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. There could have been even greater improvement, at far less cost—both economic and social—had lawmakers foregone centralized government control in favor of the transformative powers of market incentives and private property rights.
In many respects, the need for reform of the nation’s environmental laws has never been greater. The primary statutes are woefully outdated and do not reflect current conditions.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 resilience 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—not distant bureaucracies.
The responsibilities and rewards of environmental stewardship belong with property owners and states, which are more knowledgeable about local conditions than federal bureaucrats can be. When environmental policy properly accounts for private property rights, economic incentives will drive stewardship.
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.
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. 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” (WOTUS). Congress, not agencies or the courts, should define what waters are covered under the Clean Water Act, recognizing the important role states play in regulating lakes, rivers, and streams. This definition should be narrow in scope and generally consistent with Justice Scalia’s plurality opinion in Rapanos v. United States (2006).
Prohibit the EPA and Other Agencies from Regulating Carbon Dioxide (CO2). When the Clean Air Act 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, 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: (1) carbon monoxide, (2) lead, (3) nitrogen dioxide, (4) ozone, (5) particulate matter, and (6) sulfur dioxide. Under the Clean Air Act, 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 between three and six years, but in some cases has stretched to well over a decade, in part due to nuisance litigation. Congress should limit the time during which parties can bring lawsuits to 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 concurrently, not sequentially. Further, only major environmental issues not already addressed by other laws should be reviewed.
Prohibit Economic Development Takings. In Kelo v. City of New London (2005), the U.S. Supreme Court dealt a major blow to private property rights. The court held that the government can seize property from one private party and transfer it to another private party for economic development reasons. If the government believes it can find a better economic use for a house, church, or other property, then it can seize that property. Congress should reject the Kelo decision through legislation prohibiting economic development takings. Congress should also ensure that end runs around such a prohibition are not allowed. For example, local governments often use blight laws that define “blight” very broadly to seize property for the purpose of promoting economic development. The federal government should not engage in economic development takings, and no federal funds should be provided to state and local governments that are engaged in such takings.
Facts and Figures
FACT: It is time for Congress to rein in the federal government’s excessive environmental rulemaking at the EPA, which hurts ordinary Americans.
- During the eight years of the Obama Administration, the EPA issued an astounding 3,974 regulations.
- Of the 3,974 regulations from that eight-year period, 42 were “major regulations,” which means they carry compliance costs that exceed $100 million annually—at the very least.
- The actual burden of these regulations would exceed $ 4.2 billion annually if the agency quantified the costs of all major rules, as required by law.
- This incredible cost is passed on directly to Americans in the form of higher prices for all goods and services, as well as the loss of individual liberty.
FACT: The U.S. has made dramatic improvements in air quality, but the EPA continues to use an ever-expanding authority to implement stringent regulations with increasingly high compliance costs and diminishing marginal environmental returns.
- The aggregate emissions of six common pollutants decreased 69 percent from 1970 to 2014.
- According to the EPA’s latest air-quality trends report, the following pollutants decreased from 1990 levels:
- 77 percent decrease in carbon monoxide (CO);
- 99 percent decrease in lead (Pb);
- 54 percent decrease in nitrogen dioxide (NO2);
- 22 percent decrease in ozone (O3);
- 39 percent decrease in particulate matter 10 microns (PM10);
- 37 percent decrease in particulate matter 2.5 microns (PM2.5); and
- 81 percent decrease in sulfur dioxide (SO2).
FACT: Reducing the massive federal estate through privatization and shifting ownership to states and counties will yield better economic and environmental results.
- The federal government owns and controls 640 million acres of land in the United States, an area larger than California and Mexico combined.
- 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 federal land could be put to more productive use, such as ranching, mining, or forestry, through private ownership that also improves the lives of ordinary Americans.
- State and local governments are more responsive to the needs of their communities that are site-specific and situation-specific. States also earn more revenue per dollar spent than does the federal government on a wide range of economic activities, such as timber, grazing, minerals, and recreation.
FACT: Climate change regulations are a costly non-solution to a likely non-problem.
- If every country complied with its greenhouse gas reduction targets, the averted warming would be a mere 0.2 degrees Celsius by the turn of the century.
- Proposals such as the Clean Power Plan 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.
- An estimated 1,600 coal-fired power plants are under construction, or planned, in 62 countries, many of which are developing countries that need a reliable electricity supply. The continued use of coal demonstrates the futility of the Paris Agreement in achieving any averted warming.
- At least 18 federal agencies administer climate change activities, costing at least $77 billion between fiscal years 2008 and 2013, according to the Congressional Research Service. Most funding goes not to research but to politically favored energy technologies.
Selected Additional Resources
Daren Bakst, “Reining in the EPA Through the Power of the Purse,” Heritage Foundation Issue Brief No. 4264, August 19, 2014.
Daren Bakst, “What You Need to Know About the EPA/Corps Water Rule: It’s a Power Grab and an Attack on Property Rights,” Heritage Foundation Backgrounder No. 3012, April 29, 2015.
Robert Gordon and Diane Katz, eds., Environmental Policy Guide: 167 Recommendations for Environmental Policy Reform (Washington, DC: The Heritage Foundation, 2015).
Diane Katz, “Coming Clean on Regulatory Costs and Benefits,” Heritage Foundation WebMemo No. 3177, March 3, 2011.
David W. Kreutzer, Nicolas D. Loris, Katie Tubb, and Kevin D. Dayaratna, “The State of Climate Science: No Justification for Extreme Policies,” Heritage Foundation Backgrounder No. 3119, April 26, 2016.
Jack Spencer, ed., Environmental Conservation: Eight Principles of the American Conservation Ethic (Washington, DC: The Heritage Foundation, 2012).
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.