29 ELR 10347 | Environmental Law Reporter | copyright © 1999 | All rights reserved

The Government Performance and Results Act and the Future of EPA: A Second Look

Editors' Summary: In 1993, Congress passed the Government Performance and Results Act (GPRA), which requires federal agencies to prepare strategic plans and performance reports for achieving program goals. In two companion Dialogues published in the October 1998 and the February 1999 issues of ELR-The Environmental Law Reporter, Professor Rena Steinzor examined GPRA's impact on EPA's strategic planning, budget process, and relationship with the states. Steinzor's Dialogues concluded that compliance with GPRA's requirements could harm EPA, undermine its environmental protection mission, and weaken the Agency's ability to oversee state programs.

In this Dialogue, Robert M. Sussman — the chair of Latham & Watkins' Washington, D.C., environmental practice and a former EPA Deputy Administrator — responds to Steinzor's critique. The author disagrees with Steinzor's conclusion that results-driven strategic planning based on GPRA will weaken EPA. The author argues that the GPRA framework developed by EPA represents an effort to overcome serious weaknesses in strategic planning that EPA has struggled with since the 1980s. According to the author, GPRA goalsetting and performance measures could provide the Agency with a stable and predictable priority-setting process based on sound technical and policy considerations and better enable EPA to survive the pendulum swings of environmental policy. Similarly, specific and credible outcome-based goals could encourage more rational resource allocation for environmental programs and help free the Agency's budget from a politically driven appropriations process. Further, with GPRA's emphasis on environmental outcomes, EPA will develop results-based measures that can be tracked by the public, Congress, and the states. Outcome-based measures can also create a new system of federal oversight of state programs that should prevent environmental degradation while reducing reliance on regulatory "bean counting." Turning to GPRA implementation, the author concludes that while constructive first steps, EPA's initial strategic plan and annual performance plans fall well short of establishing an effective outcome-based system of environmental goals and performance measures and that EPA needs to engage Congress, states, and key stakeholders in a serious dialogue about the challenges and opportunities offered by GPRA.

Robert M. Sussman is a partner at Latham & Watkins and chair of the firm's Washington, D.C. environmental practice. He was Deputy Administrator of the U.S. Environmental Protection Agency during 1993-1994 and recently served on the Steering Committee of the Enterprise for the Environment (E4E) project. He is a 1973 graduate of Yale Law School.

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Rena Steinzor has performed a valuable service by focusing attention on the new strategic planning process that is evolving at the U.S. Environmental Protection Agency (EPA) and its link to the 1993 Government Performance and Results Act (GPRA).¹ Although GPRA has been largely overlooked by policymakers and students of EPA, Professor Steinzor presciently predicts that it will have a profound and lasting impact on the environmental management system.² Professor Steinzor, however, sees [29 ELR 10348] GPRA as a tool for vast mischief that will be used by EPA's enemies to cripple the Agency. She claims that the upbeat rhetoric used to describe GPRA masks such sinister purposes as downsizing EPA and creating "administrative paralysis and gridlock."³ According to Professor Steinzor, the Clinton Administration has opportunistically embraced the GPRA strategic planning process in order to capture the recent wave of public discontent with "big government"⁴ but will discover that GPRA is in reality "a powerful tool to punish [EPA] through the budget process."⁵

Steinzor's observations about the shortcomings of EPA's 1997 strategic plan are often on target, and she correctly observes that EPA's budget has historically failed to keep pace with its responsibilities, leaving the Agency chronically overworked and underfunded. But Steinzor's basic thesis — that GPRA-driven strategic planning will undermine the Agency's mission and weaken its effectiveness — is profoundly misguided. Obsessed by the partisan warfare of the late 1990s, Steinzor fails to perceive the important benefits that the GPRA strategic planning process can offer EPA and its major stakeholders. As a result, she mistakenly dismisses EPA's new strategic planning framework as a short-term response to GPRA instead of recognizing that it reflects a broad-based shift toward "results-oriented" environmental management, which is designed to correct deeply rooted institutional problems that EPA has struggled with for years.

In fact, GPRA can provide EPA with a powerful new tool for overcoming the Agency's long history of fragmented program management and ineffective priority-setting. By using the GPRA process to develop a coherent agenda with clear long-term goals and concrete milestones for near-term progress, EPA can enhance its credibility and independence, enabling it to better survive the pendulum shifts of environmental policy and to form more stable and constructive relationships with Congress and the states. An effective system of goals and milestones under GPRA can also stimulate a better understanding of EPA's mission by the public, greater attention to environmental results by business and regulators, and more productive use of the public- and private-sector resources committed to environmental protection.

Granted, EPA's initial five-year strategic plan is but a modest first step toward a new system of environmental goal-setting, and as Steinzor notes, current tools for measuring environmental performance are highly imperfect.⁶ Moreover, a strategic planning process that emphasizes environmental results cannot succeed without major changes in behavior by Congress, stakeholders, and EPA itself, all of whom are accustomed to maneuvering for political advantage in a complex and intricate system where statutory directives and regulatory "bean counting" are often more important than demonstrable improvements in human health or ecological protection. But a sustained commitment to better strategic planning can overcome these obstacles by stimulating a greater investment in environmental performance measures and a more thoughtful dialogue about how we assess the effectiveness of environmental programs. The winners from this effort will not be special interests and their political cronies, as Steinzor cynically suggests, but the beneficiaries of our environmental protection system. The real danger is not that GPRA will stimulate new attacks on EPA but that the opportunities GPRA offers to redefine EPA's agenda will be ignored because the established players on the environmental policy scene are unwilling to depart from the status quo.

This Dialogue focuses on the potential benefits of GPRA in improving EPA's systems for managing its programs, setting priorities, and measuring results. It begins by providing a historical perspective on strategic planning at EPA and reviewing the Agency's well-intentioned but largely unsuccessful struggle to revamp its strategic planning process starting in the early days of the Reagan Administration. It then examines the convergence between GPRA and emerging concepts of performance-based environmental management that have been endorsed by several expert bodies and are reflected in new planningtools that surfaced at EPA in the late 1980s and gained momentum during the Clinton Administration. Based on these concepts, the Dialogue evaluates EPA's initial five-year strategic plan and annual performance plans under GPRA and concludes that, while constructive first steps, these plans fall well short of establishing an effective outcome-based system of environmental goals, milestones, and performance measures.

Finally, the Dialogue turns to the concerns about GPRA raised by Professor Steinzor and presents recommendations for addressing these concerns and realizing the benefits that GPRA can offer. Establishing an effective strategic planning process, the Dialogue argues, will require EPA to confront four major challenges: (i) the growing tension between the demands of EPA's core statutes and changing perceptions of environmental problems based on advances in scientific understanding and evolving public values; (ii) the role of goals and performance measures in creating a more rational framework for determining EPA's resource needs and allocating funds to specific programs in the face of continued budgetary constraints; (iii) the vital importance of a centralized, coordinated, and well-funded information management system in tracking environmental performance measures; and (iv) the need to integrate national goals and milestones established under GPRA with a new system for EPA oversight of state programs that holds state agencies accountable for environmental results rather than traditional programmatic outputs. The Dialogue concludes that, while these challenges can be met, there is a compelling need to engage Congress, EPA's management, and key stakeholders in a serious dialogue about the opportunities created by GPRA. To foster this dialogue, EPA needs to exercise leadership in focusing the attention on GPRA that it deserves. It also must accelerate the development of its embryonic strategic planning process by aggressively implementing the cross-cutting tools for priority-setting, resource allocation, and information collection needed for a true performance-based system of environmental management.

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The History of EPA's Troubled Strategic Planning Process

EPA's current strategic planning process cannot be understood without examining the Agency's long and frustrating struggle during the last two decades to create an integrated framework for priority-setting, budgeting, and program management. The existing strategic planning systems at EPA were shaped by the pressures that the Agency faced as it emerged from the traumas of Administrator Ann Burford's tenure in the early 1980s.⁷ The Agency's immediate priority was rebuilding its internal accountability processes following a massive loss of public confidence and harsh criticism from the Democrat-controlled Congress. Under the leadership of Bill Ruckelshaus, the Agency adopted the Strategic Plan Management System (SPMS), a tool for imposing output measures on the media programs and regional offices and then closely monitoring their performance against these measures.⁸ Since EPA's traditional regulatory mission had been severely compromised during Administrator Burford's tenure, the focus of the SPMS system was to restore the productivity of EPA's rulemaking, permitting, and enforcement functions. The difficulty of this task was magnified by the new legislative mandates placed on EPA by an activist Congress that, as Professor Steinzor correctly notes, overhauled the nation's hazardous waste, drinking water, surface water, and site remediation programs through a series of ambitious and highly prescriptive laws enacted in the latter half of the 1980s.⁹ While funding for EPA modestly increased following the enactment of these laws,¹⁰ constraints on domestic spending during the Reagan Administration resulted in an imbalance between available resources and EPA's expanded mission.¹¹ As a result, the Agency was forced to adopt a reactive management philosophy in which meeting statutory directives and carrying out core program responsibilities took precedence over risk-based priority-setting or initiatives aimed at new environmental challenges.¹² Budgeting and strategic planning were largely a matter of distributing scarce resources among media offices and the regions in response to the competing demands of statutes that defined the objectives and time lines for EPA's major programs in excruciating detail.

As EPA regained its institutional credibility in the late 1980s, its senior managers became increasingly concerned about the Agency's inability to control its own agenda, and they pressed for a more proactive role in setting environmental priorities. Starting in 1985, Administrator Lee Thomas called for EPA to manage its resources and activities to reflect the relative risks posed by different environmental problems and to focus greater effort on measuring environmental results.¹³ One outcome of this shift in emphasis was a high-profile Office of Policy, Planning, and Evaluation (OPPE) report entitled Unfinished Business issued in 1987.¹⁴ This report included a comparative assessment of different environmental problems by a cross-disciplinary team of career managers who concluded that its "rankings by risk do not correspond closely with EPA's statutory mandates" or "correspond well with EPA's current program priorities."¹⁵ Administrator William Reilly built on this effort by commissioning the groundbreaking Science Advisory Board report Reducing Risk¹⁶ and launching an [29 ELR 10350] ambitious agency wide project to set national environmental goals and indicators of progress.¹⁷ Both initiatives engaged the Congress and EPA's stakeholders in a wide-ranging debate over the relative importance of different environmental problems and, by implication, called into question both the priorities embodied in EPA's governing statutes and the traditional tools used by Congress and senior Agency managers to measure EPA's performance. Under Administrator Reilly's leadership, EPA also began redirecting resources into a host of emerging programs, such as climate change and ecosystem protection, with a cross-media focus that did not square with either EPA's stovepipe organizational structure or its media-focused systems of budgeting and program planning.¹⁸ These initiatives won praise from a new generation of scholars, policymakers, and activists who wanted EPA to address cutting-edge environmental challenges. At the same time, however, they exacerbated tensions within EPA by forcing managers to make difficult choices between traditional priorities and new initiatives against a backdrop of continuing resource constraints and rigid statutory mandates.

The arrival of Democratic leadership at EPA in 1993 coincided with the enactment of GPRA. At least initially, however, the impact of this new law was limited. Well before preparing its first strategic plan in 1997, Administrator Carol Browner's management team implemented numerous organizational changes and policy innovations that owed less to GPRA than to long-standing institutional stresses and changing conceptions of EPA's mission during a period of unprecedented upheaval in environmental policy. As in the Bush Administration, the Agency continued to operate under tight funding constraints while activists pushed its leadership to tackle such high-profile issues as environmental justice, children's health, brownfields redevelopment, and nonpoint source pollution.¹⁹ Simultaneously, influential members of Congress and some stakeholders called on EPA to adopt risk-based priorities and justify its programs by demonstrating measurable improvements in the health of the human population and ecosystems. For some observers, this meant scaling back programs, such as contaminated site remediation, that were perceived to have little real environmental benefit, but other Agency critics advocated more aggressive targeting of problems, such as dioxins, indoor air pollution, and climate change, that had previously been neglected.²⁰

As a natural outgrowth of this focus on risk-based priority-setting, many observers increasingly emphasized the shortcomings of EPA's traditional "bean counting" systems for measuring program accomplishments and environmental improvement. These criticisms focused not only on EPA's over-reliance on bureaucratic activity measures, such as the number of inspections conducted, fines collected, or permits issued, but also on the limitations of core EPA databases for tracking such key aspects of environmental status as water quality, waste minimization, and pollution prevention.²¹ The weaknesses of EPA's information [29 ELR 10351] management systems received attention across the political spectrum. Industry representatives complained that EPA was requiring excessive paperwork from the regulated community and that much of the reporting and recordkeeping undertaken by facilities was of limited value to policymakers.²² At the same time, right-to-know advocates bemoaned the absence of adequate information on industrial emissions and processes and argued that the Agency's databases were poorly integrated and often inaccessible.²³ While some of the attacks on EPA's performance measures were motivated by partisan hostility to EPA's leadership, others were thoughtful and nonideological. For example, in 1995, a respected group of experts convened by the National Academy of Public Administration (NAPA) urged EPA to adopt a new framework for "managing for results," in which priority-setting and resource allocation would be based on improved indicators of environmental performance.²⁴

In the harsh political environment of the last six years, EPA has received few accolades for its reinvention efforts, but the Agency has taken major steps to overhaul its beleaguered strategic planning process. Continuing an initiative of Administrator Reilly, Administrator Browner made an early commitment to EPA's national environmental goals project that later evolved into the goal-setting framework EPA adopted under GPRA.²⁵ Following the 1995 NAPA report, Administrator Browner created a Planning, Budgeting, and Accountability Task Force and then relied on its recommendations to establish a new office with central responsibility for overseeing priority-setting and resource allocation across the Agency.²⁶ Operational since 1997, this office consolidates under a new Chief Financial Officer planning and budgeting functions that historically had been housed in separate parts of EPA.²⁷ Similarly, EPA has taken major steps to design an integrated, cross-agency information management system to complement its new budgeting and accountability process. The creation of a new Center for Environmental Information and Statistics in 1997 was followed by an integrated Reinventing Environmental Information Action Plan in February of 1998 and announcement of plans to create an expanded Office of Information early in 1999.²⁸ Accompanying these organizational [29 ELR 10352] changes have been initiatives to centralize and increase access to EPA's many environmental databases, adopt a system of "one-stop" environmental reporting for industrial facilities, create a universal facility identifier system, eliminate duplicative or inefficient paperwork, and expand right-to-know reporting.²⁹

EPA has also attempted to replace the traditional system of activity measures used to oversee state programs with National Environmental Performance Partnership Agreements, under which states agree to environmental goals and measures for assessing their performance in achieving their goals.³⁰ A similar shift in emphasis has occurred, albeit more modestly, in EPA's enforcement program, which has been experimenting with measures of success based on compliance rates and other performance indicators while continuing to track traditional enforcement measures like total fines collected and proceedings filed.³¹ Experimentation with new performance measures has also been encouraged through a series of projects conducted in partnership with industry sectors and individual firms, including the Common Sense Initiative and Project XL.³² While these projects have produced uneven results and vocal criticism from nearly all stakeholder groups,³³ there have been a number of notable successes and EPA has pressed forward despite some embarrassing false starts.³⁴ To institutionalize [29 ELR 10353] its efforts to develop new tools for managing and measuring the environmental impacts of industrial facilities, EPA has created a free-standing Office of Reinvention,³⁵ which is one of several organizational changes designed to provide independent funding and management support for cross-agency initiatives that would probably languish if entrusted to EPA's media-focused program offices.

The Convergence of GPRA and Performance-Based Environmental Management

Professor Steinzor correctly characterizes GPRA as a bipartisan mandate for good government.³⁶ The law does not single out EPA but applies to all agencies and departments. Its requirements are general and loosely framed. The GPRA strategic planning process is based on the uncontroversial principle that government agencies should be held accountable for their performance and should be measured against transparent and objective indicators of program success.³⁷ Starting in 1997, agencies must develop five-year strategic plans that contain a "comprehensive mission statement" and identify general "goals and objectives" for the agency's major programs.³⁸ Agencies must identify the concrete actions they will take to achieve these goals and objectives and the level of resources — financial and other — required to perform this task. These plans must be augmented by annual "performance plans," which include quantifiable and measurable goals, and specify the indicators to be used to measure "outputs, service levels, and outcomes."³⁹ Beginning in March 2000, agencies must evaluate their programs through annual "performance reports" that compare actual accomplishments with projected goals and indicators of success.⁴⁰ Failure to achieve projected goals and objectives must be explained and accompanied by a plan for improving the agency's performance.

Standing alone, it is doubtful that GPRA would have significantly altered EPA's systems for planning and priority-setting. GPRA, however, has provided EPA with a new vehicle for consolidating and building on the many organizational and policy innovations of the last decade. Although the requirements of GPRA itself are modest, the Agency's 1997 strategic plan deserves close study as the expression of new strategic planning tools that emerged in the late 1980s and gained momentum throughout the Clinton Administration. The plan represents the first comprehensive effort to restate EPA's mission in terms of desired environmental outcomes and indicators of environmental improvement as opposed to mere compliance with statutory requirements. The plan is structured around three key concepts — goals, objectives, and performance measures.⁴¹ Goals represent ideal environmental outcomes that EPA hopes to achieve over time and are not constrained by resource availability or other practical considerations. Objectives are concrete and quantifiable milestones for environmental improvement that EPA expects to achieve within a finite time frame. Performance measures are numerical indicators of environmental status or agency activity levels that will be used to track progress toward objectives and assess program effectiveness. Significantly, these concepts were not created for purposes of GPRA compliance but were the outgrowth of the national environmental goals project launched by Administrator Reilly and carried forward by Administrator Browner.

Professor Steinzor expresses concern that EPA's strategic plan is an amalgam of statutory and nonstatutory goals, but this approach is an inevitable outcome of recent tensions in environmental policy.⁴² EPA has been caught between the requirements of traditional media-based programs and a range of competing agendas advanced by environmental activists as well as proponents of risk-based priority-setting. Not surprisingly, major portions of EPA's strategic plan mirror the principal provisions of EPA's governing statutes. For example, the goals of clear air and clean and safe water correspond to the mandates of the Clean Air Act (CAA),⁴³ [29 ELR 10354] the Clean Water Act,⁴⁴ and the Safe Drinking Water Act.⁴⁵ But other elements of the strategic plan do not readily fit within EPA's traditional media-based program categories. For example, no obvious statutory directive corresponds to EPA's general goal of preventing pollution and reducing risk or to the specific objectives associated with this goal, such as reducing lead levels in children, encouraging green chemistry, improving indoor air, and increasing waste minimization and recycling.⁴⁶ Moreover, even where the goals in the plan are statutorily based, EPA's objectives and performance measures are geared toward environmental outcomes, such as assuring that "75 percent of waters will support healthy aquatic communities by 2005" or that "air toxics emissions will be 75 percent below 1993 levels" by 2010.⁴⁷ Significantly, portions of the plan also focus on cross-agency programs, such as the National Environmental Performance Partnership System (NEPPS) and Community Based Environmental Protection, that encourage a multimedia approach to measuring environmental progress as opposed to a narrow focus on the accomplishments of EPA's media programs.⁴⁸ These aspects of the strategic plan reflect the strong imperative that EPA's leadership has felt over the past decade to articulate an integrated environmental agenda that cuts across statutes while carrying out EPA's programmatic responsibilities under existing laws.

One is tempted to dismiss many aspects of EPA's plan as a collection of platitudes that either restate statutory provisions or express "feel good" aspirations for a clean environment. But behind the rhetoric lies a serious if often flawed attempt to articulate a new set of expectations for EPA-administered programs. The performance-oriented approach to agency management reflected in the plan bears many similarities to the vision of an improved environmental protection system advocated by the Enterprise for the Environment (E4E) and other nonpartisan groups. To quote E4E, a system of "clear environmental goals and milestones" and "understandable indicators to measure progress" can reduce the polarization, mistrust, and ideological rigidity that have plagued environmental policy.⁴⁹ Goals, milestones, and indicators can help explain to the public "where the nation is going and how to measure its progress in getting there,"⁵⁰ giving decisionmakers better tools for communicating about environmental programs and engaging the public in a more informed debate about the relationship between environmental and other societal values.⁵¹ Clarity about the ultimate and near-term objectives of environmental programs can also focus key stakeholders on desired outcomes as opposed to the intricate issues of regulatory process that have proven so divisive (as well as so mind-numbing) in the current system. For businesses, an improved understanding of environmental performance targets can enable managers to deploy technology and capital to obtain the greatest environmental improvement for the resources invested and motivate employees to emphasize enhanced environmental results in addition to short-term regulatory compliance. For regulators, outcome-based goals can help select the policy tools (e.g., regulations, economic incentives, or permits) that will be most effective in addressing the environmental problem at hand. And most importantly, once quantifiable indicators of progress and concrete deadlines are identified, resources can be allocated more efficiently by government and the private sector, and regulators and the regulated community will have strong incentives to invest in information systems that effectively track results.⁵²

Attractive as they seem, the benefits of goal-based environmental management are far easier to achieve in theory than in practice. EPA's 1997 plan is a constructive first step, but, as Professor Steinzor reminds us, it is far from perfect and lacks many of the elements required for effective strategic planning. Some of EPA's 10 goals are best viewed as political slogans — "expansion of Americans' right to know about their environment"⁵³ — rather than desired environmental outcomes that can then be translated into measurable indicators of environmental improvement.⁵⁴ Other goals represent implementation tools — "sound science," "greater compliance with the law," and "effective management"⁵⁵ — that clearly need to be addressed in the strategic plan but should be differentiated from outcome-focused goals. In many cases, the specific objectives underlying EPA's goals are so vague and qualitative — "EPA and its partners will reduce the risks to human health and the environment" at contaminated sites and will assure that facilities [29 ELR 10355] handling hazardous materials "will be managed according to practices that prevent dangerous releases to the environment"⁵⁶ — that verifying EPA's success in accomplishing these objectives will be a practical impossibility.⁵⁷ Furthermore, the performance measures EPA has identified to track its progress are daunting in number and include a confusing mixture of traditional program metrics — "number of construction completions at Superfund NPL sites"⁵⁸ — and illdefined environmental outcomes — "sustain positive environmental gains in the expanding trade and environment agenda."⁵⁹ It is uncertain how or even whether this long and poorly organized list of performance measures will be converted into a succinct, easily understood "scorecard" for tracking the Agency's major programs.⁶⁰ Finally, EPA's goals are overlayed with a set of "guiding principles," such as "reduce health and environmental risks," "emphasize pollution prevention," and "emphasize children's health,"⁶¹ that create confusion about how EPA will set priorities and allocate resources. While it is important that EPA's strategic plan accommodate cross-media as well as media-specific programs, the plan fails to clarify whether EPA's major policy initiatives and funding decisions will be based on its goals, guiding principles, or some amorphous combination of the two.⁶² This imprecision could encourage EPA's management to allow short-term political pressures to drive priority-setting and resource allocation, with the goals and strategic principles in the plan providing a convenient rationalization for policy choices that are based on unrelated considerations.

The GPRA Annual Plans that EPA has issued in the last two fiscal years create additional questions about how EPA intends to bridge the gap between its five-year environmental goals and its year-by-year budgeting and program management process. While the Annual Plans provide performance measures for each of the Strategic Plan's 10 goals, these measures are nearly all near-term program outputs, such as issuing rules or guidance documents. It is not clear how, if at all, these output-based program performance measures will ultimately be linked to the long-term indicators of environmental improvement that are intended to drive EPA's five-year planning process.⁶³ Indeed, EPA has not yet established a rigorous, ongoing mechanism for tracking changes in environmental trends and conditions and monitoring progress toward EPA's five-year goals and objectives. Nor has EPA explained how it will use the annual Performance Reports required under GPRA starting in fiscal year 2000 to assess the Agency's success in meeting either short-term performance measures or long-term outcome-based goals and objectives.

Making GPRA Work

Emphasizing the deficiencies in EPA's strategic plan, Professor Steinzor warns that GPRA will expose EPA to "rigorous, even punitive congressional oversight" that will gravely weaken the Agency.⁶⁴ Unable to develop quantitative performance measures, EPA "will be forced to manipulate the data it uses to demonstrate progress," to "lower the standards for judging" whether health or the environment is being protected, and ultimately to "lull the public into a false sense that [EPA] has achieved its mission."⁶⁵ These dire predictions, however, are totally unsubstantiated and ignore the fact that EPA's GPRA implementation efforts have received little scrutiny from the Agency's congressional overseers. Although environmental issues have routinely produced confrontations between warring congressional factions, EPA's 1997 strategic plan received a muted reception in the House and was essentially ignored in the Senate.⁶⁶ [29 ELR 10356] EPA's performance plans for fiscal years 1999 and 2000 have received no scrutiny outside of the appropriations process. Professor Steinzor notwithstanding, EPA's critics obviously have more urgent priorities than the unglamorous subject of strategic planning under GPRA.

The inattention to EPA's strategic plan, however, is not necessarily good news for the many stakeholders with an interest in making EPA a more credible and effective institution. If GPRA is ignored or exploited by the Agency or Congress for political purposes, it will fail to realize its potential as a positive management tool. On the other hand, an honest and nonpartisan dialogue about the GPRA process can focus long-overdue attention on the basic challenges facing EPA as it continues to redefine its mission in response to changing environmental needs and political pressures. As discussed below, the concerns about GPRA raised by Professor Steinzor certainly merit attention in such a dialogue but should not prevent EPA from realizing the sizeable benefits that GPRA potentially offers if the Agency creates an effective strategic planning process.

The Tension Between Statutory Mandates and Emerging Environmental Needs

EPA's effort to identify cross-agency goals under GPRA has once again raised fundamental questions about the role of statutory directives in setting EPA's priorities. The major players on the environmental policy scene have traditionally sought to advance their agendas by tying the Agency's mission and responsibilities to the mandates of its core statutes. Environmental groups and their allies have relied on these statutes to pressure the Agency to implement controversial or costly programs and to argue that EPA needs the discipline of enforceable deadlines to maintain its forward momentum in the face of hostile interest groups or a White House unsympathetic to environmental concerns. On the other hand, EPA's critics on Capitol Hill and in the regulated community have pointed to limits on EPA's statutory authority to justify opposing new programs or redirection of EPA's resources to meet emerging environmental needs. While both groups have gained their immediate tactical objectives, EPA's institutional standing has been greatly weakened by its inability to realign its priorities in the face of new scientific data or changing public perceptions of environmental problems. The Agency's predicament has grown worse over time as EPA's core statutes have become progressively more antiquated and Congress has lacked the political will to update their requirements.⁶⁷ Notwithstanding the absence of congressional backing, EPA's management has launched a host of new initiatives targeting nontraditional issues like pollution prevention, water conservation, solid waste recycling, energy efficiciency, watershed protection, indoor air quality, and, most recently, urban sprawl. Despite the broad appeal of these issues, however, EPA has had only limited success in tackling them due to the absence of statutory authority, persistent resource constraints, and lack of support from the many constituency groups invested in maintaining existing regulatory programs.

GPRA has the potential to change this situation by providing a new framework for defining EPA's mission and responsibilities — one that encourages policymakers to address the nation's environmental needs comprehensively rather than through the narrow prism of individual mediafocused programs and stimulates a focus on desired environmental outcomes rather than programmatic outputs.⁶⁸ In this respect, GPRA can give EPA's senior management the tools to set priorities based on a broad assessment of the severity of different environmental problems, the relative seriousness of various threats to human health or the environment, the availability of cost-effective mitigation measures, and intangible factors like equity and social values.⁶⁹ Such risk-based priority-setting could lead to a markedly different set of goals, objectives, and performance measures for EPA's programs than rigid adherence to EPA's governing statutes.⁷⁰ For example, EPA might decide that redesigning [29 ELR 10357] industrial processes to encourage waste minimization and recycling of raw materials is far more beneficial than complex rulemakings prescribing hazardous waste treatment technologies for specific waste streams under Subtitle C of the Resource Conservation and Recovery Act (RCRA). Or it could decide that an integrated risk-based approach to air toxics is likely to achieve greater public health protection than undiscriminating development of technology-based standards for listed source categories in accordance with the deadlines in Title III of the CAA.⁷¹

Unfortunately, the prospect of EPA redefining its program objectives to focus on the greatest opportunities for environmental improvement is one that is deeply unsettling and even heretical to numerous groups across the political spectrum. Some will object that as unelected bureaucrats, EPA officials have no business making independent judgments about the nation's environmental agenda and that such judgments are exclusively the prerogative of Congress. Others might object that because environmental outcomes are difficult to measure, a goal-based system of priority-setting will become an excuse for inaction and will allow EPA to shirk the unpleasant but necessary tasks of writing and enforcing rules that force the regulated community to upgrade its environmental stewardship practices. What these objections ignore, however, is the increasingly tenuous connection between EPA's traditional regulatory functions and today's most pressing environmental challenges, which derive from a complex web of transportation policies, production and use patterns for energy and natural resources, land use development practices, and consumer behavior that is largely beyond the reach of existing authorities and impervious to conventional regulatory controls.⁷² As several EPA administrators have recognized, the Agency must respond to these realities or it will become irrelevant. Waiting for comprehensive congressional guidance is a luxury that EPA can no longer afford given rapid changes in our understanding of environmental problems, the development of innovative policy tools to address these problems, and the inability of a deeply divided Congress to legislate effectively on environmental issues in a timely manner.

The GPRA goal-setting process could provide a vehicle both for updating EPA's traditional mandates in light of new problems and for adjusting the Agency's priorities to reflect advances in scientific understanding and public values. Since GPRA was designed by Congress as a tool for oversight and appropriations, however, these tasks cannot be performed unilaterally by EPA but will require extensive dialogue between EPA, Congress, and major stakeholders. Such a dialogue will not be successful unless GPRA results in constructive changes in behavior by all the key players. Instead of using the goal-setting process to advance a political agenda, EPA should aspire to adopt goals that reflect an objective and independent assessment of environmental needs and can be translated into measurable environmental outcomes. It should then try to establish a credible process for determining how quickly these outcomes can and should be achieved given available resources, competing economic and technological objectives, and limitations on scientific understanding. These judgments will need to be made through a rigorous agencywide planning process tied directly to budget development. EPA's new Office of the Chief Financial Officer is positioned to perform this agencywide priority-setting function but will need to be empowered to exercise funding control and policy direction over the historically autonomous media offices.⁷³ If EPA can set credible and defensible agencywide goals and milestones, the Agency may be able to engage Congress on different terms, gaining greater flexibility both to tackle problems that Congress has not squarely addressed and to downsize or phase out mandated programs that no longer achieve substantial benefits.⁷⁴ A more collaborative relationship between [29 ELR 10358] Congress and EPA would encourage constructive consultation about desired environmental outcomes and reduce arm's-length oversight of regulatory outputs in setting program priorities and funding levels. Stakeholders would also be encouraged to influence EPA's decisionmaking process in a new way that focuses more on identifying milestones for environmental improvement, and less on compliance with statutory requirements or the intricacies of permitting, rulemaking, and other traditional regulatory functions. This will in many cases require new advocacy tools that rely more on scientific and technical analysis and less on the use of legal and political pressure to influence EPA decisions. Such a change in focus could carry risks for stakeholders accustomed to maximizing their leverage over EPA through litigation or congressional intervention but could also lead to a more stable and predictable decisionmaking process in which technical and policy considerations outweigh political maneuvering in determining priority-setting and resource allocation.

The Tension Between Goal-Based Priorities and Budget Realities

Professor Steinzor suggests that GPRA is doomed to failure because EPA will be forced to articulate a comprehensive environmental agenda without any prospect of receiving the increased resources required to implement it effectively.⁷⁵ This concern cannot be summarily dismissed. It would be naive to expect that the reluctance to boost funding for EPA that has been displayed by several Congresses and administrations of both parties will disappear overnight. Nor would it be realistic to expect that EPA's traditional congressional adversaries will no longer use the appropriations process to downsize programs that their constituents oppose. At the same time, it is important to remember that the budget limitations under which EPA has labored since 1980 were not inflicted on EPA alone but were a product of governmentwide deficit reduction policies that may now be relaxed with the creation of a long-term budget surplus.⁷⁶ In a less austere fiscal environment, the GPRA strategic planning process could accelerate a transition to more rational budget decisions for EPA and other environment and natural resource agencies. By encouraging EPA to define the specific environmental outcomes it hopes to achieve, policymakers and the general public will have a new basis for evaluating EPA's programs — one more focused on tangible environmental improvements and the resource commitments required to achieve them within realistic timetables using the best available scientific and economic data.⁷⁷ Under this new priority-setting framework, some traditional programs driven by statutory mandates (e.g., rulemakings for RCRA hazardous waste listing) might be candidates for disinvestment because of their limited environmental benefits. At the same time, increased funding might be justified for other programs, such as indoor air quality or ecosystem protection, because of their greater contribution to risk reduction and environmental improvement.

Of course, Congress would have the option of rejecting the Agency's choice of priorities or withholding the funding that EPA deems necessary to achieving its performance targets. However, this give-and-take could have the salutary effect of encouraging an honest debate about the costs and benefits of environmental progress and the need for Congress to assume greater accountability for EPA's ability to meet public expectations within the constraints of the existing appropriations process.⁷⁸ Thus, rather than withholding resources from EPA and then faulting the Agency's performance, Congress would be forced to choose between increasing funding for EPA's programs, accepting more modest accomplishments by the Agency, or even reexamining EPA's core statutes so that they give EPA greater flexibility to focus on high priority problems. EPA would need to facilitate this process by documenting the relationship between its funding proposals and improved environmental results. EPA has not always assumed this responsibility in the past but has at times advanced poorly conceived budget proposals designed primarily for political impact.⁷⁹ However, if EPA puts forward credible outcome-based goals and encourages honest scrutiny of the resource levels needed for achieving these goals, GPRA could create incentives for more thoughtful and constructive budgeting decisions by Congress and [29 ELR 10359] EPA as opposed to the politically driven appropriations process that has prevailed in the recent past.⁸⁰

Improvements in Information Management and Accountability for Environmental Results

According to Professor Steinzor, EPA's biggest vulnerability under GPRA is its inability to demonstrate that the outcome-based objectives it has identified will be achieved and the resulting danger that EPA's critics will try to discredit the Agency's programs because EPA cannot prove that the programs have resulted in tangible reductions in human health or ecological risks.⁸¹ In Professor Steinzor's view, the performance measures required under GPRA represent a trap for EPA because they will create expectations for the documentation of environmental results that EPA will never be able to satisfy given the Agency's limited resources and the inherent imprecision in measuring environmental outcomes.⁸²

There is no doubt that the task of developing meaningful performance measures for EPA's programs poses a daunting challenge and that EPA's 1997 strategic plan is deficient in this area. Professor Steinzor, however, fails to recognize that the woeful inadequacy of our current systems for tracking environmental results is the product of years of neglect, not necessarily lack of resources or scientific uncertainty. Collectively, the man-hours and dollars invested by the public and private sectors in collecting environmental data are staggering. According to estimates developed under the Paperwork Reduction Act,⁸³ compliance with EPA reporting, monitoring, and recordkeeping requirements costs the regulated community over $ 3.5 billion per year.⁸⁴ EPA itself spends several hundred million dollars each year on information management functions,⁸⁵ and the White House has found that governmentwide expenditures on environmental research and monitoring total $ 5.5 billion annually.⁸⁶ Yet there is widespread agreement that despite this investment, critical information on environmental trends and conditions is either unavailable or virtually impossible to access and interpret. As EPA itself has acknowledged, a facility-by-facility profile of industry's environmental performance cannot be obtained without extracting information from multiple databases that are separately maintained and track environmental releases using methodologies that are confusing and often duplicative or incompatible.⁸⁷ Our ability to provide the public with concise information on air or water quality and the health of ecosystems is equally dismal. A recent study for the respected think tank Resources for the Future (RFF) bluntly concluded that "a dearth of information of all kinds characterizes pollution control."⁸⁸ The authors elaborated as follows: "the system lacks monitoring [29 ELR 10360] data to tell whether environmental conditions are getting better or worse; it lacks scientific knowledge about both the causes and the effects of threats to human and environmental health; it lacks information that would tell us which programs are working and which are not."⁸⁹

What explains the glaring disparity between our investment in environmental data systems and our inability to track environmental results on a national, local, or facility basis? One answer is that historically EPA and other agencies have had no incentive to provide the public with a clear picture of environmental trends and conditions because this information was largely irrelevant to the day-to-day management of regulatory programs. With prescriptive statutes defining EPA's regulatory agenda in minute detail, it is not surprising that both the Agency and congressional oversight committees have judged EPA's performance on the basis of its success in meeting statutory deadlines for rulemaking and producing other desired outputs, such as issuing permits, conducting inspections, or filing enforcement actions. Another important factor has been the fragmentation of the information collection process within EPA, across the federal government and between the federal government and the states. The environmental data provisions in the major environmental laws were enacted at different times and were designed to support the specific needs of mediafocused programs, not to provide the public with a broad overview of the environmental protection system as a whole.⁹⁰ These provisions have been managed by program offices focused on their own regulatory needs, with little desire or incentive to coordinate their data-collection effort with other parts of EPA, let alone other federal agencies, such as the National Oceanic and Atmospheric Administration or the U.S. Geological Service, with important responsibilities for monitoring air and water quality.⁹¹ Compounding the problem have been disparities in how and to what extent the states collect environmental performance data and the uneven history of data-sharing between and among the states and EPA. The net result of this fragmentation has been a lack of accountability in collecting, managing, and communicating environmental information. Despite the immense scale of the national effort to study and characterize the environment, no one is responsible for assuring that the totality of data is complete, relevant, reliable, and meaningfully presented to the public.

Professor Steinzor's prediction that GPRA will create disincentives for collecting better information is perverse and illogical. Since there is considerable evidence that the public values environmental protection, a more transparent system for tracking environmental results should increase support for EPA's mission, not erode it. Thus, with GPRA's greater emphasis on environmental outcomes, it will be in EPA's interest to develop results-based measures of environmental improvement so that it can assess the effectiveness of its programs and seek new authority or additional resources if the public's expectations of environmental quality are not being met. Indeed, since GPRA directs agencies to report on their success in achieving outcome-based goals, Congress would be hard-pressed to deny EPA the funding required for increased investment in tools for tracking environmental performance.⁹² Moreover, by linking performance measures to an overall system of goals and priorities, GPRA should encourage more integrated, efficient, and accessible information management at all levels of the environmental protection system. As emphasized in the recent E4E report, a system "rich with high-quality information" is better able to be "goal-oriented, performance based, flexible … [and] accountable" than a system in which information collection mechanisms are "complex, inconsistent, overlapping and inefficient."⁹³

Despite Professor Steinzor's skepticism, there is a surprising degree of consensus on the need for more effective information management in supporting an outcome-based approach to environmental management. EPA's decision to centralize important programs like the Toxic Release Inventory in a new Office of Information that will have broad responsibility for data quality and accessibility across the Agency reflects a recognition of, in Administrator Browner's words, the need to "enhance the integration of information systems, strengthen accountability for information technologies investments, promote enhanced data quality, reduce the burden associated with data collection and reporting, [29 ELR 10361] coordinate information submissions, and enhance public access."⁹⁴ Parallel trends are occurring in the private sector, where trade associations and individual companies are developing indicators of stewardship and environmental performance for industry sectors as well as increasing investment in research on the health and environmental effects of substances, products, and processes.⁹⁵ Progress toward better environmental information is far from complete, but the discipline of the GPRA strategic planning process, with its focus on outcome-oriented performance measures, is clearly an important spur for developing an integrated approach to tracking environmental trends, conditions, and impacts that will foster informed goal-setting and evaluation of progress.

Devolution to the States and GPRA

Professor Steinzor perceives a "profound tension between the requirements of GPRA and the devolution demanded by conservative critics of so-called command-and-control regulation."⁹⁶ According to Steinzor, "EPA is fighting a losing battle to placate its junior regulatory partners … [and] EPA's battle with the states is joined most destructively in its halting efforts to implement" GPRA.⁹⁷ Steinzor attempts to support these claims by emphasizing the controversy surrounding such innovations as Performance Partnership Agreements (PPAs) and the NEPPS initiative, concluding that "aggressive states have won significant concessions from their federal supervisors" and that the "states have become increasingly resistant to EPA's efforts to develop nationally uniform measures of performance."⁹⁸

In her preoccupation with recent high-profile battles between EPA and the states,⁹⁹ Steinzor fails to recognize the high degree of consensus that exists among policymakers at all levels of government over the need for a new approach to federal oversight of state environmental programs — one that holds states accountable for environmental results rather than traditional programmatic outputs. This shift in philosophy predated GPRA and is best viewed as one more facet of the overall movement toward performance-based environmental management that is reflected in the system of national goals and indicators that has shaped EPA's new strategic planning process.

The cornerstone of the new EPA-state relationship, the NEPPS process, grew out of the EPA/State Task Force on State Capacity that was formed during the Bush Administration and finalized its recommendations in 1993.¹⁰⁰ As the task force recognized, EPA had traditionally tracked state programs by negotiating detailed work plans that committed state agencies to specific activity measures, such as the number of permits issued, inspections conducted, and enforcement actions filed, for each discrete media-based program. Just as EPA recognized that the SPMS system was increasingly obsolete in setting performance measures for programs implemented at the federal level, state and EPA managers realized that these work plans represented poor tools for measuring the environmental accomplishments of state agencies. The new accountability tools embodied in the NEPPS process, like those adopted at the national level, emphasize risk-based priority-setting, comprehensive cross-media strategies, and greater investment in tracking environmental outcomes.¹⁰¹ Under PPAs, participating states are expected to perform an environmental self-assessment, identify environmental goals, define the relationship between these goals and national and regional priorities, establish indicators to measure progress, and outline the respective roles and responsibilities of EPA and the state agency in achieving the state's goals.¹⁰² To support this multimedia planning process, EPA created and Congress approved a mechanism for obtaining "performance partnership grants," which consolidate funding across programs and give states greater discretion to allocate federal grant dollars to the mix of activities best aligned with their goals and priorities.¹⁰³ Although Professor Steinzor argues that [29 ELR 10362] the NEPPS process gives "the states significantly expanded discretion to decide which federal regulatory programs they will fully implement,"¹⁰⁴ the recent NAPA case study of the NEPPS process concluded that "NEPPS leaves many strong oversight tools in place."¹⁰⁵ For example, it "does not change the requirements imposed on states by federal statutes or regulations," and it does not curtail EPA's ability to "review state enforcement actions" and "enforce independently … when a state refuses to do so."¹⁰⁶ Indeed, according to NAPA, NEPPS not only "leaves intact several tools that EPA can use to obtain information and to influence states" but "adds tools that … [EPA] could use to mobilize public support for strong, effective state action."¹⁰⁷

Ironically, a major concern that the states have raised about the NEPPS process is that it may increase administrative burdens by imposing a new layer of reporting requirements on the states without streamlining the traditional "bean counting" used by EPA to oversee state programs.¹⁰⁸ Professor Steinzor recognizes that this issue has been a persistent source of friction between EPA and the states but incorrectly interprets this friction as evidence of massive state resistance to a system of national environmental goals and indicators.¹⁰⁹ In fact, EPA and the Environmental Council of the States (ECOS) reached agreement in 1997 on development of core performance measures that would replace traditional EPA-state workplans and provide the basic information needed for federal oversight of state programs, negotiation of NEPPS agreements, and implementation of GPRA on the federal level.¹¹⁰ A recent addendum to this agreement reaffirms that these core measures are designed to "paint a national picture of the nation's progress in protecting public health and the environment" and "inform Congress, the public, stakeholders and environmental managers of trends and environmental progress across the nation and in individual states."¹¹¹ To be sure, there have been differences of opinion between EPA and the states on the scope of the core measures, the flexibility of their application to individual states, and the effectiveness of EPA's efforts to reduce unnecessary reporting and activity counting.¹¹² These debates, however, should not obscure the strong underlying agreement between EPA and the states on the importance of a system of oversight based on what E4E has termed "outcome-based objectives and indicators of improvement" and on the need to develop state priorities and performance measures within a clear overall framework of "national goals and milestones that address substantive environmental problems."¹¹³ Nobody would deny that creating an effective system of performance measures is a very difficult job with a high potential for misunderstanding and conflict, but there is no credible evidence that the hidden agenda of the great majority of states is to boycott this effort.¹¹⁴

According to Professor Steinzor, the states are resistant to credible performance measures because of a persistent tendency to overstate their capacity for implementing federal programs while diverting attention from the severely inadequate resources that they have committed to environmental protection.¹¹⁵ Resource shortfalls do exist at the state level just as they do at the national level, but the stark reality is that the states have shouldered an increasing share of the financial burden of environmental programs at a time when federal funding has remained stagnant. NAPA has concluded that "state capacity for environmental management has increased dramatically since 1970," and states today "spend more than $ 4 billion per year on environmental protection."¹¹⁶ A recent RFF study contains similar findings:

All observers agree that the capability of state environmental agencies has improved significantly since 1970. Improvement in the professionalism and competence of state governments generally has been reinforced by the importance of the environment as an issue. Total state expenditures on air quality increased from $ 80 million in 1971 to $ 226 million in 1986 to $ 542 million in 1994 …. State expenditures on water quality went from $ 52 million in 1972 to $ 976 in 1986 to $ 1.9 billion in 1994 …. The increase is impressive even when inflation is taken into account.¹¹⁷

Given the growing budgetary and operational responsibility of state agencies for implementing environmental programs, it is not surprising that state mangers chafe at [29 ELR 10363] overly detailed reporting requirements or heavy-handed oversight by EPA. The often fractious day-to-day struggles between state and federal bureaucrats, however, should not necessarily be seen as a conflict between "anti-environment" state agencies and principled guardians of federal environmental standards. While state regulators are often portrayed as diehard advocates of rollback, informed observers recognize that "many of the most exciting innovations in environmental policy are at state and local levels."¹¹⁸ States like New Jersey and Massachusetts, for example, have conducted bold experiments in permit streamlining while consistently advocating stronger environmental safeguards, including more stringent air quality limits for ozone and particulate matter.¹¹⁹ Other states like Minnesota and Wisconsin have been aggressive supporters of state experimentation with new regulatory tools under the ECOS-EPA Agreement on Regulatory Innovation while launching initiatives to control environmental loadings of mercury, a problem that EPA has been slow to tackle at the federal level.¹²⁰ Several states, including Florida, Indiana, and Washington, have made great strides in developing performance indicators for environmental improvement under PPAs or state planning efforts.¹²¹ California, traditionally the nation's most aggressive environment regulator, has pioneered clean fuel and tailpipe emission standards that are far tighter than federal requirements while championing regulatory flexibility and resisting EPA intervention in its programs.¹²² In short, there is no correlation between a state's commitment to environmental performance and its insistence on greater autonomy in setting and implementing environmental priorities. Given the reality of increased state capacity and greater state engagement in environmental issues, intrusive EPA oversight of state program outputs like permitting or enforcement will offer no assurance of enhanced environmental results, and relaxing such oversight will not necessarily lead to environmental degradation.

The real oversight challenge facing EPA is how to address the problem, noted by Professor Steinzor, NAPA, and many others, of disparate levels of funding, program sophistication, and environmental performance across the universe of states.¹²³ A new system of oversight focused on environmental outcomes rather than program outputs can help address this problem by providing better information about the states where improvements in air or water quality or waste management are lagging behind national norms and encouraging EPA to use its own scarce resources more strategically to augment poorly performing state programs.¹²⁴ Professor Steinzor is correct that many state agencies are not delivering the environmental results required to meet national goals, but returning to traditional "bean counting" is far less likely to strengthen deficient state programs than is holding states accountable for meeting reliable, broadly accepted environmental performance measures consistently and fairly applied at the national level.

Conclusion

EPA's strategic planning process under GPRA is a work in progress. To date, the results have been inconclusive, and the real challenges lie ahead. EPA has taken substantial strides toward developing an integrated system of goals and milestones, but its 1997 strategic plan is an uneven combination of verifiable outcome-based objectives, politically motivated goals and poorly defined performance measures. The Agency has created the cross-cutting institutions, such as the Office of Chief Financial Officer, Office of Information, and Office of Reinvention, necessary for integrated priority-setting and budgeting, but it is not yet clear whether these offices will be empowered to impose policy discipline on EPA's media programs and resist pressure from stakeholders wedded to the status quo. The Agency has embraced the concept of strategic information management, but it remains uncertain whether EPA has the fortitude for the radical overhaul of its information systems essential to effectively track and evaluate environmental results. The Agency recognizes the need for an outcome-based system of state oversight anchored in national environmental goals and indicators but has not yet developed the effective working [29 ELR 10364] relationship with the states that will make this system a reality. Turning to Congress, the House and Senate have tacitly endorsed EPA's strategic planning process but as yet have shown little comprehension of the difficult trade offs between statutory mandates and risk-based priorities that have been forced on EPA by Congress' own inability to update EPA's core statutes and to provide funding commensurate with EPA's responsibilities. And finally, EPA's stakeholders often pay lip service to the need for better strategic planning while maneuvering cynically for tactical advantage under the current statutory framework and resisting the institutional and cultural changes that would enable EPA's transition to a system of results-oriented environmental management.

In short, EPA is at a crossroads, with its embryonic strategic planning process hanging in the balance. At this critical juncture, it may be tempting to turn back the clock and ignore GPRA, but this approach would be misguided and counterproductive. A better option is to engage Congress, EPA's management, and key stakeholders in a serious dialogue about the challenges and opportunities created by GPRA and the best path toward a new performance-based environmental management system. Creating such a system will be hard and frustrating work but the alternative is a fragmented, weak, and politicized EPA unprepared for the environmental demands of the 21st century.

1. Pub. L. No. 103-62, 107 Stat. 285 (1993) (codified in scattered sections of 5 and 31 U.S.C.).

2. Professor Steinzor's views are presented in two recent Dialogues in ELR-News & Analysis: Rena I. Steinzor & William F. Piermattei. Reinventing Environmental Regulation Via the Government Performance and Results Act: Where's the Money?, 28 ELR 10563 (Oct. 1998) [hereinafter Steinzor I] and Rena I. Steinzor, Reinventing Environmental Regulation Through the Government Perform ance and Results Act: Are the States Ready for Devolution?, 29 ELR 10074 (Feb. 1999) [hereinafter Steinzor II].

3. Steinzor I, supra note 2, at 10565-66.

4. Id. at 10565.

5. Id. at 10566.

6. U.S. EPA, EPA STRATEGIC PLAN, EPA/190-R-97-002 (Sept. 1997) [hereinafter STRATEGIC PLAN]. In fact, EPA issued a five-year strategic plan in 1994, but this plan did not purport to be responsive to GPRA requirements. See U.S. EPA, THE NEW GENERATION OF ENVIRONMENTAL PROTECTION, EPA/200-B-94-002 (July 1994). In accordance with GPRA, EPA also issued an Annual Performance Plan for Fiscal Year (FY) 1999, which is also critiqued in the two Steinzor articles. See OFFICE OF THE CHIEF FINANCIAL OFFICER, U.S. EPA, FY 1999 ANNUAL PLAN SUMMARY, EPA 205-S-98-002 (Feb. 1998) [hereinafter FY 99 ANNUAL PLAN].

7. See JONATHAN LASH ET AL., A SEASON OF SPOILS, THE STORY OF THE REAGAN ADMINISTRATION'S ATTACK ON THE ENVIRONMENT (1984) (recounting EPA's travails during the early 1980s).

8. A full description of the Strategic Plan Management System (SPMS) and a discussion of its limitations are presented in a lengthy and provocative 1988 U.S. Government Accounting Office (GAO) report on the management challenges facing EPA. See U.S. GAO, ENVIRONMENTAL PROTECTION AGENCY, PROTECTING HUMAN HEALTH AND THE ENVIRONMENT THROUGH IMPROVED MANAGEMENT, GAO/RCED-88-101, at 42-59 (1988) [hereinafter 1988 GAO MANAGEMENT REPORT]. The SPMS, also known as STARS,

was criticized both inside and outside the agency for its heavy emphasis on quantifiable inputs, such as the number of permits issued or the number of enforcement actions initiated. The system was notably lacking in output measures — it said little or nothing about whether environmental conditions were getting better or worse.

J. CLARENCE DAVIES & JAN MAZUREK, RESOURCES FOR THE FUTURE, POLLUTION CONTROL IN THE UNITED STATES, EVALUATING THE SYSTEM 35 (1997) [hereinafter EVALUATING THE SYSTEM].

9. Between 1984 and 1990, Congress enacted seven comprehensive statutory overhauls. See Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, 98 Stat. 3221; Safe Drinking Water Act Amendments of 1985, Pub. L. No. 99-339, 100 Stat. 647; Superfund Amendments and Reauthorization Act (SARA) of 1986, Pub. L. No. 99-499, 100 Stat. 1613; Water Quality Act of 1987, Pub. L. No. 100-4, 101 Stat. 7; Federal Insecticide, Fungicide, and Rodenticide Act Amendments of 1988, Pub. L. No. 100-532, 102 Stat. 2654; Clean Air Act (CAA) Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399; and Pollution Prevention Act of 1990, 42 U.S.C. §§ 13101-13109, ELR STAT. PPA 13101-13109.

10. When outlays for wastewater treatment infrastructure are excluded, EPA's budget doubled in constant dollars between 1977 and 1987. See EVALUATING THE SYSTEM, supra note 8, at 20-22. A particularly steep increase in EPA's budget occurred in FY 1987 following the enactment of SARA in 1986, which boosted funding for the Superfund Trust, but after 1987, EPA's budget remained more or less level for the next decade. Id. Steinzor presents a similar picture of EPA's funding. Steinzor I. supra note 2, at 10566-68.

11. This point has been widely recognized by former EPA Administrators. William Ruckleshaus stated in 1995: "Any senior EPA official will tell you that the agency has the resources to do not much more than ten percent of the things Congress has charged it to do." William D. Ruckelshaus, Stopping the Pendulum, Envtl. F., Nov./Dec. 1995, at 26 [hereinafter Stopping the Pendulum]. Likewise, former Administrator Reilly stated that "we have got … to make some allocation of our resources, given that there's more for us to do than we can do." U.S. EPA, ORAL HISTORY INTERVIEW-4, WILLIAM K. REILLY, EPA 202-K-95-002 (1995).

12. Former Administrator Ruckelshaus has colorfully described this situation as follows: "The people who run EPA are not so much executives as prisoners of the stringent legislative mandates and court decisions that have been laid down like archaeological strata for the past quarter-century." Stopping the Pendulum, supra note 11, at 26.

13. In a 1985 speech, Administrator Thomas emphasized the theme of "obtaining measurable environmental results" and advocated "measurable risk management integrated across environmental media." 1988 GAO MANAGEMENT REPORT, supra note 8, at 28. Building on this approach, Administrator Thomas formed a cross-agency taskforce of senior managers in 1987 to undertake the "comparative risk project" that resulted in the Office of Policy, Planning, and Evaluation (OPPE) report Unfinished Business: A Comparative Assessment of Environmental Problems. Id.; OFFICE OF POLICY, PLANNING, AND EVALUATION, U.S. EPA. UNFINISHED BUSINESS: A COMPARATIVE ASSESSMENT OF ENVIRONMENTAL PROBLEMS (Feb. 1987) [hereinafter UNFINISHED BUSINESS].

14. UNFINISHED BUSINESS, supra note 13.

15. Id. at xv.

16. U.S. EPA, REDUCING RISK: SETTING PRIORITIES AND STRATEGIES FOR ENVIRONMENTAL PROTECTION, SAB-EC-90-021 (Sept. 1990) [hereinafter REDUCING RISK]. This report decried "the fragmentary nature of U.S. environmental policy." Id. It described EPA as a "reactive agency" which "had made little effort to compare the relative seriousness of different problems" or "to anticipate environmental problems or to take preemptive action …." Id. In listing the top priorities EPA should be considering from an environmental standpoint, the Science Advisory Board (SAB) identified several areas, including habitat alteration and destruction, loss of biological diversity, global climate change, and indoor air pollution, that were not explicitly targeted by EPA's major statutes, but the SAB did not include others, such as contaminated site remediation, that were a major focus of EPA's media programs. Id.

17. See OFFICE OF POLICY, PLANNING, AND EVALUATION, U.S. EPA, STRATEGIES, GOALS AND ENVIRONMENTAL RESULTS (May 1992) (prepared in response to the Administrator's request and containing a comprehensive evaluation of the adequacy of indicators for measuring environmental trends and conditions).

18. For example, because the REDUCING RISK report had identified habitat loss and ecosystem impairment as urgent environmental problems, an agency wide strategic framework issued in September 1992 declared that "geographic targeting for ecosystem protection" was one of EPA's top priorities and stressed the need for "placebased" approaches to such interconnected concerns as nonpoint source pollution, habitat protection, and biological diversity. U.S. EPA, PRESERVING OUR FUTURE TODAY: STRATEGIES AND FRAMEWORK, EPA 230-R-92-010 (Sept. 1992). Administrator Reilly also committed resources to climate change by creating divisions devoted to atmospheric pollution in the Office of Air and Radiation and the OPPE and launching forays into the emerging area of energy-efficiency through such innovative voluntary programs as Green Lights and Energy Star.

19. EPA's FY 1993 budget was only $ 400 million greater than its FY 1992 budget. According to Professor Steinzor, budget outlays for program operations actually declined in real dollars between 1993 and 1996. Steinzor I, supra note 2, at 10567. EPA's workforce modestly increased between 1995 and 1998 but much of this increase (approximately 800 full-time employees) was devoted to trust fund activities like Superfund cleanup as opposed to operating programs. EVALUATING THE SYSTEM, supra note 8, at 22. Yet during this same period, Administrator Browner created new Offices of Environmental Justice. Children's Health Protection, and Sustainable Ecosystems and Communities.

20. Typical of the criticisms leveled at EPA were the following comments by the National Academy of Public Administration (NAPA) in its 1995 report to Congress:

For most of its history, EPA has had neither an agency-wide strategic plan nor publicly accepted environmental goals to explain the agency's activities or to provide agency employees with a clear sense of direction …. To set better priorities, EPA will need to do a better job in comparing risks and risk-reduction strategies. The former would help it identify areas where additional attention is needed; the latter would help define what kind of attention is appropriate …. Some of the gains would come from shifting money or attention from lower risk to higher risk problems; and some would come from shifting from relatively expensive control strategies to less expensive ones. In either case, EPA would be better able to present its choices to Congress — and ultimately the public — for approval.

NATIONAL ACADEMY OF PUBLIC ADMINISTRATION, SETTING PRIORITIES, GETTING RESULTS: A NEW DIRECTION FOR EPA 140-41 (1995) [hereinafter NAPA I].

Similar themes were expressed by the Presidential/Congressional Commission on Risk Assessment and Risk Management, which advocated "creative, integrated strategies that consider multiple environmental media and multiple sources of risk." PRESIDENTIAL/CONGRESSIONAL COMMISSION ON RISK ASSESSMENT AND RISK MANAGEMENT, FINAL REPORT: RISK ASSESSMENT AND RISK MANAGEMENT IN REGULATORY DECISIONMAKING, Vol. 2, at 7 (1997) The Presidential/Congressional Commission proposed a "risk management approach that addresses the independence of and cumulative effects of various problems, engages a wide range of stakeholders, and enables the setting of priorities." Id. Concern about whether EPA and other agencies were focusing on the greatest risks to health and the environment led the Senate to pass a "risk" amendment proposed by Sen. J. Bennett Johnston (D-La.) to the EPA cabinetbill in the 103d Congress. 139 CONG. REC. 8735-39 (1993). Senator Johnston's Amendment was followed by a flurry of similar legislative proposals after the Republican takeover of Congress in 1994. See S. 343, 104th Cong. (1995); H.R. 1022, 104th Cong. (1995). These bills were highly controversial and were characterized by many as antienvironment, but they illustrate the intense debate surrounding priority-setting and risk-based decisionmaking in EPA's programs during the initial years of the Clinton Administration.

21. The 1993 report of the National Commission on the Environment found that "evaluation … of environmental conditions and the performance of particular programs … has been badly neglected, in part because no politically important groups support the collection and analysis of evaluation data." NATIONAL COMMISSION ON THE ENVIRONMENT, THE REPORT OF THE NATIONAL COMMISSION ON THE ENVIRONMENT: CHOOSING A SUSTAINABLE FUTURE 109 (1993). Echoing this concern, the 1995 NAPA I report concluded that "a particularly important problem is the lack of adequate, high-quality data on environmental conditions and an independent office to analyze and disseminate such data. The agency lacks effective means to ensure that the data used to measure progress towards environmental goals are reliable." NAPA I, supra note 20, at 166. Similarly, Davies and Mazurek noted the "lack of any kind of official reporting mechanism that would tie the agency together or provide EPA's leadership with information about what the constituent parts of the agency are accomplishing." EVALUATING THE SYSTEM, supra note 8, at 35. They further observed that while individual EPA offices and regions were continuing to report each month on how they have performed in relation to several hundred targets and measures, these reports were "unknown not only to the public but to many upper-level EPA officials." Id.

22. For example, The Business Roundtable, which represents the Chief Executive Officers of large companies, argued that "paper-work burdens impose huge costs [and] are a symptom of unreasonable administrative process requirements — complex, bureaucratic, and adversarial procedures for obtaining permits, reviewing compliance and the like." THE BUSINESS ROUNDTABLE, TOWARD SMARTER REGULATION 35-36 (1994). The Roundtable singled out "major EPA regulatory programs" as being based on a "multilayered administrative process" that hindered the competitiveness of American companies. Id.

23. Responding to these concerns, EPA first expanded the number of chemicals subject to Toxic Release Inventory (TRI) reporting and then added seven new industrial sectors to the TRI system. Addition of Certain Chemicals, Toxic Chemical Release Reporting, Community Right-To-Know, 59 Fed. Reg. 614332 (1994) (codified at 40 C.F.R. § 372). In 1995, President Clinton issued an Executive Order directing EPA to proceed with TRI expansion initiatives. Exec. Order No. 12969, 3 C.F.R. 403 (1995), ELR ADMIN. MAT. 45082, reprinted as amended in 40 U.S.C. § 471 (1998). The perceived need for EPA to increase data accessibility to the public is reflected in a 1994 report by a key stakeholder group recommending that EPA "aggressively provide information to the public on environmental issues." IRM STRATEGIC PLANNING TASKFORCE OF THE NATIONAL ADVISORY COUNCIL FOR ENVIRONMENTAL POLICY AND TECHNOLOGY, USING INFORMATION STRATEGICALLY TO PROTECT HEALTH AND THE ENVIRONMENT, EPA 270-K-94-002, at 6 (Aug. 1994). This report recommended "providing easy access to standardized and integrated environmental information" and "developing diverse information dissemination methods." Id.

24. NAPA I, supra note 20, at 6.

25. Administrator Browner reinitiated the Goals Project in a November 18, 1993, memorandum to EPA's political leadership. EPA's 1994 strategic plan describes the National Environmental Goals Project and lists EPA's draft goals. After extensive public outreach and interagency consultation, the goals were reissued in 1996. See OFFICE OF POLICY, PLANNING, AND EVALUATION, U.S EPA, ENVIRONMENTAL GOALS FOR AMERICA WITH MILESTONES FOR 2005 (1996). EPA has never issued a final set of national goals, in part because the goals project has been folded into the larger GPRA strategic planning process.

26. The NAPA report recommended that "EPA should rebuild its central monitoring, evaluation and information management capabilities" and "reestablish a formal accountability system." NAPA I, supra note 20, at 170. NAPA urged that EPA "merge the agency's central management functions into a single office" responsible for strategic planning, budgeting, and program evaluation. Id. at 133. In its February 23, 1996, report, the Planning, Budgeting, and Accountability Taskforce similarly "recommended a comprehensive system joining scientific analysis, planning, budgeting and accountability." PLANNING, BUDGETING, AND ACCOUNTABILITY TASKFORCE, U.S. EPA, MANAGING FOR RESULTS 2 (Feb. 23, 1996). The Taskforce stressed the need for a "strong, centrally managed program" that would support "redirecting resources over time to the most pressing issues" using "comparative risk and strategic plans" to make "more informed choices among the many environmental and public health demands placed on EPA." Id. at 2-3.

27. The new office combined the budgeting and financial management functions previously performed by the Office of Administration and Resources Management (OARM) with strategic planning and evaluation functions assigned to OPPE. A November 1996 Directive from EPA Deputy Administrator Fred Hansen authorizing this reorganization provides a sweeping description of its objectives:

1) the establishment of specific environmental goals and the strategies to attain them; 2) the incorporation of science and use of risk-based and cost-benefit analyses to inform the selection of priorities and the development of specific program strategies; 3) the establishment of quantifiable objectives and performance/results-based measures to determine progress towards meeting these objectives; 4) clear and direct linkages between goals and objectives and resource allocation decisions; and 5) mechanisms to ensure accountability, assess progress, and evaluate programs.

OFFICE OF THE CHIEF FINANCIAL OFFICER, U.S. EPA, A DIRECTIVE CLEARANCE RECORD: ESTABLISHMENT OF A NEW ASSISTANT ADMINISTRATORSHIP (Nov. 1996) (signed by EPA Deputy Administrator Fred Hansen).

28. Proposed legislation elevating EPA to cabinet status would have created a Bureau of Environmental Statistics. S. 171, 103d Cong. (1993). Following the failure of Congress to enact the EPA cabinet bill in 1994, NAPA recommended in its 1995 report the formation of an independent center for information management with a Senate-confirmed director. NAPA I, supra note 20, at 166-67. Responding in part to this recommendation, Administrator Browner's February27, 1997, memo created a Center for Environmental Information and Statistics (CEIS) as an office of OPPE and announced that it would "centralize EPA's information management efforts." Memorandum from EPA Administrator Carol Browner to EPA Employees on Agency Reorganization (Feb. 27, 1992). After considerable internal and external scrutiny of the adequacy of the Agency's information initiatives, the Administrator announced on February 4, 1998, a comprehensive Reinventing Environmental Information action plan restating and expanding EPA's multiple programs to "reinvent environmental reporting, strengthen our capacity to use information effectively to manage environmental programs, and enhance the public's access to information …" Memorandum from EPA Administrator Carol Browner to Senior EPA Officials on Reinventing Environmental Information Action Plan (Feb. 4, 1998). The Administrator then established a taskforce on August 11, 1998, to identify "options on how to fundamentally realign information management and policy at EPA." Memorandum from EPA Administrator Carol Browner to Senior EPA Officials on Comprehensive Information Management (Aug. 11, 1998). Based on the Taskforce recommendations, the Administrator announced the need for a "single program manager responsible for information management, policy and information technology stewardship." Memorandum from EPA Administrator Carol Browner to Senior EPA Officials on Meeting the Information Challenge (Oct. 14, 1998). The scope and structure of this new office were spelled out in a memo from the Administrator dated December 9, 1998. Memorandum from EPA Administrator Carol Browner to Senior EPA Officials on Meeting the Information Challenge — Next Steps (Dec. 9, 1998). Details on the organization of the office were forthcoming early in 1999.

29. For example, the reinvention agenda announced by President Clinton in March 1995 includes commitments to reduce paperwork and reporting burdens by 25 percent and create a consolidated "one-stop" system of cross-media environmental reporting. REINVENTING ENVIRONMENTAL REGULATION, CLINTON ADMINISTRATION REGULATORY REFORM INITIATIVES (Mar. 16, 1995). EPA took a step toward this latter objective by proposing a standardized facility identifier system for reporting companies on October 7, 1996. 61 Fed. Reg. 53588. The 1998 Reinventing Environmental Information Action Plan sets deadlines for adopting common or core data standards that allow integration of 13 major data systems and expanding the availability of electronic reporting of environmental data. CHIEF INSPECTION OFFICER, U.S. EPA, REINVENTING ENVIRONMENTAL INFORMATION ACTION PLAN 11-15 (Feb, 4, 1998).

30. OFFICE OF REGIONAL OPERATIONS AND STATE/LOCAL RELATIONS, U.S. EPA, JOINT COMMITMENT TO REFORM OVERSIGHT AND CREATE A NATIONAL ENVIRONMENTAL PERFORMANCE PARTNERSHIP SYSTEM (May 17, 1995) [hereinafter NEPPS PROGRAM].

31. OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE, U.S. EPA, MEASURING THE PERFORMANCE OF EPA'S ENFORCEMENT AND COMPLIANCE ASSURANCE PROGRAM, FINAL REPORT OF THE NATIONAL PERFORMANCE MEASURES STRATEGY (Dec. 1997). A report from the GAO evaluating the collaborative efforts of EPA and the states to experiment with innovative enforcement measures concluded that these measures "have proven to be much more difficult than counting and reporting traditional enforcement 'outputs,' such as the number of inspections conducted or penalties assessed." U.S. GAO, EPA's AND STATES' EFFORTS TO FOCUS STATE ENFORCEMENT PROGRAMS ON RESULTS, GAO/T-RECD-98-233 (June 1998). The GAO found that developing results-oriented enforcement measures is challenging because of the "frequent absence of baseline measures" and the "inherently greater difficulty and expense involved in quantifying outcomes," such as industrywide compliance rates. Id.

32. Project XL was launched in March 1995 as part of President Clinton's Reinventing Environmental Regulation initiative and creates a framework for innovative projects that would allow regulated parties to replace traditional administrative and regulatory requirements with alternatives that would be superior environmentally as well as more efficient. The criteria for XL projects were announced in 1995 and 1997 guidance documents. See 60 Fed. Reg. 27282 (May 23, 1995); 62 Fed. Reg. 19872 (Apr. 23, 1997). The Common Sense Initiative (CSI) was launched by Administrator Browner in 1994 to create multistakeholder groups that would address six major industry sectors and determine whether there were "cheaper, cleaner" alternatives to traditional regulation. U.S. EPA. THE COMMON SENSE INITIATIVE: LESSONS LEARNED ABOUT PROTECTING THE ENVIRONMENT IN COMMON SENSE, COST EFFECTIVE WAYS (Dec. 1998).

33. The CSI has been particularly controversial, and a number of industry and environmentalist stakeholders have withdrawn from the process because of dissatisfaction with the lack of progress or concern about the fairness of EPA's consensus-building procedures. In a report on the CSI, the GAO noted that "many of the [CSI] workgroups have not been able to reach agreement on the objectives for their projects or on the approaches needed to address big issues or policies …." U.S. GAO, REGULATORY REINVENTION: EPA'S COMMON SENSE INITIATIVE NEEDS AN IMPROVED OPERATING FRAMEWORK AND PROGRESS MEASURES 6-7 (July 1997). The GAO also faulted EPA because it had not "established results- or outcomebased measures for assessing theextent to which the Initiative has reduced or prevented pollution at less cost to industry and the taxpayer through regulatory reinvention." Id. Similar issues were raised in a contractor study performed for EPA. THE SCIENTIFIC CONSULTING GROUP, REVIEW OF THE COMMON SENSE INITIATIVE (Feb. 1997).

While the XL program has generally been more favorably received than the CSI, it too has failed to meet expectations. In its 1997 report, NAPA found that Project XL has

inspired far fewer bolder ideas to improve the regulatory framework than [its] advocates had anticipated. Plausible explanations include not only the lack of clear statutory authority for XL but also high transaction costs, uncertain results, and the difficulty of imagining a new approach that would meet all the technical, legal, and economic constraints that a firm would impose on any daring innovation.

NATIONAL ACADEMY OF PUBLIC ADMINISTRATION, RESOLVING THE PARADOX OF ENVIRONMENTAL PROTECTION, AN AGENDA FOR CONGRESS, EPA, AND THE STATES 20 (Sept. 1997) [hereinafter NAPA II]. In a broad review of EPA's reinvention initiatives, the GAO similarly expressed concern about "the large number of complex and demanding initiatives now being undertaken," "difficulty in achieving agreement among external stakeholders," and EPA's "uneven record in evaluating the success of many of its initiatives." U.S. GAO, CHALLENGES FACING EPA'S EFFORTS TO REINVENT ENVIRONMENTAL REGULATION 6 (June 1997).

34. Despite its mixed results, some of the CSI sectors have achieved important breakthroughs. A notable example is the Strategic Goals Program for metal finishers, under which the industry agreed to toxic release reduction targets for air emissions and water discharges and an ambitious program to enhance compliance while EPA agreed to reduced reporting and monitoring, expedited regulatory decisionmaking, and enforcement discretion for technology demonstration projects. A similar milestone is the PrintSTEP program for tiered regulatory oversight, pollution prevention, and permit streamlining developed by EPA and the printing industry. THE COMMON SENSE INITIATIVE: LESSONS LEARNED ABOUT PROTECTING THE ENVIRONMENT IN COMMON SENSE, COST EFFECTIVE WAYS, supra note 32, at 10-11. Project XL has proceeded in fits and starts but innovative project agreements have been reached with several major companies that embody novel approaches to permitting, reporting, and pollution prevention. For example, the XL project for Merck & Co., Inc.'s pharmaceutical manufacturing facility limits certain pollutant emissions below actual levels by operating under a sitewide emissions cap and converting its coal-burning powerhouse to natural gas. 62 Fed. Reg. 52622 (Oct. 8, 1997). Similarly, Lucent Technologies proposed a project based on the ISO 14001 Environmental Management System (EMS) for their entire worldwide microelectronics business unit. Specifically, Lucent proposed to use its EMS as a framework to simplify permitting, recordkeeping, and reporting requirements. 63 Fed. Reg. 47022 (Sept. 3, 1998). Likewise, Weyerhaeuser Company signed a Final Project Agreement on January 17, 1997, stating it would initiate steps to decrease water use by about one million gallons per day and meet or exceed all regulatory targets. Weyerhaeuser Company, Weyerhaeuser Flint River Operations Project XL. Final Project Agreement (visited Mar. 23, 1999) http://www.yosemite.epa.gov/xl/xl_home.nsf/all/wey_final_fpa_html. Further, Intel's semiconductors manufacturing facility in Chandler, Arizona, entered an agreement with EPA on November 16, 1996, that implements an Environmental Management Master Plan that includes a facilitywide cap on air emissions that replaces individual permit limits for various air emissions sources. Intel Corporation, Project XL: Final Project Agreement for the Intel Corporation Ocotillo Site (visited Mar. 23, 1999) http://www.yosemite.epa.gov/xl/xl_home.nsf/all/intel_fpa_final.html. EPA has also entered into an agreement with Massachusetts that authorizes self-certification of compliance with environmental release limits in lieu of facility-by-facility permitting. 63 Fed. Reg. 43592 (Aug. 13, 1998).

35. Memorandum from U.S. EPA Administrator Carol Browner to EPA Employees on Agency Reorganization (Feb. 27, 1997). The Administrator stated that the new office would "consolidate the full range of Agency reinvention efforts" and that "incorporating reinvention principles into the way we do business … are large tasks and they merit a prominent place in our organization." Id. The new office has also helped to focus and rationalize the large number of reinvention initiatives launched by EPA management.

36. Steinzor I, supra note 2, at 10565.

37. According to the law's statement of congressional purposes, GPRA is intended to "improve the confidence of the American people in the capability of the Federal Government, by systematically holding Federal agencies accountable for achieving program results" and to "initiate program performance reform with a series of pilot projects in setting program goals, measuring program performance against these goals, and reporting publicly on their progress." Pub. L. No. 103-62, § 2(b), 107 Stat. 285 (1993).

38. 5 U.S.C. § 306(a).

39. 31 U.S.C. § 1115(a).

40. Id. § 1116.

41. The best overall description of the components of EPA's strategic planning process is contained not in the plan itself but in an internal EPA document prepared by the Chief Financial Officer and her team. PLANNING, BUDGETING, ANALYSIS, AND ACCOUNTABILITY GROUP, U.S. EPA, A FRAMEWORK FOR PLANNING, BUDGETING, ANALYSIS AND ACCOUNTABILITY AT THE EPA (Oct. 8, 1996) (on file with author).

42. According to Professor Steinzor:

The explicit assumption that the achievement of statutory mandates is a goal separate and distinct from reducing risk — or, put another way, that the achievement of mandates does not necessarily reduce risk — is troubling because it suggests that EPA may be willing to assign statutory mandates a lower priority than reductions of "risk" it defines administratively ….

Steinzor I, supra note 2, at 10076.

43. 42 U.S.C. §§ 7401-7671q. ELR STAT. CAA §§ 101-618.

44. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

45. 42 U.S.C. §§ 300f to 300j-26, ELR STAT. SDWA §§ 1401-1465; STRATEGIC PLAN, supra note 6, at 25-33 (addressing Goal 1: Clean Air and Goal 2: Clean and Safe Water).

46. STRATEGIC PLAN, supra note 6, at 36-42 (addressing Goal 3: Preventing Pollution and Reducing Risk in Communities, Homes, Workplaces, and Ecosystems). To some degree, statutes like the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2692, ELR STAT. TSCA §§ 2-412, and the Pollution Prevention Act of 1990, 42 U.S.C. §§ 13101-13109, ELR STAT. PPA §§ 13101-13109, correspond to this goal, but these laws are expressed far more narrowly than the goal itself.

47. STRATEGIC PLAN, supra note 6, at 26, 29.

48. Id. at 80-88 (describing key cross-agency programs).

49. ENTERPRISE FOR THE ENVIRONMENT, THE ENVIRONMENTAL PROTECTION SYSTEM IN TRANSITION, TOWARD A MORE DESIRABLE FUTURE 12-18 (1998) [hereinafter E4E REPORT] (available from the Center for Strategic and International Studies and on the Internet at http://www.csis.org/e4e/). E4E was a consensus-building project chaired by former EPA Administrator William Ruckelshaus that involved over 80 participants including: a bipartisan group of members of Congress, state and local government officials, former EPA Administrators, and leaders from business, the environmental community, and academic and research institutions. The E4E Report parallels the recommendations of the President's Council on Sustainable Development. See PRESIDENT'S COUNCIL ON SUSTAINABLE DEVELOPMENT, NATIONAL GOALS TOWARD SUSTAINABLE DEVELOPMENT (1995).

50. Id. at 17.

51. Id.

52. For an excellent overview of the importance of performance measures in environmental policy, see SHELLEY METZENBAUM, BROOKINGS INSTITUTION'S CENTER FOR PUBLIC MANAGEMENT, MAKING MEASUREMENT MATTER: THE CHALLENGE AND PROMISE OF BUILDING A PERFORMANCE-FOCUSED ENVIRONMENTAL PROTECTION SYSTEM (Oct. 1998).

53. STRATEGIC PLAN, supra note 6, at 50-52 (addressing EPA Goal 7).

54. E4E, in contrast, concluded that "goals should describe the state of public health and the environment the nation seeks in the future, reflecting collective values and the best science." E4E REPORT, supra note 49, at 13. According to E4E, "when possible, policymakers should translate a qualitative goal into a quantitative goal (e.g., 'consistently safe drinking water will not contain more than [chi] parts per million of bacteria')." Id. Whether goals should focus strictly on environmental outcomes was an issue raised in comments on EPA's draft strategic plan. EPA responded to this concern, see STRATEGIC PLAN, supra note 6, at 105-06, but the issue merits fuller discussion.

55. STRATEGIC PLAN, supra note 6, at 52, 56, 59 (addressing EPA Goals 8, 9, and 10).

56. Id. at 43.

57. Again, it is instructive to examine E4E's discussion of "milestones," which is a concept roughly equivalent to EPA's concept of "objectives." According to E4E, "milestones should reflect how far and how fast society should move toward a goal in a given period of time." Id. at 14. To serve this function effectively, milestones or objectives should state expected environmental outcomes by a given date with precision and specificity so that the regulated community and the Agency have definite targets to work toward and will be accountable for success or failure in achieving these targets.

58. STRATEGIC PLAN, supra note 6, at 45.

59. Id at 49.

60. Part of the problem is that no consistent format is used for presenting these performance measures, and they are not collected in a single portion of the strategic plan, making it difficult to obtain a clear overview of the key performance measures that EPA, Congress, and stakeholders should use to evaluate the effectiveness of EPA's programs. The plan contains a useful discussion of EPA's plans for "assessing our results" that expresses the Agency's commitment to "developing better performance measures," id. at 92-93, but it has been difficult to track EPA's progress in refining its performance measures since the plan was issued in 1997.

61. STRATEGIC PLAN, supra note 6, at 20-21. This issue was addressed by EPA's response to comments on its draft plan. Id. at 105.

62. While positive about many aspects of EPA's strategic plan, two GAO reports on EPA's GPRA implementation process note many of these limitations. For example, the GAO's 1997 report on EPA's draft strategic plan finds that the plan provides limited details on such important challenges as setting priorities and ensuring the quality and completeness of the scientific research on which the agency bases its decisions. It also notes that EPA needs to "identify, develop and reach agreement on a comprehensive set of performance measures for the agency" and "to find the right balance of environmental and activity measures." U.S. GAO, RESULTS ACT: OBSERVATIONS ON EPA'S DRAFT STRATEGIC PLAN, GAO/RECD-97-209R, at 5-7 (July 1997). According to the GAO, the large number of goals and objectives may make it difficult for the "Congress, other stakeholders, and possibly agency managers to discern EPA's priorities — that is, what will be most important to the agency over the next several years." Id. In its 1998 report on EPA's FY 99 performance plan, the GAO recommends "including more outcome goals in the plan," notes that "the plan could more clearly link its performance goals to the measures that are to be used to assess whether they are achieved," and indicates that EPA's plan "could provide greater confidence that the agency's performance information will be credible." U.S. GAO, RESULTS ACT: OBSERVATIONS ON EPA'S ANNUAL PERFORMANCE PLAN, GAO/RECD-98-166R, at 2-3 (Apr. 1998).

63. The FY 99 ANNUAL PLAN specifies "data sources" that will be used for "key program measures verification," but the precise information to be extracted from these sources and how it will be used are not clarified. See, e.g., FY 99 ANNUAL PLAN, supra note 6, at 1-7 (detailing air quality goals and performance measures).

64. Steinzor I, supra note 2, at 10566.

65. Id. at 10573-74. Repeating this point in her second Dialogue, Steinzor speculates that "EPA may try to meet GPRA's requirements by cooking the numbers to demonstrate progress, confusing its outside constituencies, its congressional overseers, and, ultimately, the public about the true state of the environment." Steinzor II, supra note 2, at 10076. Of course, the best safeguard against this misuse of GPRA is development of a credible, objective set of environmental indicators that cannot be manipulated for political purposes — a step that many respected commentators, including NAPA and E4E, strongly recommend but that Steinzor does not directly discuss.

66. The House has not held hearings on EPA's GPRA efforts but several committee chairs sent a letter to EPA commenting on its draft strategic plan. Letter from U.S. Representatives Thomas Bliley (R-Va.), F. James Sensenbrenner (R-Wis.), Dan Burton (R-Ind.), and Bud Shuster (R-Pa.) to Administrator Carol Browner (July 28, 1997). Although this letter expresses a range of concerns about EPA's draft strategic plan, its tone is temperate and balanced. The letter in fact recognizes positive features of EPA's plan and the need for extensive practical experience and experimentation in implementing GPRA effectively. The letter states:

The Agency's draft strategic plan is a commendable first step …. We acknowledge the evident effort and thoughtfulness that went into drafting EPA's strategic plan. Nor should we fail to recognize that there is much of which we approve in the draft plan. Our critique will, we hope, be accepted in the constructive spirit in which it is offered.

Id. at 1-2.

67. By historical standards, congressional gridlock on environmental issues in the 1990s is unique and deeply unsettling. As noted above, Congress enacted seven major environmental statutes during the period 1984-1990. Since then, only two laws of consequence — the Safe Drinking Water Act Amendments of 1996, Pub. L. No. 104-182, 110 Stat. 1616 (codified in scattered sections of 42 U.S.C. §§ 300f to 300j-26), and the Food Quality Protection Act, Pub. L. No. 75-717, 110 Stat. 1513 (codified at 21 U.S.C. §§ 301-391) — have been passed. Legislation to reauthorize the Comprehensive Environmental Response, Compensation, and Liability Act and the Clean Water Act has been introduced in multiple Congresses but has stalled repeatedly. Even proposalsto elevate EPA to cabinet status, which was initially considered uncontroversial, have proven divisive and have been abandoned. The authorization of core statutes like the CAA has now lapsed, and EPA's authorizing committees have begun to consider a bill to permanently authorize the Agency, apparently in recognition of the difficulty of periodic statute-by-statute updates like those enacted in the 1980s. See GOP Staff Consider Idea of Stand-Alone EPA Authorization Bill, INSIDE EPA, Jan. 29, 1999.

68. The lack of integration across EPA's programs is a widely recognized and serious problem. Davies and Mazurek identify several serious consequences of the lack of integration. For example, they note: "many existing pollution problems require an integrated approach for their solution," "an integrated approach is far more effective in obtaining compliance and reducing pollution," "considerable evidence indicates that an integrated approach would not only be more effective in protecting environmental quality," "the current fragmented system is a major impediment to identifying new environmental problems," and "the existing pollution control system has become so disjointed and cumbersome that no one can understand or make sense of it." EVALUATING THE SYSTEM, supra note 8, at 17-18.

NAPA has also emphasized the problems caused by "the fragmented patchwork of EPA's statutes": "Fragmentation makes it harder to protect the environment"; "the differences among statutes and regulatory regimes make it more costly for EPA and states to manage their programs and for businesses and communities to figure out how to comply"; and "fragmentation discourages innovation." NAPA II, supra note 33, at 65.

69. E4E has emphasized the role of these factors in an integrated framework for setting goals and milestones. According to E4E, this framework "encourages decisions that appropriately weigh cost, equity and other social concerns." For example, "each milestone should reflect cost, equity, the severity of the risk, benefits, feasibility, and other factors." E4E REPORT, supra note 49, at 12, 14.

70. Davies and Mazurek have compiled the results of numerous comparative risk analyses, including many performed by or for EPA. They concluded that EPA's current priorities are badly askew "when viewed in terms of total risk reduction and total benefit to the population" and that "EPA appears to be devoting significant resources to problems that pose relatively moderate to low risks to human health and the environment." EVALUATING THE SYSTEM, supra note 8, at 110. They note that, while "the relationship between priorities and risk is a fundamental criterion that should be considered in evaluating the pollution control system," "the priorities are set primarily by Congress" and will be out of kilter until EPA has greater priority-setting discretion. Id. at 276-78.

71. In recent months, EPA has in fact begun to shift toward an integrated risk-based strategy for air toxics. One option being considered by EPA is postponing the issuance of maximum achievable control technology standards that are required to meet statutory deadlines but have limited benefits from a risk-reduction standpoint. Alec Zacaroli, New Approach to Air Toxics May Revamp Priorities, Require Congressional Approval, Daily Env't Rep. (BNA), Nov. 12, 1998, at AA-1: Draft Integrated Urban Air Toxics Strategy to Comply With Sections 112(d), 112(c)(3), and 202(c) of the Clean Air Act, 63 Fed. Reg. 49240 (Sept. 14, 1998).

72. A rich literature from policymakers and academics documents the sea change in thinking about environmental problems that has occurred since the last wave of legislative activity in the 1980s. Concepts like sustainable development, industrial ecology, and pollution prevention have begun to replace the traditional congressional focus on end-of-pipe controls. Water quality issues have broadened from the historical emphasis on point-source discharges to reflect a much more sophisticated understanding of the interrelationships between nonpoint pollution from urban or agricultural runoff, watershed and source water protection, water conservation, and overall ecosystem quality and habitat protection. In addition, with the emergence of climate change concerns and a host of new air quality issues, it is now widely recognized that environmental improvement is affected by a host of transportation, energy production, and land use factors that are not directly addressed by EPA's core statutes and may in fact be outside the Agency's traditional jurisdiction. See, e.g., THE NATIONAL COMMISSION ON THE ENVIRONMENT, CHOOSING A SUSTAINABLE FUTURE: THE REPORT OF THE NATIONAL COMMISSION ON THE ENVIRONMENT (1993); THINKING ECOLOGICALLY: THE NEXT GENERATION OF ENVIRONMENTAL POLICY (Marian Chertow & Daniel Esty eds., 1997); ECOLOGICAL ECONOMICS: THE SCIENCE AND MANAGEMENT OF SUSTAINABILITY (Robert Costanza ed., 1991); PRESIDENT'S COUNCIL ON SUSTAINABLE DEVELOPMENT, SUSTAINABLE AMERICA: A NEW CONSENSUS FOR PROSPERITY, OPPORTUNITY, AND A HEALTHY ENVIRONMENT FOR THE FUTURE (1996); EVALUATING THE SYSTEM, supra note 8; and E4E REPORT, supra note 49.

73. NAPA has recognized that the influence of EPA's new planning and accountability office remains uncertain:

It remains to be seen if the political leaders of the agency have equipped the new office with the resources and backing it will need to do the difficult job it has before it …. The analysis group must be strong and should be empowered to make cross-program comparisons of goals, objectives, and specific risk reduction strategies.

NAPA II, supra note 33, at 45.

74. Recognizing the difficulty of realigning EPA's priorities within existing statutory constraints and the need for better cross-media coordination of EPA's programs, many observers have called for cross-cutting environmental legislation that would give EPA greater policymaking discretion. Some of these proposals envision replacement of existing media statutes with a single "organic" environmental law. E.g., TERRY DAVIES, RESOURCES FOR THE FUTURE, ENVIRONMENTAL PROTECTION ACT, DRAFT 2 (1988); NATIONAL ENVIRONMENTAL POLICY INSTITUTE, INTEGRATING ENVIRONMENTAL POLICY: A BLUEPRINT FOR 21ST CENTURY ENVIRONMENTALISM (1996).

Others have argued that, to promote a more incremental evolution to a new statutory framework. Congress should enact an "integrating" statute that provides EPA with greater cross-media flexibility and policymaking discretion in administering existing laws but does not replace these laws. E.g., NAPA II, supra note 33, at 67-70; Robert M. Sussman, An "Integrating" Statute, ENVTL. F., Mar./Apr. 1996, at 16). Whether or not integrating legislation is enacted, Congress and EPA need to develop a more flexible, interactive framework for oversight, with greater give-and-take in setting priorities and less congressional micromanagement.

75. As Steinzor caustically notes, "GPRA gives EPA's congressional critics a new way to avoid responsibility for saddling the Agency with popular programs while starving it of resources, a phenomenon described as 'battered agency syndrome' by one of its former Administrators." Steinzor I, supra note 2, at 10564.

76. As a result of caps on discretionary spending, the appropriations subcommittees responsible for EPA have been faced with the unpleasant responsibility of apportioning a finite funding allotment among several popular agencies, including not only EPA but also the Department of Veteran Affairs, the National Aeronautics and Space Administration, and the Department of Housing and Urban Development. Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 1311, 104 Stat. 1388, 1388-602. This is not to say that the appropriators have been benignly disposed toward EPA and its programs but rather that budget realities have been at least as important as politics in determining funding levels for EPA.

77. Based on these considerations, NAPA recommended that EPA "encourage program and office managers to use information about comparative risks even more extensively than they do now in making decisions about how to use the resources available to them." NAPA also emphasized the importance of "a stable, analytically based budget process" in which "allocating resources [is] based on comparative risk projects." NAPA I, supra note 20, at 163.

78. As NAPA has emphasized, congressional micromanagement of the EPA budget through extensive earmarks and riders has had a corrosive impact on EPA and needs to be replaced by a more consensual appropriations process. Id. at 132.

79. One unfortunate example is EPA's efforts in two Congresses to boost appropriations for the Superfund program by $ 500 million despite claims by Congress that it had failed to justify the need for this additional funding. In its latest budget proposal, EPA did not renew this request and effectively conceded that cleanup progress was adequate at existing funding levels. EPA to Drop $ 650 Million Boost for Superfund in FY 2000 Budget Request, INSIDE EPA'S SUPERFUND REP., Jan. 28, 1999. EPA's FY 2000 budget also included proposals for a new Clear Air Partnership Fund, which was questioned by Congress on the ground that EPA had not provided a concrete justification for this new program. EPA, State Officials Set to Defend Clean Air Partnership Fund, INSIDE EPA'S REINVENTION REP., Apr. 7, 1999, at 7; S. Rep. No. 106-27, at 118 (1999). At the same time, one can argue that important but less publicized EPA programs, such as regulation of toxics, research on air quality, control of animal feedlots, and indoor air pollution, continue to be shortchanged in the budget process because EPA has not made a maximum effort to demonstrate their environmental benefits.

80. Unfortunately, in the two budget cycles since EPA began developing Annual Performance Plans under GPRA, there has been little discernible change in the prevailing dynamic for the EPA appropriations process. While EPA has made strides in repackaging its budget proposals to fall within the GPRA goal-and-objective framework, both the Agency and Congress have focused on a few high-profile budget issues with obvious political implications. There has been minimal effort on either side to use the GPRA process for probing scrutiny of the resource levels required to achieve high-priority risk-based objectives or on the role of performance measures in evaluating the progress toward these objectives achieved by EPA's programs with currently available resources. One reason for the limited impact of GPRA has been EPA's practice of incorporating its Annual Plan in its overall budget submission to Congress and the absence of a stakeholder process for developing and obtaining feedback on the plan's contents before its finalization. While EPA's approach may be needed to assure the confidentiality of the Administration's budget deliberations, the absence of public input is disappointing in light of NAPA's finding that the GPRA process has "the potential to open environmental priority setting to the public, state legislatures and Congress in new ways" and "put[s] a premium on transparent data and decisionmaking." NAPA II, supra note 33, at 58. EPA should explore mechanisms for stakeholder involvement in development and implementation of its Annual Plan that do not undermine the confidentiality of the budget process.

81. According to Steinzor, "unless EPA gets many more resources or is relieved of many of its statutory mandates, it will have tremendous difficulty developing quantifiable performance measures." Steinzor I, supra note 2, at 10570,

82. Steinzor argues that "EPA's goals under GPRA are unlikely to become more specific unless [EPA] and the states commit significant resources to the rulemaking and monitoring that are necessary to define, much less measure, progress." Failing additional resources, she speculates, "EPA may try to meet GPRA's requirements by cooking the numbers to demonstrate progress, confusing its outside constituencies, its congressional overseers, and, ultimately, the public about the true state of the environment." Steinzor II, supra note 2, at 10076.

83. 44 U.S.C. § 35.

84. CHEMICAL MANUFACTURERS ASSOCIATION, ENVIRONMENTAL PAPERWORK, A BASELINE FOR EVALUATING EPA'S PAPERWORK REDUCTION EFFORTS (Apr. 1996). As described by the Chemical Manufacturers Association (CMA), the Office of Management and Budget (OMB) data collected under the Paperwork Reduction Act indicates that, in 1994, compliance with EPA recordkeeping and reporting requirements required 86 million hours, with an average cost of compliance of $ 40 per hour. These OMB data show that paperwork burdens increased in subsequent years although EPA had adopted a goal of reducing paperwork burdens by 25 percent. As a result, the GAO determined that, as EPA implements statutory requirements and expands programs like TRI, new paperwork burdens are being added at a faster rate than existing burdens are being reduced. The GAO predicted that overall paperwork burdens were expected to reach 117 hours in 1996, a 15.5 percent increase from the baseline EPA established in 1995. U.S. GAO, Assessing EPA's Progress in Paperwork Reduction, U.S. GAO's Testimony Before the House Comm. on Small Business, GAO/T-RECD-96-107, 104th Cong. (Mar. 21, 1996).

85. COMPREHENSIVE INFORMATION MANAGEMENT TASK FORCE AND INFORMATION WORKING GROUP, U.S. EPA, FINAL REPORT, STRUCTURAL AND FUNCTIONAL OPTIONS FOR EPA'S NEW INFORMATION OFFICE 6 (Dec. 1998). According to this report, annual EPA outlays for information resources management/technology and content total $ 150 million. Based on discussions with EPA staff, NAPA concluded that "EPA offices and branches spend about $ 500 million annually on information management; including about $ 299 million for information about payrolls, contracts, and other Agency expenditures." NAPA II, supra note 33, at 175 n.64.

86. NATIONAL SCIENCE AND TECHNOLOGY COUNCIL, COMMITTEE ON ENVIRONMENT AND NATURAL RESOURCES, AN AGENDA FOR ENVIRONMENTAL AND NATURAL RESOURCE RESEARCH (Mar. 1995). EPA's contribution to these activities, primarily through the laboratories housed in the Office of Research and Development, is in the range of $ 500 million.

87. According to EPA, its "separate legislative mandate and resulting decentralized program management approach have led to a burden on states and industry to submit status and compliance reports in multiple formats, to different locations, and on separate schedules." U.S. EPA, REINVENTING ENVIRONMENTAL INFORMATION ACTION PLAN (DRAFT) 22 (Nov. 25, 1997). EPA also acknowledges that:

Currently, there is little coordination in the definition of terms across Agency and partner program databases. For example, EPA databases identify a "facility" in many different ways using many definitions. As a result, it is difficult (if not infeasible) to combine data from different databases to get a comprehensive view of a facility's compliance, emissions or other aspects.

Id. at 27. Similar assessments of EPA's information management problems are provided in NAPA I, supra note 20, at 166, and the E4E REPORT, supra note 49, at 21.

88. EVALUATING THE SYSTEM, supra note 8, at 269.

89. Id.

90. As NAPA explained:

The data available to EPA are fragmented and difficult to use in painting coherent, detailed pictures of emissions and environmental conditions. EPA's own data systems were designed by separate program offices to meet their own statutory and regulatory requirements. These databases are not well coordinated and often use incompatible definitions and analytical methods, making data integration difficult or impossible. In addition, EPA relies on other federal agencies and on states and local governments to collect much environmental data, and those entities have developed their own standards and procedures …. EPA has little leverage to ensure that these data are available in a timely and useful fashion to EPA decisionmakers.

NAPA II, supra note 33, at 54.

91. It is not widely appreciated how much of the nation's monitoring data on ambient environmental conditions is developed by agencies other than EPA. For example, the National Oceanic and Atmospheric Administration is responsible for long-term monitoring of oceans, coastal and marine resources, and the atmosphere, with a special focus on surface-level ozone, acid deposition, visibility, and ozone-depletion issues. The U.S. Geological Service conducts extensive monitoring of water quality, including the status and trends of the nation's surface water and groundwater resources. Based on the scope and importance of these programs, E4E notes that "several recent reports have recommended … making the many federal agency-managed monitoring databases compatible with each other" and "improving the interagency process for both identifying research needs and investing in new tools for evaluating the health and ecological effects of pollutants." E4E REPORT, supra note 49, at 21. E4E endorses "an acceleration of efforts to better coordinate and strengthen federal programs that generate environmental knowledge …." Id. at 22.

92. A recent GAO report to Congress on EPA's management challenges found that

EPA needs comprehensive information on environmental conditions and changes over time … to set priorities, evaluate the success of its programs and activities, and report on its accomplishments in a most credible and informed way …. EPA's strategic and annual performance plans under the Results Act recognize EPA's need to improve its collection, management and dissemination of environmental data …. Achieving these improvements will require long-term commitment and resources.

U.S. GAO, MAJOR MANAGEMENT CHALLENGES AND PROGRAM RISKS, ENVIRONMENTAL PROTECTION AGENCY, GAO/OCG-99-17, at 17-18, 21 (Jan. 1999). In the face of such recommendations, it would be difficult for Congress to reject additional funding to improve EPA's system of environmental performance measures.

93. E4E REPORT, supra note 49. at 6-7.

94. Memorandum from EPA Administrator Carol Browner to Senior EPA Officials on Comprehensive Information Management (Aug. 11, 1998).

95. Over 300 companies issue corporate environmental performance reports worldwide. ALLEN WHITE & DIANA ZINKL, GREEN METRICS: A GLOBAL STATUS REPORT ON STANDARDIZED CORPORATE ENVIRONMENTAL REPORTING (1998) (prepared for the Coalition for Environmentally Responsible Economics (CERES) Annual Conference in Boston, Mass.) Many of these reports conform to the guidelines of the CERES. See CERES, 1997 CERES REPORT STANDARD FORM (1997). A comprehensive survey recently conducted for the Global Environmental Management Initiative (GEMI) notes the growing prominence of corporate environmental, health, and safety systems with defined goals, performance measures, and internal tracking procedures and the increased movement within industry toward documenting improved performance for critical environmental indicators. TERRY F. YOSIE & TIMOTHY D. HERBST, CORPORATE ENVIRONMENTAL, HEALTH AND SAFETY PRACTICES IN TRANSITION (Sept. 1996) (prepared for the GEMI). Based on these trends, E4E recommended that "metrics and indicators for measuring the effectiveness of business stewardship must be developed" and "mechanisms and formats for tracking and reporting these indicators to the public should be identified." E4E REPORT, supra note 49, at 53.

A growing responsiveness of industry to providing the health and environmental effects data needed to support risk-based priority setting has also been in evidence. While Steinzor asserts that "crucial interest groups not only lack effective incentives to cooperate in a comprehensive research agenda, but have an affirmative interest in thwarting it." Steinzor I, supra note 2, at 10565, the CMA has recently joined forces with EPA and the Environmental Defense Fund to promote a voluntary testing program on high production volume chemicals estimated to cost several hundred millions of dollars. Joint Announcement of Cooperative Program for High Production Volume U.S. Industrial Chemicals Announced October 9, 1998, Daily Env't Rep. (BNA), Oct. 13, 1998, at E-7; Peter Fairley, First HPV Volunteers Step Forward, CHEMICAL WK., Mar. 10, 1999, at 14. The CMA has also launched its own research program to enhance knowledge of the health and environmental impacts of chemicals. Bart McMeen, Manufacturers to Pay $ 67 Million to Fuel Research on Health, Environmental Effects, Daily Env't Rep. (BNA), Jan. 28, 1999, at AA-1.

96. Steinzor II, supra note 2, at 10075.

97. Id.

98. Id. at 10078.

99. There is no doubt that the relationship between EPA and the states has at times been an acrimonious one, with several simmering disputes over issues like state audit privilege laws, the adequacy of state enforcement programs, and the state role in regulatory reinvention. It is simplistic, however, to view these disputes as solely a power struggle over devolution of environmental responsibility or to overlook the considerable success of EPA and the states in reaching an understanding on most of the issues that have divided them.

100. U.S. EPA, REPORT OF THE TASKFORCE TO ENHANCE STATE CAPACITY (June 1993). The role of the taskforce in catalyzing the work that led to the NEPPS program is described in NAPA II, supra note 33, at 147.

101. NEPPS PROGRAM, supra note 30.

102. The operation of the NEPPS process is described in NAPA II, supra note 33, at 146, 147-48.

103. Performance Partnership Grants for States and Tribal Environmental Programs: Revised Interim Guidance, 61 Fed. Reg. 42887 (Aug. 19, 1996).

104. Steinzor II, supra note 2, at 10078.

105. NAPA II, supra note 33, at 49.

106. Id.

107. Id.

108. As NAPA found in its case study of the New Jersey NEPPS agreement, "the transition to performance-based management can require major investments in collecting and analyzing information about environmental conditions" and "the necessity of some continued reporting on state activities, in addition to new reporting on environmental conditions may mean the net effect is to add to management activities and costs." Id. at 146, 164.

109. Steinzor II, supra note 2, at 10078.

110. OFFICE OF STATE AND LOCAL RELATIONS, U.S. EPA, MEMORANDUM FROM FRED HANSEN, EPA DEPUTY ADMINISTRATOR, AND HAROLD REHEIS, ECOS PRESIDENT TO SENIOR EPA AND STATE OFFICIALS TRANSMITTING JOINT STATEMENT ON MEASURING PROGRESS UNDER THE NATIONAL ENVIRONMENTAL PERFORMANCE PARTNERSHIP SYSTEM (Aug. 20, 1997).

111. U.S. EPA, ADDENDUM TO 1997 JOINT STATEMENT ON MEASURING PROGRESS UNDER NEPPS: CLARIFYING THE USE AND APPLICABILITY OF CORE PERFORMANCE MEASURES 2-3 (Mar. 19, 1999).

112. After extended disagreement about these issues, the states and EPA agreed to the recent Addendum to the Joint Statement in order to resolve their differences. This Addendum recognizes that core performance measures are only required for states participating in the NEPPS process and that "there is a need to accommodate the circumstances of individual states" where a particular measure "does not fit in a state's or region's situation." Id. at 3-4. The Addendum also reaffirms that "EPA and ECOS remain firmly committed to reducing high cost/low value reporting requirements on States and others and wish to accelerate progress toward this end." Id. at 5.

113. E4E REPORT, supra note 49, at 43. The E4E REPORT, which was supported by governors, attorney generals, and environmental commissioners representing eight states, also emphasized that "national environmental standards are needed to ensure a 'level playing field' among states and to avoid backsliding in levels of environmental performance." Id.

114. It is certainly the case that a few state officials have resisted performance measures that they perceive as useful only for purposes of GPRA, but there is no reason to believe that a large number of states fail to recognize the need to integrate the performance measures developed under NEPPS with the national goal-setting and accountability system created by EPA under GPRA. While recognizing the difficulty in reaching agreement on specific environmental indicators, the GAO recently emphasized that "EPA will need a set of measures common to all states to report to the Congress and the public on the agency's performance and the condition of the nation's environment." U.S. GAO, MANAGING FOR RESULTS, EPA'S EFFORTS TO IMPLEMENT NEEDED MANAGEMENT SYSTEMS AND PROCESSES, GAO/RCED-97-156, at 9 (June 1997). Few would dispute this view.

115. Steinzor II, supra note 2, at 10080.

116. NAPA I, supra note 20, at 72.

117. EVALUATING THE SYSTEM, supra note 8, at 42.

118. Id. at 44.

119. These programs have experimented with cross-media permitting, pollution prevention plans, and self-certification of permit compliance. DANIEL P. BEARDSLEY, INCENTIVES FOR ENVIRONMENTAL IMPROVEMENT: ASSESSMENT OF SELECTED INNOVATIVE PROGRAMS IN THE STATES AND EUROPE (Aug. 1996) (prepared for GEMI).

120. Minnesota was one of the first states to develop an XL proposal. See NAPA II, supra note 33, at 95-96. Wisconsin is in the final stages of negotiating a comprehensive reinvention agreement with EPA. Wisconsin/EPA Approves Agreement Under ECOS/EPA Innovation Pact. INSIDE EPA'S REINVENTION REP., Apr. 7, 1999, at 14; Paul Singer, Framework to Expedite Review of Innovation Plans-EPA Wisconsin Sign First Regulatory Innovation Deal, INSIDE EPA WKLY. REP., Feb. 12, 1999, at 1. Both states, however, have taken the initiative to develop programs to reduce mercury emissions from power plants and other sources. Minnesota Mercury Strategy Facing Key Test. AIR DAILY, Dec. 16, 1998, at 2; Mark Wolski, Mercury Emission Reduction Goals Suggested by Minnesota Panel, Daily Env't Rep. (BNA), Dec. 24, 1998, at A-4; Wisconsin Regulators Outline Plan to Slash Mercury, AIR DAILY, Jan. 29, 1999, at 1.

121. These state activities are summarized in Metzenbaum, NEPPS PROGRAM, supra note 30, at 52, and in the report resulting from the Environmental Regulatory Innovations Symposium sponsored by ECOS in Minneapolis. ENVIRONMENTAL COUNCIL OF THE STATES, PROCEEDINGS OF THE ENVIRONMENTAL REGULATORY INNOVATIONS SYMPOSIUM (Nov. 1997).

122. California recently announced a more stringent version of its ambitious Low Emission Vehicle standards. California Air Resources Board, Res. 98-53 (Cal. Nov. 5, 1998). At the same time, California pioneered the Reclaim program, a pathbreaking experiment in emissions trading. See NATIONAL ACADEMY OF PUBLIC ADMINISTRATION. THE ENVIRONMENT GOES TO MARKET: THE IMPLEMENTATION OF ECONOMIC INCENTIVES FOR POLLUTION CONTROL (1994).

123. Steinzor II, supra note 2, at 10080. While employing a different methodology, NAPA has likewise demonstrated wide variations in state environmental expenditures per capita. NAPA I, supra note 20, at 74. According to NAPA: "A few states have as much technical capacity as EPA's regional offices, or more, and have developed programs that are more effective than those required by federal law. Some states, however, have been slower to build their capacity and have shown little interest in assuming greater responsibilities." Id. at 86.

124. NAPA initially recommended that EPA "reward good state performance with additional authority and flexibility" but simultaneously "strengthen its capacity to assume full responsibility for programs when states fail to operate them effectively." NAPA I, supra note 20, at 97-98. This concept of "differential oversight" was originally built into the design of the NEPPS process; it was hoped that state environmental goals and performance measures would provide outcome-based tools for evaluating the effectiveness of state programs. However, NAPA's 1997 report found that EPA "has failed to establish the practice of making formal assessments of state performance and using these assessments to link performance explicitly with the level of federal oversight and with the flexibility in program design and innovation." NAPA II, supra note 33, at 52. One reason for the lack of progress in this area is EPA's failure to reexamine the functions and resources of its regional offices, an important priority identified in NAPA's 1995 report NAPA I, supra note 20, at 89.

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