When Do Agencies Have Agency? The Limits of Compliance in the EPA

Abstract

This paper raises a question that is little-discussed yet central to lawmaking and policy implementation in the American separation-of-powers system: Under what institutional conditions is Congress unable to induce compliance with legislative dictates in contemporary statutory implementation? Unlike a number of existing delegation models, the paper holds that variation in institutional conflict and oversight of agencies fundamentally reshape agencies' latitude as active policymakers. I answer this question in the context of the Environmental Protection Agency from 1973-2010 using an extensive original dataset on noncompliance using several hundred DC Circuit court cases and several thousand bill introductions. I use these data to test the separation-of-powers theories concerning the effects of legislative-executive conflict and legislative division on agencies' regulatory compliance, as well as the effect of third-party oversight through litigation. The study provides the first systematic empirical analysis of the extent to which Congress is unable to successfully induce compliance when delegating, providing support for the core inter-branch conflict hypotheses.

Keywords: statutory law, regulation, implementation, environmental law, administrative state