Environmental Law: Lessons from the U.S. Experience
The air pollution control program is the crown jewel of the Environmental Protection Agency (EPA), an agency that often develops “the state of the art” in regulation generally. Officially called the Office of Air and Radiation (OAR), the air program has achieved most of the public health benefits of our five-decade-long crusade to “save the planet.” It is time to undertake a sober assessment of both strengths and weakness of air-pollution regulation to learn lessons for future regulatory programs. To its credit, the OAR has made measurable progress in reducing every type of air pollution it has targeted. The main features of the U.S. system of regulating air pollution—“cooperative federalism,” notice and comment rulemaking, benefit–cost analysis, and citizens’ suits—were all innovations in 1970 when the effort began; today, they are proven regulatory techniques. While the system has been expensive, it has achieved significant progress and credibly claims benefits to public health and productivity many times its costs. On the negative side, the United States’ method of regulating air pollution has been criticized as slow and inefficient. As discussed below, in some instances it has required thirty years or more to achieve the EPA’s objectives. These long delays are, in the main, not the EPA’s fault. They result in part from the method of regulation mandated by Congress, which relies on the EPA’s compiling an extensive scientific record, followed by public-notice-and-comment rulemaking, judicial review by generalist judges, state implementation, and finally, enforcement, primarily through civil litigation. This system of rulemaking, like everything made by humans, has its strengths and weaknesses. On one hand, the EPA has been remarkably successful over a generation at using its interpretive “Chevron discretion” to cope with structural weaknesses that were built into the program by Congress from its inception, such as “grandfathering” existing plants and using states as the primary units for implementation while many air pollution problems are regional in their nature. The U.S. system of regulation takes a long time to implement, but eventually it generates specific air-pollution limits that are verifiable and enforceable for the thousands and thousands of major sources of air pollution of multiple types, which greatly enhances enforceability. On the negative side, the OAR has generally been reluctant to use monetary incentives in addition to command-and-control rules to regulate polluters. This is partly cultural, but it also results from an unfortunate misunderstanding of the EPA’s authority to impose “user fees” for use of the atmosphere for waste disposal. While many of the advantages of economic-incentive systems have been touted in the academic literature, including cost savings and stimulating innovation, it has generally not been recognized that the economic incentives to reduce pollution created by either tradeable permits or user fees take effect immediately, while command-and-control rules typically take years to roll out. Moreover, once a source has a command-and-control limit in place, it has little or no incentive to reduce pollution below the legal limit and may even be reluctant to develop new techniques that it would then have to apply as “best available control technology” at its other locations. This Article suggests that in the future the OAR, and the EPA generally, should consider charging user fees to create incentives to reduce pollution in addition to setting maximum pollution limits. It is hard to imagine that at this late date Congress would substitute either tradeable permits or emissions fees for the existing system of regulatory limits; however, in order to speed up the pace of reductions in air pollution, it might be attractive politically to enact a provision giving polluters the option to opt out of the existing system of command-and control regulation, with all of its regulatory red tape and delays, if they cut their existing pollution permitted under the current system by a significant amount, such as 10–25%, and paid an emissions fee on the pollution that they continue to emit. Because such a system would both reduce pollution and cut red tape, it might even be possible to enact it on a bipartisan basis. In some limited instances, the EPA might even be able to do something like this under its existing statutory authority to approve an “alternative equivalent program” under Section 172(e) of the Clean Air Act.
E. Donald Elliott has been a professor at Yale Law School since 1981, and now teaches part time as Distinguished Adjunct Faculty at the Antonin Scalia Law School. Elliott has advised six presidential campaigns and teaches and writes in fields as diverse as administrative and constitutional law, civil procedure and energy and environment. He is the author or co-author of over 70 articles and seven books https://digitalcommons.law.yale.edu/authors.html#E and writes regularly on popular legal topics for The American Spectator. https://spectator.org/author/edonaldelliott/ Elliott also has practical experience as the head of the environmental and product stewardship practice groups at four large international law firms, including Covington & Burling LLP. He is an elected member of the American Law Institute and the American College of Environmental Lawyers, a senior fellow of the Administrative Conference of the United States and a member of the boards of the NYU Institute for Policy Integrity, the New Civil Liberties Alliance and Save the Sound, a regional environmental organization serving Connecticut and New York. Elliott was appointed by President George Herbert Walker Bush, and unanimously confirmed by the Senate, to serve as assistant administrator and general counsel of the EPA, 1989-1991. He was a law clerk to U.S. District Judge Gerhard Gesell, and D.C. Circuit Chief Judge David L. Bazelon.
BA summa cum laude, Yale University; JD, Yale Law School (first in class).
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