Why Critics Should Stop Bashing EPA (And What They Should Talk About Instead)

Bashing EPA is apparently a good political tactic, at least if you’re in a red state, but it’s also a smokescreen — what is presented as an attack on the agency is actually an attack on the mission assigned by Congress. In terms of carrying out the mission, EPA is no different than the Defense Department or the FBI — it more or less does what it has been told to do, sometimes brilliantly, sometimes less so, occasionally ineptly.  But blaming EPA because you don’t like environmental regulation is like blaming the IRS because you hate paying taxes.

EPA administers quite a number of statutes, covering everything from pesticides to municipal sewage to drinking water.  The most important statute, however, is probably the Clean Air Act. What is EPA’s job in controlling air pollution? The statute is very complicated but it basically assigns EPA two tasks:

  1. Air quality standards.  EPA is required to identify air pollutants and then set air quality standards to protect public health with “an adequate margin of safety.”  Once the standard is set, the states have the primary responsibility for meeting them, under EPA supervision.  The main alternative here is to set the standards based on cost-benefit analysis.  That is, we would put a dollar value on human life and health, and then compare that with the cost of reducing pollution.
  2. Pollution control technologies.  In a number of contexts such as new plants and plants emitting toxic chemicals, EPA requires industry to use the best available technology to control pollution.  “Best available” is defined differently in various contexts, but always requires consideration of technological and economic feasibility.  The main alternatives are the use of pollution taxes or cap-and-trade systems to control pollution.  In theory, these should allow society to achieve the same goals more cheaply.

Industry generally thinks that EPA is overzealous in performing these tasks, while environmentalists complain about EPA’s laxness.

Logically, any conservative call for radical reform has to take one of the following forms:

  1. Dilute protection of public health.  Maybe we shouldn’t be trying to protect public health with an ample margin of safety. Maybe a less affluent America can now longer afford a margin of safety.  Or maybe our goal should be equally balancing public health and costs.  (Similarly, in the health care area, we would ration health care so that the expenses would not exceed the dollar value of the benefit to the patient.) Critics of EPA should say what they want pollution law to achieve.
  2. Change expectations for industry.  Maybe we shouldn’t expect plants to use the best available pollution control technology.  Instead, we could either apply a lower standard (perhaps requiring plants to use at least the average plant).  Or maybe we should use a different tool entirely, such as a pollution tax, giving industry the job of finding the best mix of pollution controls to minimize their taxes.  Critics should say what option they favor.
  3. Change the decision-maker.  Maybe the states should be responsible for evaluating pollution technologies or public health data, or each state should decide how much it values public health. That would still leave a big role for EPA in dealing with interstate pollution, however. Or maybe the proposed REINS act is right, and members of Congress (or their staffs) should make the final judgments about the engineering and medical issues, as contemplated by the proposed REINS law.  Or maybe, as Ron Paul seems to think, judges and juries should make these judgments.
  4. Modify administrative procedures.  Maybe the basic statute is OK but EPA is administering it poorly, so we need a change of procedures — more peer review perhaps, or greater involvement of economists within the agency.

Ultimately, Congress calls the shots.  Congress has the undoubted power to decide that cost should balance equally with public health, or that air pollution is a local issue rather than a national one, or that pollution taxes would be a better tool than current regulations.  Some of those judgment might even be right. But if that’s what you think, you should say so.

In short, basically EPA has been doing what Congress has told it to do.  Critics should stop denouncing EPA and start explaining why protecting public health should get a lower priority or what different tools they would favor to protect public health.

, ,

Reader Comments

6 Replies to “Why Critics Should Stop Bashing EPA (And What They Should Talk About Instead)”

  1. I wholly agree that many partisans attack EPA when their real complaint should be with Congress (or, in some cases, with the Courts). That said, the characterizations of the reform options are horrid caricatures. For instance, the REINS Act does not require legislators and their staffs to make medical and engineering judgments. Rather, it requires Congress to approve the trade-offs embodied by the EPA’s medical, engineering and other judgments. In other words, the EPA’s technical expertise remains relevant, but the ultimate policy judgment remains with the legislature (and without the regulatory entrenchment that the current system creates). Given that the REINS Act’s requirements would apply equally to any future President’s deregulatory initiatives, I would think you might find it appealing.

    As for decentralization, a tiny fraction of the EPA’s rules cover interstate pollution issues, and interstate concerns have tended to languish historically. Giving states more authority over local and regional questions is a way to let EPA focus on those areas where federal intervention is most necessary.

    JHA

  2. I wholly agree that many partisans attack EPA when their real complaint should be with Congress (or, in some cases, with the Courts). That said, the characterizations of the reform options are horrid caricatures. For instance, the REINS Act does not require legislators and their staffs to make medical and engineering judgments. Rather, it requires Congress to approve the trade-offs embodied by the EPA’s medical, engineering and other judgments. In other words, the EPA’s technical expertise remains relevant, but the ultimate policy judgment remains with the legislature (and without the regulatory entrenchment that the current system creates). Given that the REINS Act’s requirements would apply equally to any future President’s deregulatory initiatives, I would think you might find it appealing.

    As for decentralization, a tiny fraction of the EPA’s rules cover interstate pollution issues, and interstate concerns have tended to languish historically. Giving states more authority over local and regional questions is a way to let EPA focus on those areas where federal intervention is most necessary.

    JHA

  3. I don’t think that you’re being realistic about the operation of the REINS act. Whatever the authors may have in mind, industry will certainly see it as one last bite at the apple about the merits of the rule, and they’ll raise all the same issues that they raised before the agency. Moreover, for members of Congress, it’s certainly going to be more appealing to say that EPA used bad science or poor engineering judgment than to say that EPA was doing to much to protect public health or that industry should be allowed to use second-best technologies to control pollutants. To put it another way, if Congress did actually accept all of EPA’s factual findings, then review under REINS would likely mean that either Congress is reviewing EPA’s compliance with its statutory mandate (which is presumably something courts are better suited to doing) or EPA is changing the statutory mandate on an ad hoc basis, but without having to articulate a new standard or even admit that it is changing the old one. Do you really expect Congress to say, “we told EPA to protect public health and it did so, but we’ve changed our mind about whether that’s the right thing to do”?

    Basically, REINS is just a legislative veto, rejiggered to comply with Chadha. I thought Chadha was wrong as a constitutional matter, but as a policy matter, I don’t think the legislative veto worked very well. It seems to me that it’s much better in terms of democratic accountability for Congress to establish general standards and leave it to the executive branch to apply them. Also keep in mind the dynamics of new legislation — with REINS in place, there would be less reason for Congress to provide detailed guidance to agencies in advance, so over time we’d be likely to have a system where agencies get blank checks from Congress subject to ex post second-guessing by Congress.

    What you say about the limited interstate nature of EPA’s rules is conventional wisdom, but it’s an oversimplification. It’s true that only a few rules are explicitly interstate, which isn’t surprising given the structure of the Clean Air Act. Most of the major air pollutants regulated by EPA have interstate impacts, so anything that limits (for instance) NOx or SOx affects interstate pollution. Also, many major metro areas cut across state boundaries, and so does the resulting air pollution. And in terms of water pollution, don’t forget that two-thirds of the country is in a single river basin.

  4. I don’t think that you’re being realistic about the operation of the REINS act. Whatever the authors may have in mind, industry will certainly see it as one last bite at the apple about the merits of the rule, and they’ll raise all the same issues that they raised before the agency. Moreover, for members of Congress, it’s certainly going to be more appealing to say that EPA used bad science or poor engineering judgment than to say that EPA was doing to much to protect public health or that industry should be allowed to use second-best technologies to control pollutants. To put it another way, if Congress did actually accept all of EPA’s factual findings, then review under REINS would likely mean that either Congress is reviewing EPA’s compliance with its statutory mandate (which is presumably something courts are better suited to doing) or EPA is changing the statutory mandate on an ad hoc basis, but without having to articulate a new standard or even admit that it is changing the old one. Do you really expect Congress to say, “we told EPA to protect public health and it did so, but we’ve changed our mind about whether that’s the right thing to do”?

    Basically, REINS is just a legislative veto, rejiggered to comply with Chadha. I thought Chadha was wrong as a constitutional matter, but as a policy matter, I don’t think the legislative veto worked very well. It seems to me that it’s much better in terms of democratic accountability for Congress to establish general standards and leave it to the executive branch to apply them. Also keep in mind the dynamics of new legislation — with REINS in place, there would be less reason for Congress to provide detailed guidance to agencies in advance, so over time we’d be likely to have a system where agencies get blank checks from Congress subject to ex post second-guessing by Congress.

    What you say about the limited interstate nature of EPA’s rules is conventional wisdom, but it’s an oversimplification. It’s true that only a few rules are explicitly interstate, which isn’t surprising given the structure of the Clean Air Act. Most of the major air pollutants regulated by EPA have interstate impacts, so anything that limits (for instance) NOx or SOx affects interstate pollution. Also, many major metro areas cut across state boundaries, and so does the resulting air pollution. And in terms of water pollution, don’t forget that two-thirds of the country is in a single river basin.

Comments are closed.

About Dan

Dan Farber

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

READ more

POSTS BY Dan