The EPA's Questionable Competence

July 22, 2013

The Environmental Protection Agency's (EPA) record of compliance with statutory deadlines established for three core Clean Air Act programs (National Ambient Air Quality Standards, New Source Performance Standards and National Emissions Standards for Hazardous Air Pollutants) raises serious questions regarding the agency's competence and discretion, says William Yeatman, an energy policy analyst at the Competitive Enterprise Institute.

  • Since 1993, 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.

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 has failed to meet its congressionally delegated responsibilities for these foundational Clean Air Act programs by a wide margin.
  • It calls into question EPA's discretionary exercises of power. Since 2009, despite the EPA's persistent failure to meet non-discretionary deadlines -- that is, deadlines that have been codified in the statute -- the agency has taken on enormous new discretionary regulatory responsibilities pursuant to the Clean Air Act as a result of its unilateral decision to regulate greenhouse gases as pollutants.
  • It exposes the insidiousness of "sue and settle." "Sue and settle" refers to friendly lawsuits filed by environmental advocacy organizations against the EPA that lead to collusive policymaking. The basis of the preponderance of such lawsuits is the agency's alleged failure to meet a particular Clean Air Act deadline.

Sweetheart lawsuits are enabling secret policy negotiations between unelected bureaucrats and environmental 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 these regulations, rather than the likes of environmental special interests like the Sierra Club, the Natural Resources Defense Council or the Center for Biological Diversity.

Source: William Yeatman, "EPA's Woeful Deadline Performance Raises Questions About Agency Competence, Climate Change Regulations, 'Sue and Settle'," Competitive Enterprise Institute, July 10, 2013.

 

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