Environmental leadership programs: Toward an empirical assessment of their performance

Ecology Law Quarterly

Volumn 35, Issue 4, 2008, Pages 771-834

  Borck, Jonathan C ^a   Coglianese, Cary ^b   Nash, Jennifer ^c  

^a ANALYSIS GROUP   (United States)

^b UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

^c HARVARD UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 64749116582     PISSN: 00461121     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (122)

1. J. CLARENCE DAVIES & JAN MAZUREK, POLLUTION CONTROL IN THE UNITED STATES: EVALUATING THE SYSTEM (1998).
2. 2 emissions increased by 20 percent in the period 1990 to 2005. Id. at 2-65.
3. See also THE HEINZ CENTER, KEY FINDINGS FR0M THE. STATE OF THE NATION'S ECOSYSTEMS 2008 1,3 (2008), available at http://heinzhome. heinzctrinfo.net/ecosystems/2008report/pdf-files/Key-Findings-Fact-Sheet.pdf (detailing as key findings from the report's section on water quality that "contaminants were detected in virtually all streams" and in 80 percent of freshwater fish tested; also noting that "one-third of U.S. native plant and animal species are at risk of extinction").
4. See, e.g., Daniel C. Esty & Marian R. Chertow, Thinking Ecologically: An Introduction, in THINKING ECOLOGICALLY: THE NEXT GENERATION OF ENVIRONMENTAL POLICY 1-3 (Marian R. Chertow & Daniel C. Esty eds., 1997);
5. NEIL GUNNINGHAM, PETER GRABOWSKY, & DARREN SINCLAIR, SMART REGULATION: DESIGNING ENVIRONMENTAL POLICY 6 (1998);
6. Eric w. Orts, Reflexive Environmental Law, 89 Nw, U. L. REV. 1227, 1231 (1995);
7. Richard B. Stewart, A New Generation of Environmental Regulation?, 29 CAP. U. L. REV. 21,21 (2001).
8. See DANIEL J. FIORINO, THE NEW ENVIRONMENTAL REGULATION 81 (2006) (arguing that traditional environmental regulation "[i]s [i]rrelevant to [m]any [problems and [t]hus [ineffective").
9. EPA, Enforcement & Compliance History Online (ECHO), http://www.epa-echo.gov/ echo/compliance-report.html (select either "Must Have RCRA ID#" or "Must Have Air Permit" and click "Search") (last visited Sept. 12,2008).
10. See generally OFFICE OF INSPECTOR GEN., EPA, REP. NO. 2007-P-00003, EVALUATION REPORT: PARTNERSHIP PROGRAMS MAY EXPAND EPA'S INFLUENCE (2006) (noting that voluntary programs may increase the number of participants addressing environmental issues in ways that go beyond regulatory compliance); FIORINO, supra note 4 (arguing in favor of voluntary programs as part of a redesigned environmental policy approach); REALITY CHECK: THE NATURE AND PERFORMANCE OF VOLUNTARY ENVIRONMENTAL PROGRAMS IN THE UNITED STATES, EUROPE, AND JAPAN (Richard D. Morgenstern & William A. Pizer eds., 2007).
11. See, e.g., ASEEM PRAKASH & MATTHEW POTOSKI, THE VOLUNTARY ENVIRONMENTALISTS: GREEN CLUBS, ISO 14001, AND VOLUNTARY ENVIRONMENTAL REGULATIONS 82-92 (2006) (describing ISO 14001, the international environmental management system standard that is an example of a privately initiated voluntary program). See Cary Coglianese & Jennifer Nash, Management-Based Strategies: An Emerging Approach to Environmental Protection, in LEVERAGING THE PRIVATE SECTOR: MANAGEMENT-BASED STRATEGIES FOR IMPROVING ENVIRONMENTAL PROTECTION 3, 13-14 (Cary Coglianese & Jennifer Nash eds., 2006).
12. OFFICE OF INSPECTOR GEN., EPA, REP. NO. 2007-P-00041, EVALUATION REPORT: V0 PROGRAMS COULD BENEFIT FROM INTERNAL POLICY CONTROLS AND A SYSTEMATIC MANAGEMENT APPROACH 4 (2007), available at http://www.epa.gov/oig/reports/ 2007/20070925-2007-P-00041.pdf (quoting EPA, CHARTER FOR COORDINATING AND MANAGING EPA'S VOLUNTARY PROGRAMS (2004)). These government initiatives fall into five general types: educational, financial assistance, recognition, product certification, or partnerships. CARY COGLIANESE & JENNIFER NASH, BEYOND COMPLIANCE: BUSINESS DECISION MAKING AND THE US EPA's PERFORMANCE TRACK PROGRAM 107 (2006) [hereinafter BEYOND COMPLIANCE].
13. See, e.g., Mark Stoughton & Elizabeth Levy, Voluntary Facility-level Sustainability Performance Reporting: Current Status, Relationship to Organization-level Reporting, and Principles for Progress, 21 PACE ENVTL. L. REV. 265, 266 n.5, 269 n.10 (2004) (giving examples of environmental leadership programs, ways in which members participate, and benefits of participation); George B. Wyeth, "Standard" and "Alternative" Environmental Protection: The Changing Role of Environmental Agencies, 31 WM. & MARY ENVTL. L. & POL'Y REV. 5,41-43 (2006) (describing features of leadership programs). These programs are also sometimes called performance-based environmental programs or performance tracking programs. To the extent that these alternative terms connote that these programs require businesses to achieve any specified level of environmental performance, they are a misnomer. Even the label "leadership" could be misleading if taken to mean that members of these programs necessarily have achieved levels of environmental performance superior to their industry peers. For our purposes, we use the leadership label simply as a concise way to refer to programs exhibiting the kinds of characteristics discussed in the text.
14. Government organizations also participate in many of these programs. For example, about 15 percent of the members of EPA's National Environmental Performance Track are government facilities. Private, not-for-profit organizations also participate: about 3.5 percent of EPA's Performance Track program report "research and education" as their primary activity. INDUSTRIAL ECONOMICS, INC., MULTIPLE SECTOR ANALYSIS (unpublished spreadsheet, on file with authors). Due to the fact that most members are business entities, for the ease of our readers we use terms such as "private-sector facilities" and "businesses" to refer to the members of ELPs.
15. See FlORINO, supra note 4, at 137-138, 145-146, 171-73; PRAKASH & POTOSKI, supra note 7, at 54-57, 62-67.
16. See infra Part II.B.-C. for more detailed descriptions of the criteria mentioned in this paragraph.
17. See infra Part I.A. for a more extensive description of EMSs.
18. See, e.g., EPA, Nat'l Envtl. Performance Track, Basic Information, http://www.epa.gov/performancetrack/about.htm (last visited Sept. 12, 2008). For a more detailed description of Performance Track, see Appendix I.
19. EPA, Nat'l Envtl. Performance Track, Members, https://yosemite.epa.gov/ opei/ptrack.nsf/ faMembers?readform (last visited Sept. 12, 2008).
20. For example, EPA deems Performance Track facilities to be a low priority for routine EPA inspections. See Memorandum from Steven A. Herman, Assistant Adm'r, Office of Enforcement & Compliance Assurance, EPA & Richard T. Farrell, Assoc. Adm'r, Office of Policy, Econ. & Innovation, EPA to EPA Adm'r et al. 3 (Jan. 19, 2001), available at http://www.epa.gov/ performancetrack/downloads/PTComplianceEnforcement.pdf. In addition, Performance Track members that are large-quantity generators of hazardous waste may accumulate such waste on-site for up to two times-and in some cases even three times-the normally allowable time periods. EPA Standards Applicable to Generators of Hazardous Waste, 40 C.F.R. § 262.34(a), (j)(l) (2006). See also EPA Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities, 40 C.F.R. §§ 264.15(b)(4), 264.174, 264.195(bMe), 264.1101(c)(4), 265.15(b)(4), 265.174, 265.195(a)-(d), 265.201(c)-(e), 265.1101 (c)(4) (2006) (allowing Performance Track members to reduce inspection frequencies from the normal daily or weekly schedule to a monthly schedule with respect to containers, tank systems, containment buildings, and areas subject to spills).
21. Industrial Economics, Inc., provided us with a list of state ELPs currently in operation. The list included basic information about each program including the program's name, start date, and number of members. For a description of each state program, see EPA, STATE PERFORMANCE-BASED PROGRAM DIRECTORY (2007), available at http://www.epa.gov/performancetrack/partners/ StateProgramsDirectory Final-May2007.pdf. Several of these state programs were actually established before EPA created its Performance Track. FIORINO, supra note 4, at 172.
22. OFFICE OF POLICY, ECON., & INNOVATION, EPA, PUB NO. 100-R-07-004, PERFORMANCE TRACK FIFTH ANNUAL PROGRESS REPORT 31 (2007), available at http://www.epa.gov/perftrac/downloads/PTPRreport- 05final.pdf. Some states have sought increased support from EPA for their programs. For example, a report prepared by representatives from several states asserted that "[ejfforts are needed to align the EPA-state relationship to recognize and support performance-based programs and to reduce transaction costs associated with program implementation." ENVTL. COUNCIL OF THE STATES, SURVEY OF STATE SUPPORT FOR PERFORMANCE-BASED ENVIRONMENTAL PROGRAMS AND RECOMMENDATIONS FOR IMPROVED EFFECTIVENESS 7 (2005), available at http://www.epa.gov/performancetrack/downloads/ECOS-Report- Final-01-13-O5.pdf. EPA and states work closely to implement their respective ELPs, exchanging information in monthly conference calls and, in some cases, signing memoranda of understanding that document their intention to cooperate. EPA, Nat'l Envtl. Performance Track, State Programs, http://www.epa.gov/ performancetrack/partners/linkage.htm (last visited Sept. 12, 2008).
23. See, e.g., FlORINO, supra note 4, at 149 (noting that recent EPA Administrators Whitman, Leavitt, and Johnson have strongly endorsed Performance Track); EPA, WHAT MEMBERS HAVE TO SAY ABOUT PERFORMANCE TRACK (2006), available at http://www.epa.gov/perftrac/downloads/MemberTestimonials3- 06.pdf (providing testimonials for Performance Track from over ten industry representatives); Marc Allen Eisner, Corporate Environmentalism, Regulatory Reform, and Industry Self-Regulation: Toward Genuine Regulatory Reinvention in the United States, 17 GOVERNANCE 145, 155 (2004) (noting that "if properly designed and implemented one would expect that this experiment could produce some positive results" and could help "provide a context for innovations that could be disseminated across the corporate economy"); Dennis D. Hirsch, Lean and Green? Environmental Law and Policy and the Flexible Production Economy, 79 IND. L.J. 611, 646 (2004) (suggesting "that Oregon's performance track program is functioning as a bridge between the environmental regulatory system and a new form of industrial production"); Alfred R. Light, Environmental Federalism in the United States and the European Union: A Harmonic Convergence?, 15 ST. THOMAS L. REV. 321, 341 (2002) (characterizing EPA's Performance Track as "[a] symbol of the new 'second generation' approach" to environmental policy).
24. Stephen L. Johnson, EPA Adm'r, Remarks at the National Environmental Performance Track Awards Dinner (May 9, 2006), available at http://yosemite.epa.gov/opa/admpress.nsf/ a883dc3da7094f97852572a00065d7d8/ d38cC2fl2730a7188525716c006f0388!OpenDocument.
25. Press Release, EPA, Three EPA Programs Nominated for Government 'Oscars' (Mar. 30, 2006), available at http://yosertite.epa.gov/opa/admpress.nsf/ 68b5f2d54f3eefd28525701500517fbf/09d2dfd224b8298f852571410059871a!OpenDocument; News Release, Wis. Dep't of Natural Res., Wisconsin's Green Tier Program finalist for Harvard Innovation Award 1 (May 4, 2006), available at http://dnr.wi.gov/org/caer/cea/environmental/media/pressreleases/ 20060504pressrelease.pdf.
26. News Release, Wis. Dep't of Natural Res., supra note 21, at 1.
27. In 2005, the Natural Resources Defense Council (NRDC) submitted to EPA a fourteen-page letter criticizing EPA's and states' "fixation" with developing incentives to boost facilities' participation in ELPs and satisfying self-serving agendas: "[TJhere is scant attention and detail concerning actual superior environmental performance-for example, verifying and quantifying the results under programs to date; comparing those results to results under core environmental programs and evaluating the trade-offs; and analyzing the roles of inspections, enforcement, audits, EMSs and innovations in actually achieving superior performance. For all the talk of 'performance' based programs, there is alarmingly little discussion and evidence of actual superior environmental performance or demonstrated performance that goes beyond compliance." Letter from John Walke, Clean Air Dir., Natural Res. Defense Council, to Office of the Adm'r, Docket ID OA-2005-0003, EPA 1-2 (Nov. 3, 2005), available at http://www.regulations.gov/fdmspublic/ContentViewer? objectId=09000064800ad650&disposition=attachment&contentType=pdf. In 2006, the Environmental Integrity Project issued a report charging that some Performance Track members increased emissions of toxic pollutants after joining the program. ENVTL. INTEGRITY PROJECT, WRONG TRACK? SOME PERFORMANCE TRACK FACILITIES REPORT INCREASED LEVELS OF TOXIC POLLUTION 1 (2006), available at http://www.environmentalintegrity.org/pubs/performance%20track%20report-feb06. pdf. The report concluded that "Performance Track offers self-policing in its most extreme form, as participants get to pick their subjects, design their own tests, grade themselves, and even change their report cards after the fact to avoid a failing grade." Id. at 3.
28. In 2007, EPA's Office of Inspector General (IG) "found that Performance Track did not have clear plans that connected activities with its goals, and did not have performance measures that show if it achieves anticipated results." OFFICE OF INSPECTOR GEN., EPA, REP. NO. 2007-P-00013, EVALUATION REPORT: PERFORMANCE TRACK COULD IMPROVE PROGRAM DESIGN AND MANAGEMENT TO ENSURE VALUE At a Glance (2007), available at http://www.epa.gov/oig/reports/2007/20070329-2007-P-00013.pdf. In its response to the Inspector General's report, EPA's Office of Policy, Economics, and Innovation noted that Performance Track encourages facilities to "aim high" and set goals "that present a challenge." Id. at 36. A purpose of the program is to encourage innovation, and Performance Track program managers understand that meeting ambitious goals may not always be possible. The program does now expect members to make progress toward achieving two or three of their goals to have their memberships renewed. Id. at 30.
29. See Letter from the Hon. Albert R. Wynn, Chairman, House Subcommittee on Environment and Hazardous Materials, and the Hon. Bart Stupak, Chairman, House Subcommittee on Oversight and Investigations, to the Hon. Stephen L. Johnson, Adm'r, EPA 2 (Apr. 13, 2007) (noting that legislators "are concerned about taxpayer dollars being wisely used at a time when EPA's core environmental and public health programs, ones that are specifically authorized by Congress, are severely underfunded.").
30. As noted supra note 17, we have relied primarily on a list of ELPs provided to us by Industrial Economics, Inc., in identifying state programs.
31. See, e.g., David Monsma, Sustainable Development and the Global Economy: New Systems in Environmental Management, 24 VT. L. REV. 1245 (2000) ("Measuring, reporting, and knowing the environmental performance levels of an operation in near real-time is what the regulator and public want and need to know. Overall, if a performance track is put in place, it would produce more complete and accurate information ⋯ ."); FlORINO, supra note 4, at 148 (explaining that Performance Track's "goal is ⋯ to improve the ability of government and firms to measure performance").
32. See, e.g., FlORINO, supra note 4, at 123-26; Stoughton & Levy, supra note 9, at 266 n.5, 269 n.10; 41-43; Wyeth, supra note 9, at 41-43; MARC ALLEN EISNER, GOVERNING THE ENVIRONMENT: THE T RANSFORMATION OF ENVIRONMENTAL REGULATION 177-96 (2007). The EPA's IG conducted an internal review of the federal Performance Track; this report, which could be considered an "evaluation" in a certain sense, does not purport to meet the standards for a systematic empirical evaluation seeking to identify the impacts the program has caused in environmental quality. OFFICE OF INSPECTOR GEN., supra note 24. The authors of this Article have also been studying empirically why businesses join ELPs; however, even this work does not represent an evaluation of the impact of ELPs on firms' environmental outputs or other performance metrics.
33. See, e.g., Cary Coglianese & Jennifer Nash, EPA 's National Environmental Performance Track: What Is It Tracking? What Role Is It Performing?, (unpublished manuscript on file with the authors); Cary Coglianese & Jennifer Nash, Government Clubs: Theory and Evidence from Voluntary Environmental Programs, in VOLUNTARY PROGRAMS: A CLUB THEORY APPROACH (Matthew Potoski & Aseem Prakash eds., forthcoming 2008).
34. JERRY SPEIR, GREEN PERMITS AND COOPERATIVE ENVIRONMENTAL AGREEMENTS: A REPORT ON REGULATORY INNOVATION PROGRAMS IN OREGON AND WISCONSIN 5 (2000), available at http://www.napawash.org/pc-economy-environment/epafile04.pdf. Both programs were created by state statutes granting environmental regulators flexibility in issuing permits to program members. See id. at 7-8.
35. Jerry Speir, EMSs and Tiered Regulation: Getting the Deal Right, in REGULATING FROM THE INSIDE: CAN ENVIRONMENTAL MANAGEMENT SYSTEMS ACHIEVE POLICY GOALS? 198, 205-12 (Cary Coglianese & Jennifer Nash eds., 2001). Speir's review questioned whether EMS adoption was a sufficient indicator of sound environmental performance to form the basis for a membership criterion in state programs and argued that preferential treatment should instead be triggered by "a system of information based on performance indicators" that states were "only beginning to build." Id. at 217.
36. Michael Crow, Beyond Experiments, THE ENVIRONMENTAL FORUM, May-June 2000, at 20.
37. See, e.g., Kathryn Harrison, Talking with the Donkey: Cooperative Approaches to Environmental Protection, 2 J. INDUS. ECOLOGY 51 (1999);
38. Daniel Press & Daniel A. Mazmanian, The Greening of Industry: Combining Government Regulation and Voluntary Strategies, in ENVIRONMENTAL POLICY: NEW DIRECTIONS FOR THE TWENTY-FIRST CENTURY (Norman J. Vig & Michael E. Kraft eds., 2006);
39. Cary Coglianese & Lori D. Snyder Bennear, Program Evaluation of Environmental Policies: Toward Evidence-Based Decision Making, in DECISION MAKING FOR THE ENVIRONMENT: SOCIAL AND BEHAVIORAL SCIENCE RESEARCH PRIORITIES 246, 260 (Garry D. Brewer & Paul C. Stern eds., 2005).
40. Comm. on the Human Dimensions of Global Change, Ctr. for Governance, Econ., & Int'l Studies, Div. of Behavioral & Soc. Scis. & Educ, Nat'l Research Council, Decision-Relevant Science for Evidence-Based Environmental Policy, in DECISION MAKING FOR THE ENVIRONMENT: SOCIAL AND BEHAVIORAL SCIENCE RESEARCH PRIORITIES 85,98-100 (Garry D. Brewer & Paul C. Stern eds., 2005); OFFICE OF INSPECTOR GEN., supra note 6, at 1; EPA, EVALUATION REPORT: PARTNERSHIP PROGRAMS MAY EXPAND EPA'S INFLUENCE (Office of the Inspector General, Report No. 2007-P-00003, 2006); EPA, VOLUNTARY PROGRAMS COULD BENEFIT FROM INTERNAL POLICY CONTROLS AND A SYSTEMATIC MANAGEMENT APPROACH (Office of the Inspector General, Report No. 2007-P-00041, 2007).
41. See, e.g., Kathleen Segerson & Thomas J. Miceli, Voluntary Environmental Agreements: Good or Bad News for Environmental Protection?, 36 J. ENVTL. ECON. & MGMT. 109 (1998);
42. Madhu Khanna & Lisa A. Damon, EPA 's Voluntary 33/50 Program: Impact on Toxic Releases and Economic Performance of Firms, 37 J. ENVTL. ECON. & MGMT. 1 (1999);
43. Madhu Khanna, Non-Mandatory Approaches to Environmental Protection, 15 J. ECON. SURVS. 291 (2001);
44. ALFRED A. MARCUS, DONALD A. GEFFEN, & KEN SEXTON, REINVENTING ENVIRONMENTAL REGULATION: LESSONS FROM PROJECT XL (2002);
45. Jennifer Nash, Tiered Environmental Regulation: Lessons from the StarTrack Program, in INDUSTRIAL TRANSFORMATION: ENVIRONMENTAL POLICY INNOVATION IN THE UNITED STATES AND EUROPE (Theo de Bruijn & Vicki Norberg-Bohm eds., 2005);
46. Matthew Potoski & Aseem Prakash, Covenants with Weak Swords: ISO 14001 and Facilities' Environmental Performance 24 J. POL'Y ANALYSIS & MGMT. 745 (2005);
47. Shanti Gamper-Rabindran, Did the EPA's Voluntary Industrial Toxics Program Reduce Emissions? A GIS Analysis of Distributional Impacts and By-Media Analysis of Substitution, 52 J. ENVTL. ECON. & MGMT. 391 (2006);
48. Jason Scott Johnston, The Promise and Limits of Voluntary Management-Based Regulatory Reform: An Analysis of EPA 's Strategic Goals Program, in LEVERAGING THE PRIVATE SECTOR: MANAGEMENT-BASED STRATEGIES FOR IMPROVING ENVIRONMENTAL PERFORMANCE 167 (Cary Coglianese & Jennifer Nash eds., 2006);
49. Jorge Rivera, Peter de Leon, & Charles Koerber, Is Greener Whiter Yet? The Sustainable Slopes Program After Five Years, 34 POL'Y STUD. J. 195 (2006).
50. For a detailed review of the literature on voluntary programs, see JENNIFER NASH & TIM LARSON, PERFORMANCE-BASED ENVIRONMENTAL PROGRAMS: LITERATURE REVIEW (2007) (on file with authors).
51. FlORINO, supra note 4, at 148-49, 163-65, 223 (emphasizing the important contributions performance tracking programs can make to policy learning).
52. Carol M. Browner, EPA Adm'r, Remarks Delivered at the Performance Track Launch (June 26, 2000), available at http://yosemite.epa.gov/opa/ admpress.nsf/d41dcc0e24d31638852572a00065 af98/ 9bfa2alfa3765d998525701a0052e332!OpenDocument.
53. FIORINO, supra note 4, at 173 ("Performance tracking programs stretch the model of the old regulation ⋯ . [They] are designed to change the regulatory system."). See also sources cited supra note 19.
54. See, e.g., Esty & Chertow, supra note 3, at 1-3; DAVIES & MAZUREK supra note 1, at 269-87.
55. See Cary Coglianese & Jennifer Nash, Environmental Management Systems and the New Policy Agenda, in REGULATING FROM THE INSIDE: CAN ENVIRONMENTAL MANAGEMENT SYSTEMS ACHIEVE POLICY GOALS? 1, 2 (Cary Coglianese & Jennifer Nash eds., 2001).
56. "ISO" is the common abbreviation for the International Organization for Standardization, a transnational organization comprised of representatives from various private and public sector standard- setting organizations. See PRAKASH & POTOSKI, supra note 7, at 83-84.
57. See PRAKASH & POTOSKI, supra note 7, at 92-96. The number of U.S. facilities attaining ISO 14001 certification, as established by a registered third party, reached 5,585 by the end of December 2006. INT'L ORG. FOR STANDARDIZATION, THE ISO SURVEY OF CERTIFICATIONS: 2006 9 (2007), available at http://www.iso.org/iso/survey2006.pdf.
58. Coglianese & Nash, Environmental Management Systems and the New Policy Agenda, supra note 39, at 1, 11-12.
59. U.S. ENVTL. PROT. AGENCY, AIMING FOR EXCELLENCE: ACTIONS TO ENCOURAGE STEWARDSHIP AND ACCELERATE ENVIRONMENTAL PROGRESS, REPORT OF THE EPA INNOVATIONS TASK FORCE 6 (1999), available at http://www.epa.gov/epainnov/pdf/report99.pdf.
60. Id. at 6.
61. FOREST L. REINHARDT, DOWN TO EARTH: APPLYING BUSINESS PRINCIPLES TO E NVIRONMENTAL MANAGEMENT 9-13 (2000).
62. See ANDREW J. HOFFMAN, FROM HERESY TO DOGMA: AN INSTITUTIONAL HISTORY OF CORPORATE ENVIRONMENTALISM 40-41 (1997) (discussing how external pressures may shape a firm's internal norms and culture).
63. See Stewart, supra note 3, at 46.
64. Browner, supra note 36 (promising that "costs will be lower" and "administrative operations will be streamlined" for businesses that join Performance Track).
65. See, e.g., EPA, MACT INCENTIVE FACT SHEET 1 (2005), available at http://www.epa.gov/ performancetrack/benefits/regadmin/mactfactsheet.pdf (describing some benefits to Performance Track members including "low inspection priority, ⋯ regulatory and administrative flexibility," and incentives for "reporting reductions");
66. VA. DEP'T OF ENVTL. QUALITY, POLLUTION PREVENTION 2005 4-5 (2005), available at http://www.deq.virginia.gov/p2/pdf/report05.pdf (explaining the types of "alternative compliance methods" available to certain program participants); Memorandum from John Peter Suarez, Assistant Adm'r, Office of Enforcement & Compliance Assurance, EPA & Jessica L. Furey, Assoc. Adm'r, Office of Policy, Econ., & Innovation, EPA, to EPA Reg'l Adm'rs et al. 2 (Oct. 29, 2003), available at http://www.epa.gov/performancetrack/ benefits/oeca.pdf (reaffirming EPA's commitment to treat "Performance Track facilities ⋯ as a low priority for routine inspections"); Tex. Comm'n on Envtl. Quality, Clean Texas Benefits, http://cleantexas.org/docs/ CT%20benefits% 20summary.pdf (last visited Sept. 20, 2008) (listing benefits to members such as "[rjeduced reporting," "[rjeduced state inspection frequency," and "[expedited⋯ review of state permits").
67. In many cases, performance commitments that managers choose as part of their ELP memberships result in cost savings. For example, of the 1,170 commitments made by members of EPA's Performance Track program in 2005, 154 (13%) were to reduce water use, 187 (16%) were to reduce energy use, 223 (19%) were to reduce non-hazardous waste generation, and 129 (11%) were to reduce hazardous waste generation. OFFICE OF POLICY, ECON., & INNOVATION, supra note 18, at 9. In addition to improving environmental quality, delivering on these commitments can save facilities money. Id. at 12-13.
68. See generally Robert A. Kagan, Adversarial Legalism and American Government, lOJ.POL'Y ANALYSIS & MGMT. 369 (1991) (discussing adversarial qualities of the American legal system and their costs).
69. FIORINO, supra note 4, at 136-37.
70. See Lester M. Salamon, The New Governance and the Tools of Public Action: An Introduction, in THE TOOLS OF GOVERNMENT: A GUIDE TO THE NEW GOVERNANCE 1 (Lester M. Salamon ed., 2002); John Braithwaite, Rewards and Regulation, 29 J.L.& Soc'Y 12, 12 (2002).
71. See FIORINO, supra note 4, at 223.
72. Cary Coglianese, Richard Zeckhauser, & Edward Parson, Seeking Truth for Power: Informational Strategy and Regulatory Policymaking, 89 MINN. L. REV. 277, 314 (2004).
73. See FIORINO, supra note 4, at 148.
74. Coglianese & Nash, supra note 39, at 1-2.
75. EPA, PUB NO. 240-B-05-003, PERFORMANCE TRACK PROGRAM GUIDE 7 (2005), available at http://www.epeat.net/Docs/EP A-PT-Prog-guide.pdf.
76. EPA requires that facilities report on public outreach and public reporting activities in annual performance reports to the agency. EPA, Nat'l Envtl. Performance Track, Annual Performance Reporting, http://www.epa.gov/ performancetrack/program/report.htm (last visited Sept. 12,2008).
77. JOHN EHRENFELD, BEYOND SUSTAINABILITY: WHY AN ALL-CONSUMING CAMPAIGN TO REDUCE UNSUSTAINABILITY FAILS 3-4 (2006), available at http://www.changethis.com/ 25.03 .BeyondSustain.
78. Jennifer Nash & John Ehrenfeld, Codes of Environmental Management Practice: Assessing Their Potential as a Tool for Change 22 ANN. REV. ENERGY & ENV'T 487, 524 (1997).
79. See John R. Ehrenfeld, Cultural Structure and the Challenge of Sustainability, in BETTER ENVIRONMENTAL DECISIONS: STRATEGIES FOR GOVERNMENTS, BUSINESSES, AND COMMUNITIES 223, 228-34 (Ken Sexton, Alfred A. Marcus, K. William Easter, & Timothy D. Burkhardt eds., 1998).
80. See Coglianese & Nash, supra note 39, at 11-12. See generally JENNIFER A. HOWARD-GRENVILLE, CORPORATE CULTURE AND ENVIRONMENTAL PRACTICE: MAKING CHANGE AT A HIGH- TECHNOLOGY MANUFACTURER (2007) (providing an in-depth account of how a facility's culture affects its environmental practices).
81. See FlORINO, supra note 4, at 172-73.
82. Id. at 163.
83. INDUSTRIAL ECONOMICS, INC., BASIC INFORMATION ON PERFORMANCE-BASED PROGRAMS (2007) (unpublished report, on file with authors).
84. Technically, Georgia's and Wisconsin's programs could have been considered as slightly younger than five years at the time of our study since both programs began in their current form in 2004. However, these programs were each based on earlier, similar programs that started prior to 2002. Given their histories, we chose to include both these state programs in our study.
85. INDUSTRIAL ECONOMICS, INC., supra note 66. What we refer to throughout this Article as "tracking" programs Industrial Economics labels as "comparable to Performance Track."
86. Our sample included two advocate tiers, one in Georgia and the other in Tennessee. Members of Georgia's advocate tier, known as "Champions," include community organizations, environmental organizations, professional associations, universities, and other organizations. Partnership for a Sustainable Georgia: Program Levels and Criteria, http://www.p2ad.org/documents/ pp-criteria.html (last visited Sept. 20, 2008); Partnership for a Sustainable Georgia: Champion Criteria, http://www.p2ad.org/files-pdf/ChampionCriteria.pdf (last visited Sept. 20, 2008). They are expected to promote the state's ELP by engaging in activities that encourage facilities to join. Id. Similarly, members of Tennessee's advocate tier, known as "Prospects," include schools, households, businesses, and other organizations. Tennessee Pollution Prevention Partnership (TP3) Members, http://www.state.tn.us/environment/ea/tp3/ tp3-members.shtml (last visited Sept. 20, 2008). An entity may become a "Prospect" by sending a signup card to the program. Tennessee Pollution Prevention Partnership, TP3 Criteria Overview 1, http://www.state.tn. us/environment/ea/pdf/tp3-criteria overview.pdf (last visited Sept. 20, 2008).
87. We initially examined only the first subsample (all programs and tiers). However, since ELPs generally impose few if any requirements on advocate tier members and minimal requirements on on- ramp members, we added a second subsample that excludes these two tier categories. We also undertook a separate analysis of the two most selective tier categories, as reflected in the third subsample.
88. One of us also participated in two workshops organized by EPA and held during the spring of 2007. The first, on May 8, 2007, in New Orleans, Louisiana, was held in conjunction with the National Environmental Partnership Summit. The second, on June 18, 2007, in Madison, Wisconsin, was part of the annual meeting of the Multi-State Working Group on Environmental Performance. At each workshop, EPA asked participants to describe the goals of ELPs. Participants, who represented state environmental agencies, private sector firms, EPA, environmental advocacy organizations, and private consulting groups, offered a wide range of responses, including directly benefiting the environment, improving the environmental performance of non-participants, and saving costs.
89. By program managers, we mean the agency staff members who are responsible for day-to-day ELP operations. If more than one staff member was responsible for running the ELP, we attempted to speak with the most senior member.
90. We conducted interviews on a "not for attribution" basis. In the sections of this Article where we discuss interview results, we have removed factual details in order not to reveal the identities of the people with whom we spoke. For this same reason we do not include quotations from EPA Performance Track managers, since that program is sufficiently distinct that quotations could disclose interviewees' identities.
91. For example, we would ask something like, "What are the goals of your program?" If the interviewee did not mention any of the social goals that dominated the discussions at the EPA workshops in New Orleans and Madison (and described supra in note 71), we asked follow up questions, such as "Is improving multi-stakeholder relationships a goal?" and "Is changing the culture at facilities and agencies a goal?" We coded responses so as to distinguish those given at the interviewee's initiative from those given in response to any of our follow-on prompts.
92. "Shifting the environmental performance curve" refers to the idea that ELPs might prompt an incremental improvement in the environmental performance of all facilities. See supra notes 43-46 and accompanying text.
93. In referring to "multi-stakeholder relationships," we adhere to the usage common among our respondents, according to which individuals and organizations affected by environmental management and policy are characterized as "stakeholders." Specifically, "multi-stakeholder relationships" refers to relationships among businesses, government officials, environmental organizations, community groups, and individuals.
94. Idaho GEMStars, http://www.idahogemstars.org/program/program. html (last visited Sept. 20, 2008).
95. Div. OF ENVTL. QUALITY, MO. DEP'T OF NATURAL RES., FACT SHEET ON MISSOURI ENVIRONMENTAL MANAGEMENT PARTNERSHIP 1 (2006), available at http://dnr.missouri.gov/pubs/ pub2117.pdf.
96. PRAKASH & POTOSKI, supra note 7, at 54-57, 62-67.
97. See supra note 39 and accompanying text.
98. The exceptions were Colorado and Maine.
99. If program documents did not include specific language mandating progress, and if program managers did not mention progress as a requirement for continued membership, we concluded that progress was not necessary.
100. EPA's fourth annual progress report notes that as of the end of 2005, the agency had asked thirty-four facilities to leave Performance Track and had denied renewal to an additional fifteen. OFFICE OF POLICY, ECON., & INNOVATION, U.S. ENVTL. PROT. AGENCY, PUB. NO. 100 R 06 001, LEADING
101. Our cursory review of program descriptive materials revealed that these activities were common to many ELPs, so we sought to determine their pervasiveness by further investigation.
102. We received conflicting information from different sources about opportunities for interaction in the Texas program.
103. Our initial review of program descriptive materials revealed that these four communication activities were common to many ELPs, so we sought in our further investigation to determine more precisely how frequently they were used.
104. We received conflicting information from different sources about the availability of online information in the Louisiana program.
105. We received conflicting information from different sources about the availability of annual program reports for the Louisiana program.
106. Absolute reductions in pollution are what ultimately matter for environmental and public health protection. Normalized reductions matter only for purposes of determining program effectiveness. For example, suppose overall pollution decreases. The only way to know whether a program caused the decrease is to control for a number of factors, especially some measure of economic output. The program might be effective if pollution per unit of economic output decreases. But it is almost certainly not effective if pollution per unit of economic output increases, in which case any observed absolute reduction in pollution is due to a decrease in output, not to the program. Similarly, suppose overall pollution increases. If pollution per unit output decreases, then the overall pollution increase is probably due to the increase in economic output. In other words, the program might actually be effective, just not effective enough to overcome the growth in economic output.
107. See Coglianese & Bennear, supra note 32, at 253-55, for a discussion on the several challenges of drawing causal inferences in the context of environmental innovation.
108. We assigned ratings of "H," "M," or "L" based on the following considerations. With respect to relevance, a program or tier that gathered data that measured a goal or outcome directly earned a rating of "H." A program or tier that gathered data that measured a proxy of the goal or outcome earned a rating of "M." A program or tier that did not gather any relevant data earned a rating of "n/a" for not applicable. With respect to quality, we took into account the following five considerations: (1) whether the program offered clear instructions for data collection and reporting; (2) whether it required an EMS that would presumably guide data collection; (3) whether the agency had established a screening process for review of data accuracy and completeness; (4) whether the program conducted site visits to verify data or the EMS; and (5) whether someone at the facility certified the accuracy of the data. For each consideration, we gave each program or tier a "Yes" or "No" determination. When we assessed the quality of data relevant to direct environmental benefits, we weighted each of these considerations equally so that for each "Yes" the program or tier earned one point. A score of 0-1 became a rating of "L," a score of 2-3 became a rating of "M," and a score of 4-5 became a rating of "H." When we assessed the quality of data relevant to improving stakeholder relationships and cost savings for facilities and agencies, however, we determined that the first criterion-clear instructions for data collection and reporting-should weigh more heavily than the others such that no program or tier that offered little guidance for how facilities should collect or report these data could earn greater than a rating of "M" for quality, and no program or tier that offered no guidance could earn greater than a rating of "L." We reasoned, for example, that programs or tiers that merely included a column on their annual reporting form with the heading "cost savings," without any information about how facilities should calculate that number, would likely collect data that was neither reliable nor credible. With respect to aggregational value, programs or tiers that reported data in standard units and using normalizing factors earned a rating of "H." Programs or tiers that reported either in standard units or using normalizing factors earned a rating of "M." Programs or tiers that used neither standard units nor normalizing factors earned a rating of "L." With respect to inferential value, a program that provided both longitudinal data and cross-sectional data earned a rating of "H." A program that provided some longitudinal data, such as performance over time, or the possibility of some cross-sectional data, such as compliance information for non-participants, earned a rating of "M." A program that provided neither longitudinal nor cross-sectional data earned a rating of "L." With respect to accessibility, we considered the degree to which a program or tier provided to the public data on individual members' participation. If it provided all available data, it earned a rating of "H"; if it only provided some data, it earned a rating of "M"; if it provided no data, it earned a rating of "L."
109. Some program tiers did collect "baseline" data on each member's performance when it first joined the program. But even these data, while informative, have quite limited inferential value. To draw confident inferences about the effects of programs, longitudinal data need to include information on members' performance well before they contemplated joining the program. Data over multiple years prior to joining are needed to determine the trends in emissions over time, so as to be able to determine if the program affected these preexisting trends. For a discussion of longitudinal analysis, see Cary Coglianese, Empirical Analysis and Administrative Law, 2002 UNI. ILL. L. REV. 1111-37 (2002).
110. Wis. DEP'T OF NATURAL RES., 2007 GREEN TIER BIENNIAL PROGRESS REPORT 16 (2007), available at http://www.dnr.state.wi.us/org/caer/cea/ environmental/reports/2007report.pdf.
111. ABT Assocs., RESULTS OF THE 2006 PERFORMANCE TRACK MEMBERS SURVEY 15-23 (2007), available at http://epa.gov/performancetrack/members/downloads/ 2006MembersSurveyReportFinal 062607.pdf.
112. In other words, for some states the most stringent tiers were akin to what we have called "Middle" tiers for other states. For example, in Idaho and Louisiana, the highest tiers were comparable to "Middle" tiers. New Mexico's most stringent tier ranked as "Tracking," but its design was substantially different from other ELPs.
113. Some program officials may view the required commitments as spurs for improvement, rather than binding ends themselves. In other words, programs could be designed to allow firms to make "stretch goals" that are hard to attain, if doing so would encourage firms to make good faith efforts to improve their environmental performance beyond what they would otherwise have done, even if those improvements fail to meet firms' stated goals. Of course, if government officials do not expect any or much progress toward firms' commitments to remain in ELPs, it is hard to see how over the long term the process of making commitments-attainable or otherwise-would provide much incentive for firms to engage in costly efforts to improve their environmental performance significantly.
114. When a facility sponsors a community recycling drive or shares information about its environmental performance with community groups, the assumption is that this will lead to increased trust and cooperation between the facility and the community. Of course, it is also possible that the reverse could occur. Jonathan C. Borck, Cary Coglianese, & Jennifer Nash, Evaluating the Social Effects of Performance-Based Environmental Programs, 38 ENVTL. L. REP. 10,697, 10,698-99 (2008).
115. For a discussion of shifting the performance curve, see supra notes 43-46 and accompanying text.
116. Of course, this does not mean that establishing multiple tiers is always easy for government to do. When it launched Performance Track, EPA initially planned to implement both an Achievement Track and a more rigorous Stewardship Track. See U.S. ENVTL. PROT. AGENCY, FIRST PHASE PUBLIC MEETINGS ON THE DESIGN OF THE STEWARDSHIP TRACK 1-2 (n.d.) (unpublished summary of discussions held in the fall of 2000 in Washington, D.C., San Francisco, and Chicago, on file with authors). In the rush to get the program running, EPA postponed development of the Stewardship Track and admitted its first members to the Achievement Track. EPA had trouble articulating what additional requirements should be imposed on Stewardship Track members, so it later abandoned plans for a more demanding tier. EPA's history demonstrates a key challenge of multiple-tiered programs: defining criteria for entry and ongoing membership that are unambiguous and encourage participation.
117. Such evaluation might begin with the development of a logic model that traces the connection between program goals, activities, and outcomes. See EPA, GUIDELINES FOR MEASURING THE PERFORMANCE OF EPA PARTNERSHIP PROGRAMS 8-11 (2006) (on file with authors).
118. See supra Part II.F and Tables 11-16.
119. Borck, Coglianese, & Nash, supra note 97, at 10,699-701.
120. BEYOND COMPLIANCE, supra note 8, at 7.
121. See supra notes 19-22, 27 and accompanying text. See also EPA INNOVATION ACTION COUNCIL, EVERYDAY CHOICES: OPPORTUNITIES FOR ENVIRONMENTAL STEWARDSHIP 14 (2005), available at http://www.epa.gov/NCEI/ pdf7rpt2admin.pdf (noting that "EPA has used challenge programs successfully" including, in Performance Track, "spurring environmental improvement on a facility-wide basis").
122. See REINHARDT, supra note 45, at 11; THOMAS P. LYON & JOHN W. MAXWELL, CORPORATE ENVIRONMENTALISM AND PUBLIC POLICY 45-16 (2004) (presenting voluntary, beyond-compliance behavior "as a way to preempt the passage of new government regulations").