Transition policy in environmental law

Harvard Environmental Law Review

Volumn 35, Issue 1, 2011, Pages 91-130

  Huber, Bruce R ^a  

^a Dartmouth College ^*  (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL POLICY; POLICY MAKING; REGULATORY APPROACH;

EID: 79959211418     PISSN: 01478257     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (259)

1. See generally Louis Kaplow, An Economic Analysis of Legal Transitions, 99 HARV. L. REV. 509 (1986)
2. DANIEL SHAVIRO, WHEN RULES CHANGE: AN ECONOMIC AND POLITICAL ANALYSIS OF TRANSITION RELIEF AND RETROACTIVITY (2000).
3. See also the excellent papers from the conference, "Legal Transitions: Is There an Ideal Way to Deal with the Non-Ideal World of Legal Change?", held at the University of San Diego on Oct. 25 and 26, 2002. These papers are collected and published in 13 J. CONTEMP. LEGAL ISSUES (2003), beginning at 1. The term "transition relief" has its origins in scholarship about changes in tax policy.
4. See, e.g., Michael J. Graetz, Legal Transitions: The Case of Retroactivity in Income Tax Revision, 126 U. PA. L. REV. 47 (1977). I follow others in applying the term more broadly to include any public policy with a compensatory effect with respect to a legal transition.
5. See, e.g., SHAVIRO, supra note 1.
6. See Kaplow, supra note 1, at 582.
7. See infra Part II.B.4.
8. This literature explores not only the optimal degree of transition relief, but also which governmental actors are best situated to provide it.
9. See generally Jonathan S. Masur & Jonathan Remy Nash, The Institutional Dynamics of Transition Relief, 85 N.Y.U. L. REV. 391, 438-49 (2010).
10. See Holly Doremus, Takings and Transitions, 19 J. LAND USE & ENVTL. L. 1 (2003) (providing insightful analysis into the relationship between policy change and regulatory takings doctrine).
11. Indeed, the entire public choice literature is largely devoted to further specifying this premise far beyond the confines of environmental policy.
12. See generally, e.g., George J. Stigler, The Theory of Economic Regulation
13. BELL J. ECON. & MGMT. SCI. 3 (1971);
14. Sam Peltzman, Toward a More General Theory of Regulation, 19 J.L. & ECON. 211 (1976);
15. Robert D. Tollison, Public Choice and Legislation, 74 VA. L. REV. 339 (1988).
16. Clean Air Act, 42 U.S.C. §§ 7401-7671q (2006).
17. In its 1977 amendments to the Clean Air Act, Congress largely exempted existing coalfired power plants from pollution-control requirements, probably on the theory that many of these plants were due for retirement.
18. See Jonathan Remy Nash & Richard L. Revesz, Grandfathering and Environmental Regulation: The Law and Economics of New Source Review, 101 NW. U. L. REV. 1677, 1681-2 (2007) (noting that although the legislative history is not explicit on this point, it "strongly suggests that Congress in 1970 expected grandfathering of these sources to be only temporary"). The mandated controls on new plants were so expensive, however, that many plant owners elected to extend the lives of the old plants. A highpitched, decades-long battle ensued over what sorts of improvements to old plants would expose them to the control requirements established for new plants.
19. See id. at 1707-18;
20. Shi-Ling Hsu, The Real Problem with New Source Review, 36 Envtl. L. Rep. (Envtl. Law Inst.) 10,095, 10,096-98 (2006);
21. Edan Rotenberg, Ending Both Forms of Grandfathering in Environmental Law, 37 Envtl. L. Rep. (Envtl. Law Inst.) 10,717 (2007)
22. Paul Krugman, Every Breath You Take, N.Y. TIMES, Nov. 26, 2002, at A27.
23. See Hsu, supra note 9.
24. See Michael T. Maloney & Gordon L. Brady, Capital Turnover and Marketable Pollution Rights, 31 J.L. & ECON. 203, 204 (1988) (finding that grandfathering resulted in statewide increases in pollution of twenty-seven percent when compared to states without such exemptions).
25. But see Randy A. Nelson, et al., Differential Environmental Regulation: Effects on Electric Utility Capital Turnover and Emissions, 75 REV. ECON. & STATS. 368 (1993) (finding that although regulation increased the age of capital, it decreased aggregate emissions).
26. See Nash & Revesz, supra note 9, at 1729.
27. Id. at 1725.
28. See Doremus, supra note 6, at 22.
29. By no means is this phenomenon limited to environmental policy; pressure for transition relief can arise whenever existing interests are threatened. Relief has been provided, for example, in connection with: changes in the tax code, see SHAVIRO, supra note 1, 64-91 (dis- cussing political choice and transitions in federal income taxation);
30. DAVID BARON, BUSINESS AND ITS ENVIRONMENT 620 (5th ed. 2006) (discussing transition relief in the North American Free Trade Agreement);
31. changes in trade policy, see enactment of the Americans with Disabilities Act, § 303(a)(2), 42 U.S.C. § 12183(a)(2) (2006) (requiring existing structures to be modified for accessibility only upon their alteration).
32. Of course, de facto transition relief can be granted to existing actors, even under a facially neutral regulatory scheme through selective enforcement.
33. For a list and discussion of several such policies
34. Robert N. Stavins, Market-Based Environmental Policies, in PUBLIC POLICIES FOR ENVIRONMENTAL PROTECTION 31, 46-47
35. see (Paul R. Portney & Robert N. Stavins eds., 2d ed. 2000).
36. Raam Wong, Keeping It Wild: Sabinoso Lands Could Soon Be a Protected Area, ALBUQUERQUE J., July 7, 2008, at 1.
37. Particularly problematic are rights-of-way on federal land granted pursuant to an 1866 statute known as "R.S. 2477." 43 U.S.C. § 932 (repealed 1976).
38. Matthew L.Squires, Federal Regulation of R.S. 2477 Rights-of-Way, 63 N.Y.U. ANN. SURV. AM. L. 547 (2008);
39. Bret C. Birdsong, Road Rage and R.S. 2477: Judicial and Administrative Responsibility for Resolving Road Claims on Public Lands, 56 HASTINGS L.J. 523 (2005).
40. See generally CHARLES F. WILKINSON, CROSSING THE NEXT MERIDIAN (1992). Wilkinson's landmark work colorfully and powerfully explains how outdated natural resources and public land laws allow longstanding interests to thwart land and resource management reform in the American West.
41. See Clean Air Act § 202, 42 U.S.C. § 7521ff (2006).
42. See, e.g., Clean Air Act § 202(a)(3)(D) (allowing EPA to regulate the "rebuilding practices" of heavy-duty engines); Clean Air Act § 219 (allowing EPA to require retrofitting of some urban buses). Advocates have argued that the Act permits greater authority over in-use vehicles than EPA has exercised, but the Agency has shown no appetite for aggrandizement in this regard.
43. See, e.g., Sierra Club v. EPA, 325 F.3d 374 (D.C. Cir. 2003) (siding with EPA in rejecting the contention of a number of states and environmental groups that the Act's Mobile Air Toxics program, Clean Air Act § 202(l)(2), authorized EPA to regulate in-use vehicles).
44. Christopher Serkin, Existing Uses and the Limits of Land Use Regulations, 84 N.Y.U. L. REV. 1222, 1224 (2009).
45. See generally BRUCE ACKERMAN & WILLIAM HASSLER, CLEAN COAL/DIRTY AIR (1981).
46. See discussion, supra note 9.
47. See, e.g., U.S. DEP'T OF ENERGY, PNNL-SA-70586, BUILDING ENERGY CODES 101: AN INTRODUCTION 5 (2010) (noting applicability of energy codes to new construction)
48. id. at 21
49. noting that standards for modifications to existing structures and remodels are nonmandatory); Task Force to Study Zero-Energy Homes, AUSTIN BUS. J., July 31, 2006 (stating that the City of Austin, Texas, considers code changes applying only to homes built after 2015).
50. For example, in 1987 the City of Berkeley, California, adopted a Residential Energy Conservation Ordinance (and a counterpart for commercial properties in 1994) that requires certain energy and water efficiency improvements in every home or apartment building sold, transferred, or undergoing renovations valued at $50,000 or more. Berkeley, Cal. Municipal Code Chapter 19.16. It should also be noted that state and local governments have considered and adopted numerous non-mandatory incentive measures aimed at improving the efficiency of built structures.
51. See, e.g., Ethan N. Elkind, Saving Energy: How California Can Launch aStatewide Retrofit Program for Existing Residences and Small Businesses (May 2010), available at http://www.law.berkeley.edu/files/Saving-Energy-May-2010. pdf.
52. 42 U.S.C. §§ 6901-6992k (1998).
53. RCRA § 3005(e)(1).
54. Id.
55. See Heidi Gorovitz Robertson, If Your Grandfather Could Pollute, So Can You: Environmental"Grandfather" Clauses and Their Role in Environmental Inequity, 45 CATH. U. L. REV. 131, 141-52 (1995).
56. See R. Shep Melnick, Pollution Deadlines and the Coalition for Failure, in ENVIRONMENTAL POLITICS: PUBLIC COSTS, PRIVATE REWARDS 89 (Michael Greve & Fred Smith, eds., 1992).
57. See 40 C.F.R. § 280.21(a)(3) (2010).
58. Karen Nardi, Underground Storage Tanks, in ENVIRONMENTAL LAW HANDBOOK 185, 207 (19th ed., 2007).
59. U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-01-464, ENVIRONMENTAL PROTECTION: IMPROVED INSPECTIONS AND ENFORCEMENT WOULD BETTER ENSURE THE SAFETY OF UNDERGROUND STORAGE TANKS, 2-3 (2001).
60. 33 U.S.C. §§ 1251-1387 (2006).
61. This deadline was extended to March 31, 1989, by the 1987 amendments to the Act. Water Quality Act of 1987, Pub. L. No. 100-4, § 301, 101 Stat. 7, 29-30 (1987) (codified at 33 U.S.C. §§ 1311, 1314 (2006)).
62. See Clean Water Act § 301(b). In some instances, EPA still relies on BPT standards and even promulgates new standards although the 1977 deadline is long past. EPA reasons that BCT is constrained by cost-effectiveness limitations, so BPT standards still remain an effective floor for conventional pollutant standards.
63. See Duke K. McCall, Clean Water Act, in ENVIRONMENTAL LAW HANDBOOK 299, 317 (19th ed. 2007). Furthermore, even after the final scheduled deadline, the statutory structure allows for the possibility that existing sources may permanently receive a more lenient standard than new sources, which are subject to new source performance standards ("NSPS"). For many industrial categories, NSPS are identicalto BAT, but for others, NSPS exceed BAT in stringency. Thus a discharger who came intocompliance by 1989 may still be subject to a different standard than a newer facility.
64. 16 U.S.C. §§ 1531-1544 (2006).
65. See CHRISTOPHER MCGRORY KLYZA & DAVID SOUSA, AMERICAN ENVIRONMENTAL POLICY, 1990-2006 202 (2008).
66. See EPA, EPA-240-R-01-001, THE UNITED STATES EXPERIENCE WITH ECONOMIC INCENTIVES FOR PROTECTING THE ENVIRONMENT 127-28 (2001).
67. Id. at 119.
68. The Program was established by the Food Security Act of 1985, Pub. L. No. 99-198, 99 Stat. 1354 (1985) (codified in scattered sections of 7 U.S.C.) and has been modified and expanded by subsequent farm bills
69. most recently in 2008 by Pub. L. No. 110-246, § 2101, 122 Stat. 1651, 1756 (2008) (codified at 16 U.S.C. § 3831(b)), which reauthorized the Program through fiscal year 2012.
70. See generally, Tadlock Cowan, "Conservation Reserve Program: Status and Current Issues," CRS Report RS21613, September 5, 2003
71. In See CLAUDIA COPELAND, CONG. RESEARCH SERV 1981 the federal share was reduced to fifty-five percent. 96-647, WATER INFRASTRUCTURE FINANCING: HISTORY OF EPA APPROPRIATIONS 1 (2008).
72. Safe Drinking Water Act Amendments of 1996, Pub. L. No. 104-182, 110 Stat. 1613 (codified at 42 U.S.C. § 300f).
73. Safe Drinking Water Act § 1452, 42 U.S.C. § 300j-12 (2006);
74. see also EPA, EPA 816- R-97-005, DRINKING WATER STATE REVOLVING FUND PROGRAM GUIDELINES (1997).
75. For example, grants of private access to public resources have an economic value and may be considered a subsidy - grazing rights, mineral leasing, oil and gas rights, etc. But because transition relief in these cases is often structured as an exemption from changing resource policies, they have been treated here under the discussion of "full grandfathering." See infra Part II.B.1.a.
76. 2 allowances, and some states auctioned all or nearly all of them.
77. See Regional Greenhouse Gas Initiative Program Overview: Allowance Allocation (2010), http://www.rggi.org/design/overview/allowance-allocation (last visited Nov. 14, 2010) (showing that as of May 20, 2010, at the low end Delaware had sold at auction nearly sixty percent of its unretired allowances, and three states- Massachusetts, Rhode Island, and Vermont -over ninety-eight percent).
78. See, e.g., Yu-Bong Lai, Auctions or Grandfathering: The Political Economy of Tradable Emission Permits, 136 PUBLIC CHOICE 181, 182 (2008).
79. See, e.g., Peter Cramton & Suzi Kerr, Tradeable Carbon Permit Auctions: How and Why to Auction not Grandfather, 30 ENERGY POLICY 333 (2002);
80. Jacob K. Goeree et al., An Experimental Study of Auctions Versus Grandfathering to Assign Pollution Permits, 8 J. EUR. ECON. ASSOC. 514 (2010).
81. The fund was initially established through the Superfund Amendments and Reauthorization Act of 1986, Title V, Pub. L. No. 99-499, §§ 522, 9508, 100 Stat. 1613, 1780-81 (1986) (codified as amended at 26 U.S.C. § 9508 (2006)).
82. See Karen J. Nardi, Underground Storage Tanks, in ENVIRONMENTAL LAW HANDBOOK, 197, 238 (20th ed. 2009).
83. Oil Pollution Act of 1990, Pub. L. No. 101-380, 104 Stat. 484 (codified at 33 U.S.C. § 2701).
84. The Act's liability provisions applied to incidents occurring after Aug. 18, 1990, while the double-hull requirement had a phaseout schedule for existing vessels. See 33 U.S.C. § 2701 (addressing the effective date for liability); 33 U.S.C. § 3703a (addressing phaseout schedule).
85. Pub. L. No. 96-510, 94 Stat. 2767 (1980), (codified at 42 U.S.C. §§ 9601-9675) passed in Dec. 1980, and substantially amended by the Superfund Amendments and Reauthorization Act ("SARA") of 1986, Pub. L. No. 99-499, 100 Stat. 1613 (1986). CERCLA's liability provisions are at 42 U.S.C. §§ 9606-9607 (2006).
86. For a useful, if somewhat tendentious, overview of the debate, see George Clemon Freeman, Jr., A Public Policy Essay: Superfund Retroactivity Revisited, 50 BUS. LAW. 663 (1995).
87. See, e.g., United States v. Ne. Pharm. & Chem. Co., 810 F.2d 726, 732-33 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987).
88. Although the Supreme Court's decision in E. Enters. v. Apfel, 524 U.S. 498 (1998), fueled renewed attacks on retroactive liability, appellate courts have thus far rejected them.
89. See, e.g., Franklin Cnty. Convention Facilities Auth. v. Am. Premier Underwriters, 240 F.3d 534 (6th Cir. 2001); United States v. Dico, Inc., 266 F.3d 864 (8th Cir. 2001).
90. See ROBERT T. NAKAMURA & THOMAS W. CHURCH, TAMING REGULATION: SUPERFUND AND THE CHALLENGE OF REGULATORY REFORM 52-53 (2003).
91. Debates about CERCLA in recent years have focused primarily on the possible reinstatement of special taxes to cover cleanup costs. Superfund was until 1995 funded in large part by special taxes imposed on the chemical and petroleum industries, whose products were regarded as among the most common pollutants in cleanup sites, as well as by a general corporate environmental tax.
92. See SAL LAZZARI, CONG. RESEARCH SERV., 96-774E, TAXES TO FINANCE SUPERFUND (1996), available at http://ncseonline.org/nle/crsreports/waste/waste- 31.cfm. There have been regular attempts to revive these special taxes, most recently by the Obama administration.
93. See Juliet Eilperin, Obama, EPA to Push for Restoration of Superfund Tax on Oil, Chemical Companies, WASH. POST, June 21, 2010 at A5.
94. Pub. L. 95-87, 91 Stat. 445 (1977) (codifed as amended at 30 U.S.C. §§ 1201-1328 (2006)).
95. 30 U.S.C. §§ 1231-1232 (2006).
96. See supra note 58.
97. Such theories, taken for granted before the 1970s, fell out of favor in that decade in the face of serious challenges from economic theories of regulation.
98. See, e.g., Stigler, supra note 7;
99. Peltzman, supra note 7;
100. and Richard A. Posner, Theories of Economic Regulation, 5 BELL. J. ECON. & MGMT. SCI. 335 (1974). For a robust and nuanced contemporary defense of the public interest view
101. see STEVEN P. CROLEY, REGULATION AND PUBLIC INTERESTS: THE POSSIBILITY OF GOOD REGULATORY GOVERNMENT (2008).
102. See Kaplow, supra note 1, at 522-25;
103. Hsu, supra note 9, at 10,096.
104. See, e.g., Richard A. Epstein, Beware of Legal Transitions: A Presumptive Vote for the Reliance Interest, 13 J. CONTEMP. LEGAL ISSUES 69 (2003);
105. LON L. FULLER, THE MORALITY OF LAW 79-81 (1964).
106. See Kaplow, supra note 1, at 522.
107. Armstrong v. United States, 364 U.S. 40, 49 (1960) (Harlan, J., dissenting) ("The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.").
108. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978).
109. See generally WILLIAM A. FISCHEL, REGULATORY TAKINGS: LAW, ECONOMICS, AND POLITICS (1995);
110. F. Patrick Hubbard et al., Do Owners Have a Fair Chance of Prevailing Under the Ad Hoc Regulatory Takings Test of Penn Central Transportation Company?, 14 DUKE ENVTL. L. & POL'Y F. 121, 141 (2003) (finding that owners prevailed in only 9.8% of takings claims sampled);
111. Mark Sagoff, Muddle or Muddle Through? Takings Jurisprudence Meets the Endangered Species Act, 38 WM. & MARY L. REV. 825 (1997).
112. See Sagoff, supra note 68, at 846-52.
113. See Charles C. Carter, Oregon's Experience with Property Rights Compensation Statutes, 17 SE. ENVTL. L.J. 137 (2008).
114. Robert N. Stavins, Vintage-Differentiated Environmental Regulation, 25 STAN. ENVTL. L.J. 29, 32 (2006).
115. See Steven Shavell, On Optimal Legal Change, Past Behavior, and Grandfathering, 37 J. LEGAL STUDIES 37, 54 (2008).
116. See Hsu, supra note 9;
117. BRUCE YANDLE, THE POLITICAL LIMITS OF ENVIRONMENTAL REGULATION 131 (1989) (noting that as the relative cost of entry for new products increases, development expenditures will decline, retarding the introduction of superior replacements for environmentally damaging products).
118. Steven Shavell, for example, ends a detailed normative analysis of grandfathering this way: What I have not examined, however, is doubtless a significant part of the explanation for grandfathering. Namely, grandfathering is in the selfish interest of incumbents in an activity, especially of firms in an industry, and allows them to benefit without appearing to stand in the way of legal change. Quite apart from the social desirability that grandfathering may possess, then, grandfathering enjoys a type of political and economic appeal for incumbents that may help to explain why we have as much grandfathering as we do, and perhaps too much.
119. Shavell, supra note 72, at 82.
120. See also Cass Sunstein, Paradoxes of the Regulatory State, 57 U. CHI. L. REV. 407, 419 (1990). For a more complete account
121. see Stavins, supra note 71, at 32-35.
122. See, e.g., Nathaniel O. Keohane et al., The Choice of Regulatory Instruments in Environmental Policy, 22 HARV. ENVTL. L. REV. 313, 319-22 (1998).
123. Bruce Yandle has labeled these sorts of unlikely alliances "bootleggers-and-Baptists" coalitions, a reference to the strange bedfellows that united to support laws prohibiting the Sunday sale of alcohol.
124. YANDLE, supra note 73, 19-40;
125. DAVID VOGEL, TRADING UP: CONSUMER AND ENVIRONMENTAL REGULATION IN A GLOBAL ECONOMY 196-217 (1995). This political logic has played itself out in numerous areas of environmental policy.
126. See generally ACKERMAN & HASSLER, supra note 24, See generally ACKERMAN & HASSLER, supra note 24, for the generally canonical account of how the Clean Air Act's scrubber require ment, imposed even on those power plants burning low-sulfur Western coal, benefited Eastern coal companies and unions.
127. More recently, when Congress passed acid rain legislation as part of the Clean Air Act Amendments of 1990, Pub. L. 101-549, 104 Stat. 2399 (codified throughout 42 U.S.C. §§ 7401-7671g), environmentalists joined large emitters of sulfur dioxide in support of a cap-and-trade scheme that grandfathered emissions credits based on historical emissions, rather than auctioning them.
128. I skirt here an enormous political science literature on the principal-agent problem that arises between Congress and the federal bureaucracy. Those interested would do well to begin with DAVID EPSTEIN & SHARYN O'HALLORAN, DELEGATING POWERS: A TRANSACTION COST POLITICS APPROACH TO POLICY MAKING UNDER SEPARATE POWERS (1999); a more recent review of the literature can be found in Gary J. Miller, The Political Evolution of Principal- Agent Models, 8 ANN. REV. POL. SCI. 203 (2005).
129. Other factors further limit agency adventurism. The administrative rule-making process invites regulated industries (1) to make public arguments in favor of transition relief, highlighting potential job losses and disruption to relevant members of Congress; (2) to challenge new regulations in court, which at a minimum imposes substantial delays; and (3) to lobby Congress or the President directly to intervene even after the agency's work is complete, as occurred after EPA tightened the National Ambient Air Quality Standards for ozone and particulate matter in 1997.
130. See CROLEY, supra note 62, at 163-79;
131. Craig N. Oren, Whitman v. American Trucking Associations - The Ghost of Delegation Revived . . . and Exorcised, in ADMINISTRATIVE LAW STORIES 6 (Peter L. Strauss ed., 2006).
132. See supra Part II.B.4.b.
133. Oil Pollution Act of 1990 § 4115, 46 U.S.C. § 3703(a) (2006). At least one federal appellate court has rejected the argument that the double-hull requirement violates the Takings Clause. Maritrans, Inc. v. United States, 342 F.3d 1344 (Fed. Cir. 2003).
134. See Rotenberg, supra note 9, at 10,736.
135. See Rotenberg, supra note 9, at 10,736. The author hints at the possibility that the Valdez disaster led to limited relief in the Oil Pollution Act, although earlier in the article he points out that a sense of crisis can also be employed in support of demands for transition relief. Id. at 10,733-34.
136. Michael Levine has argued that crises diminish the "slack" that "shields regulators from scrutiny or influence by the general electorate." Michael E. Levine, Regulation, the Market, and Interest Group Cohesion: Why Airlines Were Not Reregulated, in CREATING COMPETITIVE MARKETS: THE POLITICS OF REGULATORY REFORM 215, 218 (Marc K. Landy et al., eds., 2007).
137. The Gulf of Mexico oil spill has catalyzed efforts to raise the Oil Pollution Act's liability cap, although no legislation had been passed as of the publication of this Article.
138. See, e.g., David Rogers, White House Wants Liability-Fund Cap Lifted, POLITICO (May 10, 2010), http:// www.politico.com/news/stories/0510/37017.html (last visited Oct. 27, 2010).
139. The financial crisis has produced significant regulatory reform, namely, the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203 (signed by President Obama on July 21, 2010).
140. In the words of the vice chairman of the state's Motor Vehicle Pollution Control Board, "I believe it is only fair that the cost burden on owners of new cars should be shared by those of used cars." Smog Control Device on Used Cars Delayed, L.A. TIMES, Sept. 20, 1962, at 33.
141. JAMES E. KRIER & EDMUND URSIN, POLLUTION AND POLICY: A CASE ESSAY ON CALIFORNIA AND FEDERAL EXPERIENCE WITH MOTOR VEHICLE AIR POLLUTION 1940-1975, 153 (1977).
142. The mobile source program of the Clean Air Act is directed toward new vehicles.
143. See Clean Air Act §202, 42 U.S.C. § 7521 (2006).
144. S. 4358, 91st Cong., 2d Sess. § 211 (1970).
145. S. 4358, 91st Cong., 2d Sess. § 211 (1970). For a general account of the congressional debate, see CHARLES O. JONES, CLEAN AIR: THE POLICIES AND POLITICS OF POLLUTION CONTROL 191-210 (1975).
146. The TCP requirement stemmed from the Clean Air Act's requirement that states undertake all measures necessary to attain the NAAQS, including "land-use and transportation controls." Clean Air Act § 110(a)(2)(B), 42 U.S.C. § 1857c-5(a)(2)(B) (1970) (emphasis added).
147. In a 1973 rulemaking, EPA provided guidance to the states about the content of these TCPs.
148. See Transportation and Land Use Controls, 38 Fed. Reg. 30,625 (Nov. 6, 1973).
149. See id. at 30,631-32.
150. FRANK P. GRAD ET AL., THE AUTOMOBILE AND THE REGULATION OF ITS IMPACT ON THE ENVIRONMENT 256 (1975). California's first State Implementation Plan proposal, for instance, relied upon a mandatory used-vehicle retrofit program.
151. See KRIER & URSIN, supra note 85, at 214.
152. See John Quarles, The Transportation Control Plans - Federal Regulation's Collision With Reality, 2 HARV. ENVTL. L. REV. 241, 249-55 (1977).
153. SHEP MELNICK, REGULATION AND THE COURTS: THE CASE OF THE CLEAN AIR ACT 337 (1983).
154. GRAD ET AL., supra note 91, at 276.
155. See OFFICE OF TRANSPORTATION AND AIR QUALITY, EPA, EPA 420-B-93-012, MAJOR ELEMENTS OF OPERATING I/M PROGRAMS (2003), available at http://www.epa.gov/oms/epg/42 0b03012.pdf (last visited Nov. 22, 2010).
156. See Pub. L. No. 95-95, § 172, 91 Stat. 746-48 (codified at 42 U.S.C. § 7502 (2006)), which added section 172 to the Clean Air Act, creating new requirements for areas not in attainment with federal ambient air quality standards. Some of these areas were then required to employ I/M programs.
157. See Clean Air Act § 172(b)(11)(B), 42 U.S.C. § 7502(b)(11)(B) (1982).
158. see, e.g., § 182(c)(3), 104 Stat. 2433 (describing new requirements for I/M programs in certain areas not in attainment of federal air quality standards for ozone).
159. Arnold W. Reitze, Jr., Air Quality Protection Using State Implementation Plans - Thirty-Seven Years of Increasing Complexity, 15 VILL. ENVTL. L.J. 209, 252 (2004).
160. See generally NATIONAL RESEARCH COUNCIL, EVALUATING VEHICLE EMISSIONS INSPECTION AND MAINTENANCE PROGRAMS 57-89 (2001).
161. Id. at 170.
162. Id. at 194-95.
163. Unlike their European counterparts, American car and truck manufacturers had built their businesses around the gasoline engine. While it was well known that diesel engines were more durable, more powerful, and cheaper to build and maintain than gasoline engines, it was their relative fuel efficiency that finally led to their market dominance in the wake of the energy crises of the 1970s. Diesel engines were inside roughly half of the heavy-duty trucks manufactured in 1961; by the late 1960s, that proportion had risen to nearly two-thirds, and by the late 1970s, it was difficult to purchase a new heavy-duty truck without a diesel engine.
164. See, e.g., Jack Hanicke, Lower Operating Cost Helps Diesel Engine Gain in Truck Field, WALL ST. J., August 4, 1961, at 1; Cummins Engine
165. Sees Use of Diesel Engine Expanding, Aiding Firm, WALL ST. J., October 3, 1968, at 25.
166. See, e.g., Charles Edwin Hoag, Comment, Air Pollution Generated by Internal Combustion Engines, 35 ALB. L. REV. 280, 286 (1971).
167. See CALIFORNIA AIR RESOURCES BOARD, HEALTH EFFECTS OF DIESEL EXHAUST PARTICULATE MATTER, available at http://www.arb.ca.gov/research/diesel/diesel- health.htm (last visited Apr. 23, 2010).
168. See, e.g., HEAVY-DUTY HIGHWAY DIESEL PROGRAM, http://www.epa.gov/otaq/ highway- diesel/index.htm (last visited Oct. 27, 2010). The lynchpins of the program are updated emissions standards for new trucks and mandated sulfur reductions in diesel fuel.
169. See Control of Air Pollution from New Motor Vehicles: Heavy-Duty Engine and Vehicle Standards and Highway Diesel Fuel Sulfur Control Requirements, 66 Fed. Reg. 5002 (Jan. 18, 2001) (to be codified at 40 C.F.R. pts. 69, 80 and 86). 106 Control of Air Pollution from New Motor Vehicles, 66 Fed. Reg. at 5006.
170. See id. at 5011
171. [T]he slow turnover of the diesel fleet to new low-emitting engines makes it difficult to achieve near-term air quality goals through new engine programs alone.").
172. See Notice of Agency Completion of Study Regarding Heavy-Duty Engine Rebuilding Practices and Availability of Documents, 60 Fed. Reg. 42,881 (Aug. 17, 1995) ("EPA determined that heavy HDDE's are rebuilt every 300,000-400,000 miles. These large diesel engines are designed to be rebuilt, may undergo up to three or more rebuilds in a lifetime, and generally accumulate one million miles or more before scrappage.").
173. For example, truck manufacturers indicated in 2009 that their 2010 models would be subject to price increases of $6,000 to $10,000 in order to cover the cost of new emissions control systems.
174. Mele J., Daimler releases 2010 emissions surcharges, Fleet Owner, http://fleetowner.com/green/archive/daimler-2010-emissions-sur charges-0806/, (Aug. 6, 2009, 1:30PM)
175. See Jim Mele, Daimler Releases 2010 Emissions Surcharges, FLEET OWNER (Aug. 6, 2009, 1:30PM), http://fleetowner.com/green/archive/daimler-2010- emissions-sur charges-0806/; Jim Mele, Navistar: 2010 Engines Will Cost $6,000 to $8,000 More, FLEET OWNER (July 29, 2009, 11:46AM), http://fleetowner.com/management/news/navistar-2010-engine- costs-0729/.
176. See OFFICE OF TRANSP. AND AIR QUALITY, EPA, EPA 420-R-06-009, NATIONAL CLEAN DIESEL CAMPAIGN 2005 PROGRESS REPORT: INNOVATIVE STRATEGIES FOR CLEANER AIR (2005), available at http://www.epa.gov/cleandiesel/documents/420r06009.pdf.
177. By far the largest such funding initiative began when the Diesel Emissions Reduction Act ("DERA") was passed by Congress in 2005 as part of that year's Energy Policy Act, Pub. L. No. 109-58, Title VII(G), 119 Stat. 594, 838-45 (2005). But while DERA authorized $ 200 million per year for five years (fiscal years 2007-2011), it was not funded in 2007 and funded for only $50 million in 2008. DERA appropriations did balloon to $300 million in 2009, but only because of the extraordinary circumstances that produced that year's fiscal stimulus bill, the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115, 166-73 (2009).
178. Ambient standards for PM and one nitrogen oxide compound, nitrogen dioxide (NO2), were initially set by EPA in 1971. National Primary and Secondary Ambient Air Quality Standards, 36 Fed. Reg. 8186 (Apr. 28, 1971) (codified at 40 C.F.R. pt. 50). As the dangers of PM have become clearer, the PM standard has been tightened - first in 1987, then in 1997, and most recently in 2006. Revisions to the National Ambient Air Quality Standards for Particulate Matter, 52 Fed. Reg. 24,634 (July 1, 1987); National Ambient Air Quality Standards for Particulate Matter, 62 Fed. Reg. 38,652 (July 18, 1997);
179. National Ambient Air Quality Standards for Particulate Matter, 71 Fed. Reg. 61,144 (Oct. 17, 2006).
180. The 1971 NAAQS for ozone (which in effect limits NOx emissions as well) was tightened first in 1979, then in 1997, and again in early 2008. National Primary and Secondary Ambient Air Quality Standards, 36 Fed. Reg. 8186 (Apr. 28, 1971) (codified at 40 C.F.R. pt. 50); Revisions to the National Ambient Air Quality Standards for Photochemical Oxidants, 44 Fed. Reg. 8202 (Feb. 8, 1979); National Ambient Air Quality Standard for Ozone, 62 Fed. Reg. 38,856 (July 18, 1997);
181. National Ambient Air Quality Standards for Ozone, 73 Fed. Reg. 16,436 (Mar. 27, 2008) (codified at 40 C.F.R. pts. 50, 58).
182. See, e.g., Steven Greenhouse, Clearing the Air at American Ports, N.Y. TIMES, Feb. 25, 2010, at B1 (referencing a Rutgers University study finding that truck drivers in New York and New Jersey ports earn an average of $29,000 a year, and that salaries have remained roughly unchanged in nominal dollars since deregulation - amounting to a substantial decline in real dollars).
183. See id.
184. Dorothy Thornton et al., Compliance Costs, Regulation, and Environmental Performance: Controlling Truck Emissions in the U.S., 2 REGULATION & GOVERNANCE 275, 280 (2008).
185. See CAL. CODE REGS. tit. 13 § 2025 (2010).
186. For a copy of the entire plan, see Cal. Air Res. Bd., Cal. Envtl. Prot. Agency, Final Disel Risk Reduction Plan with Appendices, http://www.arb.ca.gov/ diesel/documents/rrpapp. htm (last visited Dec. 7, 2010).
187. CAL. AIR RES. BD., CAL. ENVTL. PROT. AGENCY, PROPOSED REGULATION ORDER: SUBSTANCES IDENTIFIED AS TOXIC AIR CONTAMINANTS 2 (1998).
188. Cal. Code Regs. tit. 13 § 2025(e), (i) (2010);
189. see also Jack Katzanek, Cost of Diesel Retrofit Troubles Truck Owners, The Press-Enterprise, Dec. 2, 2008, http://www.pe.com/business/ local/stories/PE-Biz-S-trucking03.3d9299d.html.
190. CAL. CODE REGS. tit. 13 § 2025(g) (2010).
191. See Margot Roosevelt, State Orders Diesel Trucks To Clean Up, L.A. TIMES, Dec. 13, 2008.
192. As recently as May 2010, the California Air Resources Board has undertaken a modification of the regulations to "ease the financial pain" of compliance. Am. Trucking Ass'n, Inc., CARB Mulls Incentives for Diesel Regs, TRANSPORT TOPICS, May 3, 2010, http://www.ttnews. com/articles/basetemplate.aspx?storyid=24326 (last visited Nov. 15, 2010).
193. See U.S. GEN. ACCOUNTING OFFICE, B-133192, PESTICIDES: ACTIONS NEEDED TO PROTECT THE CONSUMER FROM DEFECTIVE PRODUCTS (1974). However, note that estimates range from 30,000 to 60,000. Scott Ferguson & Ed Gray, 1988 FIFRA Amendments: A Major Step in Pesticide Regulation, 19 Envtl. L. Rep. (Envtl. Law Inst.) 10,070, 10,073 (1989).
194. Marshall L. Miller, Pesticides, in ENVIRONMENTAL LAW HANDBOOK 687, 688 (19th ed. 2007).
195. See generally CHRISTOPHER BOSSO, PESTICIDES AND POLITICS (1987).
196. Federal Environmental Pesticide Control Act, Pub. L. No. 92-516, 86 Stat. 973 (1972) (codified at 7 U.S.C. §§ 135-136).
197. FEPCA § 2(bb).
198. Id.
199. FEPCA § 4(c)(2).
200. See BOSSO, supra note 126, at 175 (describing the political maneuvering that led to the inclusion of indemnification provisions in the statute).
201. Id.
202. See also John D. Conner, Jr., Federal Indemnification for Losses Resulting from the Suspension of Hazardous Products - the Lessons of FIFRA, 32 ADMIN. L. REV. 441 (1980).
203. FEPCA § 15.
204. See BOSSO, supra note 126, at 175;
205. Conner, supra note 132, at 446, 449;
206. Ferguson & Gray, supra note 124, at 10,078-79.
207. See Conner, supra note 132, at 446-50.
208. See BOSSO, supra note 126, at 187;
209. Miller, supra note 125, at 713;
210. Mary J. Large, The Federal Environmental Pesticide Control Act of 1972: A Compromise Approach, 3 ECOLOGY L.Q. 277, 308 (1973).
211. See Conner, supra note 132, at 450.
212. See BOSSO, supra note 126, at 183-86.
213. (classifying the attainment of the reregistration deadline as beyond the capability of EPA); cf. STAFF OF S. SUBCOMM. ON ADMIN. PRACTICE AND PROCEDURE, 94TH CONG., 2ND SESS., REPORT ON THE ENVIRONMENTAL PROTECTION AGENCY AND THE REGULATION OF PESTICIDES 1 (1976) [hereinafter KENNEDY REPORT] (acknowledging the magnitude of the task, but blaming the missed deadline in part on the mismanagement of EPA).
214. See BOSSO, supra note 126, at 183.
215. The OPP had requested one hundred additional technicians but received funding for only fifteen to twenty.See KENNEDY REPORT
216. supra note 138, at 12.
217. See 40 Fed. Reg. 28,242, 28,250 (July 3, 1975). This was problematic because of the impurities present in different formulations; in some cases, the impurities are the environmental hazard, rather than the active ingredient itself. EPA, OFFICE OF PESTICIDE PROGRAMS, FIFRA: IMPACT ON THE INDUSTRY (1977), reprinted in S. Rep. No. 95-334, at 34-68 (1977) [hereinafter IMPACT ON THE INDUSTRY].
218. See also id. at 42-43 (explaining hazards of impurities).
219. BOSSO, supra note 126, at 184; KENNEDY REPORT, supra note 138, at 12-15.
220. See generally KENNEDY REPORT, supra note 138;
221. BOSSO, supra note 126, at 199-201;
222. U.S. GEN. ACCOUNTING OFFICE, GAO-08-751, DELAYS AND UNRESOLVED ISSUES PLAGUE NEW PESTICIDE PROTECTION PROGRAMS (1980).
223. Federal Pesticide Act of 1978, Pub. L. No. 95-396, 92 Stat. 819 (1978) (codified at 7 U.S.C. § 136).
224. See U.S. GEN. ACCOUNTING OFFICE, GAO-RCED-86-125, PESTICIDES: EPA'S FORMIDABLE TASK TO ASSESS AND REGULATE THEIR RISKS 2 (1986);
225. David Hosansky, Regulation: Previous Efforts on Pesticides Faced a Thorny Path and Fell Short, CQ WEEKLY, July 27, 1996, at 2102-03.
226. U.S. GEN. ACCOUNTING OFFICE, supra note 145, at 3-5, 51-56;
227. see also Ferguson & Gray, supra note 124, at 10,075 ("Speeding the process . . . was impossible without a major infusion of funds.").
228. See BOSSO, supra note 126, at 207-25;
229. Joseph A. Davis, House Members Push Pesti- cide Law Changes, CQ WEEKLY, June 8, 1995, at 1107.
230. Amendments to the Federal Insecticide, Fungicide, and Rodenticide Act, Pub. L. No. 100-532, 102 Stat. 2654 (1988) (codified at 7 U.S.C. § 136).
231. See Ferguson & Gray, supra note 124. 150
232. See Dean Scott, Pesticides: Meeting Deadline for Food Residue Rules Tops Agenda of EPA Regulatory Priorities, 37 ENVTL. REP. 50 (Jan. 20, 2006).
233. See generally IMPACT ON THE INDUSTRY, supra note 141;
234. BOSSO, supra note 126, at 227.
235. See BOSSO, supra note 126, at 228;
236. Christopher J. Bosso, Transforming Adversaries into Collaborators: Interest Groups and the Regulation of Chemical Pesticides, 21 POL'Y SCI. 3, 17 (1988).
237. See Bosso, supra note 152, at 17.
238. See Rochelle L. Stanfield, Politics Pushes Pesticide Manufacturers and Environmentalists Closer Together, NAT'L J., Dec. 14, 1985, at 2846.
239. See, e.g., William Stiles, Jr., Prospects for Policy Reform in FIFRA, 43 FOOD DRUG COSM. L.J. 427, 431-32 (1988).
240. For general descriptions of the pesticide industry around this time period, see GIOVANNI RUFO, ORG. FOR ECON. CO-OPERATION AND DEV., SECTOR REPORT: THE FERTILIZERS AND PESTICIDES INDUSTRY (1980);
241. OFFICE OF PESTICIDE PROGRAMS, EPA, ECONOMIC TRENDS AND OUTLOOK OF PESTICIDE INDUSTRY: NEED FOR "EXCLUSIVE USE" AMENDMENTS TO FIFRA (1978);
242. OFFICE OF PESTICIDE PROGRAMS, EPA, EPA-540/9-82-013, REGULATORY IMPACT ANALYSIS: DATA REQUIREMENTS FOR REGISTERING PESTICIDES UNDER THE FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT (1982).
243. FIFRA § 3(c), 7 U.S.C. § 136a(c) (2006).
244. See IMPACT ON THE INDUSTRY, supra note 141;
245. Miller, supra note 125, at 701-03;
246. BOSSO, supra note 126, at 229.
247. See Ferguson & Gray, supra note 124.
248. See, e.g., Stanfield, supra note 154, at 2851.
249. This process is referred to as Registration Review, and is outlined at 71 Fed. Reg. 45,719 (Aug. 9, 2006) (to be codified at 40 C.F.R. pts. 9, 155).
250. This idea emanates from Mancur Olson's classic work, THE LOGIC OF COLLECTIVE ACTION (1965).
251. See, generally, MARTHA DERTHICK & PAUL J. QUIRK, THE POLITICS OF DEREGULATION (1985);
252. Daniel A. Farber, Politics and Procedure in Environmental Law, 8 J.L. ECON. & ORG. 59 (1992).
253. Thornton et al., supra note 116, at 279.
254. See CHARLES E. LINDBLOM, POLITICS AND MARKETS: THE WORLD'S POLITICAL-ECONOMIC SYSTEMS 170-188 (1977);
255. Charles E. Lindblom, The Market as Prison, 44 J. POL. 324, 326-29 (1982).
256. Lindblom, supra note 165, at 328.
257. Paul Pierson, one of the most thoughtful exponents of the theory of path dependence, has noted that large-scale public policies can usefully be thought of as institutions capable of generating dynamics of path dependence. See generally Paul Pierson, Public Policies as Institutions, in RETHINKING POLITICAL INSTITUTIONS 114 (Ian Shapiro et al. eds., 2006).
258. This intuition is, admittedly, unexamined by empirical scholars though often mentioned by activists and policymakers. That said, the debate about how best to structure federal climate change legislation in relation to the existing structures of the Clean Air Act sheds light on the political dynamics at work. A serious bone of contention among members of Congress has been the extent to which a climate change bill would impinge upon existing federal regulatory authority under the Act.
259. See, e.g., Kirsten Korosec, The Four Biggest Battles in the Upcoming Climate-Change Bill, BNET (April 22, 2010), http://www.bnet.com/blog/ cleanenergy/ the-four-biggest-battles-in-the-upcoming-climate-change-bill/1666.