* W. James Kronzer Chair in Trial and Appellate Advocacy, University of Texas School of Law and President, Center For Progressive Regulation.
1 See, e.g., Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (2000) (regulating the use, storage, and handling of hazardous materials in the workplace); Federal Water Pollution Control Act (Clean Water Act or CWA), 33 U.S.C. §§ 1251–1387 (2000) (regulating the discharge of pollutants into the nation’s waterways, primarily through source-specific, technology-based regulations); Clean Air Act (CAA), 42 U.S.C. §§ 7401–7671 (2000) (aiming to reduce pollution levels in the Nation’s air through harm-based national ambient air quality standards (NAAQS)).
2 See, e.g., 29 U.S.C. §§ 651–678; 33 U.S.C. §§ 1251–1387; 42 U.S.C. §§ 7401–7671.
3 See, e.g., 40 C.F.R. pts. 122–124 (2004) (outlining the regulatory provisions to be implemented under the National Pollutant Discharge Elimination System (NPDES) Program under the CWA); 40 C.F.R. pt. 50 (2004) (detailing the regulatory requirements involving NAAQS under the CAA).
4 See George C. Edwards III & Ira Sharkansky, The Policy Predicament 7 (1978); Charles E. Lindblom, The Policy Making Process 13 (Robert A. Dahl ed., Prentice-Hall 2d ed. 1986).
5 See, e.g., Natural Res. Def. Council v. Train, 545 F.2d 320, 323–25 (2d Cir. 1976) (involving a dispute over whether a vague provision of the CAA granted EPA discretion to list certain substances as criteria pollutants).
6 See, e.g., CAA, 42 U.S.C. §§ 7401–7671 (generally mandating a harm-based approach to regulating air pollution by setting maximum allowable levels of certain pollutants in the air based on human health and environmental quality considerations).
7 See, e.g., CWA, 33 U.S.C. §§ 1251–1387 (establishing a regime under which pollution discharges into the nation’s navigable waterways are regulated via source specific, technology-based effluent standards).
8 See, e.g., 33 U.S.C. § 1313(d) (mandating that states switch to a harm-based, rather than a technology-based, approach to regulating pollution when the former does not result in fishable and swimmable waterways).
9 See, e.g., Nat’l Steel Corp. v. Gorsuch, 700 F.2d 314, 324–25 (6th Cir. 1983) (citing, inappropriately, Union Elec. Co. v. Envtl. Prot. Agency, 427 U.S. 246, 265 (1976), a Supreme Court opinion concerning the implementation of media-quality standards in a dispute involving implementation of technology-based standards).
10 See, e.g., Robert W. Crandall et al., Am. Enter. Inst. for Pub. Policy Research & The Brookings Inst., An Agenda for Federal Regulatory Reform 3–6, 12–16 (1997) (maintaining that federal regulation “urgently needs repair” and even advocating eight particular reforms based upon a simplistic, four-page analysis of the existing regulatory system).
11 See, e.g., Fred L. Smith, The Competitive Enter. Inst., Eco-Socialism: Threat to Liberty Around the World 1–3 (2004) (maintaining that “[t]he Greens of today pose a threat to liberty as great as the Reds of yesterday”). Competitive Enterprise Institute President Fred Smith argues against both “command-and-control” regulation and “market-based regulation” and in favor of greater protections for private property rights. Id.
12 See, e.g., 42 U.S.C. § 7401 (establishing harm-based ambient standards for air pollution that seek to limit human health and environmental injuries to acceptable levels).
13 See 40 C.F.R. § 50.2 (2004) (defining NAAQS under the CAA as “levels of air quality which the Administrator [of EPA] judges are necessary, with an adequate margin of safety, to protect the public health”).
14 See id.
15 See, e.g., Food, Drug, and Cosmetic Act, 21 U.S.C. § 348(c)(3)(A) (2000) (prohibiting the use of carcinogenic substances in food sold across state lines).
16 See, e.g., 42 U.S.C. § 7409(b)(1) (regulating air pollutants at levels below those posing a risk to human health and the environment).
17 See, e.g., Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136(l) (2000) (mandating that EPA approve the use of a pesticide only if it determines that the proper use of the chemical will not pose the risk of causing “unreasonable adverse effects on the environment”).
18 See 21 U.S.C. § 348(c)(3)(A)–(B) (2003). The original Endangered Species Act adopted an absolutist position with respect to the preservation of endangered species. See 87 Stat. 884, 16 U.S.C. § 1531 (1976); Tenn. Valley Auth. v. Hill, 437 U.S. 153, 172–74 (1978) (recognizing that “[i]t may seem curious to some that the survival of a relatively small number of three-inch fish among all the countless millions of species extant would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 million,” but nevertheless interpreting the statute to “require precisely that result”).
19 See Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 488–89 (1989) (advocating a principle of judicial review allowing de minimis exceptions from statutes pursuing zero risk/preservationist goals).
20 See Stephen Breyer, Breaking the Vicious Circle: Toward Effective Risk Regulation 11 (1993).
21 See Pub. Citizen v. Young, 831 F.2d 1108, 1112 (1987) (rejecting the Food and Drug Administration’s de minimis interpretation of the Delaney Clause regarding carcinogenic color additives).
22 42 U.S.C. § 7409(b)(1).
23 448 U.S. 607, 611 (1980).
24 See id. A separate provision in the Occupational Safety and Health Act placed a feasibility limitation on occupational health standards. See 29 U.S.C. § 655(b)(5).
25 See Indus. Union Dep’t, 448 U.S. at 624 n.19.
26 See id. at 639–41.
27 Id. at 641.
28 Id.
29 See id. at 614–15.
30 See id. at 635–36.
31 See Peter F. Stone, Comment, The Significant Risk Requirement in OSHA Regulation of Carcinogens: Industrial Union Department, AFL-CIO v. American Petroleum Institute, 33 Stan. L. Rev. 551, 564 n.68 (1981).
32 See David A. Wirth & Ellen K. Silbergeld, Risky Reform, 95 Colum. L. Rev. 1857, 1864–65 (1995) (noting “the lack of sophisticated methods to evaluate noncancer risks” and the fact that “there are no formal methods to allow us to compare, for instance, risks of benzene with those of lead”).
33 See Indus. Union Dep’t, 448 U.S. at 642–56.
34 See id.
35 See 42 U.S.C. § 7412(f)(2)(A) (2000).
36 See Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 504 (1981).
37 See id. at 535–36.
38 See Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 471 (2001).
39 See Edward J. Mishan, Cost-Benefit Analysis 310–20 (1976).
40 See id.
41 See Thomas O. McGarity et al., Sophisticated Sabotage (forthcoming 2004); Thomas O. McGarity, Reinventing Rationality: The Role of Regulatory Analysis in the Federal Bureaucracy 111–23 (1991) [hereinafter McGarity, Reinventing Rationality].
42 See Thomas O. McGarity & Ruth Ruttenberg, Counting the Cost of Health, Safety and Environmental Regulation, 80 Tex. L. Rev. 1997, 2005–07 (2002).
43 See McGarity, Reinventing Rationality, supra note 41, at 136–37 nn.88–91.
44 See McGarity & Ruttenberg, supra note 42, at 2005–07.
45 See McGarity et al., supra note 41, at 163–89.
46 See Envtl. Def. Fund, Inc. v. Envtl. Prot. Agency, 548 F.2d 998, 1005–08 (D.C. Cir. 1976) (reviewing an order of EPA suspending the registration of heptachlor and chlordane under the Federal Insecticide, Fungicide and Rodenticide Act); Envtl. Def. Fund, Inc. v. Envtl. Prot. Agency, 510 F.2d 1292, 1298–99 (D.C. Cir. 1975) (examining a similar petition regarding EPA’s order both suspending the registration of and prohibiting the manufacture and sale of aldrin and dieldrin); Envtl. Def. Fund, Inc. v. Envtl. Prot. Agency, 489 F.2d 1247, 1252–53 (D.C. Cir. 1973) (reviewing EPA’s order canceling most registrations for the use of DDT).
47 7 U.S.C. § 136a(d)(1)(C) (2000).
48 Id. § 136(bb).
49 15 U.S.C. § 2605(a).
50 See Corrosion Proof Fittings v. Envtl. Prot. Agency, 947 F.2d 1201, 1214–15, 1226–27 (5th Cir. 1991).
51 See id. at 1214–15; Donald T. Hornstein, Lessons from Federal Pesticide Regulation on the Paradigms and Politics of Environmental Law Reform, 10 Yale J. on Reg. 369, 388–92 (1993); see generally Thomas O. McGarity, Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions: Regulating Carcinogens in EPA and OSHA, 67 Geo. L.J. 729, 809 (1979) [hereinafter McGarity, Substantive and Procedural Discretion].
52 See John E. Bonine & Thomas O. McGarity, The Law of Environmental Protection 239–51 (1992); J. Clarence Davies, The Politics of Pollution 55 (1970).
53 See Bonine & McGarity, supra note 52, at 239–51; Davies, supra note 52, at 55.
54 See Bonine & McGarity, supra note 52, at 239–51; Davies, supra note 52, at 55.
55 See generally Wendy E. Wagner, Innovations in Environmental Policy: The Triumph of Technology-Based Standards, 2000 U. Ill. L. Rev. 83.
56 Federal Water Pollution Control Act (FWPCA) Amendments of 1972, Pub. L. No. 92-500, § 301(b)(1)–(2), 86 Stat. 896 (1972).
57 See FWPCA Amendments of 1977, Pub. L. No. 95-217, § 56, 91 Stat. 1591–92 (1977).
58 See FWPCA Amendments of 1987, Pub. L. No. 100-4, §§ 301–06, 101 Stat. 29–37 (1987).
59 See 33 U.S.C. §§ 1251–1387 (2000).
60 See Zygmunt J.B. Plater, Environmental Law and Policy: Nature, Law and Society 445–46 (2d. ed. 1998).
61 See Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685 (1977).
62 See infra notes 70–73, 88–91, 123–126 and accompanying text (describing these new programs).
63 33 U.S.C. § 1311(b)(2)(A). The “best available technology” requirement also applies to dischargers of so-called “grey area” pollutants that have not been listed as toxic pollutants, but are not among the conventional pollutants that ordinary sewage treatment plants are capable of treating. See id. § 1311(b)(2)(F).
64 See Chem. Mfrs. Ass’n v. Envtl. Prot. Agency, 870 F.2d 177, 226–27, modified 885 F.2d 253 (5th Cir. 1989) (“Congress intended these limitations to be based on the performance of the single best-performing plant in an industrial field.”).
65 See id.
66 See Tanners’ Council, Inc. v. Train, 540 F.2d 1188, 1195 (4th Cir. 1976) (EPA “may look to the best performer in the industry and even assess technologies that have not been applied as long as the record demonstrates that there is a reasonable basis to believe that the technology will be available [by the deadline].”). The courts, however, have been unwilling to allow EPA to engage in very large leaps of faith. See Am. Petroleum Inst. v. Envtl. Prot. Agency, 540 F.2d 1023, 1038–39 (10th Cir. 1976) (“Even if the 1983 flow reductions are unattainable by existing refineries, it does not follow that new plants could not be designed so as to incorporate the means of attaining the lower flow rates.”).
67 See Chem. Mfrs. Ass’n, 870 F.2d at 206–07.
68 See 42 U.S.C. § 7475(a)(4) (2000). The best available technology determination must be made on a case-by-case basis and must take into account “energy, environmental, and economic impacts and other costs.” 40 C.F.R. § 51.166 (2004).
69 42 U.S.C. § 7501(2), (3)(A)–(B).
70 The statute contains a very long list of hazardous air pollutants for which EPA must write NESHAPs once it has identified classes and categories of sources of those pollutants. See 42 U.S.C. § 7412(b).
71 Id. § 7412(d)(2).
72 Id. § 7412(d)(3).
73 Id. § 7412(d)(3)(A)–(B).
74 See FWPCA Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (1972).
75 33 U.S.C. § 1314(b)(1)(B).
76 See Chem. Mfrs. Ass’n v. Envtl. Prot. Agency, 870 F.2d 177, 204–06 (5th Cir. 1989), modified 885 F.2d 253 (5th Cir. 1989). The knee of the cost curve is the point at which the cost-per-pound of removing additional amounts of a pollutant from the effluent stream escalates dramatically. EPA has taken the position that the knee of the curve inquiry is not required in establishing “best practicable technology,” but may be required for establishing “best conventional control technology,” which represents a slightly more stringent level of pollution reduction for conventional pollutants. See id. at 205.
77 See id. at 205–06; Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1047 (D.C. Cir. 1978); Am. Petroleum Inst. v. Envtl. Prot. Agency, 540 F.2d 1023, 1038 (10th Cir. 1976).
78 See 42 U.S.C. § 7502(c)(1).
79 See Michigan v. Thomas, 805 F.2d 176, 180 (6th Cir. 1986) (quoting Envtl. Prot. Agency, Guidance for Determining Acceptability of SIP Regulations in Nonattainment Areas (1976)).
80 See, e.g., 40 C.F.R. § 52.123 (2004).
81 42 U.S.C. § 13102(5)(A)(ii); see Robert F. Blomquist, Government’s Role Regarding Industrial Pollution Prevention in the United States, 29 Ga. L. Rev. 349, 386–87 (1995).
82 See 42 U.S.C. § 13106(a).
83 Id. § 7545.
84 Id. § 7545(c)(1).
85 See Small Refiner Lead Phase-Down Task Force v. Envtl. Prot. Agency, 705 F.2d 506 (D.C. Cir. 1983); Ethyl Corp. v. Envtl. Prot. Agency, 541 F.2d 1 (D.C. Cir. 1976).
86 See McGarity, Reinventing Rationality, supra note 41, at 29–44.
87 See 42 U.S.C. § 7651(b).
88 Id. § 7651c.
89 Id. §§ 7651c–d. During Phase II, EPA must allocate marketable pollution allowances to all fossil fuel fired utility units, with most units receiving allowances that would require emissions reductions (including further reductions for Phase I units). Id. § 7651d. The statute establishes sulfur dioxide “allowances” for eight major categories of plants based upon type of fuel and historical emissions rate; some units even receive greater allowances than their historical emissions. Id. § 7651c, tbl. A. An “allowance” is a permission to emit one ton of sulfur dioxide. Id. § 7651a(3).
90 See id. §§ 7561a–o.
91 Id. § 6922(b).
92 See id.
93 See 42 U.S.C. § 6922(b).
94 See id.
95 See, e.g., 33 U.S.C. §§ 1251–1387.
96 See discussion supra notes 56–59 and accompanying text.
97 See 33 U.S.C. § 1317(a)(2).
98 See id.
99 Id.
100 Id. § 1311(b)(1)(C).
101 40 C.F.R. § 122.4(i) (2004).
102 See discussion supra Part II.A. and accompanying notes.
103 42 U.S.C. §§ 7472–7473. The concentration can never be allowed to exceed the NAAQS. Id. § 7473(b)(4).
104 Id. § 7471. The state may, with certain limitations and subject to certain procedures, reclassify an area to one in which a greater increment is allowed. See id. § 7474.
105 See discussion supra Part II.A. and accompanying notes.
106 See discussion supra Part II.A. and accompanying notes.
107 See Ala. Power Co. v. Envtl. Prot. Agency, 636 F.2d 323 (D.C. Cir. 1979) (rejecting the argument that the permit process for major emitting facilities was the exclusive vehicle for protecting the prevention of significant deterioration increments).
108 See discussion supra Part II.A. and accompanying notes
109 When the pollution reduction goal is only “reasonable efforts,” the agency may not have to face this dilemma if “best efforts” are capable of reaching acceptable risk goals.
110 See Kennecott Copper Corp. v. Train, 526 F.2d 1149, 1159–60 (9th Cir. 1975) (copper smelter required to engage in research and development program aimed at achieving continuous controls on sulfur dioxide).
111 See supra notes 23–28 and accompanying text.
112 See supra notes 70–73 and accompanying text.
113 See 42 U.S.C. § 7412(d)(4) (2000).
114 Id. § 7412(c)(9)(B)(ii).
115 Id. § 7412(c)(9)(B)(i).
116 Id. § 6924(g)(5).
117 Id. § 6924(d)(1).
118 See id. § 6924(a).
119 42 U.S.C. § 6924(m)(1).
120 Hazardous Waste Treatment Council v. Envtl. Prot. Agency, 886 F.2d 355, 364–65 (D.C. Cir. 1989). Since EPA had not adequately explained why it took that approach, the standard was remanded. Id. at 364–71. The court was afraid that EPA had simply kow-towed to some influential congresspersons. Id. at 365.
121 Am. Petroleum Inst. v. Envtl. Prot. Agency, 906 F.2d 729, 737–38 (D.C. Cir. 1990).
122 29 U.S.C. § 655(b)(5).
123 See discussion supra Part I.B. and accompanying notes.
124 See, e.g., 42 U.S.C. § 300g-1(b)(6). This 1996 addition to the Safe Drinking Water Act permits EPA to promulgate a “maximum containment level” at a level “that maximizes health risk reduction benefits at a cost that is justified by the benefits.” Id.
125 See 141 Cong. Rec. 2460 (1995).
126 See H.R. 9, 104th Cong. §§ 414–15, 421 (1995).
127 Exec. Order No. 12,866, 58 Fed. Reg. 51,735, 51744 (Oct. 4, 1993).
128 H.R. 9, 104th Cong. § 422(b) (1995).
129 Breyer, supra note 20, at 11–29; see generally John M. Mendeloff, The Dilemma of Toxic Substance Regulation: How Overregulation Causes Underregulation (1988).
130 See Frederick Anderson et al., Environmental Improvement Through Economic Incentives 9 (1977); Allen Kneese & Charles L. Schultze, Pollution, Prices, and Public Policy 69–84 (1975); Robert M. Solow, The Economist’s Approach to Pollution and Its Control, 173 Sci. 498, 498–99 (1971); Richard B. Stewart, Economics, Environment, and the Limits of Legal Control, 9 Harv. Envtl. L. Rev. 1, 6–9 (1985).
131 See McGarity, Reinventing Rationality, supra note 41, at 111–64.
132 See Thomas O. McGarity, Professor Sunstein’s Fuzzy Math, 90 Geo L.J. 2341, 2369 (2002) (criticizing Professor Sunstein’s enthusiasm for cost-benefit analyses undertaken by experts, “many of whom have devoted their careers to criticizing health, safety, and environmental regulation”).
133 See Comm. on the Institutional Means for Assessment of Risks to Pub. Health, Nat’l Acad. of Scis., Risk Assessment in the Federal Government: Managing the Process 1–7 (1983); Sanford E. Gaines, Science, Politics, and the Management of Toxic Risks Through Law, 30 Jurimetrics J. 271, 273 (1990); McGarity, Substantive and Procedural Discretion, supra note 51, at 805–06.
134 See David Bollier & Joan Claybrook, Freedom From Harm 200–01 (1986); Donald T. Hornstein, Reclaiming Environmental Law: A Normative Critique of Comparative Risk Assessment, 92 Colum. L. Rev. 562, 604–05 (1992).
135 See Mark Sagoff, The Principles of Federal Pollution Control Law, 71 Minn. L. Rev. 19, 48–52 (1986).
136 See Eileen Gauna, The Environmental Justice Misfit: Public Participation and the Paradigm Paradox, 17 Stan. Envtl. L.J. 3, 21–23, 52–53 (1998).
137 See discussion supra Part I.C. and accompanying notes.