By: Lindsay Heebner

In this election year, regulation has been the subject of many political jabs, as has been the case with the Environmental Protection Agency’s (EPA) controversial new soot rules. Politicians continually discuss the number of regulations put forward each year and their cost to the public. Often, putting forward new regulations is seen as another example of big government and wasteful spending. As a result, it can reflect poorly on the administration under which the regulations go forward. This can exacerbate false perceptions about regulation in general and the regulatory process. The goal of regulation is the implementation of a statute passed by Congress. While this is an elementary notion, it is lost frequently in political discourse. In addition, regulations are not always put forward by agencies proactively. Occasionally, they are the product of a court order typically resulting from a challenge asking an agency to implement a statute.

The proposed soot rules the EPA recently put forward are an example of court action prompting regulation. As part of a settlement with an 11-state coalition, the EPA agreed to update its regulations on soot by December 14, 2012. The EPA proposed rules on June 15, aiming to reduce fine particulate matter (PM) from 15 micrograms per cubic meter of air to between 12 and 13 micrograms per cubic meter of air. Fine PM is matter that measures less than 2.5 micrometers. The group of states sued the EPA for failure to update soot standards in a timely fashion. The American Lung Association and the National Parks Conservation Association joined as plaintiffs due to the similar nature of their suits. A judge in the District Court for the District of Columbia agreed with the plaintiffs and held that the EPA should update its soot standards.

The plaintiffs applaud EPA action. Fine PM consists of particles released by fossil fuel combustion, power generation, motor vehicles, and other sources. This soot, smoke, and metal matter can reach into the lungs and bloodstream. It has been linked to asthma, bronchitis, and cardiovascular conditions. The EPA has also linked fine PM to reduced lung function and premature death in those with lung diseases and children.

In 2006 the EPA decided to keep the 15 micrograms per cubic meter of air standard for soot that had been in place since 1997. The proposed reduction has caused many to condemn the action as over regulation and overly burdensome on business. Some members of the House Energy and Commerce Committee wrote to EPA Administrator Lisa Jackson to protest the proposed decrease. They believe that the new measures will create onerous regulations in certain parts of the country and inhibit growth in the manufacturing sector. The Hill’s E2 Wire Blog quoted National Association of Manufacturers CEO Jay Timmons as arguing that the new soot rules “will create difficult requirements for existing factories, and create hurdles to permitting new plants.”

Under Executive Order 13563 issued by President Obama, agencies must show that the benefits of new regulations justify the costs. In accordance, the EPA estimated that the total net annual benefit of the new regulations would be 88 million to 5.9 billion dollars in reduced medical costs and lives saved. The EPA estimates the cost of implementing the regulations at between 2.9 and 69 million dollars per year. The EPA theorizes that by setting general air quality standards rather than regulating specific sources, local communities will have enough flexibility to come up with cost-effective methods of meeting those standards.

While some may argue the particularities and methods within the proposed regulations, they remain court prompted regulations rather than actions from a political agenda. Under the Clean Air Act, the EPA is required to review soot standards every five years. The air quality standards must be revised using advances in public health science. Because the agency last reviewed the standards in 2006, it is overdue for reviewing and revising the standards in accordance with current science. Counties would not have to meet the proposed standards, if adopted, until 2020. The EPA estimates that 99% of all counties will meet the standards with no adjustments in that time period. The agency attributes this high level to other recent Clean Air Act regulation.

Election year rhetoric may be fraught with misleading arguments, but the underlying regulations have not changed. Regulation comes forward due to many factors and circumstances. Not all of those factors are linked to a political agenda, or even the policy of the current administration. As a result, general discussions citing pure numbers of regulations as a sign of policy and Administration goals can be particularly deceiving. The public, and especially legislators, need not have poor memories. Major statutes are often put forward with a timeline that can span many years. Attacking all regulatory action as new and overly burdensome effectively defeats the purpose of the statutes enacted. In this case, the EPA had a statutory obligation to promulgate new rules, states sued to enforce that statute, and rules have come forward. This is within the design of the regulatory process and not a new overly burdensome agenda. Moving forward in discussions of legislation, policy, and regulation, we should not lose the fundamentals of each process.