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NEG – Hollister/Vilim
Performance Based Regulations
Contents
Contents.......................................................................................................................................................1

1AC of Hollister/Vilim................................................................................................................................2

Strategy Notes.............................................................................................................................................3

Notes about the brief................................................................................................................................3

Notes about the AFF................................................................................................................................3

CX Questions...............................................................................................................................................4

Strategy 1.....................................................................................................................................................5

Topicality.....................................................................................................................................................5

Not reform...............................................................................................................................................5

Standard: Brightline.............................................................................................................................5

Violation: No clear reform...................................................................................................................6

Voters: ................................................................................................................................................6

Not environmental policy........................................................................................................................6

Definition of environmental policy......................................................................................................6

Definitions of environment..................................................................................................................6

Violation..............................................................................................................................................7

Voters..................................................................................................................................................7

Inherency.....................................................................................................................................................7

Inherency/Solvency.....................................................................................................................................9

Solvency: EPA = Command and Control..................................................................................................10

Project XL.............................................................................................................................................10
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Resistance to performance based regulation..........................................................................................11

Disadvantages............................................................................................................................................12

Masking Disadvantage...........................................................................................................................12

Link: Continuation of environmental regulations..............................................................................12

Brink: Environmental regulations are bad..........................................................................................12

Strategy 2...................................................................................................................................................15

General..................................................................................................................................................15

Solvency:...............................................................................................................................................16

1. Inadequate Replacement................................................................................................................16

2. Accountability................................................................................................................................16

Strategy 3: Kritik.......................................................................................................................................18

Link to Nanny State K...........................................................................................................................18

1AC of Hollister/Vilim
As of Indy

Defs available upon request (ask for reform and enviro pol)

2 Main Goals of Enviro Policy

1. Healthy Enviro

NY Times, 2008

2. Strong Econ

Gov’t spending “$200 bil on the enviro” (I think in either Obama’s budget or the stimulus)

Status Quo

Two types of regulations

1. Process based (command and control, socialism)

2. Performance based (market based)

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Performance standards are not used enough

- Cato Institute

EPA lacks authority to implement performance based (you will want to CX this)

Plan

Market based regs

1. Use market based

2. Review current regs

Solvency

EPA needs to be given this authority

Advs

1. Enviro

“through innovation”

2. Econ

Something about SO2 emissions trading

Strategy Notes
Notes about the brief
I highly recommend reading this brief through before using it as it can be slightly tricky. The AFF case
is somewhat vague and at times it seems that they use that vagueness to their advantage to link out of
NEG arguments. If they do that to the arguments in this brief, I think you can refute that the arguments
don’t apply (because I think they do :P) and you can argue that it is unfair to NEGs that an AFF would
run a case so vague that they can simply link out of all arguments. Strategy 1 argues that regulations in
general are harmful, while strategy 2 argues that command and control regulations are better than
performance based standards. You CANNOT use both strategies (but you wouldn’t want to, anyways).
Strategy 3 is a link to the Nanny State K, if you would rather run a K than INH/SOL stuff. The CX
questions should set up the arguments pretty well.

Notes about the AFF

AFF says the goals are INH to SQ. If so, NEG can say that AFF is not INH as AFF continues current

goals of U.S. enviro pol.

AFF has EV saying EPA prefers performance standards. EV is actually saying that EPA uses those

standards as much as is feasible in SQ, therefore case is not INH or SOL.

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Also, AFF is essentially fiating their solvency by mandating a review of current policies, but not

specifically changing any policy. They claim this solves for the problems of the SQ and achieves

advantages, but they do not show how these advantages will be achieved.

CX Questions
Which environmental policy is the affirmative team changing?

Are the goals in your case current goal of U.S. environmental policy? (They will say yes.) Are these goals
achieved in the current system? (Sets up INH argument)

Under goal 2 you say that the government is spending $200 billion of the environment. Is this spending
helping the economy?

Under the Status Quo, have our environmental regulations historically been successful?

What is an example of a performance standard?

Is the EPA at present largely a command and control agency or is it a performance standards based
agency? (Goal is double-bind INH/SOL)

(Check to be sure before asking this question) Under your point about the Status Quo you cite the Cato
Institute. Is Cato your plan advocate? (They will probably try to say yes so the NEG can’t cite Cato
against the AFF case, but Cato is not specifically advocating the AFF case. Thus, if AFF says yes, follow
up with this question.) Is Cato specifically advocating the AFF case? (NOOO)

Under your plan is the affirmative case taking power from Congress and giving it to the EPA? (This could
set up for a delegated rule making disad…)

Under your plan, the affirmative team is advocating a market-based approach, correct? (If the answer is
yes…) Does the market self-regulate? (Try to get another double-bind, either market works or doesn’t,
either way the AFF is unnecessary)

Under your plan, would the mandate of performance standards apply to regulations that are currently in
place or would your plan only affect regulations passed after this plan passes? (This sets up the argument
about exemptions. See the EV about NSPS and New Source Review [NSR])
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Strategy 1

Topicality
Not reform
Definition of reform

Reform: To improve by alteration, correction of error, or removal of defects; put into a better form or
condition. (American Heritage Dictionary, Fourth Edition, Published by Houghton Mifflin,
http://dictionary.reference.com/browse/reform)

Reform: To put or change into an improved form or condition (Merriam Webster’s Online Dictionary
Copyright 2009)

Reform: 1: to put (a writing) into a corrected form that more accurately reflects the agreement of the
parties reformed —W. M. McGovern, Junior et al.> —compare RATIFY
2: to induce or cause to abandon wrongful or harmful ways (Merriam-Webster's Dictionary of Law.
Retrieved April 14, 2010, from Dictionary.com website, http://dictionary.reference.com/browse/reform)

We see from these definitions of reform that reform means something is specifically changed to
improve a system.

Standard: Brightline
A brightline gives a clear, un-blurred distinction between what is and what isn’t topical. Our bright line is
going to be that affirmative cases must specifically reform a policy. Our brightline clearly distinguishes
topical cases from non-topical cases on the basis of the definition of reform

Bright line is a good standard for three main reasons:

a) It provides much-needed clarity. We could go on and on about different meaning of the resolution, and
different standards, and why those standards are good or bad, but when it comes down to it, we need a
bright line to determine what is and what isn’t topical – that way, we’re all on the same page and
everyone knows what the topic is and the main subject being discussed.

b) Bright line allows for better education. If there is an easy way to determine when cases are topical and
when there aren’t, then we’ll have better clash in any given round. This is true by using a logical
progression of impacts: 1st, Bright line provides clarity. 2nd, clarity creates clash, because when we’re all
on the same page, we can argue more effectively and more dynamically with the opposition. 3rd, clash
creates a more educational round because we are able to clearly examine to separate and distinct position
on one topic.

c) Not having a bright-line makes topicality a question of degree. If we don’t have a bright line that tells
us when a case is topical or not, then the topicality of a case is constantly in a grey area, completely up to
interpretation. But topicality isn’t a question of degree, it’s like being pregnant: you either are or you
aren’t. There’s no grey area.
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Violation: No clear reform.

The affirmative is mandating a review of current EPA policies. This is clearly not topical. The affirmative
team is not mandating that any specific regulation be changed or mandating that any improvements be
made to the current system. Essentially, the affirmative team is only making reforms to the system
possible, not mandating the actual the actual reform. Simply reviewing current policy is not making any
changes or improvements to that policy.

Voters:
1. A priori issue

Topicality is an issue that is evaluated before any other contention is addressed. If the affirmative team is
not topical, you should vote negative without considering any other issue.

2. Prima facie burden

The Affirmative team’s obligation is to present a case on its face that defends the truth of the resolution.
Regardless of whether their plan is a good or bad idea, they have failed to uphold their prima facie burden
if it does not mirror the terms of resolution.

Not environmental policy

Definition of environmental policy

Environmental policy - Statement by the organization of its intentions and
principles in relation to its overall environmental performance, which provides a
framework for action and for the setting of its environmental objectives and targets.

- Environmental Protection Agency (EPA) IEMS (Integrated Environmental

Management System) Implementation Guide, Appendix A: Glossary, Last Updated
August 6, 2009

Definitions of environment
Environment: The term "environment" is, in this Article, broadly construed to
include all features of the natural environment that make up the world's ecosystem.
The environment, then, consists of the conditions, circumstances, substances and
organisms that make up the environment. By "conditions" I refer to physical
phenomena such as weather patterns and the composition of the atmosphere; by
"circumstances" I mean the boundaries of oceans and rivers, the presence of
wetlands, lakes, rain forests, and so on; by "substances" I mean such things as
water, soil, crops, oil, and so on; and by "organisms" I mean both animal and plant.
The notion of environment also, importantly to my thinking, extends to human
interests. Human beings take things from the environment and use them, convert
them, cultivate them, render them into artifacts, consume them, and engage in
aesthetic appreciation of the environment.

- John Alan Cohan (J.D., Loyola Law School (1972); B.A., University of Southern
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California (1969); former law clerk to Hon. Charles H. Carr, United States District
Court. Mr. Cohan is presently a lawyer and author who writes in the fields of
philosophy, law, international law, and public policy.) “MODES OF WARFARE AND
EVOLVING STANDARDS OF ENVIRONMENTAL PROTECTION UNDER THE
INTERNATIONAL LAW OF WAR” Florida Journal of International Law (15 Fla. J. Int'l L.
481), Summer, 2003

E) Environmental

1. Of, relating to, or associated with the environment.

2. Relating to or being concerned with the ecological impact of altering the environment.

3. Medicine Of or relating to potentially harmful factors originating in the environment: environmental

illness.

Environmental. (2007). In The American Heritage® Dictionary of the English Language. Boston, MA:
Houghton Mifflin.

Analysis: To be topical, the affirmative team must affirm the resolution, which means significantly
reforming environmental policy.

Violation
The affirmative team is changing regulatory policy of a government agency, in this case the EPA, not an
environmental policy.

Voters
1. A priori issue

Topicality is an issue that is evaluated before any other contention is addressed. If the affirmative team is
not topical, you should vote negative without considering any other issue.

2. Prima facie burden

The Affirmative team’s obligation is to present a case on its face that defends the truth of the resolution.
Regardless of whether their plan is a good or bad idea, they have failed to uphold their prima facie burden
if it does not mirror the terms of resolution.

Inherency
EPA can already use performance standards

Robert J. Uram (partner in Sheppard, Mullin, Richter & Hampton LLP, practice areas include
environmental law and resource law, J.D. Northwestern University), Ella Foley-Gannon (partner at
Bingham McCutuchen, focuses her practice on federal and state environmental laws, J.D. University of
California), and James F. Rusk (lawyer at Sheppard, Mullin, Richter & Hampton LLP, J.D. University of
California), “EPA May Use Cost-Benefit Analysis in Setting "Best Technology Available" Standards
under Clean Water Act,” Sheppard, Mullin, Richter & Hampton LLP, April 16, 2009 (Previously
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published on April 6, 2009), http://www.martindale.com/environmental-law/article_Sheppard-Mullin-

Richter-Hampton-LLP_671958.htm

On April 1st, the Supreme Court held that the federal Clean Water Act (the “Act”) allows the
Environmental Protection Agency (the “EPA”) to use cost-benefit analysis in setting the performance
standards that power plants must meet to reduce the impact of cooling water intakes on aquatic
organisms. Entergy Corp v. Riverkeeper, Inc., 556 U.S. ____ (2009), reverses a decision of the Second
Circuit that held the EPA had unlawfully weighed the costs of environmental remediation measures
against their benefits in setting “best technology available” standards for existing facilities. The opinion
has major implications because the challenged regulations apply to facilities that account for more than
half of the nation’s electricity generating capacity and may allow those facilities to avoid billions of
dollars annually in increased compliance costs.

So this quote demonstrates that the EPA can already use performance standards, and the Supreme
Court has upheld that EPA can use performance standards. If the Supreme Court has ruled that
EPA can use performance standards why is the affirmative case needed? Clearly, the status quo
allows for performance standards.

True command and control regulations are the exception rather than the rule (only use if needed)

David M. Driesen [Assistant Professor of Law, Syracuse University College of Law; J.D., Yale
University, 1989], “Is Emissions Trading an Economic Incentive Program?: Replacing the Command
and Control/Economic Incentive Dichotomy,” Published by the Washington & Lee Law Review, Spring,
1998, (55 Wash & Lee L. Rev. 289) (Ethos)

“Many statutory provisions severely restrict EPA's authority to specify mandatory compliance methods.
n49
Several provisions require a performance standard unless EPA finds that one cannot measure emissions
directly to determine compliance. n50 Even when the statutes permit work practice standards or other
types of standards that do command specific control techniques, n51 the statutes often require EPA to
approve adequately demonstrated alternatives. n52 True command and control regulations are the
exception rather than the rule.”

Defense of EV (only use if needed): While this EV is from 1998, it is a good piece of EV for two
reasons. First, the source is very qualified to speak on environmental issues, and, second, even
though the EV is not recent, it is speaking empirically about how environmental law is usually
performance based rather than command and control.

Clean Air Act amendments allow for performance based standards

Marilyn A. Brown [Ph.D., is a Professor in the School of Public Policy, Georgia Institute of Technology,
and a Visiting Distinguished Scientist at Oak Ridge National Laboratory] and Sharon (Jess) Chandler
[Ph.D. candidate in the School of Public Policy, Georgia Institute of Technology], “GOVERNING
CONFUSION: HOW STATUTES, FISCAL POLICY, AND REGULATIONS IMPEDE CLEAN ENERGY
TECHNOLOGIES,” Published by the Stanford Law & Policy Review, 2008, (19 Stan. L. & Pol'y Rev
472) (Ethos)
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“As part of the 1977 Clean Air Act Amendments, Congress established the New Source Review (NSR)
program and modified it in the 1990 Amendments, but exempted old coal plants from the New Source
Performance Standards (NSPS) to be set. n64 NSPS are standards issued by the Environmental Protection
Agency (EPA) to dictate the level of pollution that a new stationary source may produce. These standards
are intended to promote use of the best air pollution control technologies, taking into account the cost of
such technology and any other non-air quality, health, and environmental impact and energy
requirements.”

CAA of 1990 Gives EPA Authority to Use Standards

William K. Reilly[EPA Journal - January/February 1991], “The New Clean Air Act: An Environmental
Milestone”, U.S. Environmental Protection Agency, last updated September 10, 2009,
http://www.eli.org/pdf/events/02.05.10dc/elliot.reilly.article.pdf [Brackets added]

The statute [Clean Air Act amendments of 1990] also introduces a number of other market-based
innovations, many of which are discussed elsewhere in this issue of EPA Journal. These include, for
example, performance-based standards for hazardous pollutants; incentives or "credits" for companies
which act quickly to reduce toxic emissions or go beyond minimum compliance requirements; tradable
emission credits for producers of certain kinds of reformulated fuels, for manufacturers of clean-fuel
vehicles, and for vehicle fleets subject to clean-fuel requirements; and performance targets for
reformulated fuels, allowing industry to meet these emission-reduction targets in the most cost-effective
way possible.

The CAA requires EPA to have performance standards

U.S. EPA, “New Source Performance Standards,” Last updated on March 15, 2010,
http://www.epa.gov/region7/air/nsps/nsps.htm

Section 111 of the Clean Air Act, "Standards of Performance of New Stationary Sources," requires EPA
to establish federal emission standards for source categories which cause or contribute significantly to air
pollution. These standards are intended to promote use of the best air pollution control technologies,
taking into account the cost of such technology and any other non-air quality, health, and environmental
impact and energy requirements. These standards apply to sources which have been constructed or
modified since the proposal of the standard. Since December 23, 1971, the Administrator has
promulgated 88 such standards and associated test methods. These standards can be found in the Code of
Federal Regulations at Title 40 (Protection of Environment), Part 60 (Standards of Performance for New
Stationary Sources).

Inherency/Solvency
EPA already uses performance standards “when feasible”

National Center for Environmental Economics (NCEE, a part of the EPA which offers a centralized
source of technical expertise to the Agency), “The United States Experience with Economic Incentives for
Pollution Control,” 3.2. TRADITIONAL REGULATORY APPROACHES, January, 2001, Last updated
April 12, 2010,
http://yosemite.epa.gov/ee/epalib/incent2.nsf/821321c2b2c0d5bd8525677500697227/d174c2ea02132
bf585256ab200704342!OpenDocument
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EPA prefers to use performance-based numerical limits rather than technology requirements whenever
feasible, and, in fact, the Agency’s programs rely heavily on numerical limits. Some standards that are
performance-based demand a level of emission control that can be met only with one existing technology.
Unless pollution control technologies improve, such performance standards have the same effect as
technology standards. (For example, new source performance standards for SO2 emissions at coal-fired
electric power plants require a 90% reduction in these emissions from their uncontrolled state, a degree of
control that can be met only by scrubbing.)

This quote has two impacts.

1. Inherency. EPA prefers performance standards, so if the AFF is not Inherent as the EPA already
adopts performance standards when it wants to.

2. Solvency. EPA already thinks it uses performance standards as much as they possibly can. As the
quote mentions it uses them “whenever feasible.” So essentially the affirmative case is solving for
nothing because the EPA is not going to change its current policy.

Solvency: EPA = Command and Control

Project XL
EPA is an inherently command and control agency, it is entrenched in its mindset to use command
and control

Project XL failed because of institutional dislike

Max Bazerman, PhD. (Professor of Business Administration at Harvard Business School, also associated
with the Kennedy School of Government), “Barriers to Acting in Time on Energy and Strategies for
Overcoming Them” 2008 http://www.hbs.edu/research/pdf/09-063.pdf [brackets in original]

Furthermore, regulators may resist the shift from command-and-control to cooperative regulation for fear
of losing responsibilities, power, and competence. Organizational confusion and turf wars between rival
departments can be the inevitable result. Anne Kelley, a staff member of the EPA’s New England Region,
had this to say about reinvention efforts and Project XL: “I represented a tiny office that came [to the
EPA] begging for open-mindedness, but unfortunately most in the agency locked arms against
reinvention” (Kelley, 2000). In several Project XL negotiations, companies complained that EPA staff
assigned to the project lacked the authority needed to make decisions and the resources needed to support
the project adequately. In addition, government scientists were not given the negotiation training they
needed to successfully hammer out complex deals with business interests, write Hoffman, Riley, Troast,
and Bazerman (2002).

So from this example of the program called Project XL we can see that it is entrenched in the
EPA’s mindset to use command and control regulation. The EPA will continue to oppose use of
performance based standards as long as this mindset continues, which shows the affirmative case
will not solve by increasing the use of performance standards. The affirmative can mandate that
their plan will pass; however, it is outside the affirmative control to change the mindset of the EPA
bureaucracy.
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Additional EV:

Institutional attitudes against policy innovation stifled XL

Max Bazerman, PhD. (Harvard Business School) “Barriers to Acting in Time on Energy and Strategies
for Overcoming Them” 2008 http://www.hbs.edu/research/pdf/09-063.pdf

Institutions are comprised of the laws, rules, protocols, standard operating procedures, and accepted
norms that guide organizational action (Scott, 1995). Members of institutions who adopt these laws,
protocols, and norms gradually come to behave by force of habit. In turn, habit creates resistance to
change and leads institutional members to reject new forms of regulatory policy. Project XL and HCPs
represented revolutionary change that was met with resistance caused by years of institutional inertia.

Attitudes of individuals and the institutions that regulate them must change for XL to be successful

Max Bazerman, PhD. (Harvard Business School) “Barriers to Acting in Time on Energy and Strategies
for Overcoming Them,” 2008, http://www.hbs.edu/research/pdf/09-063.pdf

At their core, Project XL and HCPs were wise environmental policies. They were capable of promoting
the kinds of creative tradeoffs that we teach our graduate and executive students to explore. Why were
these excellent ideas so difficult to implement? Only by identifying the core, taken-for-granted beliefs of
regulatory institutions such as the EPA can we understand the persistence of inefficient regulatory design
and the barriers to acting in time on energy. To allow the next administration to implement the wise
energy and environmental policies needed to act in time, we must change how individuals think and how
institutions guide that thinking.

Resistance to performance based regulation

Progress to performance based regulation is slow because of resistance

Cary Coglianese[Associate Professor of Public Policy and Char of Regulatory Policy Program, John F.
Kennedy School of Government, Harvard University, and the Irvine Visiting Professor of Law, Stanford
Law School], Jennifer Nash[Director, Regulatory Policy Program, John F. Kennedy School of
Government, Harvard University], & Todd Olmstead[Research Fellow, Regulatory Policy Program,
John F. Kennedy School of Government, Harvard University], “Performance-Based Regulation:
Prospects and Limitations in Health, Safety, and Environmental Protection”[This peer reviewed paper
was presented by Professor Cary Coglianese at the Center's for the Study of Law and Society Luncheon
Speaker Series on April 26, 2003] , eScholarship, University of California, Berkeley, April 26, 2004,
http://www.escholarship.org/uc/item/1545169p

Several participants noted agency and industry resistance to performance-based regulation. Some
regulators, for example, resist moving from prescriptive regulations, with which they are comfortable, to
performance-based regulations, which they consider ambiguous. These regulators find it especially
difficult to make the transition from hardware-oriented checklist inspections to inspections that call for
them to judge the quality and effectiveness of a facility’s performance.35 Even though industry generally
prefers the flexibility inherent in performance-based regulation, many firms are anxious to avoid the
ambiguity (and associated increase in regulators’ discretion) that sometimes accompanies performance-
based regulation. Although there seems to be some movement toward performance-based regulation
within certain agencies, some participants found the progress to be slow and limited. Participants noted at
least three factors inhibiting the transition to performance-based regulation, including: (1) regulators’
Page 12 of 18 NEG – Performance Based Regulations Caleb Profitt

comfort with the existing prescriptive approach, (2) measurement problems, and (3) institutional path
dependence due to existing legislation oriented toward a design-based approach. One participant noted
that it was difficult to embed a new performance-based approach within a “design-based world.” Another
participant described his efforts to superimpose performance-based standards onto the existing regulatory
system as “humbling,” likening the process to making a change in the design of a skyscraper after
construction had already been completed.

Disadvantages
Masking Disadvantage

Link: Continuation of environmental regulations

The affirmative case continues environmental regulation. What the affirmative case intends to do is to
change the type of regulations the EPA uses, but the fact that there will be regulation remains.

Brink: Environmental regulations are bad

A. Environmental regulations are harmful, economically and environmentally

Regulations have unintended effects that ultimately harm environmental quality more than help

Joel Schwartz (a visiting fellow at the American Enterprise Institute, where he studies the science, policy,
and politics of air pollution, climate change, and other environmental concerns, holds s master’s degree
in planetary science) and Steven Hayward (the F. K. Weyerhaeuser Fellow in Law and Economics at the
American Enterprise Institute, he holds a Ph.D. in American Studies), “Air Quality in America, The AEI
Press, © 2007, http://www.aei.org/docLib/20080317_AirQuality.pdf

But reducing air pollution is costly. Attaining the federal 8-hour ozone and annual PM standards will cost
tens to hundreds of billions of dollars per year. The 8-hour ozone standard might not be attainable at all in
some areas of the country. These costs are ultimately paid by people in the form of higher prices, lower
wages, and reduced choices. We all have many needs and aspirations, and insufficient resources with
which to fulfill them. Spending more on air quality means spending less on other things that improve our
health, safety, and quality of life. Higher incomes are associated with improved health, because people
spend a portion of each additional dollar of income on things that directly or indirectly improve health
and safety, such as better medical care, more crashworthy cars, and more nutritious food. People made
poorer by the costs of regulations do fewer of these things and are less healthy as a result. Risk
researchers estimate that every $17 million in regulatory costs induces one additional statistical death.
Thus, regulations are not pure risk reduction measures, but instead inevitably impose tradeoffs between
the health benefits of the regulation and the harm from the regulation’s income-reducing costs.

Historically, market forces, without prompting from regulation, have reduced pollution

Joel Schwartz (a visiting fellow at the American Enterprise Institute, where he studies the science, policy,
and politics of air pollution, climate change, and other environmental concerns, holds s master’s degree
in planetary science) and Steven Hayward (the F. K. Weyerhaeuser Fellow in Law and Economics at the
American Enterprise Institute, he holds a Ph.D. in American Studies), “Air Quality in America, The AEI
Press, © 2007, http://www.aei.org/docLib/20080317_AirQuality.pdf
Page 13 of 18 NEG – Performance Based Regulations Caleb Profitt

Regardless of whether the Clean Air Act has caused continued reductions in air pollution since 1970, the
pre-CAA record shows that the “race to the bottom” justification for the federal takeover of air pollution
regulation was false. Through a combination of common-law nuisance suits and local regulation,
Americans had been addressing air pollution issues, as they were understood at the time, for several
decades before the act was passed. Furthermore, throughout the twentieth century, market forces
promoting greater efficiency and technological advancement often had the salutary side effect of reducing
the pollution emitted per unit of economic activity, thereby moderating the air quality impacts of ongoing
economic development. For example, growing affluence allowed households to switch from coal to
cleaner, more efficient natural gas for home heating and cooking. Railroads switched from coal-fired
steam locomotives to diesel. The adoption of alternating current and improvements in transformer
technology allowed power plants to be located near coal mines rather than in cities, because electricity
could now be efficiently transported via long-distance power lines. The market forces that caused these
transformations were not driven by air quality concerns, but they nevertheless caused large declines in air
pollution levels.

Environmental regulations have significant costs

Angela Logomasini, Ph.D., (Director of Risk and Environmental Policy at the Competitive Enterprise
Institute, Ph.D. in politics from Catholic University), “The Green Regulatory State,” The Competitive
Enterprise Institute, August 30, 2007, http://cei.org/pdf/6106.pdf

Another common measure of the regulatory state involves estimating costs. Again, environment ranks
high in this category. According to CEI regulatory expert Clyde Wayne Crews Jr., Office of Management
and Budget figures indicate that federal regulations in total cost $39 to $46 billion between 1996 and
2006, but actual costs could be more than 10 times higher. In addition to the compliance costs, another
measure of the environmental regulatory state involves assessing the number of resources devoted to
development and enforcement of environmental regulations. An analysis of spending to implement
federal regulations shows that environment was the second largest category of such spending. Homeland
security was the largest, with consumer health and safety coming in third. All other categories were
substantially lower. When adjusted for inflation, environmental regulatory spending has grown from $81
million to more than $6 billion in 2000 dollars, or 7,372 percent between 1960 and 2006. Only homeland
security-related spending exceeds environmental spending, with federal outlays of more than $15 billion
in 2006.

Regulations can be distortionary, onerous, and barriers to progress when they regulate or
unequally impact markets in which a technology is expected to compete

Marilyn A. Brown [Ph.D., is a Professor in the School of Public Policy, Georgia Institute of Technology,
and a Visiting Distinguished Scientist at Oak Ridge National Laboratory] and Sharon (Jess) Chandler
[Ph.D. candidate in the School of Public Policy, Georgia Institute of Technology], “GOVERNING
CONFUSION: HOW STATUTES, FISCAL POLICY, AND REGULATIONS IMPEDE CLEAN ENERGY
TECHNOLOGIES,” Published by the Stanford Law & Policy Review, 2008, (19 Stan. L. & Pol'y Rev
472) (Ethos)

“Regulations are typically seen as instruments of change--encouraging innovation, pollution prevention,

safety, and standardization. However, they can also be distortionary, onerous, and barriers to progress
when they regulate or unequally impact markets in which a technology is expected to compete. This Part
Page 14 of 18 NEG – Performance Based Regulations Caleb Profitt

describes several distortionary performance and connection standards and burdensome permitting
processes that handicap the market penetration of clean energy technologies.”

B. Furthermore, performance standards are not better than alternatives

Let’s go back to the card under Inherency/Solvency. The card shows that some performance
standards have essentially the same effect as process-based regulation, as there are no alternatives
to meeting the emission standards.

National Center for Environmental Economics (NCEE, a part of the EPA which offers a centralized
source of technical expertise to the Agency), “The United States Experience with Economic Incentives for
Pollution Control,” 3.2. TRADITIONAL REGULATORY APPROACHES, January, 2001, Last updated
April 12, 2010,
http://yosemite.epa.gov/ee/epalib/incent2.nsf/821321c2b2c0d5bd8525677500697227/d174c2ea02132
bf585256ab200704342!OpenDocument

EPA prefers to use performance-based numerical limits rather than technology requirements whenever
feasible, and, in fact, the Agency’s programs rely heavily on numerical limits. Some standards that are
performance-based demand a level of emission control that can be met only with one existing technology.
Unless pollution control technologies improve, such performance standards have the same effect as
technology standards. (For example, new source performance standards for SO2 emissions at coal-fired
electric power plants require a 90% reduction in these emissions from their uncontrolled state, a degree of
control that can be met only by scrubbing.)

Performance standards have resulted in higher levels of pollution than would have otherwise
occurred

Marilyn A. Brown [Ph.D., is a Professor in the School of Public Policy, Georgia Institute of Technology,
and a Visiting Distinguished Scientist at Oak Ridge National Laboratory] and Sharon (Jess) Chandler
[Ph.D. candidate in the School of Public Policy, Georgia Institute of Technology], “GOVERNING
CONFUSION: HOW STATUTES, FISCAL POLICY, AND REGULATIONS IMPEDE CLEAN ENERGY
TECHNOLOGIES,” Published by the Stanford Law & Policy Review, 2008, (19 Stan. L. & Pol'y Rev
472) (Ethos)

“Many studies show that several percentage points of efficiency improvement can be squeezed out of the
current coal fleet. However, investment in an upgrade could trigger an NSR, and the threat of such a
review has prevented many upgrades from occurring. NSR is a preconstruction permitting program that
assures the dual goals of maintaining and attaining air quality and providing for economic growth. These
goals are achieved through installation of state-of-the-art control technology at new plants and at existing
plants that undergo a major modification. However, uncertainty about the scope of such requirements has
become a significant disincentive to rebuilding existing generating units that could ultimately result in
greater energy efficiency or even lower emissions. Altogether, these effects have led some critics to
question whether the NSR program and the NSPS [New Source Performance Standards] have resulted in
higher levels of pollution than would have occurred in the absence of regulation.”

Impact: The affirmative plan continues the costs of regulation; they just mask the harm by changing the
type of regulation. Therefore, all the problems of the current system continue and we are distracted from
Page 15 of 18 NEG – Performance Based Regulations Caleb Profitt

the real problem which is that environmental regulations are in place at all. The AFF solution is only
temporary, so we’ll need to address the problem later when it gets bigger.

Strategy 2
General
NSR imposes pollution controls where they are least needed and artificially inflates the value of the
dirtiest plants

Marilyn A. Brown [Ph.D., is a Professor in the School of Public Policy, Georgia Institute of Technology,
and a Visiting Distinguished Scientist at Oak Ridge National Laboratory] and Sharon (Jess) Chandler
[Ph.D. candidate in the School of Public Policy, Georgia Institute of Technology], “GOVERNING
CONFUSION: HOW STATUTES, FISCAL POLICY, AND REGULATIONS IMPEDE CLEAN ENERGY
TECHNOLOGIES,” Published by the Stanford Law & Policy Review, 2008, (19 Stan. L. & Pol'y Rev
472) (Ethos)

“As part of the 1977 Clean Air Act Amendments, Congress established the New Source Review (NSR)
program and modified it in the 1990 Amendments, but exempted old coal plants from the New Source
Performance Standards (NSPS) to be set. n64 NSPS are standards issued by the Environmental Protection
Agency (EPA) to dictate the level of pollution that a new stationary source may produce. These standards
are intended to promote use of the best air pollution control technologies, taking into account the cost of
such technology and any other non-air quality, health, and environmental impact and energy
requirements. These standards apply only to electric generating units that have been constructed or
modified since the proposal of the standard. This "grandfathering" has enabled the continued operation of
some of the most polluting and highest CO[2]-emitting electricity generators in the country far beyond
their normal life, and some contend that it has resulted in the underutilization of newer power plants
because of their compliance burdens. "NSR thus imposes pollution controls where they are least needed
and artificially inflates the value of the dirtiest plants."”

Some businesses are better out with prescriptive-type standards rather than performance based

Cary Coglianese[Associate Professor of Public Policy and Char of Regulatory Policy Program, John F.
Kennedy School of Government, Harvard University, and the Irvine Visiting Professor of Law, Stanford
Law School], Jennifer Nash[Director, Regulatory Policy Program, John F. Kennedy School of
Government, Harvard University], & Todd Olmstead[Research Fellow, Regulatory Policy Program,
John F. Kennedy School of Government, Harvard University], “Performance-Based Regulation:
Prospects and Limitations in Health, Safety, and Environmental Protection”[This peer reviewed paper
was presented by Professor Cary Coglianese at the Center's for the Study of Law and Society Luncheon
Speaker Series on April 26, 2003] , eScholarship, University of California, Berkeley, April 26, 2004,
http://www.escholarship.org/uc/item/1545169p

Similarly, participants noted that performance-based regulations may impose excessive costs on business,
particularly small firms, because firms must search for ways to meet regulatory standards. Some firms
may simply prefer to be told exactly what to do, rather than incur costs to identify steps needed to achieve
a performance standard. In some settings, non-binding codes of practice have been developed by
government, trade associations, or standards organizations to provide guidance to firms that lack the
resources to determine how to meet regulatory requirements on their own. But such codes of practice
Page 16 of 18 NEG – Performance Based Regulations Caleb Profitt

sometimes effectively take the form of prescriptive standards that performance standards are supposed to
replace.

Performance standards may allow firms to generate unintended consequences while still meeting
the regulatory goal

Cary Coglianese[Associate Professor of Public Policy and Char of Regulatory Policy Program, John F.
Kennedy School of Government, Harvard University, and the Irvine Visiting Professor of Law, Stanford
Law School], Jennifer Nash[Director, Regulatory Policy Program, John F. Kennedy School of
Government, Harvard University], & Todd Olmstead[Research Fellow, Regulatory Policy Program,
John F. Kennedy School of Government, Harvard University], “Performance-Based Regulation:
Prospects and Limitations in Health, Safety, and Environmental Protection”[This peer reviewed paper
was presented by Professor Cary Coglianese at the Center's for the Study of Law and Society Luncheon
Speaker Series on April 26, 2003] , eScholarship, University of California, Berkeley, April 26, 2004,
http://www.escholarship.org/uc/item/1545169p

One participant argued that performance-based regulations may engender adverse, unintended behaviors.
In other words, the flexibility that performance-based standards provide to firms may be used in ways that
cause undesirable side effects, even if the firms still meet the performance goal. Therefore, letting
industry choose its own path always presents the possibility of generating new or even larger risks. In
contrast, design-based standards provide clear direction to regulated entities and agency enforcement
staff, an approach which may be satisfactory even if not, strictly speaking, optimal.

Solvency:

1. Inadequate Replacement
1. Emissions trading cannot supplant true command and control regulation

David Driesen 98 David M. Driesen [Assistant Professor of Law, Syracuse University College of
Law; J.D., Yale University, 1989], “Is Emissions Trading an Economic Incentive Program?: Replacing
the Command and Control/Economic Incentive Dichotomy,” Published by the Washington & Lee Law
Review, Spring, 1998, (55 Wash & Lee L. Rev. 289) (Ethos)

“For this reason, emissions trading cannot supplant true command and control regulation. n102
Normally, command and control regulation exists precisely because an agency has determined that it
cannot measure emission reductions. n103 Emissions trading may sometimes provide a good alternative to
performance standards, but it will function poorly if used to supplant true command and control
regulation. Hence, the command and control/economic incentive dichotomy not only unfairly disparages
traditional regulation, it suggests application of emissions trading precisely in areas where it cannot work.
n104
”

2. Accountability
1. Most scholars recognize that emissions trading requires good monitoring in order to succeed

David M. Driesen [Assistant Professor of Law, Syracuse University College of Law; J.D., Yale
University, 1989], “Is Emissions Trading an Economic Incentive Program?: Replacing the Command
Page 17 of 18 NEG – Performance Based Regulations Caleb Profitt

and Control/Economic Incentive Dichotomy,” Published by the Washington & Lee Law Review, Spring,
1998, (55 Wash & Lee L. Rev. 289) (Ethos)

“Furthermore, most scholars recognize that emissions trading requires good monitoring in order to
succeed. n99 Because pollution sources have an economic incentive to try to exaggerate the value of
reduction credits and to understate the value of debits in an emissions trading scheme, good monitoring is
essential. n100 For some pollution sources, however, good monitoring simply is not technically feasible.
n101
”

2. The problem with self-regulation is accountability

Bradley C. Karkkainen [University of Michigan, B.A., Yale Law School, J.D., a nationally recognized
authority in the fields of environmental and natural resources law. After visiting at the University of
Minnesota in the fall of 2003, Professor Karkkainen joined the University of Minnesota faculty in
January 2004 at the rank of Professor. He held the Julius E. Davis Chair in Law in 2004], “Bottlenecks
and Baselines: Tackling Information Deficits in Environmental Regulation,” Published by the Texas Law
Review, Vol. 86:1409, 2008, (PV)

“At this point, some commentators argue for some form of industry self-regulation; 37 others argue for
negotiated regulatory solutions mutually agreed upon between industry and regulator, either on a case-by-
case or industry wide basis.38 The problem with self-regulation, however, is accountability: industry’s
incentive will always be to seek the least-cost solution—the least cost to industry itself—even if it means
externalizing costs (like excessive levels of pollution) to society.39 Predictably, then, self-regulation will
tend toward regulating with an exceedingly light hand, and this tendency will be compounded by a lack of
transparency and accountability in the decisionmaking process.”

3. Under self-regulation, industry will often have both the opportunity and the motive to “game”
the negotiations

Bradley C. Karkkainen [University of Michigan, B.A., Yale Law School, J.D., a nationally recognized
authority in the fields of environmental and natural resources law. After visiting at the University of
Minnesota in the fall of 2003, Professor Karkkainen joined the University of Minnesota faculty in
January 2004 at the rank of Professor. He held the Julius E. Davis Chair in Law in 2004], “Bottlenecks
and Baselines: Tackling Information Deficits in Environmental Regulation,” Published by the Texas Law
Review, Vol. 86:1409, 2008, (PV)

“For these reasons, negotiated solutions—for example, negotiated rulemaking,40 Project XL-type
individualized waivers,41 and sector-by-sector bargaining as in the Dutch model42—might at first blush
appear more promising. But here again, industry self-interest coupled with asymmetrically held
information remains a threat. At the margins, industries will have an incentive to exaggerate the costs and
technological difficulties of achieving a high level of environmental performance and to understate the
prospects for environmental progress. Regulators may push for tougher standards and challenge
industry’s factual assertions, but the informational playing field is not level; industry will often have both
the opportunity and the motive to “game” the negotiations.”
Page 18 of 18 NEG – Performance Based Regulations Caleb Profitt

Strategy 3: Kritik
(I’m not going to put the entire Nanny State K in this brief – it would be way too long. So following is a
link to the K. You would want to explain the framework first, and then address the link and then move on
to the impacts and the alternative. So… here’s the link.)

Link to Nanny State K

The affirmative team is advocating a government-centered approach to environmental problems.
Essentially, the mindset of the affirmative team is that if there are environmental problems, the
government should set in and solve those problems. Because the mindset and philosophies we advocate
have real world impacts this issue should be weighed a priori, as we saw in the framework our Kritik. The
affirmative team is opposing free market capitalism by saying the government can better determine
environmental policy than the free market. The affirmative team is therefore rejecting free market
capitalism; this mindset has serious, real-world implications as it is based on the assumption that
GOVERNMENT not FREE MARKET CAPITALISM can and should solve economic and environmental
problems.