Academic journal article Duke Environmental Law & Policy Forum

How REINS Would Improve Environmental Protection

Academic journal article Duke Environmental Law & Policy Forum

How REINS Would Improve Environmental Protection

Article excerpt

"A senior EPA executive, who has to remain nameless ... thought a concept like REINS was a great idea for two reasons.... [First] was his unutterable frustration that the Congress often sends overly generic or nonspecific or, in fact, many times contradictory titles in bills. [Second was] that it would force a dialogue for clarity between the agency [and Congress]. Instead of having 2,700-page bills that show up hours before a vote, the dialogue could be ongoing, reduced down to a concise piece of legislation that had very clear intent, very clear expectations and metrics, and a clear outcome to maintain context for our citizens."

Representative Geoff Davis, March 14, 2011 (1)

Representative Davis's report that a senior EPA executive supports the concept behind REINS (short for "Regulations from the Executive in Need of Scrutiny Act") (2) is hearsay from the bill's chief sponsor, and anonymous at that, but the reasons given for that support correspond with the reasons that I gave for my support at the Duke Environmental Law and Policy Forum (DELPF) symposium on January 24, 2011. In this essay, I explain my reasons for supporting the substance of the bill, but also for disagreeing with some of its rhetorical wrappings.

My argument that REINS would actually improve environmental protection is a tough sell to environmentalists. After all, the bill would shift power from the agencies to Congress, and Congress is seen as the enemy. But the statutes that empower the agencies are increasingly obsolete? There are limits on agencies' ability to adapt them to deal effectively with old, unsolved problems and newer ones such as climate change. (4) The need to update these statutes will only grow in time. Meanwhile, Congress keeps sticking its nose in through the oversight, appointments, and budget processes. REINS would give Congress a more direct sort of control, but this control would come at the expense of legislators having to take direct responsibility for decisions to impose or not impose specific regulations. That is the first step towards a more constructive approach to our environmental problems.

William Reilly, an excellent EPA administrator and thoughtful presence throughout the DELPF symposium, invoked an image of ticking hand grenades to describe the politically charged statutory duties that George W. Bush's EPA had failed to fulfill and thus left to Barack Obama's EPA: (5) "They're like little hand grenades that have been rolled out there by previous administrators, and now they're ticking." (6) Mr. Reilly's analogy is apt but incomplete. W's presidential administration was far from the first to roll hand grenades to its successor. His EPA was on the receiving end of grenades rolled to it by the EPA of his predecessor, William Clinton. (7) Indeed, presidents have been rolling environmental hand grenades to their successors since the EPA was established.

The prime roller is Congress. Congress rolled ticking hand grenades by imposing deadlines to issue regulations without regard to whether the EPA could meet them. So the great bulk of deadlines go unmet under presidents of both parties. (8) One forty-year veteran of a major EPA program was heard to say, "I can count on one hand the number of major regulations issued without a court-ordered deadline." (9)

Congress also rolled ticking hand grenades by requiring the EPA to achieve environmental quality goals without regard to whether they could be achieved through steps palatable to the legislators themselves. In the 1970 Clean Air Act, for example, Congress mandated that the EPA achieve air quality goals that could be met only by choking the supply of gasoline to Southern California, banning cars and trucks during business hours from the business district of Manhattan, and more. (10)

Congress thus sets up the EPA for abuse from the legislators no matter what the agency does. If the EPA takes politically unpopular steps, legislators can chastise it for the burdens imposed on their constituents. …

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