Climate change regulation and EPA disincentives.

• Author: Latin, Howard A.
• Position: I. Introduction through III. Eight Laws of Administrative Behavior and Climate Change A. In Conflicts Between Political Consideration and Technocratic Requirements, Politics Usually Prevails, p. 19-45

1. INTRODUCTION II. A SUMMARY OF QUESTIONABLE EPA TREATMENTS III. EIGHT LAWS OF ADMINISTRATIVE BEHAVIOR AND CLIMATE CHANGE A. In Conflicts Between Political Considerations and Technocratic Requirements, Politics Usually Prevails B. Agencies Avoid Making Regulatory Decisions That Would Create Severe Social or Economic Dislocation C. Agencies A void Resolving Disputed Issues Unless They Can Render Scientifically Credible Judgments D. Agencies Will Not Meet Statutory Deadlines If Budget Appropriations, Personnel, Information, or Other Resources Are Inadequate E. Regulators Are Influenced by Disciplinary Norms That May Conflict with Statutory Mandates F. Agency Staff Are Partly Conditioned by Continuing Criticism or Other Forms of Negative Feedback G. Agency Behavior Is Often Conditioned by the Manipulative Tactics of Regulated Parties H. Administrators of Multiple-Purpose Statutes Usually "Simplify" the Decisional Process to Emphasize Only One or Two Statutory Goals IV. CONCLUSION I. INTRODUCTION

   In 2007, the U.S. Supreme Court decided in Massachusetts v. Environmental Protection Agency (1) that the Clean Air Act (CAA) (2) authorizes the U.S. Environmental Protection Agency (EPA or Agency) to regulate greenhouse gas discharges if the air pollution endangers human health and welfare. The court further held that pursuant to CAA provisions, EPA must regulate greenhouse gas (GHG) discharges if the Agency finds that GHG pollution does endanger the American people. (3) In its unenthusiastic response, the Bush Administration EPA refused to make the necessary "endangerment" finding or to issue regulations to address current and future climate change risks. (4)

   In his first presidential electoral campaign, Barack Obama stated: "[W]e cannot afford more of the same timid politics when the future of our planet is at stake. Global warming is not a someday problem, it is now. (5) In 2009, newly appointed Obama Administration EPA officials issued a formal finding stating that, under CAA section 202(a), "atmospheric concentrations of six key, well-mixed greenhouse gases threaten[] both the public health and the public welfare of current and future generations." (6) This "endangerment" finding imposed a responsibility on EPA to begin regulating major GHG emissions sources to stabilize or reduce climate change dangers. (7)

   In the first year of the new Administration, several environmental law academicians and officials from influential environmental groups joined the White House and EPA staffs in the hope of promoting effective climate change mitigation policies, as President Obama promised during his campaign. (8) Professor Lisa Heinzerling of the Georgetown University Law Center was one of these academic participants, (9) and she described the initial Obama Administration apppointments as:

   ardent proponents of action on climate change to head agencies and departments, and these officials in turn appointed like-minded individuals to help them in their tasks. Interagency meetings early in the Administration were crowded with people whose chief, if not sole, job was to imbue their agencies with an action-oriented perspective on climate change. (10) In the past five years, sadly, President Obama's climate change action promises and priorities have not been met by EPA, which has accomplished very little to reduce GHG discharges from the worst American GHG pollution sources. The only partial exception to this disappointing regulatory record is the joint action undertaken in 2012 by EPA and the National Highway Traffic Safety Administration to mandate 50% higher fuel efficiency standards for new motor vehicles--but not until 2025--that would comparably reduce the future volume of GHG emissions from new vehicles. (11) EPA also adopted a disclosure program requiring large GHG dischargers to monitor and disclose their annual GHG emissions, but this program does not require any specific emissions reductions. (12)

   As a result of EPA's ineffectiveness during the past five years, existing coal-fired power plants, the largest source of GHG pollution in America, have not yet been formally regulated. (13) Petroleum refineries, with large GHG emissions from various oil processing functions, have not been regulated. (14) The large volume of GHG emissions from heavily polluting industries, including cement production and steel smelting, has not been regulated. Despite the 2025 transportation restrictions on future discharges from new light motor vehicles, GHG emissions from locomotives, ships, and aircraft have not been regulated. (15) The surprisingly high amount of GHGs from agricultural practices, livestock raising, and harmful forest exploitation has not been regulated. (16) And continuous negotiations with many other nations for the past twenty years to increase GHG emissions-reduction targets have repeatedly failed. (17)

   It is regrettable but true that the early optimism of Obama Administration officials, leading EPA staff members, and millions of Americans concerned with climate change dangers, has proven completely unjustified. Under an array of frustrating regulatory conditions, academic participants, including Professor Heinzerling, resigned from their government positions shortly after they were exposed to the lack of sufficient administration, congressional, and EPA support and funding for ambitious climate change mitigation programs. (18)

   Consider this discouraging example: On September 20, 2013, EPA proposed (19) New Source Performance Standards (NSPS) for new fossil fuel-fired power plants--covering mainly coal-burning and natural gas-burning electric generating units (EGUs). (20) After publishing hundreds of pages of commentary attempting to explain and justify the features of the 2013 proposed NSPS, EPA summarized the ostensible achievements of this rule in one paragraph:

   Under a wide range of electricity market conditions--including EPA's baseline scenario as well as multiple sensitivity analyses--EPA projects that the industry will choose to construct new units that already meet these standards, regardless of this proposal. As a result, EPA anticipates that the proposed EGU New Source GHG Standards will result in negligible C02 emission changes, energy impacts, benefits or costs for new units constructed by 2020. Likewise, the Agency does not anticipate any notable impacts on the price of electricity or energy supplies. (21) The Regulatory Impact Analysis (RIA) for the 2013 power plant NSPS stated that "the proposed EGU New Source GHG Standards are not expected to change GHG emissions for newly constructed EGUs, and are anticipated to yield no monetized benefits and impose negligible costs, economic impacts, or energy impacts on the electricity sector or society." (22) The 2013 NSPS regulatory explanation similarly concluded: "based on the analysis presented in Chapter 5 of the RIA, the EPA projects that this proposed rule will result in negligible C02 emission changes, quantified benefits, and costs by 2022." (23)

   Taken together, these statements reveal that EPA's 2013 proposed NSPS for new fossil fuel-burning power plants will not achieve any appreciable GHG emissions reductions beyond what the fossil fuel energy industries are already planning to incorporate voluntarily into future power plant designs. Consequently, the 2013 NSPS will not produce any significant benefits, including notable GHG reductions, to say nothing of any major climate change improvements.

   EPA did not conceal the striking conclusion that the 2013 proposed NSPS for new fossil fuel-fired power plants will not significantly reduce GHG emissions or related climate change hazards, and the Agency seemed almost proud of its negligible achievements. (24) Considering that climate change has been growing progressively worse in recent years and has already caused Americans hundreds of billions of dollars in damages and a significant number of deaths, (25) EPA's choice of an NSPS for new fossil fuel power plants that is "not expected to change GHG emissions" (26) is a travesty reflecting a wholly inadequate response to EPA's endangerment finding and its resulting climate change mitigation responsibilities.

   A recently published article by this author challenges in detail the ineffectiveness and lack of mitigation ambition of EPA's 2013 proposed NSPS for new fossil fuel-fired power plants. (27) The article concludes that the 2013 NSPS rule will be completely inadequate for restricting GHG pollution from new power plants and for stabilizing or reducing growing climate change risks. (28) The article sharply criticizes EPA for what it has been doing to meet its climate change regulatory obligations, and more pointedly for what the Agency has not been doing.

   This present Article primarily examines not what EPA has been doing wrong, but why. The Article presents an assessment of why an array of administrative disincentives in practice has prevented EPA's leaders and staff from achieving what they initially wanted to accomplish. The why may be even more important than the what, because the administrative disincentives discussed here are likely to negate or impede a broad range of EPA regulatory initiatives. The same administrative disincentives are also likely to undermine diverse regulations promulgated by other environmental, health, and safety agencies.

   A little more than twenty years ago, I published a widely read article (29) criticizing the 1990 Clean Air Act Amendments because they did not reflect sufficient congressional attention to EPA's likely behavioral responses to political and business confrontations, or to the EPA staffs personal and professional incentives. The first half of that article was entitled: "Eight Laws of Administrative Behavior," which I believe is equally topical and influential today in the context of GHG pollution causing progressively greater climate change dangers. The critical evaluation here of unambitious and ineffectual...