How Virginia beat EPA

Published September 1, 2000

Those who would limit the power of the federal government often presume the U.S. Environmental Protection Agency is too popular, too large, and too effective at public outreach and media manipulation to attack directly.

That presumption was dashed (or, in Washington-speak, “is no longer operative”) when one state beat EPA on an important environmental issue.

Background: Clean Air Act

The issue was implementation of the Clean Air Act Amendments of 1990 (CAAA). Under the Act, certain locales that had not attained federal air quality standards were to be placed into various categories denoting their relative failure to meet such standards. Ranging from “extreme” (only Los Angeles) to “marginal” (most of the rest of the country), these classifications required the locales in question to implement certain programs intended to improve air quality.

Northern Virginia was classified by EPA as a “serious” non-attainment area. Among the programs it was required to implement was an enhanced version of the automobile emissions testing program that had been in place in Virginia for more than a decade. The CAAA itself was silent as to what might constitute “enhancements” to the emissions testing program, but EPA was not.

EPA mandated a system in which a few government-run test-only stations would supplant the privately owned gas stations and repair shops that had been conducting emissions testing on behalf of the state. Further, EPA announced its intention to require the use of a specific kind of testing equipment (IM-240) which had never been used outside of the lab. To enforce its decision, and to help clarify the issue for recalcitrants, EPA announced that those locales not adopting the new approach would have their clean air plans rejected, and especially troublesome states would have their federal highway money withheld.

One-size didn’t fit Virginia

When George Allen became Governor of Virginia in January 1994 and I became Secretary of Natural Resources, we determined there were several problems with EPA’s one-size-fits-all approach. It was an unrealistic plan for Northern Virginia. There was not enough available, reasonably priced space in the area to accommodate the 10- to 12-lane testing stations required. There would be enormous problems with failed inspections, causing automobile owners to make repeated trips for repairs then returns to the inspection station–the infamous ping-pong effect. The whole program would run counter to our administration’s belief that government should be a helpful servant, rather than the fearsome master EPA seemed to prefer.

That was not all. The testing equipment required by EPA, the IM-240, was untried in field conditions. As it turned out, the equipment was completely unworkable in cold weather, and unreliable the rest of the time. Nevertheless, in deference to the former assistant EPA administrator who owned the company that manufactured the required equipment, EPA wrote it into their regulations, thereby freezing the technology.

Most problematic, there was no way to create enough stations to handle the demand. For all of Northern Virginia, the most ambitious plan called for 10 to 15 testing stations to handle the 900,000 cars and 500,000 annual tests. This compared with more than 350 stations in Virginia that had performed emissions tests (and effected repairs) previously.

Despite these shortcomings, EPA insisted on its own program, repeatedly contending that the people of Northern Virginia, left to their own devices, would cheat. EPA appointees claimed service station employees would pass cars for favored customers whose cars should fail, and fail cars that should pass to cheat customers by requiring unnecessary repairs. The only way to operate the program, in the eyes of EPA Region III officials (judging from their perch in Philadelphia), was to have a state-run program where all motorists would have no choices and be treated essentially as chattel (and cattle) of the state.

In 1993, under the leadership of Governor Wilder, the Commonwealth’s government seemed content, even eager, to institute the program. The Wilder administration even went so far as to prepare and issue an RFP for contractors to run the program.

Virginia defies EPA–and wins

But in the fall of 1993, George Allen was elected in Virginia, promising to take a hard look at EPA’s plans for motorists in Northern Virginia. The Allen administration made a few crucial decisions early on that would prove very wise.

First, by February 1 (just 16 days after Allen’s inauguration) as the new Secretary of Natural Resources I was scheduled to complete and sign a contract with a company to run the new testing system under contract to the Commonwealth. I deferred that decision until a more thorough assessment could be made. Other states, most notably Texas and Pennsylvania, went ahead and signed such contracts and wound up having to pay their way out of them, sometimes hundreds of millions of dollars. Our administration hired an analyst to review the law and our options, and to devise a plan that would be good for the citizens of Northern Virginia and the region’s air quality.

Second, Virginia made the simple decision to fight it out with EPA in the name of what was right for the citizens of the Commonwealth. Throughout 1994 EPA tried to bully and pressure Virginia into accepting the unacceptable. Governor Allen’s team refused to budge, insisting there must be some other acceptable program that would work to improve air quality in Northern Virginia.

At several points in the process, Virginia offered alternative approaches, including the use of alternative testing equipment, enhanced scrutiny of existing testing stations, certification of repair facilities to make sure the repairs got done right (a completely new idea), and an increased reliance on an innovative new technology called remote sensing, which measured emissions as cars were actually operating and held the promise of getting the high-polluting cars off the road.

Rather than being welcomed for providing new insights and ideas into the arena, or being congratulated for maintaining our focus on environmental improvement instead of bureaucratic process, our administration was greeted with stony silence, punctuated by threats. At one point EPA complained that if it allowed Virginia to construct its own program, other states might want that option as well, which would result in widespread disruption. In short, if Virginia were allowed to have a program based on common sense, everyone would want one like it!

EPA repeatedly threatened Virginia with the loss of federal highway funding. Their threats helped the Allen administration clarify the issue and galvanize public and political support for its approach. The administration was able to craft a coalition that included both Republican and Democratic congressional and local government leaders, as well as the entire business community (with the notable and disgraceful exception of the Greater Washington Board of Trade).

What ultimately happened?

In 1995, Senator John Warner (R-Virginia), at the request of the Allen administration, inserted an amendment into the National Highway System Designation Act, essentially allowing Virginia, and other states, to pursue programs they devised in lieu of the EPA mandate.

Today, Virginia’s program is operating smoothly, with more than 350 testing stations and 200 certified repair facilities. Virginia has suffered none of the start-up problems encountered in states that chose to follow EPA’s lead, nor has the state endured investigations into corruption of contract employees (as has Connecticut).

A recent assessment of Virginia’s program concluded that its effectiveness in reducing emissions was at least as substantial as any other program, and was superior to programs in other states in some respects.

What lessons can we learn?

Three simple lessons can be drawn from Virginia’s experience.

  • If you think EPA is about to do something wrong, stand up and say something about it. Explain yourself clearly . . . and be prepared to be attacked.
  • Keep the focus on the results, not the process. People want to hear about results; they do not care about bureaucratic processes.
  • If you intend to win, generate some allies. EPA counts on people acting separately; the agency is ill-prepared to face coalitions, especially state-business coalitions.

Becky Norton Dunlop served as Secretary of Natural Resources for the Commonwealth of Virginia from 1994 to 1998. Michael McKenna was Director of Policy and External Affairs for the Virginia Department of Environmental Quality from 1994 to 1997.