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WASHINGTON, D.C., July 10, 2013 — The Environmental Protection Agency has routinely failed to comply with statutory deadlines established for three core Clean Air Act programs and, more often than not, now promulgates regulations almost six years after established deadlines, according to a study  released today by the Competitive Enterprise Institute .
This raises serious questions regarding the agency’s competence and discretion, says William Yeatman , author of the report and Assistant Director of the Center for Energy and the Environment at CEI.
Since 1993, 98 percent of EPA regulations (196 out of 200) pursuant to these programs were promulgated late, by an average of 5.68 years (or 2,072 days) after their respective statutorily defined deadlines. Currently, 65 percent of the EPA’s statutorily defined responsibilities (212 of 322 possible) are past due by an average of 5.88 years (or 2,147 days).
EPA’s persistent failure is troubling—and not just because it suggests incompetence, Yeatman explains. “Despite the agency’s failure to meet nondiscretionary responsibilities, EPA in 2010 took on an enormous discretionary responsibility in proceeding with greenhouse gas regulations. Why is the EPA giving priority to duties chosen by unelected bureaucrats, rather than responsibilities assigned by elected representatives?”
Yeatman's research also exposes the inner workings of “sue and settle,” or friendly lawsuits filed by environmental special interests against EPA that lead to collusive policymaking. The basis of sue and settle lawsuits is EPA's failure to meet a non-discretionary duty defined by the law, usually a deadline. Instead of litigating, EPA and the environmentalist plaintiffs enter directly into settlement negotiations. The problem—demonstrated by this report—is that EPA is out of compliance with virtually all of its Clean Air Act deadlines. As a result, establishing any deadline through sue and settle negotiations determines how the EPA deploys its limited resources, which is no different than rendering policy.
“EPA’s woeful deadline performance has created a perverse opportunity for sweetheart lawsuits that enable secret policy negotiations between unelected bureaucrats and environmental lawyers,” Yeatman warns. "If EPA is going to negotiate priorities, it should do with the states, which have to actually implement the law, rather than special interests."