Research & Commentary: State Waivers from EPA Regulation

Published May 19, 2014

The federal environmental regulatory system is broken. Thousands of pages of flawed environmental rules and regulations exist, with no reasonable chance they’ll ever be reformed given the entrenched special interests that benefit from them. The inherent subjectivity of environmental standards also allows these rules to grow without a scientific basis for them. They cannot be efficiently and cost-effectively enforced given the overwhelming amount of information they demand.

The emergence of capable state-level environmental agencies in all 50 states – agencies that did not exist when the U.S. Environmental Protection Agency (EPA) was created in 1971 – reduces the need for a federal environmental agency to have such control. States are already responsible for up to 90 percent of all environmental enforcement actions in the nation, yet they are allowed little flexibility for innovation.

Congress could effectively scale back the increasingly costly and bureaucratic federal EPA by allowing states to apply for regulatory waivers. Case Western University law professor Jonathan Adler and Cato Institute Vice President Jerry Taylor have written articles suggesting implementation of an EPA regulatory waiver similar to Section 160 of the 1996 Telecommunications Act, which allowed telecom companies to submit requests for regulatory waivers from the Federal Communications Commission (FCC).

Applied to environmental policy, such a mechanism would allow states to apply for forbearance from any EPA rule or regulation by submitting supporting material “detailing the basis for the request and explaining why the waiver would serve the public interest. EPA would then provide public notice, seek comment from interested parties, and make a call one way or the other within one year pending judicial review under aegis of the Administrative Procedure Act,” Taylor writes.

Congress and the president should decentralize environmental regulation by allowing states to apply for regulatory waivers from EPA. This would allow greater regulatory experimentation at a lower cost, while also enabling greater containment of risk, thereby facilitating much-needed innovation in environmental regulation.

The following documents provide additional information about state regulatory waivers and EPA overreach.


Ten Principles of Energy Policy
Heartland Institute President Joseph Bast outlines the ten most important principles for policymakers confronting energy issues, providing guidance to help deal with ongoing changes in markets, technology, and policies adopted in other states, supported by a thorough bibliography. 

Cato Handbook on Policy
The seventh (and most recent) edition of the Cato Handbook on Policy, released in 2009, includes myriad proposals to reduce the size and scope of the federal government. Chapter 44 discusses environmental policy and explains how command-and-control regulations undermine markets and harm taxpayers and the environment. 

Letting 50 Flowers Bloom: Using Federalism to Spur Environmental Innovation
This 2004 paper in The Jurisdynamics of Environmental Protection: Change and the Pragmatic Voice in Environmental Law by Case Western Reserve University law professor Jonathan H. Adler examines the arguments for and against decentralization of environmental regulations. In order for environmental regulation to improve, new ideas must be found, and that will require greater experimentation from state and local regulatory bodies, Adler writes. 

Let 50 Flowers Bloom: Transforming the States Into Laboratories of Environmental Policy
Writing in 2002 for the American Enterprise Institute, Case Western Reserve University law professor Jonathan H. Adler examines the state of environmental protection and explains why decentralization is the cost-effective way to build on past environmental improvements. 

It’s Time to Restore EPA’s Original Purpose
Heartland Institute Science Director Jay Lehr, Ph.D., describes the role he played in advocating for the creation of the Environmental Protection Agency during his time as head of the National Association of Groundwater Scientists and Engineers. With the emergence of state-level environmental agencies in all 50 states, Lehr argues the whole federal agency should be replaced by the work of state agencies supplemented by a newly formed “Committee of the Whole.” 

Five EPA Rules that Will Cost [Much] More Than $1 Billion
Reason Foundation Research Associate Adam Peshek quotes the Washington Examiner on the five most expensive regulations currently proposed by EPA. 

Why Growth Is the Environment’s Best Friend
Former American Enterprise Institute scholar Kenneth Green describes the relationship between energy production and environmental degradation, which he notes many people believe to be linear. Green says the real relationship looks more like an inverted letter “U.” According to the Kuznets Curve, as populations grow larger and reach a point of overutilization, people tend to notice they are over-utilizing a resource and quickly scale back their use to the maximum sustainable level, demonstrating the best way to minimize energy’s impact on the environment is to maximize economic growth.


Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Environment & Climate News Web site at, The Heartland Institute’s Web site at, and PolicyBot, Heartland’s free online research database, at

If you have any questions about this issue or The Heartland Institute, contact Heartland Institute Policy Analyst Taylor Smith at [email protected] or 312/377-4000.