Yesterday I published a study that reviews EPA’s performance for more than 1,000 Clean Air Act deadlines. Here’s the big takeaway: the agency missed 84 percent of its date-certain duties by an average of 4.3 years.
In fact, the study is an update and expansion of a 2013 study. In the study three years ago, I reviewed EPA’s performance meeting more than 300 deadlines under three core Clean Air Act programs (National Ambient Air Quality Standards, National Emissions Standards for Hazardous Air Pollutants, and New Source Performance Standards). For the present study, I updated EPA’s performance meeting these programs; in addition, I added a review of EPA’s timeliness in reviewing State Implementation Plans.
Of course, it is possible that EPA simply doesn’t have enough resources to meet its congressionally-directed responsibilities. I investigate this possibility in the study by reviewing EPA’s priorities as set forth in the budgeting process. The evidence demonstrates that the EPA never has given priority to timely performance of its date-certain duties. Instead, the EPA’s budgets over the last 15 years have placed increasing importance on fighting climate change, which is largely a discretionary choice.
EPA’s terrible performance is important for a number of reasons. First and foremost, by ignoring its mandatory responsibilities under the Clean Air Act, the agency frees up resources to pursue discretionary regulations—namely, climate rules. That is, the agency is free lancing. This raises serious questions whether the EPA is faithfully executing the Clean Air Act, as is required by the Constitution.
The EPA’s dereliction of duty also leads to bad policy. For starters, it is the sine qua non of “sue and settle.” The Clean Air Act empowers environmental litigation groups to sue the agency to compel performance of non-discretionary duties like deadlines. Because the agency is missing virtually all of its deadlines, winning these suits is like shooting fish in a barrel. The unfortunate consequence is that environmental special interests dictate which duties should take precedence over others, which affords these groups the power to set the agency’s agenda. Needless to say, unelected ideologues should not have such an outsized say in how the EPA spends its limited resources.
Finally, the agency’s woeful deadline performance in reviewing State Implementation Plans puts the states in a bind. In order to guide states in their compliance with the Clean Air Act, the EPA periodically publishes memorandums that tell states what EPA is looking for when the agency reviews the state plans. Naturally, these memorandums change when political control of the EPA shifts from one president to the next. EPA is so late in reviewing state plans—up to ten years late—that the review period will encompass more than one guidance memo. The upshot is that states are faced with moving targets.