The Supreme Court’s Loper Bright decision will change the processes in this game: The courts will now have final say on what statutes tell “out of control” regulators to do. But the regulators were never out of control; Congress delegated to them the authority to draft regulation, and then used explicit appropriation restrictions and encouraged enforcement indifference to limit agencies implementing the regulation. Chevron’s repeal alters neither the incentives nor the substantive results in this game. The larger context from which Chevron originated has not changed. The legal claims of the Court are largely irrelevant for the substance of environmental and safety policy.
Unrealistic goals and enforcement indifference/ From its inception, a persistent characteristic of US environmental policy has been unrealistic goals and enforcement indifference. Charles Jones used the phrase “policy beyond capability” to describe such goals in his 1975 book Clean Air: Policies and Politics of Pollution Control. Alan Altshuler, in his 1979 book The Urban Transportation System with James Womack and John Pucher, elaborated on this notion, noting, “There was a widespread view in 1970 that the manufacturers could do virtually anything [to mitigate pollution] if simply told they had to.”
For example, the 1970 Clean Air Act required ambient air quality standards be achieved by 1975. Those ambitious goals have been followed by explicit and implicit enforcement indifference. The deadlines were extended many times (Revesz 2022); by 2005, of the 338 goals set out in the Clean Air Act Amendments of 1990, only 37 had been met by the deadline specified in the statute (GAO 2005). As of March 2022, 15 counties with a combined population of nearly 21 million were in nonattainment of the 2012 annual standard for fine particulate matter (PM2.5). For pollutants other than PM2.5, 37 states, districts, and territories have nonattainment counties, with a total population of more than 131 million. And as of 2016, over half of US river and stream miles violated water quality standards (Keiser and Shapiro 2018). Revesz described this pattern as “Institutionalized Nonattainment.”
Enforcement retreat / If enforcement indifference ends and agencies attempt to implement policies that would annoy constituents, Congress often enacts legislative language concerning the monies appropriated for the enforcement agencies, restricting their ability to implement disfavored regulations. As part of its rulemaking under the 1970 Clean Air Act, the EPA proposed automobile parking surcharges and parking space reductions. Unsurprisingly, public backlash ensued. Congress responded in 1974 with a ban on the use of any EPA funds to regulate parking. The public may want a clean environment, but even today they do not want government restrictions on free parking for the cars they love, even in liberal jurisdictions like Washington DC (Brannon and Bowling 2024).
Repealing or rewriting recent statutes is difficult if not impossible; lawmakers don’t want to admit error in their ambitious legislation or upset collegial relationships and dealmaking that allow them to pursue their individual agendas. But they also want to avoid constituent backlash, so Congress responds to unpopular regulations with restrictive appropriation riders. Reining in “out-of-control” agencies allows members to raise money from and claim credit for helping annoyed voters and special interests. In public choice terms, amending environmental statutes to be more realistic would require members’ cooperation: a public good. Rescuing constituents from agency abuse through ombudsman activity is a private good that is easier for members to provide and more credible with voters. So, the political equilibrium is an unrealistic statute with lawmakers rescuing their constituents from bureaucrats rather than explicitly better statutory construction.
Another example of enforcement retreat is auto safety regulation. In 1966 Congress unanimously enacted the National Traffic and Motor Vehicle Safety Act after the 1965 publication of Ralph Nader’s book Unsafe at Any Speed. The premise of both the book and the law was that the market for vehicle safety failed and government regulation was necessary to force manufacturers to provide technical modifications to cars that reduce the injury and fatality rate from accidents.
In its early years, the federal auto safety agency (what is now the National Highway Traffic Safety Administration, NHTSA) issued aggressive regulations. But the statute required that the agency’s regulations be “reasonable,” “practicable,” and “objective.” Citing those requirements, car manufacturers sued to block the regulations, and between 1968 and 1978 they won six of the 10 cases litigated over the rules.
Once NHTSA was so aggressive that Congress did amend the auto safety statute. This out-of-control behavior by an agency is so unusual that it deserves mention. The 1974 model year automobiles were required to have electronics that prevented the automobiles from being started unless the seatbelts were in use. Motorists revolted, and in October 1974 Congress enacted legislation prohibiting the use of that technology or any seat belt warning buzzer that sounded for more than eight seconds.
The agency responded to those setbacks and the subsequent regulation-skeptical Reagan administration by passing no new rules at all and then by issuing rules that mandated safety devices that the industry was adopting anyway. In a 2015 report on lives saved by NHTSA rules issued after the early 2000s, the agency concluded that four of those eight major rules had effective dates that were after the median new car already was equipped with the mandated device.
In addition, NHTSA switched from safety rules to issuing recalls for vehicles it deemed to have safety defects. The agency had realized that, though the evidence required for the issuance of defensible safety rules is high, the evidence required for recalls is light. And car makers do not fight recalls because such fights hurt brand image and market share.
Recalls do little to improve aggregate auto safety because most accidents are the result of driver error rather than vehicle defects. A 2008 US Department of Transportation report to Congress found that vehicle defects or failure accounted for only 2.4 percent of accidents, while driver error accounted for over 95 percent. But Congress and the public seem to want more, not less, aggressive recall activity. NHTSA is happy to oblige.
Congressional requirement / Chevron and its repeal emphasize the importance of agencies and agency discretion. But many regulatory policies characterized by large costs and low benefits are imposed by Congress itself rather than regulatory agencies using their discretion. Half of the economically significant regulations (costs exceeding $100 million) proposed from 2008 through 2013 were required by Congress. For example, in 2008 Congress enacted legislation requiring NHTSA to issue a rule by 2011 to enhance rear view visibility for drivers. The agency concluded that driver error is the major determinant of the effectiveness of backup assist technologies such as cameras. In addition, NHTSA concluded that the cost per life saved for the cameras ranged from about 1.5 to three times the $6.1 million value of a statistical life used by the Department of Transportation to evaluate the cost effectiveness of its regulations. Given those poor cost–benefit results, NHTSA delayed implementing the rule until the possibility of intervention by the courts forced its hand.
Congress required positive train control in October 2008 after a commuter train crash in California the previous month killed 25 people. The Federal Railroad Administration conducted cost–benefit analyses of positive train control in 1994 and 2004. The estimated 20-year costs were $10–$13 billion while the safety benefits from lives saved and damages prevented were only $440–$670 million. The railroads balked at the cost and Congress punted, extending the compliance deadline from the end of 2015 to the end of 2018 and then the end of 2020.
Conclusion / Congressional goals for environmental and safety policy are unrealistic or impossible. The result is endless litigation and lack of enforcement. This is a bad equilibrium from a policy perspective, but it is an equilibrium, and from a congressional point of view an understandable one.
Realistic environmental and safety policy would be a solution. But it would be a pure public good for which members credibly can’t claim credit. Thus, the incentives for members of Congress to supply good statutes are few. Instead, the equilibrium is unrealistic policy accompanied by a private good: congressional intervention to rescue constituents from the decisions of unelected bureaucrats. In this game, neither Chevron nor its repeal is that important.
Readings
- Altshuler, Alan, 1979, The Urban Transportation System: Politics and Policy Innovation, MIT Press.
- Brannon, Ike, and Emmet Bowling, 2024, “Homebuilding and Free Parking,” Regulation 47(2): 2–3.
- Government Accountability Office, 2005, “Clean Air Act: EPA Has Completed Most of the Actions Required by the 1990 Amendments, but Many Were Completed Late,” Report to Congressional Requesters, May.
- Jones, Charles O., 1975, Clean Air: Policies and Politics of Pollution Control, University of Pittsburgh Press.
- Keiser, David A., and Joseph S. Shapiro, 2018, “Consequences of the Clean Water Act and the Demand for Water Quality,” Quarterly Journal of Economics 134(1): 349–396.
- Revesz, Richard L., 2022, “Air Pollution and Environmental Justice,” Ecology Law Quarterly 49(1): 187–252.
- Shapiro, Stuart, and Debra Borie-Holtz, 2014, “Why Regulatory Reform?” Regulation 37(2): 3–5, Summer.
