A discussion of EPA's attempts to enforce environmental laws by adopting regulations and EPA's Next Generation Compliance Initiative.
Regulations: Too Much, Too Little, or On Track?
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.
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.
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
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."
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."
Enterprise Institute stated that EPA "is engaged in a series of
rule-making proceedings of extraordinary scope and ambition."
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."
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.
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.
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
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.
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
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..."
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
The EPA’s Office
of Enforcement and Compliance ("OECA"), is the "lead" for
the EPA’s Next GenerationCompliance
Initiative ("Next Gen"), which is the EPA’s program designed to set
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
3.Electronic submission of permit applications and
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
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
Government Accountability Office found that OECA lacks a strategic plan to
implement the initiative.
• Next Gen does little to reward good
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. 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.
The Wall Street Journal, “The EPA
Permitorium,” editorial, November 22, 2010.
The Wall Street Journal, “An EPA
Moratorium,” editorial, August 29, 2011.
“The EPA’s Ambitious Regulatory Agenda,” Conference, November 8, 2010, at
Chamber of Commerce, “Regulatory Areas, Energy, and the Environment,”
North Dakota v. U.S. E.P.A., Civ. No.
 See EPA,
Memorandum re use of Next Generation Compliance Tools in Civil Enforcement
Settlements (Jan. 7, 2105) at 1, available at:http://www2.epa.gov/compliance/next-generation-compliance-memorandum-next-gen-civil-enforcement-settlements
(OECA Next Gen Memo).
Legal Articles Additional Disclaimer