“Regulatory Certainty” as a Justification for Regulating

A key principle of good policy making is that regulatory agencies should define the problem they are seeking to solve before finalizing a regulation. Thus, it is odd that in the economic analysis for a recent proposed rule related to greenhouse gas emissions from new power plants, the Environmental Protection Agency (EPA) cites “regulatory certainty” as a justification for regulating. It seems almost any regulation could be justified on these grounds.

The obvious justification for regulating carbon dioxide emissions would be to limit harmful effects of climate change. However, as the EPA’s own analysis states:

the EPA anticipates that the proposed Electric Generating Unit New Source Greenhouse Gas Standards will result in negligible CO₂ emission changes, energy impacts, quantified benefits, costs, and economic impacts by 2022.

The reason the rule will result in no benefits or costs, according to the EPA, is because the agency anticipates:

even in the absence of this rule, existing and anticipated economic conditions will lead electricity generators to choose new generation technologies that meet the proposed standard without the need for additional controls.

So why issue a new regulation? If the EPA’s baseline assessment is correct (i.e. it is making an accurate prediction about what the world would look like in absence of the regulation), then the regulation provides no benefits since it causes no deviations from that baseline. If the EPA’s baseline turns out to be wrong, a “wait and see” approach likely makes more sense. This approach may be more sensible, especially given all the inherent uncertainties surrounding predicting future energy prices and all of the unintended consequences that often result from regulating.

Instead, the EPA cites “regulatory certainty” as a justification for regulating, presumably because businesses will now be able to anticipate what emission standards will be going forward, and they can now invest with confidence. But announcing there will be no new regulation for a period of time also provides certainty. Of course, any policy can always change, whether the agency decides to issue a regulation or not. That’s why having clearly-stated goals and clearly-understood factors that guide regulatory decisions is so important.

Additionally, there are still costs to regulating, even if the EPA has decided not to count these costs in its analysis. Just doing an economic analysis is a cost. So is using agency employees’ time to enforce a new regulation. News outlets suggest “industry-backed lawsuits are inevitable” in response to this regulation. This too is a cost. If costs exceed benefits, the rule is difficult to justify.

One might argue that because of the 2007 Supreme Court ruling finding that CO₂ is covered under the Clean Air Act, and the EPA’s subsequent endangerment finding related to greenhouse gases, there is some basis for the argument that uncertainty is holding back investment in new power plants. However, if this is true then this policy uncertainty should be accounted for in the agency’s baseline. If the proposed regulation alleviates some of this uncertainty, and leads to additional power plant construction and energy creation, that change is a benefit of the regulation and should be identified in the agency’s analysis.

The EPA also states it “intends this rule to send a clear signal about the current and future status of carbon capture and storage technology” because the agency wants to create the “incentive for supporting research, development, and investment into technology to capture and store CO₂.”

However, by identifying the EPA’s preferred method of reducing CO₂ emissions from new power plants, the agency may discourage businesses from investing in other promising new technologies. Additionally, by setting different standards for new and existing power plants, the EPA is clearly favoring one set of companies at the expense of another. This is a form of cronyism.

The EPA needs to get back to policymaking 101. That means identifying a problem before regulating, and tailoring regulations to address the specific problem at hand.