Why We Need Administrative Agencies Like EPA

by Daniel Farber

May 24, 2012

Following is the first of two Dan Farber blog entries reposted today from LegalPlanet.

Bureaucrats aren’t very popular.  But consider the alternatives when it comes to dealing with environmental problems.  Basically, bureaucrats are part of the executive branch of government.  For instance, the head of EPA is appointed by the President and can be removed by the President at any time.  (A few agencies such as the SEC enjoy some protection from presidential removal power, but that’s not true for any of the environmental agencies.)  I explained in my last post why the free market won’t generally solve environmental problems.  So that leaves the three branches of government: the courts, the executive branch, and Congress.

Most people who don’t like regulations also don’t like the idea of using courts to solve social problems.  In the case of environmental problems, the reluctance is well-founded.  Major pollution problems involve very technical scientific and engineering issues, complex economics, and hard tradeoffs.  Courts don’t have great expertise in any of those areas.  In addition, the practicalities of mega-cases involving millions of plaintiffs and dozens or hundreds of pollution sources are more than a little daunting.

If not the courts, how about Congress?  There is a school of thought that Congress should set more specific standards rather than giving EPA the authority to translate general policies into specific numbers.  That would reduce EPA’s policy role, but would leave EPA with a big enforcement role much like the IRS’s.  How many people who hate EPA love the IRS?

It’s also doubtful that Congress could work out the specific numbers — unless, that is, it developed a staff with just as many engineers, scientists, economists, and other experts as EPA has.  In that case, Congress would essentially have its own in-house EPA.  The only difference would be that essentially the same people would report to Congress rather than the President.  Given that both Congress and the President are elected by the same voters, it’s hard to see any big advantage to the shift.

People think of EPA as composed of unaccountable bureaucrats.  But in fact they’re accountable in many dimensions for their decisions.  The ultimate authority over the decision is held by the President or a presidential appointee.  Even then, a court will review the decision to be sure that it has factual support and does not violate the congressional mandate.  And in the end, Congress can pass a new law and change the rules, or put pressure on the executive branch through funding decisions or hearings.

There are undoubtedly many ways we could improve the efficiency and effectiveness of our environmental laws.  But in the end, if we want to limit pollution or protect some areas from unrestricted development, we’re going to need administrative agencies to get the work done.

Tagged as: regulation EPA
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Daniel A. Farber is the Sho Sato Professor of Law, Director of the California Center for Environmental Law and Policy, and Chair, Energy & Resources Group, University of California, Berkeley.

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