Other Regulatory Overreach Topics:

Environment



The Issue


America’s environment has improved dramatically in the four decades since the adoption of the Clean Air Act, the Clean Water Act, and other foundational environmental statutes. However, there could have been even greater improvement at far less cost—both economic and social—had lawmakers forgone centralized government control in favor of the transformative powers of market incentives and private property rights.

In many respects, the need for reform has never been greater. The nation’s primary environmental statutes are woefully outdated, and do not reflect current conditions. The White House, Congress, and federal agencies routinely ignore regulatory costs, exaggerate benefits, and breach legislative and constitutional boundaries. They also increasingly dictate lifestyle choices instead of focusing on public health and safety.

Forty years of command-and-control regimes have led to massive, ineffective, and unaccountable bureaucracies. A major part of the problem is the centralization of regulatory power in Washington. Federal agencies set regulatory standards for a multitude of pollutants across numerous industrial sectors. But Washington bureaucrats hardly possess sufficient information and expertise to impose controls on hundreds, if not thousands, of dissimilar locations across the 50 states.

Too often, agencies fail to properly perform scientific analyses before imposing rules, and many of the analyses that are conducted are biased toward regulation. Regulators selectively pick findings from the academic literature to justify their actions and ignore evidence that contradicts their agenda. They also operate under the misguided notion that natural resources are finite and fragile, ignoring the resiliency of natural resources and, even more important, the ingenuity of human resources.

A far better approach is rooted in principles and fundamentals of good governance: Market incentives are more effective than government diktats; sound science fosters sound policy; and, most important, citizens are far better stewards of the environment than the government will ever be. The Heritage Foundation has proposed the “American Conservation Ethic” as the road map to restore efficacy, accountability, and rationality to environmental stewardship. This Ethic holds that if a policy is not good for people, it is not good for the environment. Further, it maintains that the best stewards of the environment are the people closest to a resource—those who stand to gain or lose the most from stewardship decisions—and not distant bureaucracies.

The responsibilities and rewards of environmental stewardship belong with property owners and individual states, which are more knowledgeable than federal bureaucrats about local conditions. When environmental policy properly accounts for private property rights, economic incentives will drive stewardship.


Recommendations


Shift Responsibility for Environmental Regulation from the Federal Government to the States and the Private Sector. States are better equipped to customize policies for local conditions, and land owners have greater incentives than the government to protect private property. Both groups can act regionally when there are cross-border components to environmental issues. A less centralized regime would also mean more direct accountability—taxpayers would have an easier time identifying the officials responsible for environmental policies, and the people making those regulatory decisions would have to live with the consequences. Property owners would also be held accountable through common law.

Limit Congressional Delegation of Regulatory Authority. Congress routinely enacts vague environmental statutes, and leaves the regulatory details to unelected bureaucrats. This system invites political manipulation and gross inefficiency because there is little accountability for incompetence or error. Congress, not regulators, should make the laws and be accountable to the American people for the results. Therefore, no major environmental regulation should be allowed to take effect until Congress explicitly approves it.

Codify Stricter Information Quality Standards for Rulemaking to Justify Regulation. Federal agencies too often mask politically driven regulations as scientifically based imperatives. In such cases, agencies fail to properly perform scientific and economic analyses or selectively pick findings from the academic literature to justify their actions and ignore evidence that contradicts their agenda. Strict information quality standards for rulemaking should be imposed, along with oversight to ensure that the standards are met. Compliance with such standards ought to be subject to judicial review, and noncompliance ought to be deemed “arbitrary and capricious.”

Establish a Sunset Date for Environmental Regulations. To help ensure that obsolete and ineffective rules are taken off the books, sunset dates should be set for all major environmental regulations. After this sunset date, rules should expire automatically if not explicitly reaffirmed by the relevant agency through the rulemaking process. As with any such regulatory decision, this reaffirmation would be subject to review by the courts. Such sunset clauses already exist for some new regulations. They should be the rule, not the exception.

Remedy the “Sue and Settle” Problem. Environmental groups routinely sue federal agencies to compel regulatory action. Agency officials are often complicit in these cases because settlements have limited the public from participating in the rulemaking process—thereby allowing the agency to regulate as it prefers. Once a lawsuit is filed, the agency and the advocacy group typically settle behind closed doors. This deceit can be eliminated by requiring agencies to submit proposed settlements to a public notice-and-comment process before any settlement has been filed with a court. Making it easier for third parties to intervene in such cases would also go a long way toward ending this abuse of the judicial system. Further, settlements should not be allowed to dictate substantive provisions of a rule.

Compensate Citizens for Regulatory “Takings.” The benefits of environmental improvements are enjoyed by the public, but the regulatory costs are routinely imposed on individuals. This leaves regulatory agencies to act without any consideration of the costs of regulation. Whenever the use of private property is prohibited, property owners should be compensated for the lost value. In the event that compensatory funding is exhausted, further regulatory takings should be prohibited. This would encourage agencies to prioritize various conservation efforts.

Define the Waters Covered Under the Clean Water Act (CWA). The Clean Water Act prohibits the discharge of a pollutant into “navigable waters” without a federal permit. It further clarifies that “navigable waters” include “the waters of the United States, including the territorial seas.” The Environmental Protection Agency (EPA) and the Army Corps of Engineers continue to expand their regulatory reach by broadly defining “waters of the United States” to include non-navigable waters, such as wetlands. Congress, not agencies or the courts, should define what waters are covered under the CWA, recognizing the important role states play in regulating lakes, rivers and streams. This definition should be narrow in scope and it should clarify that waters with a continuous flow are not included, nor should waters that are isolated, non-navigable, or intrastate in nature.

Prohibit the EPA and Other Agencies from Regulating Carbon Dioxide (CO2). When the Clean Air Act (CAA) was passed, Congress never intended or envisioned that CO2, an invisible and odorless gas required for life, would be covered under the law. The potential economic implications of CO2 regulation are staggering, and its effect on everyday life could be unprecedented without offering any measurable environmental benefit. For these reasons, Congress, and not the EPA or any other federal agencies, should decide whether carbon dioxide should be regulated or considered in environmental permit reviews. Congress should expressly prohibit the regulation of CO2 and other greenhouse gases, deny funding of agency efforts to reduce greenhouse gases, and repeal any agency actions to date that serve either directly or indirectly to develop CO2 regulations, such as the EPA’s “endangerment finding.”

Change the Process for Developing the National Ambient Air Quality Standards (NAAQS). The EPA has set NAAQS for six principal pollutants referred to as criteria pollutants. These pollutants include carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide. Under the CAA, the EPA is required to review the standards every five years and make changes, if necessary, disregarding costs in the development of the standards. New standards are becoming extremely expensive to meet, especially since existing standards are already so stringent. Congress should repeal the mandatory review process. Congress, not the EPA, should make any decision to tighten standards, given the scope of their impact and the magnitude of success that has already been achieved in air quality.

Reform the National Environmental Policy Act (NEPA) Process. In 1969, Congress passed a procedural law that required federal agencies to assess the potential environmental impacts of their actions, including permitting decisions. The law has morphed into a barrier for economic growth by creating costly and unnecessary delays for major projects. The average NEPA process takes from three to six years but in some cases has stretched to well over a decade, in part due to litigation. Congress should limit the time during which parties can bring lawsuits to no more than 180 days. (Currently, parties can bring cases for up to six years.) Deadlines should exist for agency decisions at every procedural step. There should be one lead agency on projects, and the agencies involved should review issues concurrentlyy. Further, only major environmental issues not already addressed by other laws should be reviewed.


Facts and Figures


  • From 2009–2015, the EPA issued 3,243 regulations. Thirty-three were “major regulations,” which means they carry compliance costs that exceed $100 million annually—at the very least. The actual burden would exceed $100 billion if the agency quantified the costs of all major rules, as required by law. It is time for Congress to rein in this excessive rulemaking.
  • The federal government owns and controls 640 million acres of land in the United States, an area larger than California and Mexico combined. This includes large portions of the western United States: The federal government owns approximately 81 percent of Nevada, 66 percent of Utah, 61 percent of Alaska and Idaho, and 53 percent of Oregon. Much of this land could be put to more productive use such as ranching, mining, or forestry through private ownership.
  • The state of the nation’s air has improved significantly and continues to get much better, yet the EPA continues to make air quality standards far more stringent. The six criteria pollutants targeted in the Clean Air Act have fallen significantly during the past three decades: fine particulate matter by 35 percent, ozone by 33 percent, nitrogen dioxide by 57 percent, carbon monoxide by 85 percent, sulfur dioxide by 80 percent, and lead by 98 percent—all while the economy and population have grown.
  • Although carbon dioxide emissions have increased, in large part due to the high demand for electricity in developing nations and Asia, global temperatures have plateaued for the past 18 years. Even if the U.S. completely implemented the Clean Power Plan, global temperatures would drop by just 0.02 degree Celsius by the year 2100 according to models created in part by the EPA. Further, even if one were to assume that man-made CO2 emissions increase temperatures, it does not follow that the policy proposals pushed by global warming alarmists to curb CO2 emissions should be adopted. Proposals such as cap and trade and carbon taxes are all costs and no benefits. These proposals would intentionally drive up costs throughout the economy, particularly in the energy sector, a primary driver of economic growth, all the while having no measurable impact on global temperature.

Selected Additional Resources


The Heritage Foundation, Environmental Conservation: Eight Principles of the American Conservation Ethic, ed. Jack Spencer, July 2012.

The Heritage Foundation, Environmental Policy Guide: 167 Recommendations for Environmental Policy Reform, eds. Robert Gordon and Diane Katz, 2015.

Daren Bakst, “Reining in the EPA Through the Power of the Purse,” Heritage Foundation Issue Brief No. 4264, August 19, 2014.

Kevin D. Dayaratna, Nicolas D. Loris, and David W. Kreutzer, “The Obama Administration’s Climate Agenda: Underestimated Costs and Exaggerated Benefits,” Heritage Foundation Backgrounder No. 2975, November 13, 2014.

Diane Katz, “Coming Clean on Regulatory Costs and Benefits,” Heritage Foundation WebMemo No. 3177, March 3, 2011.

Katie Tubb and Nicolas D. Loris,“The Federal Lands Freedom Act: Empowering States to Control Their Own Energy Futures,” Heritage Foundation Backgrounder No. 2992, February 18, 2015.