The Case for Trimming the EPA

The EPA, just as large as it ever was, is now on autopilot, churning out rules and regulations without heed to cost or competing values. It spends huge sums chasing the tiniest of risks.

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Most of our national environmental laws were enacted from 1970 to 1990, and have rarely been amended since. That was a time when America knew no limits: We had gone to the moon; next we were going to cure cancer and eliminate all pollution. Today, there is still a widely shared passion for sound stewardship of the Earth but achieving our goals will require amending obsolete environmental laws to adapt to our current situation.

Many of our environmental laws still command the Environmental Protection Agency (EPA) to eliminate pollution without regard to economic or job costs. They put the EPA on autopilot churning out one rule after another without heed to cost or competing values. Today in some (but not all) EPA rules, we spend huge sums chasing tiny risks that probably don't actually exist and thereby kill jobs and steal from the poor.

We limp along, adapting our laws to new issues by administrative interpretation, but there are limits to how far that can go.

We are victims of our own success. Rivers no longer catch fire and our air is cleaner. But the EPA is just as large as it ever was, and it has developed ever more effective and intrusive regulatory techniques with the advent of computers and modeling.

Admittedly, detailed regulations were once needed to get industry to do the right thing. For example, the EPA issued a six-page, single-spaced guidance document on what industry can and cannot burn. But after industry gets the message and makes sustainability a priority, there is no way to get rid of these detailed command-and-control regulations, which can get in the way of progress.

I had to advise a distillery to stop saving energy by burning its own alcohol waste, and instead to dump it into the ocean. They had to replace the heat value with imported foreign oil. The alcohol waste was considered "hazardous waste" because it was "ignitable," and it was illegal at that time to burn hazardous waste. In other words, it was illegal to burn it because it would burn!

There is no way in our system to declare victory and re-prioritize. We keep fighting past battles for symbolic reasons and inertia long after the war is largely won. We should be moving on to new wars, such as climate change and boosting energy efficiency. Our environmental laws were not written with these goals in mind, however, and do not give the EPA the best tools for pursuing them. So the agency struggles to adapt what it has.

We have no way of making minor but necessary mid-course corrections to our laws. Congress can still legislate when it must in response to such major crises as 9/11 or the financial collapse. But if a law is working tolerably badly, as most environmental laws do, there is no way that a partisan Congress can amend them. If a public policy issue is below Congress's threshold of pain, politicians would rather posture for the next election than compromise.

Solving the nation's most entrenched problems See full coverage

So we limp along adapting our laws to new issues by administrative interpretation, but there are limits to how far that can go. For instance, although there is a consensus that a cap-and-trade system is the best way to deal with such far-flung problems as climate change and regional haze, the EPA has lost in court two out of three times when it has tried to interpret its existing authority to allow it to mandate trading systems.

Is there any way to solve the dilemma? Isn't it inescapable that busy politicians react only to the latest headlines, rushing from ObamaCare to Libya and then on to nuclear weapons in Iran? There are so many big problems that Congress's limited attention span has no room for merely important things that are chronically broken and should be fixed. They are derisively referred to in Washington as mere "good government" measures.

In most of the rest of the world, as well as in many U.S. states, legislatures use consensus recommendations by nonpartisan bodies of experts to get past this problem. These bodies have many different names: legislative revision commissions, the American Law Institute (ALI), the Administrative Conference of the United States, the European Commission, and the ministries in a parliamentary system.

What they all have in common is that the experts only have influence if they come together and agree on consensus recommendations. If they do, legislatures generally enact their recommendations on a pro forma basis: "If all the experts are agreed, then there isn't anything interesting and worth fighting about here; let's just enact it,"

But isn't that the approach that we just tried in the Bowles-Simpson Commission appointed by President Obama to make recommendations for how to address the deficit? That didn't work, did it? True, but that was a big issue, one that by its nature engaged the attention of politicians.

The trick is to get consensus recommendations before Congress on moderately important issues that are below the political radar, such as reforming the Toxic Substances Control Act (TSCA), the federal law that regulates chemicals to make sure that they are safe. We last enacted a federal law on that in 1976.

Meanwhile, much of the rest of the world and the progress of science have developed many innovations from which we could learn. Left to its own devices, Congress will never get around to reforming TSCA unless there is a big crisis that suddenly puts chemical safety in the headlines. But there is already a consensus among those of us who are experts in the field on what we should do differently.

Now if there were only some way that we could tell them.

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E. Donald Elliott, an adjunct professor of law at Yale Law School, is an academic scholar and a practitioner in the fields of administrative and environmental law. More

Elliott has been on the Yale Law faculty since 1981 and currently teaches courses in environmental law, energy law, administrative law and civil procedure. He is also a partner in the Washington, D.C. office of the international law firm, Willkie Farr & Gallagher LLP, where he chairs the firm’s worldwide Environment, Health, and Safety Department.

From 1989 to 1991, Elliott served as Assistant Administrator and General Counsel of the U.S. Environmental Protection Agency (EPA). In 1993, he was named the Julien and Virginia Cornell Chair in Environmental Law and Litigation at Yale Law School, the first endowed chair in environmental law and policy at any major American law school. From 2003-2009, he was a member of the National Academy of Sciences Board on Environmental Studies and Toxicology, which advises the federal government on environmental issues. Elliott also testifies frequently in Congress on environmental issues.

He has served as a consultant on improving the relationship of law and science to the Federal Courts Study Committee, which was chartered by Congress to make recommendations for improving the federal courts, and to the Carnegie Commission for Law, Science and Government. He co-chaired the National Environmental Policy Institute’s Committee on Improving Science at EPA.

Elliott is a Senior Fellow of the Administrative Conference of the United States (ACUS) and an elected member of the American College of Environmental Lawyers, as well as a member of the boards of the Environmental Law Institute, the Center for Clean Air Policy, and NYU’s Institute for Policy Integrity. He is the author or co-author of seven books and has published more than 70 articles in professional journals. He was named one of the top 25 environmental attorneys in the United States by the National Law Journal and is highly ranked in Chambers USA: Leading Lawyers for Business; Best Lawyers in America; D.C. Super Lawyers; Who’s Who in American Law; and Who’s Who in the World.

He earned both his B.A., summa cum laude and Phi Beta Kappa, and his J.D. from Yale. Following graduation, he was a law clerk for Gerhard Gesell in the U.S. District Court for the District of Columbia, and for Chief Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia Circuit.

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