Feb 16 2018

How Environmental Regulation is Growing Despite President Trump’s Efforts

(Houston) – February 16, 2018 – Letter from the Editor

Environmental requirements are growing.  President Trump and EPA are attempting to untangle the regulatory extension cords at the federal level—but it’s not working at the state level where most of these requirements are now developed.  Texas environmental requirements for example are growing.

Here’s how.

Most environmental laws are not being written by Congress via statutes or agencies via rulemaking anymore, but by permit writers through permit conditions and what I call “authorization application conditions”.  I talked about this phenomena in an earlier article.  Here is another example.

The “Deal” that increases regulation

Industry sometimes wants the recognition of a higher destruction or collection efficiency to stay below a certain regulatory triggering threshold.  TCEQ will allow you a higher destruction or collection efficiency if you agree to additional conditions in your permit or permit application (i.e. if you agree to more regulatory requirements).  I call this “The Deal”.  Industry gets a lower number.  TCEQ gets more regulations.  It’s a deal that industry can’t pass up nor should they—even though the price of poker keeps going up.  Why?  Because industry wants the lower emissions number and their permit, and almost any cost or regulatory requirement is still going to be worth it to them.  It’s like if you offered your daughter or son $10 and said if I give you this you need to walk the dog, make your bed, and fold the laundry for the next month.  Well of course the kid is going to agree to it.  The kid wants the $10.  The kid wants the money right now.  The kid might even be the one offering a few of the tasks.  It can be legitimately seen as a great deal for both sides.  And if the kid later questions all the tasks she is now charged with you can always say, “well I didn’t force you to do these tasks . . . you wanted the $10.”

So . . . what’s wrong with the “deal” in the end?

What’s wrong in the end with growing the regulatory system through permits and authorizations?  The answer is that it increases the size and complexity of the regulatory system in a closed-door environment where all the parties do not have equal parity in the law making.  Many of these deals for example later become “BACT” or “boiler-plate”—and the requirements become expected for parties that were originally not part of the deal.  These “deal” regulatory requirements are also made outside the notice-and-comment rulemaking or legislative process where the basis of the deal and the underlying costs and benefits of the deal can be fully evaluated.  There also is a concern for consistency and objectivity in deal-making law development.  You might say, “Yeah, but still, what’s wrong with adding a hundred regulatory requirements for example onto industry if industry agrees to them . . . even a million requirements if industry agrees to them?”   The answer I’m afraid is everything.  De-regulation cannot occur in this paradigm.  Freedom and transparency cannot occur in this paradigm.  The true potential for expanded economic and environmental growth cannot occur in this paradigm.

What’s the solution to the “deal”?

The solution is a regulatory system where the “deal” is unnecessary.  The new deal would be to hold companies accountable for results, not haggling over increasing intermediate process steps.  This would be a transparent deal with the American people, industry, and the environment as a whole—not a deal in a closed room between a single company and agency staff that potentially expands the regulatory system like a snowball rolling downhill.  I outlined this solution in the Draft Clean Air Act of 2018.  In the interim, deals must proceed.  And I will be one of the first people advocating for them.  That’s how the current system works.  And that’s how the current system should work.  It’s not a problem so much with tweaking the current system—though there are some short-term band-aids that could help (see link and link).  It’s a problem with the underlying system itself.  We can do better.  We must do better.

Systems can be changed.  It’s a new 21st century world. Time for a new deal.

 

Jed Anderson is the editor of TexasEnvironmentalNews.com.  Mr. Anderson is a principal attorney with the AL Law Group–and a former attorney with Baker Botts and Vinson & Elkins and an Adjunct Professor of Law at the University of Houston Law School where he taught the Clean Air Act.  In addition to his legal practice, Mr. Anderson has become a national leader over the past 15 years and a hub for Clean Air Act reform efforts–writing articles, gathering people and ideas, speaking across the country, writing a book, helping to lead national efforts to transform the Act, and even himself re-writing the Act (for more information, see www.cleanairreform.org).