Facilitation of Environmental Mitigation Instead of Regulation

There are two major methods for the federal executive branch to effectuate mitigation of environmental damage. The first and most well-known method achieves reductions in air, water, and ground pollution via rulemaking. The administration dictates to the federal agencies its priorities and goals and the agencies work within statutory frameworks to promulgate rules according to these priorities. Unfortunately for the current administration, the process of rulemaking has become subject to enhanced public and industry scrutiny due to the growth and perceived omnipresence of the administrative state. Rulemaking is frequently stymied in response to public and industry outcry and stalled in the Office of Information and Regulatory Affairs (OIRA) process within the Office of Management and Budget (OMB). One-hundred and fifty rules at the proposal, interim, and final stages are currently backlogged and awaiting approval at OIRA, with unapproved EPA proposals leading the pack. Fortunately for the administration, there are means to unilaterally achieve results through existing federal law.

Agencies are only required to comply with formalistic rulemaking procedures when they promulgate rules that have the force of law – rules which must be followed by regulated entities. When an agency chooses to enter into cooperative agreements with other federal agencies, state or local governments, or private entities under existing statutory authority in lieu of imposing new regulations, that agency is not forcing anyone’s hand and the potential for sustainable environmental change is increased.

Such inter-agency cooperation is now working to provide further reductions in greenhouse gas emissions from the transportation sector within agency-controlled boundaries. Instead of forcing costly changes on reluctant industry actors, the Department of Energy operates the Clean Cities program to facilitate technological improvements in vehicles through cooperative action. The Clean Cities program was initially set up in 1993 in response to the Energy Policy Act of 1992, which requires specified vehicle fleets to utilize alternative fueled vehicles.

The brilliance of the Clean Cities program is that it achieves reductions in greenhouse gas emissions by facilitating partnerships to implement change instead of acting as an environmental regulator. Entities normally opposed to being regulated are placed in the unusual position of going to the agency to request its help in undertaking individualized initiatives, instead of the agency tracking down entities and forcing one-size-fits-all solutions. Clean Cities also has the advantage of being able to facilitate cooperation between different federal agencies, as it has recently accomplished through its National Parks Initiative uniting the Department of Energy with the National Park Service to achieve transportation related greenhouse gas emissions in national parks.

Other agencies within the federal government may be able to work within their enabling statutes to put in place cooperative programs similar to Clean Cities. For example, the Bureau of Land Management (BLM) was formed in 1946 and currently operates under the Federal Land Policy and Management Act (FLPMA) of 1976 within the Department of the Interior. The FLPMA provides the BLM with authority to “enter into contracts and cooperative agreements involving the management, protection, development, and sale of public lands” and “accept contributions or donations of money, services, and property, real, personal, or mixed, for the management, protection, development, acquisition, and conveying of the public lands.” This directive provides authority for the Department of the Interior and BLM to set up a resource center to facilitate cooperative agreements to clean up and restore public lands, which make up nearly 30 percent of the country. A BLM resource center modeled after the Clean Cities program would allow state and local governments, as well as private industry, to obtain information and cooperate for the preservation and improvement of public land without forcing blanket regulations. Many businesses in the United States rely on the continued vitality of public lands to bring in customers, and providing these businesses with the opportunity to care for that public resource may produce public benefits without detracting from the public fisc. Much like Clean Cities, the new program would not reach private lands and only provide progressive environmental changes within federally-managed property, but also like Clean Cities, such a program could significantly mitigate environmental degradation.

Written by Ashley Ailsworth, GIELR Staff

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