Cleaning Up Environmental Regulation

COMMENTARY Environment

Cleaning Up Environmental Regulation

Jun 15th, 2016 4 min read
COMMENTARY BY
Diane Katz

Senior Research Fellow in Regulatory Policy

Diane Katz, who has analyzed and written on public policy issues for more than two decades, is a research fellow in regulatory policy.

Environmental regulations constitute a hefty portion of America’s regulatory burden, in large part because “reform” is an alien concept within the Environmental Protection Agency. But the House GOP on Tuesday unveiled a new policy agenda that, with any luck (and political fortitude), will reverse decades of regulatory excess and abuse.

In many respects, the need for reform of regulation has never been greater. In the past seven years, the Obama administration has increased annual regulatory costs by $108 billion annually. Decades of command and control regimes have produced massive, ineffective, and unaccountable bureaucracies. And the nation’s primary environmental statutes are woefully outdated.

Now comes “A Better Way,” a series of reform proposals from a task force of House Republicans that incorporates many of the regulatory lessons of the past four decades.

As noted in the chapter on regulatory reform, “What federal agencies need more than anything else is some humility. At the very least, new and existing federal regulations can be modernized to inflict far less economic pain.”

Regulatory costs are a problem, to be sure. But the regulatory onslaught of recent years has also exacted an incalculable toll on individual liberty. So pervasive has regulation become that the fundamental character of the nation now resembles servitude to a vast administrative state.

Environmental policy has long been based on the notion that only the federal government can adequately protect natural resources against the destructive self-interests of humans (as producers and consumers). The result is a vast command and control regulatory regime that is often ineffective at protecting the environment, and destructive to a free and vibrant society.

The authors of “A Better Way” recognize that states and the private sector can and should play a far greater role in stewardship. As noted in the new report, “Everything doesn’t need to be done by Washington. Federal agencies should defer to state and local governments whenever possible.”

States are better equipped to customize policies for local conditions, and land owners have greater incentives than the government to protect private property. Both groups can act regionally when there are cross-border components to environmental issues.

A less centralized regime would also mean more direct accountability—taxpayers would have an easier time identifying the officials responsible for environmental policies, and the people making those regulatory decisions would have to live with the consequences. Property owners would be held accountable through common law.

The major pollution sources of the 1970s are controlled, and the regulatory approach of that era is unsuitable for achieving marginal improvements. The task force offers reforms that reflect today’s cleaner conditions and technological innovations.

For example, the agenda calls for the nation’s clean water strategy “to evolve from a “one-size-fits-all” approach to a more flexible and collaborative strategy. The federal government needs to incentivize states through a “bottom-up” approach that gives them a meaningful role in coming up with appropriate solutions. The approaches selected to address the issues must be technologically and economically feasible, effective, reasonable, and scientifically sound.

The task force also proposes that Congress rein in the EPA’s regulatory overreach by withdrawing the agency’s recent rule, issued in concert with the U.S. Army Corps of Engineers, that defines “waters of the United States” under the Clean Water Act.

As currently written, the act applies to “navigable waters,” defined in the statute as “the waters of the United States, including the territorial seas.” This notoriously vague definition has invited the Army Corps of Engineers and the EPA to stretch their authority well beyond their constitutional limits. In their most recent action, the agencies issued a reinterpretation of the act that would cover virtually all waters in the nation and, by extension, much of the land.

A re-evaluation of the Clean Air Act is also recommended. The agenda calls for eliminating the unworkable and unnecessary five-year mandatory review period for the six criteria pollutants. Each new iteration of the standards—which often are imposed before current standards are finalized—push communities out of compliance, and force states to devise plans to limit industrial activity and transportation projects, as well as replace existing emissions control equipment with more advanced (and costly) systems.

The task force recommends that the standards undergo review every 10 years instead, but that’s a cosmetic fix. The better solution is to wrest authority to set the standards from the EPA. Congress never should have delegated such unbounded powers to the agency, and the new report wisely recommends that Congress must approve the air quality standards before they are implemented.

Also of consequence are various proposals to prohibit the EPA’s use of shoddy research to justify its regulations. These include ensuring that any regulations executing a statute be based on “publically available, reproducible, and sound science.”

Despite Washington’s infatuation with heavy-handedness, history has shown that command and control regulation is inherently inefficient and often counterproductive. A classic example is the Endangered Species Act, which has prompted property owners to “shoot, shovel and shut-up” with respect to targeted species on their property lest they come under the federal government’s thumb. By its very nature, the act is adversarial; individuals are forced to bear the costs of benefits enjoyed by the majority.

A complete repeal of the Endangered Species Act is long overdue. The recommendations of the task force could be helpful, but are incremental, at best: increase transparency of the science used in listing determinations and provide states and other interested parties with notice of pending Endangered Species Act lawsuits so they have the opportunity to participate in settlement negotiations.

The new agenda contains many other worthy proposals for regulatory reform—many of which are also detailed in The Heritage Foundation’s “Environmental Policy Guide.” Americans can only hope that the agenda transforms into action. Otherwise, the unparalleled regulatory burden will continue to undermine economic freedom, inhibit innovation and investment, increase prices, and limit consumer choice.

This piece originally appeared in The Daily Signal