Now that the interminable presidential election season is finally behind us (admit it, we’re all happy about that), it is time to look ahead on environmental law issues. What is working and what needs to change? The great William Ruckelshaus once suggested that we throw out our alphabet-soup collection of environmental laws in favor of a single unified statute. That may be a good idea, but in our polarized political world, such a wholesale change in the law is hard to imagine.
Big change is hard to achieve because it is difficult for us to move off the status quo. Think about it. In a brief period, mostly in the 1970s, Congress passed into law the bulk of the statutes that now form the foundation of our national environmental legal system. Some, such as the Clean Water Act, were significant amendments of a previous law. Others were drawn up from scratch. In addition to the CWA, Congress passed the CAA, EPCRA, CERCLA, RCRA, SDWA, CZMA, and the ESA. Imagine trying to get any one of those enacted or repealed today.
Attempts have been made in the last few years to make needed changes to some of these laws (e.g., clarifying the meaning of “navigable waters” under the CWA post Rapanos). Compared with the herculean task of passing entire new statutes into law, these proposed changes are all small potatoes, yet they have failed. Why is it harder to amend a forty-year-old piece of legislation than it was to pass the bulk of our environmental laws in the first place?
We become entrenched in our current state of affairs, so we have a hard time moving out of familiar territory, even when it is the sensible thing to do. We grow comfortable with what we know, even if what we know is not working well. Special interest groups frequently oppose change because they are heavily vested in the current system. Others may not like the law, but like the proposed changes less. Even when all would admit that a law needs fixing, too many do not want to see it changed or cannot agree on how to change it. Fear of the unknown is the glue that holds together our failed efforts.
Throw in a dash of partisanship, and you have a good recipe for the legal doldrums. In the 1970s and 80s, Congress was controlled by one party, but the environment was not the partisan issue it is today. When President Regan vetoed the 1987 CWA Amendments, Congress overrode the veto by votes of 401–26 in the House and 86–14 in the Senate. We need to figure out a way to dial back the clock and to begin to reach a consensus on what our environmental laws should achieve, and to make the necessary changes. We need to learn how to move off of the status quo.