Emerging science, adaptive regulation, and the problem of rulemaking ruts

Texas Law Review

Volumn 86, Issue 7, 2008, Pages 1701-1739

  Blais, Lynn E ^a   Wagner, Wendy E ^a  

^a UNIVERSITY OF TEXAS   (United States)

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[No Author keywords available]

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EID: 50049097708     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (145)

1. Professor Daniel Esty, for example, also makes this move in his recent article about the future of environmental protection in the information age. See Daniel C. Esty, Environmental Protections in the Information Age, 79 N.Y.U. L. REV. 115, 203 (2004) ("While legal instruments can spur information generation, some laws actively reward ignorance."). Professor Esty acknowledges that public choice and related pathologies impair the introduction of information in the current system but maintains optimism that information breakthroughs will actually change the accountability of institutions by lowering the costs of information to the diffuse public. Id. at 184-86. We are unconvinced. While this is likely the case in some areas of environmental law and policy, it is not the case in all areas, particularly where enhanced information technologies will remain relatively inaccessible to the public and incomplete in their ability to overcome significant uncertainties, like in the case of toxics control. Although Professor Esty does not delve into the details, his own narrative suggests he expects that some limited set of information innovations will remain inaccessible to the public and therefore might not be integrated into policy. Id. at 120-21, 180.
2. See James Salzman & J.B. Ruhl, Currencies and the Commodification of Environmental Law, 53 STAN. L. REV. 607, 616-22 (2000) ("In establishing a market, the government first creates a new form of property-legal entitlements to emit pollutants, catch fish, develop habitat - and then imposes a set of rules governing their exchange.").
3. See Christine Overdevest & Brian Mayer, Harnessing the Power of Information Through Community Monitoring: Insights from Social Science, 86 TEXAS L. REV. 1493, 1520 (2008) (noting that while bucket brigades might help increase accountability, "[c]alling for accountability... does not mean that actors have the authority to correct conduct"). But see Barton H. Thompson, Jr., The Continuing Innovation of Citizen Enforcement, 2000 U. ILL. L. REV. 185, 223-26 (noting that citizen monitoring may lead to more and better citizen suits).
4. See, e.g., DAVID M. DRIESEN, THE ECONOMIC DYNAMICS OF ENVIRONMENTAL LAW 68-70 (2003) (discussing the administrative challenges involved in setting Pigouvian taxes at appropriate levels to efficiently control pollution); Stephen Breyer, Analyzing Regulatory Failure: Mismatches, Less Restrictive Alternatives, and Reform, 92 HARV. L. REV. 549, 581-82 (1979) (explaining the government's role in setting incentive-based taxes); David M. Driesen, Is Emissions Trading an Economic Incentive Program?: Replacing the Command and Control/Economic Incentive Dichotomy, 55 WASH. & LEE L. REV. 289, 333-47 (1998) (proposing and discussing an incentive-based emissions-trading tax system).
5. See Emergency Planning and Community Right-to-Know Act of 1986 §§ 302-303, 311-312, 42 U.S.C. §§ 11002-11003, 11022-11023 (2000) (requiring covered facilities to self-identify; report their storage, use, and disposal of hazardous substances; and prepare an emergency response plan); Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), CAL. HEALTH & SAFETY CODE §§ 25249.5-25249.13 (West 2006) (requiring manufacturers to label products containing reproductive and carcinogenic hazards).
6. Moreover, while both strategies - institutional repair and bypass - are important and complementary, we hasten to add that we remain convinced that ignoring the institutional roadblocks while focusing too narrowly on bypass mechanisms is dangerous. In addition to overlooking the important role played by governmental institutions in implementing these extralegal approaches, this approach ignores the long pattern of "bending science" that has been facilitated by legal institutions but largely carried out in the market, popular press, and even some litigation. See generally THOMAS O. MCGARITY & WENDY E. WAGNER, BENDING SCIENCE: HOW SPECIAL INTERESTS CORRUPT PUBLIC HEALTH RESEARCH (forthcoming 2008). And it neglects the unsettling reality that the government has at times played a very prominent and - at other times - a more subtle role in limiting and twisting the information that is made available to the public. See, e.g., Ex-EPA Chief Rejects Criticism over 9/11 Workers' Illnesses, CNN.COM, June 26, 2007, http://www.cnn.com/ 2007/POLITICS/06/25/ground.zero/index.html?iref=newssearch (describing misleading information supplied by the Environmental Protection Agency (EPA) about air quality at Ground Zero in the weeks following the 9/11 attacks).
7. Professor Thomas McGarity wrote the seminal article on the ossification of agency rulemaking and has continued to lead the scholarship in the field. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385 (1992) [hereinafter McGarity, Some Thoughts]; see also Thomas O. McGarity, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 TEXAS L. REV. 525, 533-36 (1997) (detailing how "difficult" it is "for an agency to promulgate a rule" in "today's regulatory climate"). Others have contributed to our understanding of the phenomenon over the years. See STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION 48 (1993) (discussing the consequences of scientific and regulatory decision-making rules as tending to "produce random results"); Richard J. Pierce, Jr., Seven Ways to Deossify Rulemaking, 47 ADMIN. L. REV. 59, 65-66 (1995) [hereinafter Pierce, Seven Ways] (looking at recent court actions and evaluating seven doctrinal shifts for their potential to reduce the problem of the ossification of rulemaking). In addition, several scholars have undertaken extensive studies of the consequences of the ossification phenomenon on particular agencies or industries. See, e.g., Jerry L. Mashaw & David L. Harfst, Regulation and Legal Culture: The Case of Motor Vehicle Safety, 4 YALE J. ON REG. 257, 263-68 (1987) (discussing how the National Highway Traffic Safety Administration (NHTSA) effectively abandoned rulemaking in favor of statutorily authorized recalls as the preferred method of regulation); Richard J. Pierce, Jr., The Unintended Effects of Judicial Review of Agency Rules: How Federal Courts Have Contributed to the Electricity Crisis of the 1990s, 43 ADMIN. L. REV. 7, 8 (1991) (suggesting that the federal courts of appeals' attitude toward agency rulemaking was one of the indirect causes of the electricity shortage in the 1990s).
8. See William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?, 94 NW. U. L. REV. 393, 396 (2000) ("[Judicial review in the D.C. Circuit under the hard look version of the arbitrary and capricious standard generally did not significantly impede agencies in the pursuit of their policy goals during the decade [from 1985 to 1995]."); Anne Joseph O'Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 VA. L. REV. (forthcoming July 2008) (manuscript at 25), available at http://papers.ssrn. com/sol3/papers.cfm?abstract_id= 999099 (analyzing data from Unified Agenda of Federal Regulatory and Deregulatory Actions for the years 1983-2003 and finding that "procedural costs to [agency] rulemaking are not so high as to prohibit considerable rulemaking activity by agencies"); Jason Webb Yackee & Susan Webb Yackee, Is Federal Agency Rulemaking "Ossified"? The Effects of Procedural Constraints on Agency Policymaking 3, 24 (Apr. 9, 2007) (unpublished manuscript, on file with the Texas Law Review), available at http://www.allacademic.com/meta/p196711_index.html (evaluating the same data and challenging claims of ossification).
9. Jordan, supra note 8, at 393.
10. See Pierce, Seven Ways, supra note 7, at 61 (providing examples of expensive, time-consuming, and ultimately unsuccessful attempts at notice-and-comment rulemaking).
11. Indeed, many of the 1990 amendments to the Clean Air Act were a reaction to EPA's dramatic failure to implement the dictates of the 1970 Act. See Thomas O. McGarity, Hazardous Air Pollutants, Migrating Hot Spots, and the Prospect of Data-Driven Regulation of Complex Industrial Complexes, 86 TEXAS L. REV. 1445, 1447 (2008) (discussing EPA's utter failure to implement its hazardous-air-pollutant responsibilities under § 112 of the 1970 Act and Congress's response to that failure).
12. See Pierce, Seven Ways, supra note 7, at 60 (citing CARNEGIE COMM'N ON SCI., TECH., AND GOV'T, RISK AND THE ENVIRONMENT: IMPROVING REGULATORY DECISION MAKING 107 (1993)).
13. Id. (citing CARNEGIE COMMISSION ON SCIENCE, TECHNOLOGY, AND GOVERNMENT, supra note 12, at 107).
14. The judiciary is only one aspect of the ossification problem. The Executive Branch has adopted regulatory priority-setting and evaluation requirements that impose costs and delay on administrative agencies. For example, Executive Order 12,291 and its successors required agencies to engage in extensive cost-benefit analysis and to submit their proposals for major regulations to the Office of Management and Budget (OMB) for review. See Exec. Order No. 12,291, 3 C.F.R. 127 (1982), reprinted in 5 U.S.C. § 601 (1988), revoked by Exec. Order No. 12,866, 3 C.F.R. 638 (1993), reprinted as amended in 5 U.S.C. § 601 (2000). In addition, Congress has imposed its own regulatory costs on agencies, and has consistently failed to fund them sufficiently. See, e.g., Regulatory Flexibility Act, 5 U.S.C. § 602 (2000) (requiring agencies to publish a regulatory agenda twice each year and to consider the impact of proposed regulations on small businesses); Paperwork Reduction Act of 1980, 44 U.S.C. § 3501 (2000) (requiring OMB permission to collect information from more than ten sources). See generally Pierce, Seven Ways, supra note 7, at 62-65 (discussing the contributions of the Executive and Legislative Branches to ossificiation).
15. Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (2000). As this standard was interpreted in Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., reviewing courts must engage in probing and thorough review of notice-and-comment rulemaking to ensure that an agency acted within its statutory authority, considered all relevant factors, and did not make a clear error in judgment. 463 U.S. 29, 42-43 (1983).
16. See Richard J. Pierce, Jr., Two Problems in Administrative Law: Political Polarity on the District of Columbia Circuit and Judicial Deference of Agency Rulemaking, 1988 DUKE L.J. 300, 304-05 (noting that by 1987 the rate of affirmance of agency actions in the D.C. Circuit had shrunk to less than 30%, as compared to a rate of 74% for all other circuits).
17. 463 U.S. 29 (1983).
18. See, e.g., Frank B. Cross, Beyond Benzene: Establishing Principles for a Significance Threshold on Regulatable Risks of Cancer, 35 EMORY L.J. 1, 12-43 (1986) (detailing examples of judicial review forcing agencies to provide detailed technical explanations for standards); McGarity, Some Thoughts, supra note 7, at 1403 (noting that, as a result of the Supreme Court's Benzene decision, the Occupational Safety and Health Administration (OSHA) has found itself forced to engage "in this exceedingly precise analysis with full knowledge that the estimates provided by existing risk assessment models could vary millionfold, depending upon the model selected"); Pierce, supra note 16, at 311 (arguing that courts often require "that agencies 'find' unfindable facts and support those findings with unattainable evidence").
19. See CARNEGIE COMMISSION ON SCIENCE, TECHNOLOGY, AND GOVERNMENT, supra note 12, at 105-12 (noting that extensive, detailed rulemakings have often been overturned for failure to provide adequate justification); Jordan, supra note 8, at 412 (finding that between 1985 and 1995 the D.C. Circuit remanded agency rules sixty-one times, including twenty-nine major rulemakings); see also Christopher H. Schroeder & Robert L. Glicksman, Chevron, State Farm and the EPA in the Courts of Appeal During the 1990s, 31 Envtl. L. Rep. (Envtl. Law Inst.) 10,371, 10,374 (2001) (concluding that the agency prevailed in 53% of the rulemaking challenges against it in the 1990s). But see Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 DUKE L.J. 984, 1007-09 (analyzing published decisions in administrative law from 1964 to 1985 and finding "a consistent trend towards an increasing percentage of affirmances").
20. McGarity, Some Thoughts, supra note 7, at 1393.
21. Administrative law scholars have long noted that the numerous "attachment points" in the rulemaking process, which in theory are designed to make the agency more accountable to the public at large, may actually work at cross-purposes, driving rulemaking into less formal, less visible, and less accountable forums. See, e.g., Scott R. Furlong, Interest Group Influence on Rule Making, 29 ADMIN. & SOC'Y 325, 335, 341 (1997) (noting that a study surveying interest groups reveals a dynamic but informal relationship between agencies and interest groups); William F. West, Formal Procedures, Informal Processes, Accountability, and Responsiveness in Bureaucratic Policy Making: An Institutional Policy Analysis, 64 PUB. ADMIN. REV. 66, 67 (2004) (noting that the cumbersome process of notice-and-comment rulemaking often acts against rather than in favor of procedural accountability and agency responsiveness); cf. William Gormley, Jr., Regulatory Issue Networks in a Federal System, 18 POLITY 595, 606-08 (1986) (observing that when regulatory issues are of low salience and highly technical, they tend to be resolved through "boardroom" decision-making processes where regulated parties and the agency work together to arrive at solutions).
22. See United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) ("We hold that administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise ofthat authority.").
23. See, e.g., JERRY L. MASHAW & DAVID L. HARKST, THE STRUGGLE FOR AUTO SAFETY 146-71 (1990) (detailing the retreat of NHTSA from early attempts to establish effective safety standards for U.S. automobiles to the less controversial and less important role of overseeing recalls); Orly Lobel, Interlocking Regulatory and Industrial Relations: The Governance of Workplace Safety, 57 ADMIN. L. REV. 1071, 1121-23 (2005) (describing OSHA's attempt to implement an innovative policy without notice-and-comment rulemaking and its decision to abandon the policy rather than undertake a notice-and-comment process).
24. After examining the rulemaking decisions issued by the D.C. Circuit for a one-year period between July 1992 and July 1993, Judge Wald concluded that agency reversals in this court are most often due to the agency's failure to give an adequate explanation for its decision or statutory interpretation, not for a lack of evidence supporting its findings. See Patricia M. Wald, Regulation at Risk: Are Courts Part of the Solution or Most of the Problem?, 67 S. CAL. L. REV. 621, 636-39 (1994) (noting that, of seventeen remands, seven were due to statutory misinterpretation and six were due to inadequate rationale); see also Patricia M. Wald, Judicial Review in Midpassage: The Uneasy Partnership Between Courts and Agencies Plays On, 32 TULSA L.J. 221, 234 (1996) ("In a surprising number of cases, the court is most frustrated about the agency's failure to communicate any reason for taking certain actions.").
25. See Cary Coglianese, Empirical Analysis and Administrative Law, 2002 U. ILL. L. REV. 1111, 1125-31 (contending that the case for establishing a "retreat from rulemaking in the face of stringent judicial review is not nearly as clear as has been generally supposed"); Jordan, supra note 8, at 403-07 (disputing claims of rulemaking ossification); see also O'Connell, supra note 8 (manuscript at 25) (challenging claims of ossification and highlighting the effects of political cycles, particularly congressional cycles, on rulemaking activity); Yackee & Yackee, supra note 8, at 3, 24 (finding little support for the ossification thesis based on an analysis of similar data).
26. O'Connell, supra note 8 (manuscript at 22-29); Yackee & Yackee, supra note 8, at 8-13.
27. Yackee & Yackee, supra note 8, at 8.
28. Id.
29. Id. at 11 tbl.1.
30. Id. at 11.
31. Professor O'Connell analyzes the Unified Agenda data between 1983 and 2003 and also challenges the claims of ossification. However, as the title of her article indicates, the primary focus of her empirical analysis is on the influence of political cycles on the administrative process. In this regard, her insights are revelatory. O'Connell, supra note 8 (manuscript at 22-29).
32. Jordan, supra note 8, at 422.
33. See Yackee & Yackee, supra note 8, at 9 ("We are agnostic as to what the proper level of overall rulemaking activity might be, and as such we lack a firm baseline comparator that would help us determine whether the levels illustrated in Figure 1 are 'low' in an objective sense.").
34. See O'Connell, supra note 8 (manuscript at 25) (conceding that her data have little to say about the optimal level of rulemaking or the extent to which agencies reach that level); id. at 22 (explaining that her data do not distinguish between regulatory and deregulatory rulemaking).
35. Yackee & Yackee, supra note 8, at 10. The substantial drop in the number of rulemakings could be caused by a number of factors that go beyond judicial review and related ossification-like phenomena. See supra note 14. Nevertheless, while the decline in total rulemakings may not establish that ossification is occurring, it at least is not in conflict with that hypothesis and is generally supportive of it.
36. See supra note 11 and accompanying text.
37. Similarly, Professor Jordan recognizes that almost one-half of the remands by the D.C. Circuit during the ten-year period of his study involved major federal rulemakings, and that of those major rules remanded, the agency's regulatory goals were affected in 80% of the cases. Jordan, supra note 8, at 412. Because the agencies managed to recover - for the most part - from these remands within a year, Professor Jordan concludes that probing judicial review did not significantly interfere with the agency's regulatory agenda. Id. at 440-41. This conclusion, however, is not directly responsive to the central concerns of ossification theory. Ossification theorists contend that the very delay and interference verified by Professor Jordan causes agencies to invest inordinate time and resources into their initial rulemaking and subsequent efforts to recover, thereby interfering with the agency's ability to fully implement its statutory mandate. See supra notes 7-14 and accompanying text.
38. See Mark Seidenfeld, Demystifying Deossification: Rethinking Recent Proposals to Modify Judicial Review of Agency Decisionmaking, 75 TEXAS L. REV. 483, 490 (1997) (arguing that, while hard look review may result in ossification, aggressive judicial review provides many benefits that should not be forfeited); Cass R. Sunstein, In Defense of the Hard Look: Judicial Activism and Administrative Law, 7 HARV. J.L. & PUB. POL'Y 51, 53 (1984) (noting many "substantive purposes" of hard look judicial review, including serving as a device for the achievement of political ends, ensuring that agencies are imposing regulatory controls on industry, and "testing regulatory initiatives by requiring agencies to show that the benefits of regulation justify its costs").
39. Thomas O. Sargentich, The Critique of Active Judicial Review of Administrative Agencies: A Reevaluation, 49 ADMIN. L. REV. 599, 642 (1997).
40. Jim Rossi, Redeeming Judicial Review: The Hard Look Doctrine and Federal Regulatory Efforts to Restructure the Electric Utility Industry, 1994 WIS. L. REV. 763, 768.
41. See United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) ("[A]dministrative implementation of a particular statutory provision... when it appears that Congress delegated authority to the agency generally... carr[ies] the force of law....").
42. Rossi, supra note 40, at 812-13; Sargentich, supra note 39, at 634.
43. Agencies are free to clarify or interpret existing rules without relying on notice-and-comment rulemaking. However, when the "clarification" is in reality a revision, then the agency must undertake the full informal rulemaking process. See Sprint Corp. v. FCC, 315 F.3d 369, 374 (D.C. Cir. 2003) ("Underlying these general principles is a distinction between rulemaking and a clarification of an existing rule. Whereas a clarification may be embodied in an interpretive rule that is exempt from notice and comment requirements, new rules that work substantive changes in prior regulations are subject to the APA's procedures." (citation omitted)); see also Envtl. Integrity Project v. EPA, 425 F.3d 992, 995 (D.C. Cir. 2005) ("[A]n interpretation of a legislative rule 'cannot be modified without the notice and comment procedure that would be required to change the underlying regulation.'" (quoting Molycorp, Inc. v. EPA, 197 F.3d 543, 546 (D.C. Cir. 1999))).
44. See, e.g., Motor Vehicle Mfrs. Ass'n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41-42 (1983) ("A 'settled course of behavior embodies the agency's informed judgment that, by pursuing that course, it will carry out the policies committed to it by Congress. There is, then, at least a presumption that those policies will be carried out best if the settled rule is adhered to.'" (quoting Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 807-08 (1973))).
45. See Shell Offshore, Inc. v. Babbitt, 238 F.3d 622, 629 (5th Cir. 2001) ("'When an agency has given its regulation a definitive interpretation, and later significantly revises that interpretation, the agency has in effect amended its rule, something it may not accomplish without notice and comment.'" (quoting Alaska Prof 1 Hunters Ass'n v. FAA, 177 F.3d 1030, 1034 (D.C. Cir. 1999))).
46. Pierce, Seven Ways, supra note 7, at 61.
47. See generally Jean-Jacques Laffont & Jean Tirole, The Politics of Government Decision Making: A Theory of Regulatory Capture, 106 Q.J. ECON. 1089 (1991); Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 2 J.L. ECON. & ORG. 243 (1987).
48. These factors are derived from Neil Komesar's basic model for assessing participation in legal institutions more generally. See NEIL KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW 8 (1995) (explaining the author's basic model of institutional participation).
49. See generally, e.g., Gormley, supra note 21 (offering a political-science perspective that, unlike an economics perspective, emphasizes accountability).
50. See Yackee & Yackee, supra note 8, at 18 (noting that agencies adopt, on average, more than 500 rules per year).
51. We do not intend to suggest that the Superfund law or the Clean Water Act were mistakes, but there is certainly truth to the argument that salient events like Love Canal and the burning Cuyahoga River "tipped" the public in ways that led to demands for regulation that were not very sensitive to the concerns of industry or to the costs of implementing the ambitious statutes. See THOMAS P. LYON & JOHN W. MAXWELL, CORPORATE ENVIRONMENTALISM AND PUBLIC POLICY 30-31 (2004) (describing how, from the perspective of corporate strategy, dramatic environmental crises are more difficult to manage than chronic environmental problems because they often lead to swift legislative responses that eliminate the opportunity for mitigation by industry).
52. See Cass R. Sunstein, Administrative Substance, 1991 DUKE L.J. 607, 626 (arguing that an ill-informed public has led to interest-group pressures and sensational but misleading anecdotes that play far too prominent a role in regulation); Breyer, supra note 4, at 559-60 (arguing that paternalistic concerns over the irrationality of individuals' responses, even where small probabilities of injuries are concerned, can lead agencies to create more government regulation).
53. There is, of course, presumably also some middle ground. In the middle of the spectrum the warring factions may be sufficiently counterbalanced that information diffusion could occur effectively. As we discuss below, the ability of ambient-air-quality standards to more or less track advancements in science may provide such an example. See infra text accompanying notes 108-13.
54. See supra note 48 and accompanying text.
55. Other circumstances are less clear. A more balanced representation of interest groups participating in a rulemaking, where some interest groups would insist on expeditious standard-setting, may reduce the extent of ossification. See infra text accompanying notes 108-13.
56. For a general discussion of EPA's partial (but not complete) dependence on the superior information held by regulated parties in setting technology-based standards initially, see Sanford E. Gaines, Decisionmaking Procedures at the Environmental Protection Agency, 62 IOWA L. REV. 839, 846-64 (1977).
57. For example, in the initial standard-setting process, EPA had to identify "average" industry pollution loads and the effectiveness of technology in that average setting. These decisions were often very controversial, and presumably EPA's ultimate decisions in some settings had the effect of benefitting some facilities within an industrial category over others. Cf. id. at 852-53 (discussing the problems in using averages to set standards under the Clean Water Act).
58. This is particularly true of claims premised on an agency's failure to act. See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) ("[A] claim under section 706(1) [of the the APA] can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take") (emphasis in the original).
59. Media attention to technology-based standards over the last fifteen years has effectively been nonexistent. In fact, after a thorough search of the Internet, we were unable to locate any news articles on these standards.
60. Two articles discuss at length the travails of EPA during its first, original round of technology-based standard-setting. See Gaines, supra note 56, at 846-64 (identifying the challenges that arise in setting a technology-based standard); D. Bruce La Pierre, Technology-Forcing and Federal Environmental Protection Statutes, 62 IOWA L. REV. 771, 812-13 (1977) (reporting that, by 1977, EPA's technology-based standards promulgated under the Clean Water Act were attacked in 250 lawsuits that had been consolidated into twenty-one proceedings in circuit courts where, "[i]n many cases, the courts... invalidated the specific effluent limitations established by the two technology-based standards and remanded them to the Agency").
61. Cf. MASHAW & HARFST, supra note 23, at 24-25; Pierce, supra note 16, at 302-03 (both observing that the threat of judicial review of agency decisions can discourage agency rulemaking altogether or force it to engage in ad hoc policy decisions on specific issues).
62. See, e.g., Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law, 37 STAN. L. REV. 1333, 1336 (1985) (arguing that technology-based standards do not provide "strong incentives for the development of new, environmentally superior strategies, and may actually discourage their development"). But see Nicholas A. Ashford et al., Using Regulation to Change the Market for Innovation, 9 HARV. ENVTL. L. REV. 419, 437 (1985) (describing how technology-based standards designed for existing mercury chlor alkali plants under the Clean Water Act encouraged innovative pollution-control efforts within the industry); Daniel H. Cole & Peter Z. Grossman, When Is Command-and-Control Efficient? Institutions, Technology, and the Comparative Efficiency of Alternative Regulatory Regimes for Environmental Protection, 1999 WIS. L. REV. 887, 911 n.56 (noting that the Clean Air Act "created positive incentives for independent environmental protection industries to innovate new pollution-control technologies"); Natalie M. Derzko, Using Intellectual Property Law and Regulatory Processes to Foster the Innovation and Diffusion of Environmental Technologies, 20 HARV. ENVTL. L. REV. 3, 21 (1996) (observing that industries do have incentives for pollution-control innovation under technology-based standards because they can gain a competitive advantage, and noting that "Germany... uses technology-based standards in environmental regulation but remains the top exporter of environmental technology" (footnotes omitted)).
63. In the initial design of our study, we also hoped to include OSHA's revision of toxic standards promulgated for general workplaces, but we ran into significant research barriers that - until we find a way around them - preclude us from looking at this very different area of standards revision. In conducting preliminary research on OSHA's general workplace standards for toxins, we discovered that, unlike EPA, OSHA does not record the revision dates for subsections of its regulations but instead records all of the revisions in a series at the end of an entire part. This record-keeping approach makes it much more difficult to determine the revision history of individual quantitative standards, although we would be delighted for suggestions on how we might gather this information another way. We are particularly intrigued because there were often numerous revision dates recorded at the bottom of the larger rule parts that indicate that OSHA might be much more active than EPA in revising its standards - a fact that seems to go against our expectation and understanding of OSHA. See infra notes 99-103 and accompanying text.
64. Making these assessments would require making judgments about cost, effectiveness, and industry usefulness - precisely all the variables that EPA must contend with in the course of its rulemaking. See John S. Applegate, The Perils of Unreasonable Risk: Information, Regulatory Policy, and Toxic Substances Control, 91 COLUM. L. REV. 261, 261 (1991) ("[A] regulatory agency like [EPA] must gather, develop, and analyze relevant information about the activities that it wishes to regulate, and about available control techniques, before it can address the ultimate task of implementing the statutory trade-off between safety and cost."); see also id. at 267 (describing how EPA must assess and account for cost, technology, and health effects in formulating rules related to toxic substances).
65. According to the Lemelson-MIT Program, these are among the top twenty-five technological innovations since 1980. Top 25: Innovations, CNN.COM, June 19, 2005, http://www. cnn.com/2005/TECH/01/03/cnn25. top25.innovations/index.html.
66. There have in fact been some discussions in the literature of technological innovations of this sort. See supra note 62.
67. This would not include advances in pollution-control technologies that result from unrelated innovations in industrial processes, however.
68. See generally Oliver A. Houck, Of Bats, Birds and B-A-T: The Convergent Evolution of Environmental Law, 63 MISS. L.J. 403, 418 (1994) ("[B]est available technology side-stepped the age-old and irresolvable arguments of whether 'significant' harm existed and who was 'causing' it and began to abate the pollution itself."); Patricia Ross McCubbin, The Risk in Technology-Based Standards, 16 DUKE ENVTL. L. & POL'Y F. 1, 6 (2005) ("The technology-based standards of the Clean Water Act originated in 1972 as a response to the failed implementation of an earlier health-based regulatory program....").
69. See ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 647-49 (5th ed. 2006) (describing Congress's insistence on a health-based, rather than technology-based, regulatory program for toxic pollutants in the early 1970s).
70. See 33 U.S.C. § 1314(b)(1) (2000). EPA summarized its approach to setting BPT standards in a recent rulemaking: Traditionally, EPA establishes BPT effluent limitations based on the average of the best performance of facilities within the industry, grouped to reflect various ages, sizes, processes, or other common characteristics. Where existing performance is uniformly inadequate, EPA may establish limitations based on higher levels of control than currently in place in an industrial category, if the Agency determines that the technology is available in another category or subcategory and can be practically applied. Effluent Limitations Guidelines and New Source Performance Standards for the Concentrated Aquatic Animal Production Point Source Category, 69 Fed. Reg. 51,891, 51,895 (Aug. 23, 2004) (to be codified at 40 C.F.R. pt. 451). However, by 1983 all such sources of all pollutants would have to meet more stringent limits based on the best available technology (BAT) economically feasible, 33 U.S.C. § 1314(b)(2), or, for some conventional pollutants, the Best Conventional Treatment (BCT). 33 U.S.C. § 1314(b)(4). In setting BAT, EPA considers the cost of achieving BAT, the age of equipment and facilities involved, the process employed, potential process changes, nonwater quality, environmental impacts including energy requirements, economic achievability, and other such factors as the EPA Administrator deems appropriate. "[W]here existing performance is uniformly inadequate, BAT may reflect a higher level of performance that is currently being achieved based on technology transferred from a different subcategory or category. BAT may be based upon process changes or internal controls, even when these technologies are not common industry practice." Effluent Limitations Guidelines, 69 Fed. Reg. at 51,896.
71. 33 U.S.C. § 1316 (2000). In setting these new source standards, EPA is directed to take into consideration the cost of achieving the effluent reduction, any non-water-quality environmental impacts, and energy requirements. Id. Congress also believed that in order to meet its zero-discharge goals, future reductions would best be obtained by insisting on even higher reductions from these future sources. 33 U.S.C. § 1251(a)(1) (2000) (providing a zero-discharge goal to be achieved by 1985).
72. EPA also provides control-technique guidance and a relatively extensive
73. 42 U.S.C. § 7411 (2000).
74. Id. § 7412.
75. See id. (requiring promulgation of standards governing air-toxin emissions); see, e.g., 40 C.F.R. § 50.4 (2007) (promulgating EPA regulations for ambient-air-quality standards for sulfur oxides pursuant to the congressional mandate on May 22, 1996).
76. See 42 U.S.C. § 7411 (2000) (articulating the original Clean Air Act NSPSs).
77. See id. § 7411(b)(1)(B) ("The Administrator shall, at least every 8 years, review and, if appropriate, revise such standards.... [T]he Administrator need not review any such standard if the Administrator determines that such review is not appropriate in light of readily available information on the efficacy of such standards."); 33 U.S.C. § 1316(b)(1)(B) (2000) ("The [EPA] shall, from time to time, as technology and alternatives change, revise such [new source performance] standards following the procedures required by this subsection."); Id. § 1314(b) (instructing EPA to revise "if appropriate" the series of effluent standards for industry-specific sources). These periodic-review requirements are largely unenforceable through judicial review because the statute contains no firm deadlines.
78. See, e.g., 40 C.F.R. §§400-471 (2007) (setting forth Clean Water Act technology-based standards); 40 C.F.R. § 63 (2007) (setting forth Clean Air Act NSPSs).
79. Because we are interested in a longer, thirty-year period of revision activity, we eliminated all standards that were originally promulgated in 2000 or after. Also, if a revision occurred within a year or less of the prior rulemaking (a "quick" revision), we did not count it as a revision. In our qualitative analysis of some of these quick revisions, we discovered that they generally appeared to be minor technical adjustments that came to the agency's attention after the final rule was promulgated. See, e.g., 40 C.F.R. § 60.92 (2007) (setting a standard for particulate matter in hot-mix asphalt facilities, with an initial promulgation date of 1974 and an amendment date of 1975). We have only conducted a limited sample of these quick revisions, however, so our assumption that all quick revisions are without substance is not definitively established. Finally, although the NSPSs include technical requirements for testing to determine applicability and emissions monitoring that also affect the stringency of the quantitative standards themselves, we did not include them in our data analysis; instead we focus exclusively on the numeric or technical standards that apply to industry through the Clean Air Act. In a somewhat similar vein, because of limited time, we excluded from our analysis the revision of pretreatment standards under the Clean Water Act.
80. 33 U.S.C. § 1316(b)(1)-(2).
81. While states are required to conduct Total Maximum Daily Load (TMDL) calculations for water segments that are degraded below state water-quality standards, it remains wholly within their discretion to regulate sources causing that degradation. See, e.g., Pronsolino v. Nastri, 291 F.3d 1123, 1140 (9th Cir. 2002) ("States must implement TMDLs only to the extent that they seek to avoid losing federal grant money; there is no pertinent statutory provision otherwise requiring implementation of § 303 [TMDL] plans or providing for their enforcement.").
82. We readily concede the speculative nature of this hypothesis. A more rigorous effort to determine whether Clean Water Act technology-based standards are of lesser interest to environmental nonprofit groups might compare the number of citizen petitions filed against EPA for revising standards under the Clean Water Act with the number filed under the Clean Air Act, for example.
83. Interestingly, almost twice as many of the early BPT standards (statutorily intended to be phased out by 1983) have been revised throughout the past two decades, as compared to all the other types of standards (i.e., BCT, BAT, new source) combined. It is possible that since Congress required EPA to revise BPT periodically in the 1987 amendments and since, for most industries, BPT has been replaced with BAT, BCT, or both, the revision of BPT simply involves bringing the standard up to the level of BAT or BCT, which in turn generates little opposition from industry.
84. For examples of the general categories of industry for which there have been no revisions of the standards under the Clean Water Act, see: (1) Electroplating Point Source Category, 40 C.F.R. § 413 (2007); (2) Timber Products Processing Point Source Category, 40 C.F.R. § 429; (3) Metal Finishing Point Source Category, 40 C.F.R. § 433; (4) Coal Mining Point Source Category, 40 C.F.R. § 434; (5) Paint Formulating Point Source Category, 40 C.F.R. § 446; (6) Ink Formulating Point Source Category, 40 C.F.R. § 447; (7) Carbon Black Manufacturing Point Source Category, 40 C.F.R. § 458; (8) Photographic Point Source Category, 40 C.F.R. § 459; (9) Plastics Molding and Forming Point Source Category, 40 C.F.R. § 463; (10) Metal Molding and Casting Point Source Category, 40 C.F.R. § 464; (11) Coil Coating Point Source Category, 40 C.F.R. § 465; (12) Copper Forming Point Source Category, 40 C.F.R. § 468; and (13) Electric and Electronic Components Point Source Category, 40 C.F.R. § 469.
85. The revisions that occurred within one year of the original standard were uniformly technical revisions and nonsubstantive. See supra note 79.
86. For examples of a few of the general categories of industry with NSPSs that have never been revised, see: (1) Secondary Lead Smelters, 40 C.F.R. § 60.122; (2) Secondary Brass and Bronze Production Plants, 40 C.F.R. § 60.132; (3) Primary Copper Smelters, 40 C.F.R. §§ 60.162-.164; (4) Primary Zinc Smelters, 40 C.F.R. §§ 60.172-.173; (5) Primary Lead Smelters, 40 C.F.R. §§ 60.182-.184; (6) Primary Aluminum Reduction Plants, 40 C.F.R. § 60.193; and (7) some steel plants, 40 C.F.R. § 60.272a.
87. Our approach entailed examining roughly every third revision on the spreadsheet that listed the standards in order by their C.F.R. section (except those that had no Federal Register updates) until eleven standards had been selected. Among the selected standards, there were fourteen revisions promulgated in the Federal Register. Ten of these revisions were either identified by EPA as "minor" or "technical" in nature or involved only changing the wording (and not the substance) of a regulation, and were therefore nonsubstantive. See Amendments for Testing and Monitoring Provisions, 65 Fed. Reg. 61,744, 61,753 (Oct. 17, 2000) (codified at 40 C.F.R. § 60.52) (amending paragraph (a) of particulate matter standards for incinerators by revising "the performance test required to be conducted by § 60.8 is completed" to read "the initial performance test is completed or required to be completed under § 60.8 of this part, whichever date comes first"); id. at 61,757 (codified at 40 C.F.R. § 60.192) (amending paragraph (a) of fluoride standards for primary aluminum-reduction plants by revising "according to § 60.8 above" to read "according to § 60.195"); id. (codified at 40 C.F.R. § 60.222) (amending "metric ton" to read "megagram (Mg)" in fluoride standards for diammonium phosphate plants in the fertilizer industry); id. (codified at 40 C.F.R. § 60.252) (amending particulate matter standards for performance of coal preparation plants by revising "0.040 g/dscm (0.018 gr/dscf)" to read "0.040 g/dscm (0.017 gr/dscf)"); id. at 61,758 (codified at 40 C.F.R. § 60.282) (amending "0.15 g/dscm (0.067 gr/dscf)" to read "0.15 g/dscm (0.066 gr/dscf)"); id. at 61,759 (codified at 40 C.F.R. § 60.332) (amending paragraph (a) in standards for nitrogen oxides in stationary gas turbines by revising the words "the date of the performance test" to read "the date on which the performance test"); id. at 61,760 (codified at 40 C.F.R. § 60.372) (making several rounding changes to converted units in standards for lead in lead-acid battery manufacturing plants). Some of the selected standards were also revised in earlier rulemakings in ways that also appeared nonsubstantive. See Standards of Performance for New Stationary Sources, 40 Fed. Reg. 46,250, 46,250, 46,258 (Oct. 6, 1975) (codified at 40 C.F.R. § 60.62) (deleting paragraph (d) from standards for particulate matter in Portland cement plants, apparently to retain consistency in light of the Federal Register entry's goal of promulgating "specific requirements pertaining to continuous emission monitoring system performance specifications, operating procedures, data"); id. at 46,259 (codified at 40 C.F.R. § 60.92) (deleting the second sentence in paragraph (a)(2) of this subsection dealing with standards for particulate matter in hot-mix asphalt facilities); id. (codified at 40 C.F.R. § 60.122) (deleting paragraph (c), again apparently to retain consistency in light of changed monitoring requirements).
88. It is our impression from the few cases we did investigate that industry tends to dominate the revision process. For example, in developing a technology-based standard for gas turbines in 1981, EPA appears to have relied primarily on information and communications coming from the regulated industry. See EPA, DOCKET No. A-81-10, CATEGORY II: ITEMS CONSIDERED IN DEVELOPING PROPOSAL (1981), available at http://www.regulations.gov/fdmspublic/component/ main?main=DocumentDetail&o=09000064800bcf72 (listing the documents and the communications used by EPA to develop the gas-turbine standard); see also Standards of Performance for New Stationary Sources; Stationary Gas Turbines, 47 Fed. Reg. 3767, 3767 (Jan. 27, 1982) (referring to these comments and their role in rulemaking).
89. See Standards of Performance for New Stationary Sources; Stationary Gas Turbines, 47 Fed. Reg. at 3770 (revising standards of performance for stationary gas turbines in response to a petition by industry to exclude certain types of large gas turbines located in rural areas).
90. See Standards of Performance for New Stationary Sources; Basic Oxygen Process Furnaces: Opacity Standard, 43 Fed. Reg. 15,600, 15,602 (Apr. 13, 1978) (announcing the new, second standard for measuring compliance); Standards of Performance for New Stationary Sources, Additions and Miscellaneous Amendments, 39 Fed. Reg. 9308, 9318 (Mar. 8, 1974) (announcing the preexisting standard for measuring compliance).
91. See Standards of Performance for New Stationary Sources; Stationary Gas Turbines, 47 Fed. Reg. at 3770 (modifying the types of gas turbines covered by nitrous oxides emissions standards).
92. Simultaneously with a citizen petition filed by an environmental nonprofit, EPA added a new standard addressing secondary emissions from basic oxygen-process furnace facilities, thus leading to much more significant reductions in control requirements. See Standards of Performance for New Stationary Sources; Basic Oxygen Process Furnaces, 51 Fed. Reg. 150,150, 150,151 (Jan. 2, 1986).
93. It is important to note that the point at which the revision of standards based on changes in science is justified depends not just on the existence of some new study or published model, but on other factors as well, such as the reliability of the new scientific research, the residual uncertainty remaining in that research, and the agency's statutory directions with regard to whether and how to err on the side of uncertainty. Compare James W. Conrad Jr., The Reverse Science Charade, 33 Envtl. L. Rep. (Envtl. Law Inst.) 10,306, 10,310 (2003) (suggesting that agencies such as EPA often exaggerate the limitations of science in order to justify ignoring or delaying the use of new research), with Wendy E. Wagner, EPA's Delay in Responding to Scientific Achievements: A Reply to Conrad, 34 Envtl. L. Rep. (Envtl. Law Inst.) 10,497, 10,497 (2004) (arguing that regulatory adjustments to changes in science involve multiple factors that should not always lead to immediate regulatory adjustments).
94. See, e.g., Philip J. Landrigan et al., Pesticides and Inner-City Children: Exposures, Risks, and Prevention, 107 ENVTL. HEALTH PERSP. 431, 435-36 (1999) (discussing the numerous limitations of EPA's current screening tests for pesticides and the resulting failure to sufficiently detect the effects of pesticides on fetal and early-childhood development).
95. See, e.g., JOHN S. APPLEGATE & KATHERINE BAER, CTR. FOR PROGRESSIVE REFORM, WHITE PAPER No. 602, STRATEGIES FOR CLOSING THE CHEMICAL DATA GAP 8 (2006), available at http://www.progressiveregulation.org/articles/ Closing_Data_Gaps_602.pdf ("IRIS is missing values for many chemicals, and the addition of new values is slowed by an ossified peer-review process, lack of resources, increasing political meddling, and a priority list that omits many statutory needs."). There are also unpublished studies and reports of the slow pace of IRIS updates. See, e.g., K.C. Osborn et al., Screening-Level Assessment of the Currentness of U.S. EPA's IRIS Database, Address Before the Society for Risk Analysis Annual Meeting (Dec. 2000), abstract available at http://www.riskworld.com/Abstract/2000/SRAam00/ab0ac267.htm (summarizing the results of a "screening-level review of IRIS [that] was performed to estimate the proportion of chemicals in IRIS for which the data cited there do not appear to reflect all current toxicity studies available in the published literature").
96. See, e.g., Jennifer Sass, Editorial, Budget Cuts to the U.S. EPA Will Reduce Government Data on Pollutants, and Increase Reliance on Industry Data, 13 INT'L J. OCCUPATIONAL & ENVTL. HEALTH 244, 244--45 (2007) (suggesting reasons for the slow pace of IRIS revisions and assessments, many of which are linked to industry and OMB pressure).
97. See Memorandum from Christine Todd Whitman, Adm'r, EPA, to Assistant Adm'rs, Associate Adm'rs, Regional Adm'rs & the Science Policy Council, EPA (Feb. 7, 2003), available at http://www.thecre.com/pdf/ whitman_memo.pdf (seeking support for the implementation of initiatives aimed at formalizing "environmental modeling").
98. See COMM. ON MODELS IN THE REGULATORY DECISION PROCESS, NAT'L RESEARCH COUNCIL, MODELS IN ENVIRONMENTAL REGULATORY DECISIONMAKING 160-62, 166-68 (2007) (recommending that EPA adopt continuing review and revisions of models that inform regulation).
99. See, e.g., Daniel A. Graff, Safe Workplaces? Judicial Review of OSHA 's Updated Air Contaminant Standards in AFL-CIO v. OSHA, 11 LAB. LAW. 151, 162-65 (1995) (discussing the failure of OSHA to revise existing standards or to promulgate new toxic standards, and providing cadmium as one example). In part in response to the Eleventh Circuit's invalidation of 428 air-contaminant standards, OSHA itself has bemoaned the badly out-of-date status of its workplace standards. See Air Contaminants, 58 Fed. Reg. 35,338, 35,340 (1993) ("OSHA continues to believe that many of the old limits which it will now be enforcing are out of date (they predate 1968) and not sufficiently protective of employee health based on current scientific information and expert recommendations.") The situation has not improved over the last decade. See, e.g., Katherine Torres, Chronicling OSHA in 2007: The Year Ahead, OCCUPATIONAL HAZARDS, Feb. 5, 2008, http://www.occupationalhazards.com/News/Article/ 78213/Chronicling_OSHA_in_2007_The_Year _Ahead.aspx (discussing the need of OSHA to revise its standards as being among the top priorities of Democrats). These delays seem particularly inexcusable since a revision presumably does not require the agency to reestablish that the substance poses a "significant risk." Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst. (Benzene), 448 U.S. 607, 653 (1980).
100. Since the standard was promulgated without rigorous consideration, see infra notes 100-03, and was set initially in the late 1940s, we assume that either the science, the technology, or both have advanced enough since that time to justify at least a review of the standard, if not a wholesale revision.
101. David Michaels, Doubt Is Their Product, SCI. AM., June 2005, at 98.
102. Pub. L. No. 91-596, 84 Stat. 1591 (codified as amended at 29 U.S.C. §§ 651-678 (2000 & Supp. IV 2006)).
103. Id.
104. Holly Doremus, Adaptive Management, the Endangered Species Act, and the Institutional Challenges of "New Age " Environmental Protection, 41 WASHBURN L.J. 50, 52-56 (2001).
105. See id. at 51 (asserting that information regarding the effects of previous management is critical to determining how future management should proceed).
106. Id. at 81.
107. See id. (noting the asymmetry of political pressure and its effects).
108. Unlike the technology-based standards in our study, these NAAQSs are based exclusively on science and are to be promulgated to ensure protection of the public health with "an adequate margin of safety." 42 U.S.C. § 7409(b)(1) (2000).
109. See, e.g., PERCIVAL ET AL., supra note 69, at 482-85 (discussing EPA's general reluctance to revise the NAAQSs, with particular emphasis on EPA's refusal to revise NAAQSs for carbon monoxide, nitrogen oxides, and sulfur oxides).
110. See, e.g., 62 Fed. Reg. 38,652, 38,652 (July 18, 1997) (revising the ozone standard to be more stringent); 62 Fed. Reg. 38,762, 38,762 (July 18, 1997) (adding a standard for fine particulates); see also Revisions to the National Ambient Air Quality Standards for Photochemical Oxidants, 44 Fed. Reg. 8202, 8202 (Feb. 8, 1979) (relaxing ozone NAAQSs to less stringent standards).
111. Another way to reconcile the periodic revision of NAAQSs with agency inactivity in the revision of technology-based standards is that underlying science on air quality is changing and advances in available pollution-control technology are not. Since this explanation does not seem terribly plausible, however, we leave it to others to investigate and advance.
112. 42 U.S.C. § 7409(d)(1) (2000).
113. Id. § 7409(d)(2)(A).
114. See supra notes 25-32 and accompanying text.
115. See O'Connell, supra note 8 (manuscript at 22-24) (describing the Unified Agenda).
116. Id. at 23-24; Yackee & Yackee, supra note 8, at 6-7 (both describing their respective data sets).
117. See, e.g., West, supra note 21, at 74-75 (arguing that a more relaxed notice-and-comment procedure coupled with a deferential review standard would give agencies greater liberty in making changes and would free them to move forward uninhibited with new proposals and regulations).
118. Indeed, Professor O'Connell at least appears not to have contemplated this aspect of ossification theory at all. See O'Connell, supra note 8 (manuscript at 27) ("Traditional notice and comment rulemaking typically begins when an agency publishes an NPRM in the Federal Register.").
119. The most radical proposal for the reform of outmoded pollution-control standards is to eliminate them and replace them with other types of standards - a position we allude to in the introduction as bypassing institutions entirely. See Bradley C. Karkkainen, Bottlenecks and Baselines: Tackling Information Deficits in Environmental Regulation, 86 TEXAS L. REV. 1409 1416-20 (2008) (highlighting several alternatives to industry-specific standards, including industry self-regulation, negotiated rulemaking, and market-based incentives). Proponents of this reform argue that industry-specific standards are far too time-consuming to promulgate and revise, and are likely to be inaccurate in any event since they depend on information supplied by regulated parties. See id. at 1414 (summarizing the criticisms of the "command-and-control" approach to environmental regulation taken by industry-specific standards and noting that such criticisms "bear a kernel of truth"). In the end, they conclude, other regulatory mechanisms, like taxes or cap-and-trade approaches, can effectively and efficiently replace industry-specific standards and should be employed instead. See id. at 1416-19 (discussing the advantages and disadvantages of applying market-based incentives, including cap-and-trade programs and Pigouvian taxes, as an alternative to industry-specific standards). A thorough analysis of the comparative effectiveness of these competing regulatory instruments in various regulatory settings is well beyond the scope of this Article, but it bears noting that such mechanisms are essentially untested in these real-world contexts. In an earlier article, one of us already pointed out a number of the problems afflicting market-based approaches that must be addressed before market-based approaches can be credibly advanced as widespread alternatives to technology-based standards. See Wendy E. Wagner, The Triumph of Technology-Based Standards, 2000 U. ILL. L. REV. 83, 98-100, 101, 106, 108 (detailing problems with market-based approaches as compared to technology-based standards, including delays in pollution reduction, lack of predictability, and difficulties ensuring compliance). However, even assuming that certain technology-based standards can be effectively replaced with other regulatory approaches, these economic-based alternatives still may not be able to sidestep the problem of rulemaking ruts. For example, although some market-based approaches to pollution control incorporate baselines that automatically become more stringent over time, see, e.g., Clean Air Act §§ 401-416, 42 U.S.C. §§ 7651-7651o (2000 & Supp. V 2005) (establishing deadlines for progressively more stringent limitations on sulfur dioxide emissions); see also PERCIVAL ET AL., supra note 69, at 552-53 (describing the declining cap-and-trade program in California called RECLAIM), the hot-spot problem in many pollution markets necessitates that the programs be tied back to science-based goals or some measure of health protection. Cf. Richard Toshiyuki Drury et al., Pollution Trading and Environmental Injustice: Los Angeles' Failed Experiment in Air Quality Policy, 9 DUKE ENVTL. L. & POL'Y F. 231, 251-68 (1999) (considering the problems with pollution trading, including the tendency to focus on regional air-quality concerns and therefore overlook localized health risks, or "toxic hot spots," and the discrepancy between claimed and actual emissions reductions because of fraud, manipulation, underreporting, and "phantom" or paper reductions).
120. Professor McGarity, for example, recommends that the Supreme Court replace the State Farm standard of reasoned decision making with a more deferential form of substantive review. Under his formulation, judges would adopt the posture of a "pass-fail" professor reviewing a research paper on a complex problem on a topic outside her field of expertise. McGarity, Some Thoughts, supra note 7, at 1452-54. Professor Pierce concurs with the general wisdom of relaxing the substantive standard of review, but offers a different standard, one which he asserts will be more easily implemented by the courts. Pierce, Seven Ways, supra note 7, at 95 (arguing that the Supreme Court should reverse State Farm by abolishing the judicially enforceable duty to engage in reasoned decision making and should instruct circuit courts "to return to the prior method of applying the arbitrary and capricious test to agency rules"). Professors Shapiro and Levy have proposed an intermediate standard of review that focuses the court's attention on particular substantive standards to guide their review of agency decisions. See Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 DUKE L.J. 1051, 1072-78 (1995) (proposing an amendment to § 706 of the APA in order to more appropriately balance judicial authority and agency discretion). In a student note, Patrick Fuller recently revived the discussion of the appropriate standard of review, suggesting that for regulations based on peer-reviewed science, courts should defer to the agency's reasoning. Patrick A. Fuller, Note, How Peer Review of Agency Science Can Help Rulemaking: Enhancing Judicial Deference at the Frontiers of Knowledge, 75 GEO. WASH. L. REV. 931, 962-64 (2007).
121. Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, 1978 SUP. CT. REV. 345, 400-09.
122. McGarity, Some Thoughts, supra note 7, at 1459-60.
123. This idea is similar to Professor Doremus's suggestion that the Fish and Wildlife Service can evade inefficient political pressures by entering into "pre-negotiated commitments" with landowners in which the agency and the landowner "agree in advance on specific steps that will be taken if monitoring shows that the species or system is in decline." Doremus, supra note 104, at 85.
124. For a brief but enlightening discussion of that historic program, see PERCIVAL ET AL., supra note 69, at 564-67 (describing the 1970 Clean Air Act's regulatory push for the development of improved emissions-control technology in the automobile-manufacturing industry).
125. Id. at 565 (describing the 1970 technology-forcing 90% reduction requirement as based on a '"back of the envelope'" calculation: '"We just picked what sounded like a good goal'" (citing Gregg Easterbrook, Cleaning Up, NEWSWEEK, July 24, 1989, at 29 (quoting a committee staff member involved in the legislative drafting process))).
126. Cf. 33 U.S.C. § 1311(m)(1)(2) (2000) (allowing certain point sources to petition for a modification of effluent limits when, in part, the source can establish that the energy and environmental costs of meeting the standard exceed by an unreasonable amount the benefits of meeting the standard).
127. For a description of EPA's multifaceted lead-phasedown program, which included incremental reductions in the permissible level of lead in gasoline over time, see generally Richard G. Newell & Kristian Rogers, The Market-Based Lead Phasedown (Res. for the Future, Discussion Paper No. 03-37, 2003), available at http://www.rff.org/documents/RFF-DP-03-37.pdf.
128. This may not always be the case. It is possible that some of these industry-based standards are still so technical and low in salience (we consider "high salience" to mean interesting to the media or public at large) that regulated parties will entirely dominate the rulemaking process, even at the initial rulemaking stage. To the extent that this skewed participation occurs, contemporaneous revision-planning may not be able to pull the rulemaking out of the resulting rut. Contemporaneous revision rulemaking could help a determined agency accomplish a more comprehensive standard and hence enjoy some efficiencies of scale, but much will be dependent on the determination and resources of the agency and particular circumstances operating at the time for a given standard. Indeed, the possibility of this lopsided participation at the initial rulemaking stage suggests that a congressional mandate requiring contemporaneous revision-planning is likely to be much more effective than voluntary agency adoption of this planning process.
129. See supra note 124 and accompanying text.
130. Professor McGarity has also recommended the more frequent use of statutory rulemaking deadlines as a mechanism to compel agencies to initiate rulemaking. McGarity, Some Thoughts, supra note 7, at 1458-59.
131. The more general use of competition as a regulatory instrument is discussed in DRIESEN, supra note 4, at 151-61 (describing the virtues of free market competition versus government regulation for environmental incentives), and Wendy E. Wagner, Using Competition-Based Regulation to Bridge the Toxics Data Gap, 83 IND. L.J. (forthcoming 2008) (manuscript at 19-35, on file with the Texas Law Review) (proposing a competition-based system of incentives for chemical testing and safety).
132. While this anticompetitive behavior may be viewed by some with suspicion, see, e.g., Jonathan H. Adler, Rent Seeking Behind the Green Curtain, REGULATION, Fall 1996, at 26, 26-27 (describing attempts made by various industries to utilize environmental regulations in efforts to gain a competitive advantage), as long as there is an opportunity to rebut the petition and the standards are required to be reasonably affordable, it is difficult to see how this anticompetitive effect would ultimately harm other than the least competitive firms, and it would bring much greater, offsetting benefits to innovation, first movers, and the environment.
133. See, e.g., McGarity, Some Thoughts, supra note 7, at 1454 (discussing an amendment to the APA that would "lower the threshold for initiating rulemaking [by the public] and... signal [Congress's] intent that judicial review of agency refusals to initiate or to complete existing rulemakings be more stringent in some or all circumstances").
134. See Robert L. Glicksman & Sidney A. Shapiro, Improving Regulation Through Incremental Adjustment, 52 U. KAN. L. REV. 1179, 1203-06 (2004) (finding provisions in the Clean Water Act, the Clean Air Act, the Occupational Safety and Health Act, and the Endangered Species Act - but not in the Resource Conservation and Recovery Act - that allow time extensions as an incentive for regulated entities "to engage in research to develop innovative technologies that will help achieve health, safety, and environmental protection objectives more effectively or more efficiently").
135. 33 U.S.C. § 1331(k) (2000); see also Glicksman & Shapiro, supra note 134, at 1203-04 (describing the provision in the Clean Water Act).
136. 42 U.S.C. § 7411(j)(1)(A) (2000); see also Glicksman & Shapiro, supra note 134, at 1204-06 (describing the provision in the Clean Air Act).
137. See supra notes 60-61 and accompanying text.
138. Cf. Ashford et al., supra note 62, at 446-59 (describing the inadequacies of innovation waivers under the Clean Air Act and the Clean Water Act, and recommending how the waivers could be revised to be more effective).
139. Cf. Wagner, supra note 131 (manuscript at 27-29) (discussing the benefits of a divide-and-conquer approach in regulatory settings where regulated parties might otherwise act as a united and strong block of opposition to more stringent standards or revisions).
140. See, e.g., 42 U.S.C. § 7409(d)(2)(B)-(C) (2000) (establishing that the Clean Air Scientific Advisory Committee (CASAC) should review EPA's ambient-air-quality standards at five-year intervals). A similar type of scientific review is required for EPA's registration of pesticides. 7 U.S.C. § 136w(d)-(e) (2000) (requiring the Scientific Advisory Panel established under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to review the scientific basis for major regulatory proposals concerning pesticides and to adopt peer-review procedures for scientific studies carried out pursuant to FIFRA).
141. CASAC in particular has received accolades for its important service in the review of EPA's ambient-air-quality standards. See, e.g., EXPERT PANEL ON THE ROLE OF SCIENCE AT EPA, EPA, SAFEGUARDING THE FUTURE: CREDIBLE SCIENCE, CREDIBLE DECISIONS 38 (1992) (praising CASAC as "consistently providfing] an open forum for review and discussion of the science underlying EPA's national ambient-air-quality standards" and as being "well-respected by scientific experts in the field").
142. EPA's recent decision to reject CASAC's advice on a more stringent revised standard for fine particulates serves as a case in point. See, e.g., Erik Stokstad, EPA Draws Fire Over Air-Review Revisions, 314 SCI. 1672, 1672-73 (noting that criticism of EPA's revision of its review policies largely stemmed from EPA's rejection of CASAC's advice); Jane Kay, EPA Ignores Advice for Annual Limits on Tiny Soot, S.F. CHRON., Sept. 22, 2006, at A3 (detailing the disappointment among environmental and health groups when EPA ignored a recommendation agreed to by twenty of the twenty-two members of CASAC).
143. SCI., TECH., & LAW PANEL, NAT'L RESEARCH COUNCIL, ACCESS TO RESEARCH DATA IN THE 21ST CENTURY: AN ONGOING DIALOGUE AMONG INTERESTED PARTIES: REPORT OF A WORKSHOP 24-25 (2002) ("An NIH consensus development conference costs about $500,000 and takes approximately 1 year.").
144. But see MARK R. POWELL, SCIENCE AT EPA: INFORMATION IN THE REGULATORY PROCESS 40 (1999) (reporting that the Science Advisory Board's budget for fiscal year 1998 was "a modest $2.4 million").
145. Those who have studied science advisory boards closely have concluded that when they are employed properly, they can be extremely effective both in holding the agency accountable for developments in science and in protecting the agency from unwarranted challenges when it has done a good job. See SHEILA JASANOFF, THE FIFTH BRANCH: SCIENCE ADVISERS AS POLICYMAKERS 206 (1990) (observing that "[p]erhaps the clearest lesson to be drawn" is how science advice to agencies through consensual advisory boards seems essential to certifying the agency's scientific conclusions and protecting them from adversarial deconstruction); BRUCE L.R. SMITH, THE ADVISERS: SCIENTISTS IN THE POLICY PROCESS 71 (1992) (concluding in the case of EPA's Science Advisory Panel commissioned under FIFRA that "[t]he panel has served a useful purpose in enhancing the quality of internal EPA reviews and in bolstering the agency's public image as a scientifically credible regulator"); id. at 98 ("The EPA's scientific advisers have played a useful role in this whole process, legitimating and encouraging change initiated by the agency's leadership."); Lars Noah, Scientific "Republicanism ": Expert Peer Review and the Quest for Regulatory Deliberation, 49 EMORY L.J. 1033, 1047-57 (2000) (discussing the varied types of peer review used by the agencies, their generally positive impact on agency science, and detailing how EPA, FDA, and the Consumer Product Safety Commission utilize these various peer-review mechanisms).