Washington Examiner: Sweeping measures can lead to bureaucratic game-playing

Modified: July 12, 2013 at 6:00 pm •  Published: July 15, 2013

NINETY-eight percent of Environmental Protection Agency regulations for three core Clean Air Act programs were implemented late, according to a new study by William Yeatman of the Competitive Enterprise Institute, a conservative think tank. While delaying EPA regulations may be economically beneficial, the failure to implement them in a timely fashion has encouraged the use of “sue and settle” lawsuits that enable special interests to dictate policy implementation in cahoots with the unelected bureaucrats of the environmental agency.

Yeatman found that 200 regulations for the three programs have been implemented over the past two decades. However, just four (2 percent) were promulgated within their statutorily defined deadlines. The other 196 were late, by an average of 2,072 days (over five-and-a-half years). The EPA's inability to adhere to congressionally mandated deadlines has effectively opened the door for special interests to dictate policy. “If the EPA is out of compliance with virtually all of its deadlines,” Yeatman said, “then clearly the agency has limited resources relative to its responsibilities. As a result, establishing any deadline determines how the EPA deploys its limited resources, which is no different than rendering policy.”

It works like this: Environmental lawyers sue the EPA for not meeting a deadline. The agency, instead of litigating, then negotiates a settlement of the litigation that establishes a new deadline for implementing the past-due regulation. The result is that certain regulations take precedence over others, depending on who is suing. It is enabled by lawyers for Big Green advocacy groups like the Sierra Club and the Natural Resources Defense Council colluding with sympathetic bureaucrats to alter regulatory priorities.

Most recently, several environmental groups sued the EPA for not reviewing and revising emission factors for refineries. The groups could, thanks to sue and settle, force the EPA to change its priorities so that more refineries are likely to be shuttered because of health hazards allegedly linked to global warming. “Despite the agency's failure to meet nondiscretionary responsibilities, EPA in 2010 took on an enormous discretionary responsibility in proceeding with greenhouse gas regulations,” Yeatman says. “Why is the EPA giving priority to duties chosen by unelected bureaucrats, rather than responsibilities assigned by elected representatives?”