How an Overabundance of Clean Air Act Deadlines & “Agency Forcing” Citizen Suits Lead to Terrible Rulemakings

Two characteristics of the Clean Air Act are relatively harmless in isolation, but together engender serious public policy concerns. They are:

1. The fact that the act includes far more deadlines than the agency can meet; and,
2. A provision of the act that empowers environmental special interests to sue to compel EPA to meet its overdue date-certain duties (known as the “citizen suit” provision).

In short, the Clean Air Act contains hundreds of date-certain duties, and EPA is out of compliance with virtually all of them. The agency’s inability to meet its statutory responsibilities wouldn’t be a problem but for the fact that the statute empowers green groups to sue to force EPA to meet its nondiscretionary responsibilities. Such “agency forcing citizen suits” lead to three public policy troubles:

• Collusive litigation between EPA political appointees and former colleagues at green litigation groups;
• Unelected special interests affording themselves the opportunity to dictate how EPA employs its limited resources; and
• Low-quality rulemakings due to impossibly tight deadlines.

In this post, I briefly walk through a topical example of the third type—a major rulemaking that has been rendered awful by an impossibly tight deadline pursuant to an “agency forcing” citizen suit regarding a missed deadline. [N.B.: I do so in only 500 more words (only 700 total)!]. The rule in question is the “industrial, commercial, and institutional hazardous air pollutants area sources rule.”

Among many other duties, the 1990 Clean Air Act Amendments require EPA to promulgate rules for industrial, commercial, or institutional boilers that emit fewer than 5 tons of any individual “hazardous air pollutant,” or 25 tons of any combination of hazardous air pollutants. There are 197,000 such sources. They are known as “area sources” of hazardous air pollutants.

Pursuant to the 1990 Clean Air Act Amendments, this “area sources” regulation was due on November 15^th, 2001. However, EPA hadn’t even proposed a rule by then, so Sierra Club sued to force the agency’s hand (Sierra Club v. Jackson, CA No. 01-1437 (D.D.C.)). In 2006, the D.C. federal district court sided with Sierra Club, and, after repeated extensions sought by EPA, condoned by Sierra Club, and approved by the court, the agency faced a January 21, 2011 deadline to finalize a rule. In December 2010, the agency requested another extension, so that it could re-propose the rule. However, this time Sierra Club balked, and the court again sided with the greens. On January 20, 2011, the court ordered EPA to promulgate an “area source” rule for “hazardous air pollutants” within a month.

To recap: Thanks to the interplay between a surfeit of Clean Air Act deadlines and the statute’s “citizen suit” provision, green litigants sued to force EPA to promulgate a major rule—affecting almost 200,000 sources—well before the agency was prepared to do so. The ultra-predictable result was a terrible rule.

Don’t take my word for it: EPA admitted as much!

EPA issued the area source rule on March 21, 2011 (76 FR 1554). In it, EPA conceded that the rule was highly flawed, thanks to its inflexible schedule as imposed by the court. Indeed, the agency acknowledged 4 important issues that warranted reconsideration (see 76 FR 5266). In effect, the final rule announced a reconsideration of itself. I can assure you, such an unconfident rulemaking is unprecedented. Accordingly, on December 23, 2011 (76 FR 80532), the agency proposed fixes to the rule, which were finalized as amendments to the original rule on February 1, 2013 (78 FR 7488).

Yet even after a round of corrections, the rule still wasn’t right!

Last week, on January 21 (80 FR 2871), EPA proposed more substantive changes to the rule. The agency also addressed a major procedural shortcoming of the February 2013 amendments: Namely, EPA had failed to subject the amendments to sufficient public notice and comment. To remedy this defect, EPA is now taking comment of many aspects of the amendments—two years after they were promulgated! Obviously, this is ridiculous.

In conclusion, the key takeaway is this: EPA’s rule to control “hazardous air pollutants” from “area sources” is a hot mess. EPA conceded the rule was horribly flawed at issuance, and the agency has subsequently amended the rule in a haphazard fashion, divorced from public scrutiny. It’s been a terrible rulemaking, and the reason for this is the parasitic relationship between an overabundance of Clean Air Act deadlines and the statute’s citizen suit provision.

[Updated: 7:10 P.M., 1/24/2015: I forgot to mention–this rule is undergoing judicial review, too. Industry, environmentalists, and EPA are wrangling in the D.C. Circuit in American Chemistry Council v. EPA, Case No. 11-1141 (D.C. Cir.). In fact, industry submitted its reply briefs to EPA & the greens on January 21, 2015. So this rule, which was promulgated in March 2011, has undergone one amendment process, and is now undergoing a second, all the while it undergoes judicial review. Talk about regulatory uncertainty!! This is, of course, the antithesis of how things are supposed to work.

If you are still reading this post, and are curious enough to want any of the briefs, email me at wyeatman@cei.org, and I’ll gladly send them to you.]