Policy: Environment & Energy

Examiner Editorial: EPA's failure to meet deadlines invites regulatory manipulation

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Ninety-eight percent of Environmental Protection Agency regulations for three core Clean Air Act programs were implemented late, according to a new study by William Yeatman of the Competitive Enterprise Institute. While delaying EPA regulations may be seen as beneficial to the economy, failure to implement them in a timely fashion has encouraged the use of "sue and settle" lawsuits that enable special interests to dictate policy implementation in cahoots with the unelected bureaucrats of the environmental agency.

Yeatman found that 200 regulations for the three programs have been implemented over the past two decades. However, just four (2 percent) were promulgated by the statutory deadline. The other 196 were late, by an average of 2,072 days (more than five-and-a-half years). EPA's inability to adhere to congressionally mandated deadlines has effectively opened the door for special interests to dictate policy. "If the EPA is out of compliance with virtually all of its deadlines," Yeatman said, "then clearly the 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 than rendering policy."

It works like this: Environmental lawyers sue EPA for not meeting a deadline. The agency, instead of litigating, negotiates a settlement of the litigation that establishes a new deadline for implementing the past-due regulation. The result is that certain regulations take precedence over others, depending on who is suing. It is enabled by lawyers for Big Green advocacy groups like the Sierra Club and the Natural Resources Defense Council colluding with sympathetic bureaucrats to alter regulatory priorities.

Most recently, several environmental groups sued EPA for not reviewing and revising emission factors for refineries. The groups could, thanks to sue and settle, force EPA to change its priorities so that more refineries are likely to be shuttered because of health hazards allegedly linked to global warming. "Despite the agency's failure to meet nondiscretionary responsibilities, EPA in 2010 took on an enormous discretionary responsibility in proceeding with greenhouse gas regulations," Yeatman said. "Why is the EPA giving priority to duties chosen by unelected bureaucrats, rather than responsibilities assigned by elected representatives?"

The three programs for which deadlines were delayed comprise the majority of the regulations included in the Clean Air Act, meaning that several decades were required for the law to be fully implemented after Congress last amended it in 1990. These problems don't just apply to environmental regulation. With Obamacare deadlines being pushed back -- most recently the mandate requiring employers to provide health insurance -- it might be years, even decades, before the consequences of the law become evident.

The implications of EPA's routine failure to comply with Clean Air Act deadlines go far beyond the competency of the agency to the inherent flaws of Big Government. Aggressively grasping measures like the Clean Air Act or Obamacare invite bureaucratic game-playing and special-interest manipulation like that seen in the sue and settle process. The lesson is clear: Big Government doesn't work.

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