Detail and Implementation: The Example of Employee Trip Reduction
By Craig N. Oren
INTRODUCTION
In the Clean Air Act Amendments of 1990, Congress required employers in areas with especially serious air quality problems to persuade their employees not to drive to work alone during the peak morning commute. This requirement was modeled on a program adopted for the metropolitan Los Angeles area by the South Coast Air Quality Management District, the local air pollution control authority (the “metropolitan Los Angeles” or “South Coast” program). Five years later, Congress repealed the mandate under pressure from the affected states and employers. This pressure was understandable. The trip reduction mandate resulted in scant air pollution benefits and was a relatively expensive way of obtaining those benefits. The mandate thus represents an unsuccessful attempt to deal with the environmental consequences of Americans' increasing use of the automobile. Even metropolitan Los Angeles, whose program formed the model for the federal mandate, has abandoned its trip reduction program.
I have previously discussed the conceptual problems with the federal mandate.5 In this Article, I address the problems posed by the details of the scheme, both as enacted by Congress and as administered by the United States Environmental Protection Agency (“EPA” or “Agency”). There were three groups of deficiencies. First, Congress picked an awkward standard for judging progress toward the trip reduction goal. Second, Congress did not properly coordinate the trip reduction program with other relevant provisions of the 1990 Amendments. Third, and perhaps most seriously, Congress failed to give the EPA adequate direction on whether the Agency should alter its regulatory approaches in administering the trip reduction program. Congress failed to guide the EPA in deciding whether trip reduction programs could be run on less than a year-round basis. Moreover, Congress did not clearly indicate whether the EPA could judge compliance on a good-faith basis. Finally, Congress did not give the EPA enough guidance on the acceptability of using market mechanisms as a way to implement the scheme.
On all these matters, Congress used ambiguous language in the statute and buried its guiding signals in one small provision of a very complex bill. Moreover, the very complexity of the amendments increased the chances of ambiguous language, and allowed the provision's sponsors to avoid the need to build a publicly-visible coalition that could have pressed for a stronger signal to the EPA. These deficiencies illustrate how seemingly technical matters--for instance, precisely how compliance will be measured--can be fatal. Furthermore, these deficiencies illustrate the need for Congress to provide clear policy discretion or, at least, to explicitly create an area for policy decision by the EPA. Implementing a scheme like trip reduction required the EPA both to assimilate the program into the existing framework of the Clean Air Act and to reflect the alterations made by the program in that framework. An inevitable tension exists, however, between these two objectives. In the case of the trip reduction program, the tension was especially acute because the program arguably required a different regulatory approach than traditional air pollution control efforts. To be successful, trip reduction had to alter not only the values of the regulated population, but also the EPA's regulatory philosophy. Congress failed, however, to sufficiently indicate to the EPA the need for a change in approach. Consequently, the EPA was timid in departing from its usual implementation techniques.
The employee trip reduction program therefore demonstrates the difficulty of effectuating change in a regulatory agency, and illustrates the problems caused by the detailed legislative schemes that seem endemic to modern environmental law. There is one allied issue that this Article does not discuss: how Congress came to draft the program as it did and produce what one observer called “the mandate that came from hell.” That issue requires separate discussion, which I have provided elsewhere. The point for now, by contrast, is to examine what Congress did as a way of assessing the flaws of detail contained within the program.
In the Clean Air Act Amendments of 1990, Congress required employers in areas with especially serious air quality problems to persuade their employees not to drive to work alone during the peak morning commute. This requirement was modeled on a program adopted for the metropolitan Los Angeles area by the South Coast Air Quality Management District, the local air pollution control authority (the “metropolitan Los Angeles” or “South Coast” program). Five years later, Congress repealed the mandate under pressure from the affected states and employers. This pressure was understandable. The trip reduction mandate resulted in scant air pollution benefits and was a relatively expensive way of obtaining those benefits. The mandate thus represents an unsuccessful attempt to deal with the environmental consequences of Americans' increasing use of the automobile. Even metropolitan Los Angeles, whose program formed the model for the federal mandate, has abandoned its trip reduction program.
I have previously discussed the conceptual problems with the federal mandate.5 In this Article, I address the problems posed by the details of the scheme, both as enacted by Congress and as administered by the United States Environmental Protection Agency (“EPA” or “Agency”). There were three groups of deficiencies. First, Congress picked an awkward standard for judging progress toward the trip reduction goal. Second, Congress did not properly coordinate the trip reduction program with other relevant provisions of the 1990 Amendments. Third, and perhaps most seriously, Congress failed to give the EPA adequate direction on whether the Agency should alter its regulatory approaches in administering the trip reduction program. Congress failed to guide the EPA in deciding whether trip reduction programs could be run on less than a year-round basis. Moreover, Congress did not clearly indicate whether the EPA could judge compliance on a good-faith basis. Finally, Congress did not give the EPA enough guidance on the acceptability of using market mechanisms as a way to implement the scheme.
On all these matters, Congress used ambiguous language in the statute and buried its guiding signals in one small provision of a very complex bill. Moreover, the very complexity of the amendments increased the chances of ambiguous language, and allowed the provision's sponsors to avoid the need to build a publicly-visible coalition that could have pressed for a stronger signal to the EPA. These deficiencies illustrate how seemingly technical matters--for instance, precisely how compliance will be measured--can be fatal. Furthermore, these deficiencies illustrate the need for Congress to provide clear policy discretion or, at least, to explicitly create an area for policy decision by the EPA. Implementing a scheme like trip reduction required the EPA both to assimilate the program into the existing framework of the Clean Air Act and to reflect the alterations made by the program in that framework. An inevitable tension exists, however, between these two objectives. In the case of the trip reduction program, the tension was especially acute because the program arguably required a different regulatory approach than traditional air pollution control efforts. To be successful, trip reduction had to alter not only the values of the regulated population, but also the EPA's regulatory philosophy. Congress failed, however, to sufficiently indicate to the EPA the need for a change in approach. Consequently, the EPA was timid in departing from its usual implementation techniques.
The employee trip reduction program therefore demonstrates the difficulty of effectuating change in a regulatory agency, and illustrates the problems caused by the detailed legislative schemes that seem endemic to modern environmental law. There is one allied issue that this Article does not discuss: how Congress came to draft the program as it did and produce what one observer called “the mandate that came from hell.” That issue requires separate discussion, which I have provided elsewhere. The point for now, by contrast, is to examine what Congress did as a way of assessing the flaws of detail contained within the program.
