Environmental Law

EPA Ends Performance Track Program

By M. Joel Bolstein

On March 16, 2009, EPA Administrator Lisa Jackson issued a two-page memorandum that put an immediate halt to the Performance Track program.  Of the 547 members, 17 were located in Pennsylvania and 7 of them were charter members.  The Performance Track  program offered recognition and certain regulatory benefits for facilities that are environmental leaders.  As part of the program, EPA also entered into Memoranda of Agreement with state programs to coordinate implementation.  Pennsylvania was not one of the states that had developed a complimentary program.

It is still unclear whether this is the end of the Performance Track Program.  Administrator Jackson will be setting up a multi-stakeholder subcommittee under EPA's National Advisory Council on Environmental Policy and Technology (NACEPT) to focus on the future of all EPA environmental leadership programs.  She has said that she continues to support efforts that encourage increased environmental stewardship.  I have been a member of NACEPT for the last 6 years.  At the most recent NACEPT meeting, we discussed taking a comprehensive look at the Performance Track Program, and one of my suggestions was that the Agency also consider whether Performance Track had achieved its objectives and could be ended.  The intent of any government program is not to go on forever.  Programs like Performance Track are designed to encourage companies and other organizations to go beyond compliance and move toward sustainability.  It is said that many of the companies in the Performance Track program would probably be good environmental stewards for purely business reasons, with or without the recognition provided by the Program.  That is undoubtedly true.  My colleague on NACEPT, Jennifer Nash from the Mossavar-Rhamani Center for Business and Government at Harvard University, published a study in 2006 that took a close look at why some companies decide to join Performance Track.  Professor Nash and her partner on the study, Cary Coglianese, collected data on companies that considered but decided not to join Performance Track and on companies that dropped out of the program.  Professor Nash found that businesses that participated in Performance Track are distinguished by a distinct tendency to value and seek external recognition.  She also found that there was no evidence that facilities were improving their environmental perfomance in order to qualify for membership.  Finally, she found that the applications and admissions process did not directly address whether members' performance is better than other comparable facilities that did not apply to the program.  

I don't see Administrator Jackson's decision as a political move.  I see it as a necessary and prudent reevaluation of one of many government programs designed to promote environmental stewardship.  EPA needs those kind of programs.  Enforcement alone will never be enough to achieve environmental sustainability in this country.  NACEPT wrote a very thoughtful study called Everyone's Business that addresses this very topic.  I encourage anyone who who cares about this issue to read that report.   The next meeting of NACEPT is March 24-26 in Washington and I will be in attendance.  I expect that the future of Performance Track will be discussed along with the role of the soon to be created multi-stakeholder subcommittee.  I will keep everyone posted on any new developments.

Full post as published by PA Brownfields Environmental Law on March 18, 2009 (boomark / email).