ELR Blog

An Interview with ELR Authors Coglianese & Nash

By Rachel Proctor May — June 16, 2014 at 10:25am

In ELR Volume 38.1, published earlier this year, Cary Coglianese and Jennifer Nash examined the track record of Performance Track, EPA’s flagship voluntary program for companies to commit to environmental regulation outside the legal process. That article, Performance Track’s Postmortem: Lessons from the Rise and Fall of EPA’s “Flagship” Voluntary Program, is available here. ELR’s Rachel Proctor May sat down with the authors to discuss the article.

ELR: Does the demise of Performance Track indicate a shift away from voluntary programs in environmental regulation? To what extent are voluntary programs still a part of the regulatory landscape?  

Jennifer Nash, Executive Director of the Regulatory Policy Program and Associate Director of the Mossavar-Rahmani Center for Business and Government at the Harvard Kennedy School

Jennifer Nash, Executive Director of the Regulatory Policy Program and Associate Director of the Mossavar-Rahmani Center for Business and Government at the Harvard Kennedy School

Coglianese & Nash: Wouldn’t it be great if government could protect the environment without imposing burdensome regulations on business? Imagine that, simply by recognizing and rewarding businesses for adopting positive environmental management practices, government could induce firms to make substantial progress protecting the air, water, and land. That’s the appeal of voluntary environmental programs, like the National Environmental Performance Track adopted by EPA in the 1990s. Performance Track, long considered EPA’s “flagship” voluntary program, offered positive publicity and modest regulatory relief to companies that the agency considered to be environmental leaders. At least in theory, voluntary programs like this have the potential to change the behavior of businesses without the need for passing legislation, promulgating regulations, and overseeing compliance – and without all the costs and conflicts associated with these traditional approaches to environmental policy.   In this sense, voluntary programs are the regulatory equivalent of Brigadoon. They hold captivating appeal. As a result, even though EPA ended Performance Track in 2009, voluntary programs remain an important part of the regulatory landscape and policy entrepreneurs will continue to advocate for them as an attractive alternative to regulatory business as usual. Not surprisingly, voluntary programs proliferate throughout government at the federal and state levels. EPA runs dozens of voluntary programs, about fifteen of which seek to address energy and climate change alone. And interest in voluntary programs extends well beyond EPA. The Department of Energy runs programs very similar to Performance Track, as does OSHA and many states.

ELR: Based on your analysis of Performance Track, is there a place for voluntary programs in environmental regulation? Are there certain sectors/regulatory targets in which they are particularly likely to be effective or ineffective?  

Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science at the University of Pennsylvania; Director of the Penn Program on Regulation

Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science at the University of Pennsylvania;
Director of the Penn Program on Regulation

C&N: Perhaps some kinds of voluntary programs might have value within the broad portfolio of environmental policy, but our research on Performance Track suggests that EPA and other agencies need to recognize the severe limits to this kind of voluntary program. Voluntary programs cannot, despite the claims of some of Performance Track’s proponents, provide a basis for revolutionizing environmental regulation. Advocates of such programs need to calibrate expectations and avoid making the kind of grandiose claims that EPA continued to make about Performance Track throughout its history. EPA and states repeatedly made statements about the “top performance” of those who joined voluntary programs. Indeed, the very name “Performance Track” implies that the program attracts members that are better performers than their peers. But Performance Track never really tracked facilities based on performance, nor could EPA ever demonstrate that the facilities that joined Performance Track did better in terms of reducing environmental impacts than facilities that did not join. On the contrary, evidence suggests that some Performance Track facilities were not even better than the average facility in the same industrial sector. When we compared facilities that participated in Performance Track and similar facilities that did not, we did not find the joiners to be any more responsible than the non-joiners. Instead, we found that what most distinguished joiners were their distinct preferences for engaging in community outreach. The joiners were, in effect, extroverts – not necessarily performance leaders.

ELR: What are your recommendations for designing voluntary programs to make them as effective as possible? 

C&N: Government should be circumspect about the role of voluntary programs. Whatever claims agencies make about benefits from these programs should be backed up with careful research. EPA continually said that Performance Track produced results in the form of reductions in pollution and natural resource consumption. But EPA never collected data on trends in emissions and natural resource consumption of non-members, so the agency lacked support for statements about what change Performance Track may have caused. To its credit, EPA did seek to study why businesses joined Performance Track – including by funding some of our research – but it could never demonstrate that Performance Track led to any environmental improvements that companies would not have made anyway for other reasons. If EPA and other agencies are interested in exploring the potential of voluntary approaches to supplement traditional regulation, they should design voluntary programs with empirical evaluation in mind so that they can demonstrate their value. Only in that way will policymakers ever be able to understand how to make voluntary programs as effective as possible.

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