Air Toxics in the Board Room: An Empirical Study of EPA's Hazardous Air Pollutant Rules

Abstract

In this study we challenge the conventional wisdom that Environmental Protection Agency (EPA) rulemakings are generally subjected to robust pluralistic processes by a diverse group of affected parties. We test for imbalance in interest group participation and influence (primarily between industry and environmental groups) in a complete set of highly technical and complex EPA pollution control rules governing hazardous air pollutant emissions. We test for this imbalance at three stages of the rulemaking life cycle – before the proposed rule is published, between notice and comment and the final rule, and after the final rule is published. Our results reveal imbalances in interest group participation at each of these stages. At the pre-proposal stage, industry had an average of 83.6 informal communications with the EPA per rule; public interest groups had an average of 0.65 communications per rule. During the comment process, industry provided approximately 77% of the total comments; public interest groups provided 5%. Changes made to the final rule after notice and comment favored industry by a factor of 5 to 1 as compared to the changes benefitting the public interest. Post-final rule activity was considerable as well. Petitions and litigation occurred for 22% of the rules, with industry filings accounting for 2 times the petitions filed by public interest groups. After promulgation of the rules, moreover, roughly 70% were revised and amended, with an average rate of over 4 revisions per rule for those that were revised at least once. Our findings are consistent with recent empirical studies, but our study adds to the growing list of empirically-based challenges facing administrative law. Specifically, we observe imbalances in interest group participation where imbalances are not typically expected (“salient” EPA rules that have a direct bearing on public health protection) and where imbalances are not typically measured (occurring prior to publication of the proposed rule and after publication of the final rule).