NCPA - National Center for Policy Analysis

The Environmental Protection Agency's Moving Goalposts

October 22, 2012

Metaphorically speaking, football fans would be outraged if every time a team is about to kick a field goal the official reacted by moving the goal post further out. Similarly, the Environmental Protection Agency (EPA) frequently moves the goalposts further away for companies and industries trying to abide by countless federal regulations, says Merrill Matthews, a resident scholar with the Institute for Policy Innovation.

One of President Obama's top agenda items was to pass cap-and-trade legislation intended to limit the amount of greenhouse gas emissions. Given that legislation of this sort will not be approved anytime soon, the EPA responded by engaging its own emission-limiting agenda without the approval of Congress.

  • According to Time magazine, the EPA's new goalpost-moving tactics are the "most far-reaching environmental regulatory scheme in American history."
  • Although the EPA states that it is taking carefully measured steps, numerous industries are already shouldering damages and have sued the EPA.

Texas has also sued the EPA, asserting that the EPA does not have the power to carry out the measures stipulated under the Clean Air Act.

  • Texas created its "Flexible Permitting Program" in the 1990s.
  • It uses combined emissions -- referred to as an "umbrella" -- rather than specific emissions, to meet Clean Air Act rules.
  • The EPA generally ignored the state's request for approval and moved the goal post forward; as a result, over 100 industries were affected.
  • The Fifth U.S. Circuit Court of Appeals "concluded that the EPA exceeded its authority in rejecting the Texas program and that its grounds for doing so were insufficient, capricious and arbitrary."
  • In short, you don't get to move the goalpost just because you want to.

The EPA can import and integrate some of the lessons from the way medical research is conducted.

  • To test a new drug, researchers start with a small sample of patients and subsequently increase the sample experiment size at each stage. The purpose is to limit any potential harm.
  • If the EPA adopts this approach, it would begin with a small number of wastewater treatment plants -- just as the industry is proposing -- see if there is any reason to be concerned, and if so, mover to a larger trial.

Source: Merrill Matthews, "The EPA Is Moving the Goalposts, Even After the Game Has Started," Forbes, October 18, 2012.


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