A new study from a group called the R Street Institute has found that federal agencies missed half of all the deadlines imposed by Congress. Not just recently, not just in the current Administration, but for more than 20 years.
The most shocking thing about this study is that nobody is shocked. There is so little surprise about it that there has been almost no news coverage. After all, anything that happens every day for more than 20 years can hardly be called news.
Not surprisingly, two of the worst offenders in missing congressional deadlines both operate in the field of natural resources: the Environmental Protection Agency (EPA) and the U.S. Fish and Wildlife Service (USFWS), along with several sister agencies at the Interior Department.
The primary reason so many deadlines are missed, or ignored completely, seems to be that they are imposed by Congress. By law. The most noteworthy data in the study shows that agencies take deadlines imposed by the courts far more seriously. For example, the USFWS met barely 60 percent of congressional deadlines, but more than 80 percent of those imposed by court order. Worst of all was the Solid Waste division at EPA, which met around 90 percent of court deadlines, but only 40 percent of congressional ones. Similar appalling results were found at the Department of Energy and several others.
One reason so much of the focus is on natural resources agencies is simply that they have more legal deadlines, especially in the Clean Air, Clean Water, and Endangered Species Acts – all of which have very strict deadlines for a wide range of federal decisions and actions. It may be that Congress has imposed unreasonable and unworkable guidelines on these agencies. But the stark difference between their willingness/ability to comply with Congress versus the courts suggests something else, perhaps something more disturbing. That is, federal agencies simply do not take seriously the direction given them in the law, especially since they know there are few consequences for ignoring it.
Lest you think this study is just another conservative criticism of the executive branch (R Street Institute leans to the right), note that think tanks on both sides of the political spectrum express this concern. In 2012 a liberal advocacy group called Public Citizen issued a similar report after analyzing 159 regulations subject to statutory deadlines and finding failure to comply 78 percent of the time!
Most observers could agree that this is an unacceptable situation. What part of deadline do they not understand? Where the new R Street study misses the mark, however, is in discussing possible solutions. Part of the reason judicial deadlines are so much better obeyed is that they are more regularly enforced, most often because outside interest groups bring suit in federal courts over it. Congress cannot do so.
As the report’s author, Scott Atherly, wrote, “Congress often is the only party to suffer any form of harm from a neglected deadline, yet cannot in practice sue the agency in question. If no party has standing to sue over an unmet deadline, legal recourse is extremely difficult to achieve. Congress’ only option is to pass another law.”
That’s where the report goes off the rails. Congress has several ways to address the problem, but the report instead calls for more of the same – passing more laws, more record-keeping and reporting (more deadlines to miss), establishing a new agency to oversee the others, and a new entity to file more lawsuits, throwing good money after bad.
Clearly many federal agencies treat court-ordered deadlines as higher priorities than deadlines imposed by law. There should be consequences for both. Courts can put people in jail for failure to comply with direct orders. But Congress also has choices. It could cut off the money for failed programs, tie employee raises and bonuses to specific performance, change the laws to streamline the process, even abolish agencies and create new ones. It does none of those things in response to missed deadlines, including failure to deliver timely reports as required by law. Setting up a new agency to keep track of all this and report on it will not solve the problem.
If executive branch officials are not taking Congress seriously, that is entirely Congress’s fault. All Congress needs to do is make clear that when it imposes deadlines by law, it means what it says. Parents and teachers everywhere understand that simple concept.
(A version of this column first appeared in the Grand Junction Daily Sentinel August 7, 2015)
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