The Proof Will Be in the Pudding: EPA Releases Its Preliminary Plan For Review of Existing Regulations

When President Obama issued Executive Order 13,563, on Improving Regulation and Regulatory Review, it was not obvious whether the Order was simply an attempt to protect the President’s right flank or whether the agencies would respond substantively. Yesterday, EPA released its Preliminary Plan for Periodic Retrospective Reviews of Existing Regulations. Initial review of the Plan suggests that EPA has taken the task seriously and has made some constructive suggestions. To me, however, they missed the elephant in the room and therefore cannot be given better than a B grade at this point.

There is a lot of good stuff in the plan, which is certainly too long to summarize here. The highlights from where I sit include the following:

  • Increased use of electronic reporting. This falls in the category of “now why didn’t I think of that?” Telling point? EPA has put use of e-manifests under RCRA in the long-term action, rather than early action, category, while acknowledging that this was proposed in 2004. How hard is some of this stuff?
  • Improved transparency, i.e., increased public disclosure of compliance and other regulatory information. Cynical translation? If we can provide more information to the public, citizen suits will be easier and we can do less government enforcement. Still, hard to argue with.
  • Coordination of emission reduction regulations across multiple pollutants. Interestingly, EPA has put this in the early action category. Although EPA identified the pulp and paper industry specifically, this has to be thought of mainly as a longer-term project. Well worth it, however long it takes.
  • Encouraging innovative technology. Who could be against it? This is probably the most important issue, precisely because it is here that the Plan is the weakest. I think that EPA has largely missed the point, because it has not correctly defined the problem. The single action EPA could take that would have the most impact on encouraging innovative technology would be to get out of the command and control business once and for all. The highest priority of this regulatory review should be for EPA to identify areas where it can move from command and control regulation to performance-based standards. A fruitful initial target? CERCLA and the NCP. EPA does not have to privatize Superfund cleanups as several states have done; that would require legislation. Even without privatization, it could simply set standards for what constitutes a significant risk and require PRPs to eliminate such risks. I promise, innovation will follow. Not only that, but EPA could eliminate a significant percentage of its existing CERCLA staff, or redirect that staff to more productive uses. 

EPA is taking comment on the proposed plan, at least through June 27, 2011. Get your comments in here. I am the eternal optimist, though the 7-year delay in implementing an e-manifest program should probably give me some pause as to how quickly EPA can really reform.

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