The Environmental Protection Agency Wants You (to Voluntarily Become Its Partner)

By Gregory A. Bibler and Charles N. Le Ray

The United States Environmental Protection Agency (the "EPA") has introduced a steady stream of new "voluntary compliance" programs during the past decade. These programs provide incentives for regulated entities either to experiment with case-specific alternatives to one-size-fits-all regulations, or to disclose and correct violations.

Voluntary compliance is not new to U.S. environmental policy. Self-monitoring and self-reporting are at the heart of virtually all environmental programs. EPA has taken the concept a step further, however, by encouraging the regulated community to devise better and cheaper solutions to environmental compliance problems from the bottom up.

Project XL, for example, allows companies to propose site-specific or industry-specific alternatives to EPA's regulations, policies, and procedures, or to pilot new technologies and processes. These case-by-case exceptions to previously promulgated regulations have not been without controversy.

Environmental groups have challenged EPA's programs, claiming that they improperly diverge from procedural rulemaking requirements and put the environment at risk.

This article provides an overview of EPA's Partners for the Environment programs that businesses, universities, and other regulated entities may use to frame their own practical alternatives to ill-fitting environmental mandates. It also explains how companies may be affected by EPA's industry-based Compliance Incentive Programs.

Project XL / Partners for the Environment

Established in 1995, Project XL ("eXcellence and Leadership") was one of EPA's earliest voluntary programs. Private businesses, schools and universities, and trade associations may propose pilot programs for participation in Project XL. Often, these take the form of site-specific or industry-specific changes to existing regulations to allow the testing of a new approach for a fixed period of time. If the EPA perceives that the proposed pilot program would result in better or more cost-effective ways of protecting the environment and public health, the agency will offer greater flexibility in the application of regulations, policies, or procedures.

Through Project XL, EPA and its partners are testing regulatory changes to respond better to new technologies and new information. Project XL participants are working with EPA to develop more comprehensive, integrated approaches to environmental protection, rather than media-specific responses to regulations in which compliance with one law, e.g., the Clean Water Act, may result in increased pollution of another type, e.g., greater air emissions. When a pilot program shows that the anticipated goals can be realized, EPA may propose nationwide changes to existing regulations. EPA's Web site currently lists over four dozen approved XL projects: http://www.epa.gov/projectxl/explorxl.htm.

Notwithstanding Project XL's laudatory goals, not all pilot programs accepted for participation have been without controversy. Environmental groups and other third parties have objected to EPA's attempts to improve upon old-style command and control regulation. These groups have asserted that what EPA calls increased flexibility amounts to little...