Part 1 of this article recommended that the U.S. Environmental Protection Agency (EPA) be reorganized into a five-person commission.
The primary reason is to dilute the massive regulatory powers that currently reside in a single Administrator, whose agency in recent years has been responsible for fully 25% of all federal regulations, a number of which were sharply criticized as being based on faulty or insufficient evidence.
Secondly, a five-person commission would make it more difficult for the agency to manipulate science, economics and facts in the rulemaking process. The minority members of the commission would have access to the same data as available to majority commissioners, thus allowing for minority reports that would be used in the rulemaking process and by courts in judicial reviews of a regulation.
This second installment recommends a few modest but substantive changes that would create an agency better able to balance environmental protection with economic growth, and to recognize that a strong economy is also essential for human health and environmental quality.
1) Transform the agency from one in which each part of the agency focuses on a single statute, thereby fostering myopic thinking, into an agency that coordinates functions to address all the most serious environmental risks facing our country. To make this change, the agency needs to appreciate that what was needed or what worked in the 1970s and 1980s (addressing specific types of end-of-the-pipe pollution) is not as relevant today, because most of those earlier challenges have been addressed.
Today the agency needs to focus on preventing new kinds of pollution, using Big Data and technology to identify and address the new risks, and addressing the most significant environmental issue of all: poverty. If EPA truly wants a better environment, it needs to reverse its policy of limiting the placement of new industries in minority and low-income areas.
These areas need jobs that pay fair wages so that workers can provide food, shelter, education and healthcare for their families by working at companies that are accountable for achieving all environmental standards.
2) EPA needs to recognize that all risk is not equal. It must identify and prioritize risks, and address the most serious risks first. EPA itself first recommended this approach in 1990 in its report Reducing Risk: Setting Priorities and Strategies for Environmental Protection. This report recognized that the agency often concentrated on risks perceived by the public to be most significant – frequently because of intense media and environmentalist pressure group campaigns – notwithstanding that in many cases the science community presented a very different view of the same risks.
3) EPA must recognize that the states are partners, not servants of the Federal Government. States currently implement over 80% of EPA’s delegated programs. Yet they receive only 30% or so of the funds needed to administer these programs. Moreover, if EPA disagrees with a state on an enforcement matter, EPA thinks nothing of interfering with the state’s approach.
Once EPA delegates a program to a state, the state should be completely responsible for administering the program. If EPA believes the state is not implementing the program properly, it should hold a hearing on the state’s actions. If EPA finds the state is indeed implementing the delegated program improperly, it should withdraw the entire program from state jurisdiction and implement it with federal resources.
Only by fairly reviewing a state’s complete implementation of an EPA program can EPA determine the value of the state’s activity.
4) To reduce regulatory churn and overreach, Congress should mandate that, once a regulation is issued, EPA should be barred from amending the regulation for ten years unless there is an emergency. That would ensure that a new administration or environmentalist pressure does not result in ever-tighter, politically inspired standards.
5) EPA currently operates as investigator, rule-writer, prosecutor and judge for all claims of environmental harm or failure to comply with regulations. This system is unfair and costly to a company defendant, since even an administrative trial judge is an EPA employee. To bring fairness to the system, a defendant should be allowed to proceed immediately to federal court, where it and EPA will be on equal footing before a federal judge.
6) Congress should establish within EPA an independent Bureau of Environmental Statistics that would undertake independent peer reviews of the economics and science used by the agency.
7) EPA should release all data it relies on, via a rulemaking presented for public review. There is no place for secretive, non-reviewable science in the public policy arena, especially considering the impact of costly regulations on jobs, local economies, and thus the health and welfare of American families.
8) Congress should authorize EPA to develop a performance-based regulatory system that could be implemented in lieu of the current command and control system. This will encourage business innovation and significantly reduce regulatory uncertainties and costs.
9) EPA should encourage companies to undertake routine environmental audits, as the most effective mechanism for ensuring environmental compliance. If a company discovers non-compliance, it should immediately remedy the matter. To encourage environmental audits, EPA should waive penalties for the prompt reporting and remediation of a problem.
10) EPA’s climate science work should be transferred to the Department of State, since contentious climate science, economic, energy and human welfare issues cannot be resolved by any one nation. It must be a global effort.
These recommended changes will bring regulatory efficiency and improved public welfare, by eliminating several levels of government activity to implement the same programs. They will reduce regulatory overreach, while promoting compliance. They will also provide the public with transparency, to ensure a sound foundation for regulatory activity.
(For more background on this agency, more examples of EPA’s past dishonesty and hyper-regulation – and more ideas on what can be done to make it more honest and accountable – read JunkScience.com director Steve Milloy’s book, Scare Pollution: Why and how to fix the EPA.)
Simple fairness, honesty and transparency should be little to ask of an agency that was created to protect our overall environment, health and welfare – a policy that all Americans support.
Taming the EPA Regulatory Hydra: An essential first step (Part 1)
Since President Trump’s election, the U.S. Environmental Protection Agency (EPA) has turned off its massive regulatory printing press. The nation is still here, there have been no man-made environmental catastrophes, and job creation is quickly growing now that the business community is not under the daily fear of another regulation that will slash its profits, force it to lay off employees or put it out of business.
So far, so good. However, if America is to continue its job creation activities, it needs to continue the Trump Administration’s balance between environmental protection and creating jobs and growing businesses. Unfortunately, in the future another anti-business president could be elected.
If the current administrative process and EPA’s organizational structure remain the same, the new, anti-business president could quickly stop economic progress by issuing many billion-dollar regulations that again freeze business activity, while imposing huge extra costs on consumers for everything they purchase from cars, to light bulbs, to housing – once again for little or no health or environmental benefit.
While President Trump ordered EPA to begin deregulatory activity, those efforts take years. To repeal a regulation, the agency must go through the same administrative process it went through to produce the initial regulation.
The Trump administration has started to revise the three most costly regulations: Waters of the United States, the Clean Power Plan and automobile mileage standards. This effort will last well into third or fourth year of the Trump administration – and then the lawsuits will begin. Equally important, while we need wholesale deregulation at EPA, it is likely that this administration will only make a dent in EPA’s historic overreach.
The almost fifty-year history of the EPA regulatory process is like the mythological “Hydra,” a monster with many heads; when one was cut-off, two more grew back. Such an aggressive regulatory process crowned EPA as the most aggressive regulator in history.
EPA alone has published over 25% of all the pages of regulations issued by all the agencies of the Federal Government, and almost twice as many as the much-derided IRS. Of the 28 most costly regulations issued in eight years by the Obama administration, EPA issued 13 of them.
This situation places those seeking a long-term, rational regulatory process at EPA in a quandary. Determining what can be done to tame this monster is a complex undertaking, because stopping new regulations in one administration does not prevent many more regulations from being issued in another.
However, considering EPA administrators of the past, the first change must be to ensure that no single person in the United States government can exercise the massive powers wielded by those past bosses. Such powers determine who gets a permit to operate, and who does not; what technologies a business must use; what lightbulbs are available for your homes; what gas we can buy; what chemicals can be used; where companies can mine; what local land use decisions will survive; and even where a pond can be built on private property.
While the President of the United States has massive powers over war and peace, and sets the operating philosophy of federal agencies, the EPA Administrator has direct power over the business operations … and thus the economy … of the entire nation.
EPA makes the environmental rules we live under. It is the fact finder who determines if we are breaking the rules, the prosecutor of all alleged violations – and the administrative judge who makes the findings of fact, interprets the law, and permits or punishes our actions.
It’s frightening when you think about it how much power one person can have over our lives. Yet, we don’t think about it until the agency wants to “get us.”
How should we restructure EPA to ensure the agency can still protect our environment – while controlling the massive amount of power exercised by one individual?
Several mechanisms would tame this hydra. Perhaps the most important and most effective would be converting EPA from an Executive Branch agency to an independent agency directed by five commissioners: three appointed by the party holding the presidency and two from the other party.
This commission-style agency would limit the power to act by requiring that any final regulation be approved by a majority of the commissioners. While an anti-business president would still appoint a majority of anti-business commissioners, the minority commissioners would have access to all evidence and decision-making documents, and could file dissenting opinions on all final decisions.
These dissents would allow discussion of the flaws in the majority’s reasoning – including facts, science, economics, costs and benefits.
Under the current regulatory process, there is only EPA’s final rule and a record that can run hundreds of thousands of pages. While the public is allowed to comment, the courts usually uphold EPA’s decision if it is “rational,” meaning the agency can point to some part of the record that supports its reasoning, and can conceal or ignore any parts that do not support its reasoning.
Dissenting opinions would ensure that the reviewing court sees the flaws in the majority decision. This would be invaluable for good policy making, since the minority commissioners could also review and present all the science and economics used by the majority. That would enable the minority to keep an out-of-control agency in balance.
Historically, EPA has not provided all the scientific studies and models to the public for review, analysis and comment. Having access to these documents would allow minority commissioners to point out not just flaws, but also deceptions, concealed facts and data, and hidden agendas.
Other actions would enable EPA to bring focus and coordination to the 13 separate statutes it administers, largely in the absence of any mission statement or meaningful congressional direction.