September 01, 2014

Environmental law without Congress

Shi-Ling Hsu

Congress clearly occupies a central place in shaping environmental policy. Of late, however, Congress’s inability to pass almost any legislation at all has created uncertainties that have been extremely costly for American businesses. For example, the inability (or refusal) of a balkanized Congress to clarify whether greenhouse gases should be regulated under the Clean Air Act necessitated extensive U.S. Environmental Protection Agency (EPA) rulemakings and costly Supreme Court battles (e.g., Massachusetts v. EPA, UARG v. EPA), which could have been avoided with a relatively simple amendment. But the more subtle lesson is that environmental “lawmaking” has matured, so that it is not so utterly dependent upon Congress. Over the past 24 years (with the 1990 Clean Air Act Amendments marking the last significant environmental accomplishment by Congress), a number of other lawmaking institutions have evolved to take Congress’s place, including a great deal of administrative lawmaking. Whether this is for the good or the bad is debatable, as highlighted in this article, but it is happening and the implications are significant.

Direct and indirect administrative actions on environmental issues

Under the Clean Air Act, ozone standards have come and gone and fine particulate matter pollution standards are tightening. Administrative lawmaking has by necessity evolved under the Endangered Species Act (ESA), as the U.S. Fish and Wildlife Service’s Habitat Conservation Planning (HCP) has provided some relief from the still-pressing need for reform. Some of the perverse incentives, information gaps, and regulatory overreach of the ESA have at least been alleviated by a less adversarial, more cooperative information-sharing relationship made possible by administrative fiat. Could Congress have done what the U.S. Fish and Wildlife Service did? Although imperfect, the HCP program contrasts quite favorably with the cluster of partisan congressional attempts in the mid-1990s to gut the ESA.

Some more general evolutions have taken place as well. The sometimes controversial practice of cost-benefit analysis, and the expanded role of the Office of Information and Regulatory Affairs, has grown significantly under both Democratic and Republican presidents, and under the nose of an apparently agnostic Congress. We might wish for Congress to settle some issues that are instead litigated over years, and even decades, but in the end, rulemakings are simply another facet of an extensive lawmaking apparatus in a democratic society.

Administrative lawmaking has also quietly taken place outside of the traditional environmental lawmaking realm. Lest we forget, environmental mandates are embedded in nonenvironmental statutes. The Plant Protection Act, The Federal Highway Administration Act, and even the Securities Act of 1933 all indirectly point to some environmental objectives. For example, disclosure of environmental liabilities, now commonplace, has pushed publicly traded firms to reexamine some polluting practices in an effort to make their disclosures less embarrassing.

Finally, it is worth keeping in mind (without unduly celebrating) some of the benefits of federalism. The practice of hydraulic fracturing has grown up, mostly unsupervised, with no congressional input at all. Instead, state and local governments have forged ahead, making their own political choices that have led to the patchwork of fracking activity throughout the United States and, along the way, made the United States into a new global energy power. What we have collectively learned from these sometimes prudent, sometimes headlong forays into fracking is substantial, and quite possibly more credible than it would have been if it had been learned in the shadow of EPA regulation.

The wider implications of congressional deadlock

The evolution of environmental lawmaking is not so different from similar evolutions taking place in a wide variety of different realms. Environmental law, after all, is not alone in suffering a prolonged congressional snub. Consider the law around social media and electricity transmission lines. The explosion, first of the internet, and subsequently of social media, has taken a technologically overwhelmed Congress by surprise. Privacy concerns have leapt to the forefront of the policy debate and yet seem to be incrementally and partially addressed by technology firms themselves. Privacy concerns have been addressed by a variety of half-measures (by some accounts unsatisfactory), but consumers have not voted with their feet and exited the social media world en masse.

Now consider the need for an upgraded electricity transmission system. Grid reliability in the United States no longer compares favorably with technologically sophisticated countries such as Germany. While Congress could clearly step in and provide the mandate and the money to upgrade electricity reliability—and save billions of dollars of dampened economic activity—it has not done so. Familiar Not-in-My-Backyard concerns have crippled decentralized, noncongressional efforts to improve electricity transmission. But in this chaos, several alternatives have emerged. Some frustrated towns and even individual homeowners have simply gone off the grid and installed a combination of alternative energy sources. Energy storage has suddenly become a hot technology. And Google, wading into the energy world with its formidable of cache of information and money, has invested in a transmission line that will be buried underground in the North Atlantic seabed, circumventing the notoriously difficult approval processes in New Jersey, which badly needs more transmission capacity.

While commerce and industry have developed creative work-arounds that could have been, but were not, obviated by congressional action, it is impossible to elide certain areas that desperately need the intervention of Congress. Reform of the Toxic Substances Control Act, for instance, is long overdue. Without it, chemical manufacturers face a patchwork of nonfederal regulations, and, moreover, much remains unknown about the thousands of new chemicals that are introduced into commerce regularly. Most importantly, climate change needs Congress. President Obama’s plan to reduce greenhouse gas emissions using the Clean Air Act is as credible as it could be, but is clearly only a start. Much can be learned by subnational or extra-governmental initiatives to combat climate change, but ultimately the governments of China and India can only be engaged if the U.S. Congress acts.

What the future might hold

Because of the importance of this emerging issue, Florida State University College of Law brought together a number of leading academics earlier this year to begin exploring the future of environmental law in a world in which Congress does not legislate. As these scholars concluded, this remains our immediate reality although advancements and accomplishment remain possible.

Several scholars shared their perspectives on what the future might bring. Richard Lazarus, the Howard and Katherine Aibel Professor of Law at Harvard Law School, delivered a keynote address that sketched a much broader backdrop for the current stalemate, reminding us that Congress has survived past crises far more emotive that the ones it currently faces. After Massachusetts Senator Charles Sumner delivered a stinging anti-slavery speech on the Senate floor in 1856, he was beaten, nearly fatally, by South Carolina Congressman Preston Brooks. Indeed, not all signs are discouraging. Reform of the Toxic Substances Control Act appeared tantalizingly close until the passing of Senator Frank Lautenberg. In the meantime, many state initiatives have not waited for Congress. University of California Berkeley Sho Sato Professor of Law, Daniel A. Farber, discussed developments such as California’s groundbreaking climate law, the Global Warming Solutions Act, and other state initiatives. Professor Farber offered examples in which states may, in the absence of congressional action, continue to lead on climate policy. In addition to state actions, a number of local government initiatives have made inroads into the climate change problem that has seemed intractably daunting, but much less so as the accomplishments mount.

So even while Congress remains unable to agree on the most modest, incremental, bipartisan initiatives like energy efficiency, there are many alternative pathways to achieving environmental quality that are worth considering and pursuing. Other answers emerging from this conference were surprisingly varied and optimistic. The conference speakers identified a number of alternative pathways for domestic environmental lawmaking and confirmed that the environmental future, while dimmer, is not altogether dark. A video recording of the conference, Environmental Law without Congress (Feb. 28, 2014), is available at

Shi-Ling Hsu

Shi-Ling Hsu is the Larson Professor of Law at the Florida State University College of Law. He teaches environmental and natural resource law, climate change, law and economics, and property.