In Tuesday’s Federal Register, EPA proposed to modify its federal implementation plan for Arizona, pursuant to the Clean Air Act’s regional haze program. The occasion affords us the opportunity to remind readers that the Obama Administration has executed more Clean Air Act regulatory takeovers of state programs than ten times the sum of the previous three administrations.
William Yeatman
“Sue and settle” refers to a phenomenon whereby environmental special interests leverage the legal process to dictate the EPA’s priorities.
At heart, sue and settle results from the Clean Air Act’s overabundance of deadlines. Simply put: Congress tasked EPA with far more date-certain duties than the agency can handle. This wouldn’t necessarily be a problem in a statutory vacuum, but the fact is that the Clean Air Act affords green groups the right to sue EPA to compel the agency to perform its non-discretionary responsibilities. As a result of these dynamics [i.e., EPA doesn’t meet any of its deadlines, and green groups can sue to force the agency to meet its missed deadlines], environmental litigation groups like the Sierra Club can use the courts to set the agency’s priorities.
Of course, priority-setting necessarily entails policymaking—after all, it’s a decision on the use of the agency’s limited resources. Opponents of “sue and settle” argue that EPA should make policy with elected officials in Congress or the States (the regulated entity), rather than through litigation or negotiation with special interests.
Factually speaking, there can be no doubt that greens are employing deadline suits to control the EPA’s regulatory reins. As I demonstrate here, EPA is out of compliance with virtually all its Clean Air Act deadlines, which number well into the hundreds, by an average of more than 5 years. And in this report, on which I collaborated, we list all the Clean Air Act rules and regulations that were galvanized by sue and settle lawsuits.
Nonetheless, despite the evident existence of sue and settle problems, House Republicans on the Energy and Commerce Committee asked the Government Accountability Office to investigate the matter further. Yesterday, the GAO’s December report was finally released to the public. The document’s unfortunate tone is aptly imparted by its title: “Impact of Deadline Suits on EPA’s Rulemaking Is Limited.”
In this post, I’ll detail the GAO report’s flaws, and why its title is misleading. [click to continue…]
- In a recent post, I lamented the fact that the auto industry is basing its investment decisions on government mandates rather than consumer preference. We find more evidence of the same in today’s Financial Times. In a story ($) on GM’s new electric car, the Chevy Bolt, Sarah Gordon reports:
GM’s investment in the market also raises questions about why U.S. carmakers continue to devote substantial shares of their product development budgets to a vehicle class that accounts for a tiny share of sales…The reality for GM and other carmakers is that, as they face strict new fuel economy standards that provide incentives for the development of electric vehicles, they have little choice but to produce them.
- And yet, in contrast to the bullet point above, consumers continue to prefer gas guzzlers, especially during the recent period of ultra-forgiving gas prices. Indeed, President Obama last week admonished Americans to not buy fuel inefficient cars and trucks, despite sub $2 gas in much of the country. Evidently, they’re ignoring him. [click to continue…]
This is part 3 of a 3 part series on EPA’s announcement last week that it will propose a model federal implementation for the Clean Power Plan. For Part 1, “Context of EPA’s Bombshell Announcement That It Will propose a Model FIP for the Clean Power Plan,” click here. For Part 2, “Why EPA Is Proposing a Clean Power Plan Model FIP (Because Otherwise It Can’t Impose Highway Sanctions),” click here.
In the first two parts of this series, I explained why EPA last week announced it would propose a model federal implementation plan (“FIP”) for the Clean Power Plan, the Obama administration’s marquee climate initiative. In a nutshell, the agency’s motive is to increase its bargaining leverage vis a vis States that don’t want to cooperate on the regulation. To be precise, the model FIP would enhance the constitutionality of financial penalties that the agency could impose on a recalcitrant State, in order to compel compliance, during a two-year window after EPA disapproved that state’s plan. Read all about it here and here.
In this post, I want to explore what this model FIP could look like. [click to continue…]
At 8 AM this morning, the Obama administration unveiled its multi-pronged strategy to control methane emissions from the oil and gas sector. The plan will involve proposals from the Interior Department, the Department of Transportation, the Department of Energy, and the EPA. This post focuses on what EPA intends to do.
It is being widely reported that EPA’s regulatory mandate will be limited to new and modified sectors within the oil and gas industry, pursuant to Clean Air Act §111b (“new source performance standards”). This is seen as a major loss for environmental special interests, which had pushed for the regulation of existing sectors in the oil and gas industry, pursuant to Clean Air Act §111d (“existing source performance standards”). THIS MEDIA NARRATIVE IS INNACURATE!
In fact, EPA snuck in a de facto nation-wide regulation of methane from the oil and gas sector. Here’s how: A press release from the White House lists as the second administration action to mitigate methane emissions the following: [click to continue…]
[This is part 2 of a 3 part series on EPA’s announcement last week that it will propose a model federal implementation for the Clean Power Plan. For Part 1, “Context of EPA’s Bombshell Announcement That It Will propose a Model FIP for the Clean Power Plan,” click here. Part 3, on what a Clean Power Plan model FIP could look like, will be posted tomorrow]
In order to mitigate air pollution, the Clean Air Act establishes a State-Federal partnership known as “cooperative federalism.” Generally, under this regulatory arrangement, EPA sets nation-wide targets which States are then left to meet however they see fit (subject to EPA approval). Thus, States are primarily responsible for the actual implementation of the Clean Air Act.
So what happens when a State fails to heed the agency? As I explained in Part 1, the Clean Air Act gives EPA two tools to achieve its regulatory ends in the face of an uncooperative State:
- direct federal implementation of the regulation, also known as a “federal implementation plan” (42 U.S.C. §7410(c)); and
- conditioning state receipt of federal highway funds upon a state’s compliance with the regulation (42 U.S.C. §7410(m)).
These two options are very much germane to the Clean Power Plan—the Obama administration’s marquee climate change mitigation initiative—because a number of States have indicated that they won’t lift a finger to implement the rule. [click to continue…]
For the first time in recent memory, climate change was broached on one of the four network Sunday political talk shows. It happened on Fox News Sunday with Chris Wallace, during a debate on the merits of the Keystone XL pipeline between Senator John Hoeven (R-ND) and Senator Chris Coons (D-DE).
In explaining the bipartisan appeal of a Senate bill that would approve the pipeline, Sen. Hoeven noted recent polling indicating that more than 70 percent of American voters support its approval. To which Sen. Coons gave an incredible response, claiming that what the American people REALLY want isn’t the Keystone Pipeline, but rather a carbon tax and/or EPA climate regulations. [click to continue…]
Formerly at NRDC
It is well established that the Clean Air Act doesn’t empower EPA to order States to comply with federal regulations. Congress can’t command States to legislate into existence regulatory regimes (New York v. United States, 505 U.S. 144 (1992)) and the President can’t commandeer state officials (Printz v. United States, 521 U.S. 898 (1997)).
Instead, the Clean Air Act gives EPA two options to achieve its regulatory ends when faced with an uncooperative State: (1) direct federal implementation; and (2) conditioning state receipt of federal highway funds upon regulatory compliance.
First, the agency may execute the regulation on its own. Hodel v. Virginia Surface Mining and Reclamation Association, 452 U.S. 264 (1981). There are almost 20,000 EPA employees scattered about 10 regional offices across the country. These bureaucrats can and do directly implement federal regulatory regimes. When they do so, it’s known as a “federal implementation plan.”
For example, a number of States balked at EPA’s 2010 rule imposing a Clean Air Act permitting regime for greenhouse gas emissions. Because they refused to play ball, federal bureaucrats implemented and operated the program, independent of the recalcitrant States. (75 FR 82246, 75 FR 82429)
Under the Clean Air Act, EPA is required to implement a federal plan if a State refuses to comply with an agency rule. (42 U.S.C. §7410(c)). Nonetheless, the agency cannot always fulfil this responsibility due to EPA’s finite resources. That is, there are some regulatory tasks that would require too much effort for the federal government to perform; their implementation would monopolize the agency’s time.
- House Minority Leader Nancy Pelosi this week unveiled the Democratic Party’s priorities for the first session of the 114th Congress. Notably absent from her to-do list was the mitigation of climate change, the awfulest, most dire, apocalyptic threat ever.
- Gasoline prices are below $2 at 40 percent of U.S. stations, reads a CNN headline. Which raises an important policy question: If greedy oil speculators control the oil market, as is maintained by many prominent progressives, then don’t we owe them our gratitude? I think so. [click to continue…]
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