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The EPA's Regulation of Heavy-Duty Diesel Engines

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The EPA's Regulation of Heavy-Duty Diesel Engines Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 1-2004 Regulating by Litigation: The EPA's Regulation of Heavy-Duty Diesel Engines Andrew P. Morriss Texas A&M University School of Law, [email protected] Bruce Yandle Andrew Dorchak Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the Law Commons Recommended Citation Andrew P. Morriss, Bruce Yandle & Andrew Dorchak, Regulating by Litigation: The EPA's Regulation of Heavy-Duty Diesel Engines, 56 Admin. L. Rev. 403 (2004). Available at: https://scholarship.law.tamu.edu/facscholar/470 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. REGULATING BY LITIGATION: THE EPA'S REGULATION OF HEAVY- DUTY DIESEL ENGINES ANDREW P. MORRISS,* BRUCE YANDLE,** & ANDREW DORCHAK*** TABLE OF CONTENTS A bstract ...................................................................................................... 4 04 Introduction ............................................................................................... 404 I. The Clean A ir A ct Context ............................................................. 407 A. The State-Federal Division of Authority ................................. 408 B. Growth in NOx Em issions ....................................................... 409 C. The Mobile-Stationary Source Distinction .............................. 412 D. The EPA's Reliance on Modeling ........................................... 415 E. Technology-forcing ................................................................. 421 F. Reliance on Fleet Turnover ..................................................... 424 * Galen J. Roush, Professor of Business Law and Regulation, Case Western Reserve University and Senior Associate, Property & Environment Research Center, Bozeman, Montana. A.B., 1981, Princeton; J.D., M. Pub. Aff. 1984, University of Texas at Austin; Ph.D. (Economics) 1994, Massachusetts Institute of Technology. Support from a grant from Caterpillar, Inc. to the Property & Environment Research Center is gratefully acknowledged. The authors thank Jonathan H. Adler, Terry L. Anderson, Michael Heise, Sharona Hoffman, Lea-Rachel Kosnik, Gilbert S. Keteltas, William Leasure, Roger Meiners, Robert Natelson, and participants in a panel at the Association of Private Enterprise Education and a faculty workshop at Case Western Reserve University School of Law for comments. Special thanks to Rhein Associates for providing its invaluable industry survey and telephone consultations. An earlier, significantly shorter version of some of the material presented in this Article was issued by P.E.R.C. as a Research Paper. See Bruce Yandle, Andrew Morriss, and Lea-Rachel Kosnik, Regulating Air Quality Through Litigation-The Diesel Engine Episode (2002). Financial support from Case Western Reserve University School of Law's summer research grants and from Caterpillar, Inc. through a grant to PERC is gratefully acknowledged. Research assistance from Dennis Wynne was invaluable and the authors thank the staff of the Administrative Law Review for their assistance in the editorial process. ** Alumni Distinguished Professor of Economics, Clemson University and Senior Associate, Political Economy Research Center, Bozeman, Montana. A.B., 1955, Mercer University; M.B.A. 1968, Ph.D. (Economics) 1970, Georgia State University. *** Head of Reference and Foreign/International Law Specialist, Case Western Reserve University School of Law; M.L.S., 1994, Kent State University; Honors B.A., 1988, Xavier University. 404 ADMINISTRATIVE LA WRE VIEW [56:2 G . Sum m ary .................................................................................. 427 II. Diesel Engines & Air Pollution ...................................................... 429 A. Regulatory Consequences ........................................................ 432 B . Em issions C ontrols .................................................................. 437 C. Tradeoffs in Controls ............................................................... 442 D. Industry Characteristics' Influence on Regulation .................. 450 E . Sum m ary .................................................................................. 456 III. Explaining the EPA's Regulation of Heavy-Duty Diesel E ngines ........................................................................................... 456 A. Early Air Pollution Regulatory Efforts .................................... 458 B. Regulation-by-Rulemaking: 1967 to the 1990s ....................... 460 1. The Air Quality Act of 1967 ............................................. 460 2. Regulation-by-Rulemaking Under the 1970 Clean Air A ct & the EPA ................................................................... 462 3. Regulation-by-Rulemaking Under the 1977 Clean Air A ct A m endm ents ............................................................... 465 4. Regulation-by-Negotiation ................................................ 476 5. Regulation-by-Rulemaking Under the 1990 Clean Air A ct A m endm ents ............................................................... 478 6. Negotiations over Principles .............................................. 480 7. Regulation-by-Litigation & Engine Controllers ................ 481 a. The Engine-Controller Issue ......................................... 483 b. Settling the litigation ..................................................... 488 c. Choice of Technology ................................................... 493 d. Impact on Air Quality ................................................... 500 e. Explaining the EPA's Choices ...................................... 506 8. Regulation-by-Rulemaking Since the Consent Decree ...... 511 C onclusion ................................................................................................. 5 14 Table 1: Diesel Emissions Standards ......................................................... 518 ABSTRACT In this Article, the authors provide a case study of heavy-duty diesel engine regulation under the Clean Air Act, which reveals how the Environmental Protection Agency (EPA) chooses various means of regulation at different times. The Article relates the EPA's choices to the incentives the agency faces. The Article also shows how the different forms of regulatory activity influence agency regulations. Finally, the Article concludes with a critique of regulation-by-litigation as a means of imposing substantive rules. INTRODUCTION Administrative agencies in the United States traditionally have carried out their regulatory duties by issuing regulations that inform regulated entities how they must conduct various aspects of their business.' For 1. We use the term "regulation-by-rulemaking" to mean the kind of regulation that is 2004] EPA 'S REGULATION OFHEA VY-DUTY DIESEL ENGINES 405 example, the Environmental Protection Agency issues rules that describe what sort of pollution control equipment must be attached to particular types of industrial equipment (e.g., "scrubbers" on coal-fired power plant smokestacks) and the Occupational Safety and Health Administration (OSHA) issues rules that specify safety measures employers must take in their facilities. The agencies issue these regulations through a process in which the regulated entities and other interest groups have the opportunity to comment on proposals, 2 to seek judicial review of the agencies' procedures and compliance with the statutory framework created by the legislature, and to seek action by the political branches to alter the agencies' actions.3 Recently a new form of regulatory activity has appeared: imposing regulatory measures through litigation. In 1998 the attorneys general of 46 states signed a $246 billion settlement with the tobacco industry that specified, among other things, how the firms would market their products.4 Also in 1998, the major producers of heavy-duty diesel engines signed a $1 billion settlement with the EPA, which specifies when and how the industry will regulate nitrogen oxide (NOx) emissions. The EPA-the most aggressive federal regulator through litigation-has also used litigation to impose substantive regulatory provisions on major refinery operators, 5 electric utilities,6 and wood product firms.7 In each case, the associated with official notices of rulemaking, public comments, and final notices of rules. At the federal level, this procedure is constrained by the Administrative Procedure Act and other statutes and regulations. At the state government level, administrative rulemaking procedures vary from state-to-state but include elements of notice and public comment that allow for the rules of due process to be met. See Jim Rossi, Overcoming Parochialism: State Administrative Procedure and Institutional Design, 53 ADMIN. L. REv. 551 (2001) (describing institutional reasons for differences in federal and state rule making) (citing Arthur Earl Bonfield, The Federal APA and State Administrative Law, 72 VA. L. REv. 297 (1986) (describing relationship between federal and model state administrative procedure acts)). 2. 5 U.S.C. § 553(c) (2000). 3. The OSHA's ergonomic regulations, for example, were overturned by congressional action under the Congressional Review Act, 5 U.S.C. §§ 801-08 (2000). See Kelli L. Dutrow, Comment, Working At Home At Your Own
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