations of rules; enhancing regulatory review authority of the Small Business Administration; and/or placing moratoria on the issuance of new regulations.

 The 114th Congress has shown no more love for EPA than its two predecessors. An example is H.R.2111 – The Wasteful EPA Programs Elimination Act of 2015.

 Perhaps the two most controversial regulations we’ve seen in the past year were the new rules defining Waters of the United States and the President’s Clean Power Plan. Both of those rules are under attack. The day before the new rules regarding the definition of Waters of the United States were to become effective, a federal district court in North Dakota issued a preliminary injunction against the rules, stating that EPA had engaged in  "a process that is inexplicable, arbitrary, and devoid of a reason..."[5] That suit had been brought by Arizona and 12 other states.

 Today we have an intransigent battle between our current President and EPA on one side, and conservative law makers and property owners on the other. Unlike the conditions that we experienced in the 1970s when nearly everyone was supportive of environmental regulations, today every proposal to regulate the environment is met with staunch opposition.

 In some ways, that’s unfortunate, because we are faced with a large number of environmental issues that are going to be gaining even more attention is the future. Climate change, is of course, the biggest one, but hydraulic fracturing, pharmaceutical waste, TSCA revisions, genetically modified food, and nanotechnology are all lurking with potential problems that need to be addressed, but which, to date, are being either ignored, or disputed so vehemently that no regulations seem likely to survive.

 If we follow the history of environmental regulation in this country, we are only likely to see any kind of consensus on new regulations following a catastrophe of some sort.

 EPA’S NEXT GENERATION COMPLIANCE INITIATIVE

The EPA’s Office of Enforcement and Compliance ("OECA"), is the "lead" for the EPA’s Next Generation  Compliance Initiative ("Next Gen"), which is the EPA’s program designed to set enforcement priorities.

 Next Gen is underfunded, but since its principles provide the guideposts for compliance policy, it’s important that we at least be aware of it.

 Next Gen focuses on five areas:

 1.      Designing and drafting regulations and permits that are simpler and easier to implement.

 2.      Using advanced emissions/pollutant detection technology so that regulated entities, government, and the public have prompt access to monitoring data concerning environmental conditions (as well as potential violations).

 3.      Electronic submission of permit applications and monitoring data.

 4.      Prompt web-posting of traditional compliance data, and presenting information obtained from advanced emission monitoring and electronic reporting (so-called big data sets) to the public.

 5.      Developing data analytics to guide enforcement activities.

 EPA announced the program in the fall of 2013 and has reaffirmed its commitment to it repeatedly since then.

 As you might expect, given the contentious atmosphere surrounding any of EPA’s proposals, Next Gen has many critics. The most frequent complaints seem to be that:

 •           The initiative is too vague to be helpful.

 •           The Government Accountability Office found that OECA lacks a strategic plan to implement the initiative.

 •           Next Gen does little to reward good behavior.

 On Jan. 7, 2105, EPA sent a memo to its regional offices instructing them to use the Next Generation Compliance Tools in Civil Enforcement Settlements.[6] To date, that is probably the biggest impact we’ve seen from the Next Gen program. So far, the focus seems to be on the oil and gas industry, but expect to see it expanded to other sectors in the near future.