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William Yeatman - EPA's Woeful Deadline Performance Raises Questions About Agency Competence, Climate Change Regulations, Sue and Settle

William Yeatman - EPA's Woeful Deadline Performance Raises Questions About Agency Competence, Climate Change Regulations, Sue and Settle

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The Environmental Protection Agency’s (EPA) record of compliance with statutory deadlines established for three core Clean Air Act programs raises serious questions regarding the agency’s competence and discretion.

Since 1990, 98 percent of EPA regulations (196 out of 200) pursuant to these programs were promulgated late, by an average of 2,072 days after their respective statutorily defined deadlines. Currently, 65 percent of the EPA’s statutorily defined responsibilities (212 of 322 possible) are past due by an average of 2,147 days.
The Environmental Protection Agency’s (EPA) record of compliance with statutory deadlines established for three core Clean Air Act programs raises serious questions regarding the agency’s competence and discretion.

Since 1990, 98 percent of EPA regulations (196 out of 200) pursuant to these programs were promulgated late, by an average of 2,072 days after their respective statutorily defined deadlines. Currently, 65 percent of the EPA’s statutorily defined responsibilities (212 of 322 possible) are past due by an average of 2,147 days.

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Categories:Types, Research
Published by: Competitive Enterprise Institute on Jul 09, 2013
Copyright:Attribution Non-commercial

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08/13/2013

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This matters for three important reasons:
It calls into question the EPA’s competence.
These three programs comprise the core of the regulatory regime established by the Clean Air Act. For more than two decades, the EPA hasfailed to meet its congressionally delegated responsibilities for these foundational Clean Air Act programs by a wide margin. This has been the case under both Republican and Democraticadministrations. Why has this failure been allowed to persist?
It calls into question EPA’s discretionary exercises of power.
Since 2009, despite theEPA’s persistent failure to meet
non-discretionary
deadlines—that is, deadlines that have beencodified in the statute—the agency has taken on enormous new
discretionary
regulatoryresponsibilities pursuant to the Clean Air Act as a result of its unilateral decision to regulategreenhouse gases as pollutants.
4
Indeed, in every Unified Regulatory Agenda since 2010, EPAhas listed climate change policy as its first “guiding priority.”
5
Why is the EPA giving priority toduties chosen by unelected bureaucrats, rather than responsibilities assigned by electedrepresentatives?
It exposes the insidiousness of “sue and settle.”
“Sue and settle” refers to friendlylawsuits filed by environmental advocacy organizations against the EPA that lead to collusive policymaking.
6
The basis of the preponderance of such lawsuits is the agency’s alleged failure tomeet a particular Clean Air Act deadline. Instead of litigating, the agency agrees to enter directlyinto settlement negotiations with these groups in order to establish when the agency will meet its past due responsibilities.Some commentators have questioned whether sue and settle causes any harm by asking: Whatcould be inappropriate about negotiating a Clean Air Act deadline?
7
Here is an answer: If theEPA is out of compliance with virtually all its deadlines—as shown by this report—then clearlythe agency has limited resources relative to its responsibilities. As a result, establishing
any
deadline determines how the EPA deploys its limited resources, which is no different thanrendering policy. This is troubling.Sweetheart lawsuits are enabling secret policy negotiations between unelected bureaucrats andenvironmental lawyers. If the EPA wants to give priority to its many outstanding responsibilities,it should do so in cooperation with the states, which have to actually implement theseregulations, rather than the likes of environmental special interests like the Sierra Club, NaturalResources Defense Council, or Center for Biological Diversity.
8
 
Notes
1
National Ambient Air Quality Standards (NAAQS) are the foundational regulatory program of the Clean Air Act.There are six NAAQS—for carbon monoxide, nitrogen dioxide, lead, particulate matter, ozone, and sulfur dioxide— established at levels requisite to protect public health, with an adequate margin of safety. Section 109(d)(1) of theClean Air Act requires the EPA administrator to complete a thorough review of National Ambient Air QualityStandards, and revise them if necessary, every five years.
2
The National Emissions Standards for Hazardous Air Pollutants (NESHAP) in its current form was amended to theClean Air Act in 1990. The 1990 Clean Air Act Amendments established a thorough schedule by which the programwas to be implemented. Not a single NESHAP was promulgated on time pursuant to section 112(d)(4) criteria for major and area sources and section 112(d)(5) alternative criteria for area sources. For all major sources, the EPA is

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