By Cary Coglianese and Jennifer Nash
For nearly a decade, the United States Environmental Protection Agency (“EPA”) considered its National Environmental Performance Track to be its “flagship” voluntary program — even a model for transforming the conventional system of environmental regulation. Since Performance Track’s founding during the Clinton Administration, EPA officials repeatedly claimed that the program’s rewards attracted hundreds of the nation’s “top” environmental performers and induced these businesses to make significant environmental gains beyond legal requirements. Although EPA eventually disbanded Performance Track early in the Obama Administration, the program has been subsequently emulated by a variety of state and federal regulatory authorities. To discern lessons useful for similar voluntary programs, we report here the findings from a multipronged, multi-year research effort assessing business participation in Performance Track. We find no evidence to support the sweeping assertions EPA made about the program’s achievements. Facilities participating in Performance Track simply could not be shown to be top performers. Rather, what most distinguished these participants was a factor distinct from environmental quality, namely their propensity to engage in outreach with government and community groups. Furthermore, drawing on an extensive analysis of business participation in Performance Track and other EPA voluntary programs, we show how Performance Track faced inherent limitations in its ability to induce any dramatic environmental gains, making its model more of a poor substitute for the conventional regulatory system than a plausible means for the system’s transformation.
Cite as: Cary Coglianese and Jennifer Nash, Performance Track’s Postmortem: Lessons from the Rise and Fall of EPA’s “Flagship” Voluntary Program, 38 Harv. Envtl. L. Rev. 1 (2014)