Posted on January 20, 2012 by Kevin Finto
My father introduced me to the big band sound he grew up with in the ‘20s, ‘30s and ‘40s. In addition to the musical skirmishes between the powerful brass and elegant woodwind sections that highlighted the genre, he was fond of the lyrics. One of his favorite ditties was a playful calypso tune written by Sy Oliver and Trummie Young, first recorded by Jimmie Lunceford in 1939. The enlightened refrain gives the recipe for being highly effective — “Tain’t what you do, it’s the way that you do it – that’s what gets results.” At about the same time Lunceford was leading his show band, sociologist Robert J. Merton was focusing on avoiding the wrong results. He popularized the concept of “unintended consequences,” the gist of which is humans cannot fully control the outcome of their actions so be careful what you do and for what you ask. Seventy-five years later, EPA’s recent proliferation of regulations with short time fuses and no existing or foreseeable means of compliance demonstrates no such careful thought.
Merton’s analysis provided five causes for unintended consequences: ignorance, error, immediate interest, basic values and self-defeating prophecy. While these five causes could form the outline for comments on almost any rule, the one that might be most applicable to EPA’s recent flurry of regulatory activity is what Merton called “the imperious immediacy of interest” which refers to instances where the actor’s paramount concern with the immediate action excludes the consideration of further or other unforeseen consequences of the same act. The speed in which the recent rules have been promulgated, the leap in technology that they require, and the brevity of the time period by which compliance is required are unprecedented and seem destined to result in unintended consequences.
Examples of these rules include the corporate average fuel economy (“CAFE”) standards which EPA established in 2009. Under the CAFE standards, Model Year 2011 vehicles must achieve 27.3 mpg. The requirement is ratcheted up to 35 mpg by 2016, and a whopping 54.5 mpg by 2025. Those developing the standards were warned that the standards would result in the production of smaller, lighter and deadlier cars. The developers not only required increased mileage, they limited greenhouse gases (GHGs), including CO2 emissions, from motor vehicles – the first time that GHGs were regulated as air pollutants under the Clean Air Act. Standard developers also recognized that regulating GHGs as pollutants for mobile sources would also trigger regulation of GHGs from stationary sources under the Clean Air Act’s prevention of significant deterioration of air quality program. The latter was not an unintended consequence, but where such regulation might lead our economy and society is anyone’s guess. We need only look at the recent reports of spontaneous combustion of electric vehicles to get some idea.
Another example is EPA’s issuance of the cross-state air pollution rule which afforded electric generating facilities only four months between its promulgation and the date of compliance on January 1, 2012. EPA promulgated the rule amid warnings by states and others that the electric system reliability was jeopardized. Fortunately, the D.C. Circuit stayed the rule on December 30. Similarly, EPA pushed out the EGU MACT standard after allowing itself only a few months to consider tens -of -thousands of comments on the proposed rule. Such speed of promulgation without regard for unintended consequences has EPA staffers concerned about the quality of their work product. Perhaps it’s time to revisit the requirements for regulatory impact analysis to consider new rules in light of Merton’s five causes of unintended consequences and Lunceford’s catchy tune. The alternative may be to sing another tune Lunceford popularized — Blue in the Night.