The EPA’s Dereliction of Duty

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Congress designed the Clean Air Act to act like a ratchet that, over time, will effectively squeeze all unduly harmful pollution out of the economy. Under the Act, stationary sources of air pollution—any fixed emitter of air pollutants, such as power plants, refineries, or factories—are subject to a handful of  major regulations that the U.S. Environmental Protection Agency (EPA) is required to review and, if necessary, update periodically. In this manner, the Act’s mandates become ever more stringent.

Four programs account for virtually all Clean Air Act regulations for stationary sources. They all require periodic renewal.

• The National Ambient Air Quality Standards (NAAQS), the primary regulatory regime established by the Clean Air Act, must be renewed by the agency every five years.
• The EPA’s technology-forcing regulation, known as the New Source Performance Standards, must be reviewed every eight years.
• The Clean Air Act’s program for hazardous air pollutants also must be reviewed every eight years.
• And the Regional Haze rule, whose purpose is to improve the view at national parks, is updated every 10 years.

By including in the Clean Air Act these date-certain responsibilities by which the EPA must update major rules, Congress sought to set the agency’s priorities, rather than give it the ability to set its own agenda.

This oversight structure sets the Clean Air Act apart from most non-environmental regulatory regimes, which are characterized by broad congressional delegations of power to pursue the “public interest” as the agency sees fit. The Clean Air Act does not grant open-ended authority to the EPA. Rather, it is replete with non-discretionary and deadline-bound duties meant to constrain the agency’s freedom of action.

This study assesses the EPA’s performance of its core Clean Air Act responsibilities, reviewing more than 1,000 deadlines across every major regulatory program for stationary sources. The results indicate that the EPA’s deadline performance is woeful. The Agency missed 84 percent of its date-certained duties by an average of 4.3 years. For industrial sector-wide regulations, such as New Source Performance Standards and National Emissions Standards for Hazardous Air Pollutants, the agency was late on average by 7.8 years. In reviewing State Implementation Plans (SIPs) to meet ambient air quality standards, the agency was late on average by 1.9 years.

The EPA, not Congress, is to blame for the agency’s woeful record in achieving its Clean Air Act deadlines. Timely performance of Clean Air Act deadlines never has been a priority in the EPA’s strategic planning for  its annual budget request. In addition, the agency never has come to Congress claiming the Clean Air Act imposes too many tight deadlines and seeking relief. Rather than pursuing its non-discretionary responsibilities as stipulated by Congress, the EPA has given priority to discretionary programs of its own choosing.

The agency’s failure to meet its deadline raises a number of troubling issues. For starters, the EPA cannot be said to be faithfully executing the law, as is required by the Constitution, if it eschews congressional directives to instead focus on its own priorities. The EPA’s woeful performance in meeting its deadlines also creates the opportunity for sue-and-settle lawsuits that empower ideological environmental activists to set agency policy. Finally, the agency’s lack of timeliness in meeting its Clean Air Act responsibilities to review State Implementation Plans has forced states to chase moving compliance targets.

Congress has many tools available to remedy the constitutional and pragmatic concerns associated with the EPA’s failure to meet its deadlines. For starters, Congress can press the agency through greater oversight. Lawmakers should demand to know why the agency rejects its statutory priorities in favor of discretionary policies of its own choosing.

Congress also can rein in the EPA through the setting of budget priorities. If the agency refuses to make a priority of its statutory duties, then Congress should force the EPA’s hand through the power of the purse. Lawmakers should attach conditions to EPA appropriations that clearly require the agency to

complete its non-discretionary responsibilities under the Clean Air Act, and not allow the agency to freelance.