Over the past week, EPA announced that it would reconsider parts of the “Utility MACT” air toxics regulation on power plants and that it needs even more time to finish it’s reconsidered “Boiler MACT” regulation to get it right. In doing so, EPA implicitly admitted that it moved too fast and underestimated the challenges present in crafting each regulation.
There is a very unsettling common thread in both the Utility MACT and Boiler MACT rules: both regulations were born from litigation, and the deadlines for issuing the regulations came from judicial settlements EPA entered into.
In both cases, EPA agreed to a schedule providing little time to review and respond to comments before entering a final rule. In both cases, the judicially-enforced consent decree EPA entered into prevented the agency from issuing a final rule that was free from errors. And in both cases, EPA now finds itself in the midst of a messy reconsideration process to correct those errors.
These are not isolated events. In fact, EPA recently entered into a consent decree for its PM2.5 National Ambient Air Quality Standards (NAAQS) that gives the agency barely 100 days to review comments, a dramatically shorter time frame than EPA has given for any new or revised PM or Ozone NAAQS since 1971. If the Agency receives 100,000 public comments on the rule—a conservative estimate—EPA staff would have to review over 1,000 comments and draft 4-5 pages of responses per day, every day, including weekends.
There’s an easy way to stop this problem: curb the practice of “sue and settle.” One of the key provisions in H.R. 4078, the regulatory reform package being debated by the House this week, shines a light on the consent decree process by requiring early disclosure of proposed consent decrees and regulatory settlements, requiring agencies to take public comment prior to entry of the consent decree with the court, providing affected parties proper notice of proposed regulatory settlements, and making it possible for affected industries to participate in the settlement negotiations. Those are all good, sensible measures manufacturers support.
Agencies should continue to be able to enter into settlement agreements and consent decrees that result in regulations when necessary; however, they should be required to allow the public a meaningful opportunity to participate, so that they do not unnecessarily tie themselves down as they have in the cases of Boiler MACT, Utility MACT, and PM2.5.
Ross Eisenberg is vice president of energy and resources policy, National Association of Manufacturers.