The Failure of Agency-Forcing: The Regulation of Airborne Carcinogens Under Section 112 of the Clean Air Act

Professor Graham analyzes section 112 of the Clean Air Act, a provision intended by Congress to achieve ambitious regulatory ends by constraining agency discretion. The performance of the Environmental Protection Agency in implementing section 112 reveals flaws inherent in this "agency-forcing" approach to statutory design. In particular, section 112 directs the Agency to list formally those pollutants that it determines-without statutory guidance-to be "hazardous." This directive, added to the requirement that the Agency promulgate within short dead-lines very stringent rules regulating listed pollutants, has led to a lack of result that is perceived as bureaucratic footdragging. This lack of result is, however, due to the statutory design itself, and especially to its denial to the Agency of authority to consider costs and benefits in writing regulations governing sources of listed pollutants.

A package of reforms is proposed to bring needed flexibility to section 112.