Shadrack, NESHAP, and Around the Bend We Go

The Bible tells us Shadrack and his two friends, Meshach and Abednego, did some straight-talking to King Nebuchadnezzar one day. For that they were thrown into a fiery furnace “so hot that the flames of the fire killed the soldiers who took [them] up.” Nonetheless, the three survived the inferno and the King repented.

I don’t face a fiery furnace, but let me try some straight-talk regarding ‘midnight regulations.’ Administrations often use the last months of their tenure to push additional regulations out the door. For instance, in the three months before President Bush’s inauguration in 2001, there was a 50 percent increase in the number of pages in the Federal Register compared to the average for the same three month period in a non-election year (see graph).

Source: Jay Cochran, “The Cinderella Effect,” GMU working paper; data updated by Brian Mannix.

These additional rules have been dubbed ‘midnight regulations’ and, up until now, I’ve never liked the idea. It implies rushing policy choices through the regulatory process at the expense of their quality.

My change of heart may sound convenient, but, like Shadrach, let me tell you the way I see it. I’m meeting with each senior regulatory official at EPA to identify what they want to get done in the last year. These meetings have made two things clear which shed some light on ‘midnight regulations.’

First, we have what I call the “NESHAP” (prounounced “knee-shap”) problem. Most of the rules EPA is working on have court-ordered deadlines and, this year, a surprising number of these deadlines seem to fall near the end of the Administration. For instance, EPA must finish no fewer than ten regulations related to National Emissions Standards for Hazardous Air Pollutants (NESHAPs) by December 15, 2008. These rules will look like a ‘midnight regulation’ splurge even though they have nothing to do with the election or transition.

Second, I find the EPA office heads have a strong desire to ‘finish the job’ on rules they have been wrestling with for years. Many of our non-deadline rules are chronically behind our internal schedules. The officials feel strong ownership of these actions and they very much want to feel the satisfaction of finishing the job.

The President’s asked EPA to ‘sprint to the finish.’ We’re doing that. The fact is the combined push to get the court-ordered work done and finish up the other actions will make things a little crazy or as one person said, “as we go into the final stretch we may find ourselves going around the bend.” Some people may also be concerned that we will be rushing rules out before they’re ready. Hopefully, like Shadrack and company, I’ve already changed their minds.

Comments

[Connie Carter]

Just because the court deadline says to finish NESHAPs rules "by" December 15, doesn't mean EPA can't finish them BEFORE that.

But speaking of which: Why did a court even need to order EPA to complete the NESHAPS? Courts don't just go around setting deadlines for the fun of it. Courts usually order a deadline because there's no other way the work is gonna get done AT ALL.

[Marcus]

2 great questions, Connie. First, the deadlines are set at a date that EPA/judge/plaintiff think is the fastest possible date we can get a rule done so it is rare that we can actually beat that date.

Second, courts set deadlines when EPA misses statutory deadlines. For decades EPA has missed many, many statutory deadlines. Many people think the statutory deadlines are just unrealistic. For more on that you may want to see David Schoenbrod's book "Saving our Environment from Washington."

It is ironic that you would raise EPA's court-ordered deadlines for NESHAPs as an example of "unrealistic" statutory deadlines, in light of the following language from the very same opinion by the federal district court judge that imposed those deadlines on EPA a few years ago:

Noting that "EPA (including [the Office of Air and Radiation]) currently devotes substantial resources to discretionary rulemakings, many of which make existing regulations more congenial to industry, and several of which since have been found unlawful," the judge found "EPA's failure to promulgate the required standards owes less to the magnitude of the task at hand than to 'the footdragging efforts of a delinquent agency,' NRDC v. Train, 510 F.2d at 713, or an attempt by EPA to prioritize its own regulatory agenda over that set by Congress in the 1990 Clean Air Act amendments."

EPA under this administration, especially its air office, has prioritized gratuitous and harmful industry deregulation over statutory obligations and deadlines, leading even federal judges to note this trend and to rebuke the agency.

Moreover, EPA's most recent semi-annual regulatory agenda -- which identifies priority rulemakings for the administration before it leaves office -- confirms that these same deregulatory obsessions are all too often behind the strong desires to "finish the job" during the "sprint to the finish."

It is troubling that you seem to treat EPA's violation of multiple statutory deadlines with a dismissive wave of your hand. Unless things have changed since I left EPA, all incoming employees take an oath to uphold the "Constitution and the laws of the United State." I trust you did not mean to imply that it is fine to violate those statutory deadlines because "many people" think they are "just unrealistic."

Finally, your readers should be aware that the book you cite -- by the Cato Institute's David Schoenbrod -- calls for the effective dismantling of EPA in a way that would be unrecognizable and unprecedented, a shell incapable of carrying out its longstanding mission to protect human health and the environment. To say the least, it is a curious and disturbing work for EPA's Deputy Administrator to commend.

[Marcus]

I have three responses to the last comment. First, I don't condone EPA not meeting statutory deadlines. Second, I strongly disagree with the notion this Administration stalls on Congressional mandates. The NESHAP case is a good example. When that case was brought, the previous Administration was already more than three years behind the statutory deadlines. Which is my third point, David Schoenbrod (full disclosure: former NRDC staff attorney) aside, statutory deadlines tend to be unrealistic. It's empirically true. EPA has chronically missed statutory deadlines since the late 1970s regardless of Administration, Agency leadership, statute, or pollution control regime. That's because Congress often underestimates the difficulty of the tasks it gives us. Scholars Mark Landy et al wrote a book about EPA in 1990. What they say about the primary solid waste statute (RCRA) applies elsewhere, by "specifying an utterly unrealistic time schedule, Congress put EPA in a classic 'no win' situation.'

[John Walke]

Your disagreement aside, the judge's indictment speaks for itself. It is revealing that you did not respond to his legal conclusions or the criticism that this Administration has regularly prioritized unlawful deregulation over Congressional mandates.

Finally, it is true that the Cato Institue's Schoenbrod was once an NRDC staff attorney. But just as it was true in the Old Testament times that you invoke, men today continue to fall from grace.

[David Schoenbrod]

I am cited for two points. “[1]For decades EPA has missed many, many statutory deadlines. [2] Many people think the statutory deadlines are just unrealistic. For more on that you may want to see David Schoenbrod's book "Saving our Environment from Washington." The first point is uncontroversial. EPA has missed many deadlines under every administration. The second is one with which I do not agree. Some statutory deadlines are realistic. When I helped bring the case that resulted in the opinion in NRDC v. Train, quoted to good effect above, I thought the deadline was entirely realistic and still do.

I note further than I left Cato and have since joined American Enterprise Institute. Ms. Carter’s and Mr. Walke’s implication that I have somehow been bought is palpably untrue. I adopted the positions that trouble them more than a decade before I had anything to do with those organizations and while still doing pro bono work for NRDC. Let’s stick to the merits and refrain from ad hominem arguments.

[Dana Brown]

In those 15 rulings that are court ordered to happen, would anyone of those be the Asbestos NESHAP inclusion of the so called Alternative Asbestos Control Method?

We found out it was announced in a December 10, 2007 Federal Register announcement, and EPA stated many time that they are not going to further the AACM inclusion into the NESHAP. Is that True?

The AACM already looks like a "midnight rule change" as it already looks ike this. The AACM is simply a bad idea, and codifying it before the research is done and peer review would be a huge mistake.

HOW CAN WE FIND OUT WHAT IS COMING DOWN THE PIKE????

[Brian Mannix]

How can we find out what is coming down the pike?

One major source of information is EPA's Regulatory Agenda and Regulatory Plan. Once in the Spring and again in the Fall, EPA publishes a Semiannual Regulatory Agenda. We also publish an Annual Regulatory Plan along with EPA’s Fall Agenda. Regulatory Plans describe the most important regulatory actions - the core of our regulatory priorities.  EPA's Regulatory Agendas describe a broader universe of regulatory activities that we reasonably expect to issue in proposed or final form during the upcoming 12 months.

See http://www.epa.gov/lawsregs/search/regagenda.html to access our Agendas and Plans. The Spring 2008 Agenda is expected to publish this May. And we are working on a system to give even earlier notice of upcoming actions; when it is ready I would be surprised if this blog wasn't one of the first places to announce it.

[Dana Brown]

Thank you Brian, but I have already been down that road, that is all EPA does currently, point the person or questions in another direction away from the agency. The "Alternative Asbestos Control Method" known as the AACM inclusion into the NESHAP is in the 2007 Regulatory Agenda AND was a Notice of Proposed Rulemaking, page 253. Additionally, there was a "work group" established for the AACM inclusion to the NESHAP.

Supposedly there is no effort on this rulemaking as of yet, and supposedly the workgroup is no longer "seated" officially. I still have NOTHING from HQ or EPA proper that the AACM rulemaking inclusion has been dropped.

So the question is, if it has "been notified" to happen, does it also have to be "notified" to be withdrawn? And IF it has not been withdrawn with notification, does that mean it can jsut move forward?

As I said, I have many questions, and have asked them, and NOBODY at EPA is answering these questions with respect to asbestos. It appears as if the powers that be at EPA just want to ignore the asbestos issue.

OK, second question, WHO do I ask at EPA that could give me a real and legal answere to the AACM inclusion in the NESAHP?

Again, how can I find accurate information on the AACM inclusion in the NESHAP.

Pretty easy question, and no forthright answers.

As I recall, the NESHAP court order required 10 NESHAP rules this past December as well, so that shouldn't cause a significant increase in the number of FR pages from Dec 2007 to Dec 2008.

[Marcus]

Yeah, I think that last comment is right. We had a bunch due this last December. I think it will still make this December look large compared to the average non-election year.