December 17, 2018 Article 3

Environmental Law & Politics

by: Richard Lazarus & Sara Zdeb

Editor’s note: This article first appeared in the Spring 2008 issue of Insights on Law & Society. The history has not changed since first publication, and it remains an excellent overview of how politics shaped environmental policy over the twentieth century in ways that affect us now in the twenty-first century.

In 2007, the environment—in particular, global warming—burst into the public consciousness. Former Vice President Al Gore won the Nobel Peace Prize and saw his film, “An Inconvenient Truth,” win an Oscar and become the fourth highest-grossing documentary of all time. International leaders gathered in Bali at the close of the year to launch a new round of climate change negotiations. And here at home, the United States Congress took up varying proposals to combat global warming while the Supreme Court issued a landmark ruling on the issue.

Global warming may represent the newest frontier in environmental law, but the lawmaking institutions working to address it have more than 30 years of history on which to build. This history has been tumultuous, but throughout it environmental law has grown, overcoming challenges and demonstrating a surprising resilience. Whether tackling global warming, water pollution, or the protection of endangered species, environmental lawmaking is uniquely and inherently difficult. As such, its persistence over the past three decades is even more remarkable. Making environmental law is difficult in part because the environment itself is so complex. Ecological systems are complicated and dynamic, as are the factors that contribute to environmental change. Environmental law must take this complexity into account. For example, when setting standards limiting the amount of a particular air pollutant, the Environmental Protection Agency (EPA) must consider ecological factors including temperature, atmospheric pressure, and wind.

The EPA also must take into account the many sources that contribute the pollutant into the air. Finally, the agency must consider how all these factors relate to human health—a measure by which it sets standards under the Clean

Air Act. Our constitutional system itself poses additional hurdles. Lawmaking institutions are divided vertically between the federal government and states, as well as horizontally among Congress, executive branch agencies, and the courts. This deliberately fragmented system makes any type of lawmaking difficult and incremental. Enacting environmental laws is particularly difficult, because the injuries they seek to prevent are often far-off and diffuse, while their economic impact may be immediate. In addition, the Constitution limits the powers of Congress
to an enumerated list that does not expressly mention the environment. As a result, legislators must hitch federal environmental laws to authority Congress does possess, such as the ability to regulate economic activity under the Constitution’s Commerce Clause.

The Road to Environmental Law

Despite these obstacles, the seeds of environmental law germinated several decades ago, and by 1970 its roots were firmly planted. While the term “environmental law” was not formally coined until 1969, numerous natural resource and pollution control laws were on the books far beforehand. Early federal regulation of forests, minerals, and other resources favored private economic exploitation. Beginning in the early to mid-20th century, Congress enacted a set of natural resource laws that gradually jettisoned this one-sided approach and began embracing the goals of preservation and conservation. Early laws such as the Antiquities Act of 1935 set the stage for a series of even more protective ones in the 1960s, culminating with the Wilderness Act of 1964 and the Wild and Scenic Rivers Act of 1968. At the same time, Congress passed a number of clean air and water laws in the 1960s that served as precedents for even more ambitious lawmaking to come.

 

Public consciousness of environmental issues was also growing. Publications such as Silent Spring—Rachel Carson’s 1962 missive against pesticide use—captured the nation’s attention. So did highly visible environmental disasters later in the decade, including the 1969 oil spill off the Santa Barbara coast and, famously, the burning of the polluted Cuyahoga River. By 1970 the stage had been set: a diffuse body of environmental law already existed, and the public supported more.

The 1970s was a seminal decade for environmental protection. Its first year saw three major accomplishments: the National Environmental Policy Act (NEPA), the Clean Air Act, and the creation of the EPA. NEPA alone was groundbreaking. Often called the “Magna Carta of environmental law,” it articulated a broad declaration of national policy to protect the environment. NEPA’s action-forcing requirements were even more significant than its aspirational policy statements. The law required federal agencies to assess the environmental impacts of their actions and to identify alternatives less likely to harm the environment. This “look-before- you-leap” approach changed the way the federal bureaucracy operated and proved—along with the law’s information disclosure requirements—NEPA’s most enduring legacy.

Congress enacted nearly two dozen environmental laws over the course of the decade, and it did so with overwhelming bipartisan majorities. The federal environmental laws of the 1970s were dramatic, sweeping, and uncompromising. In addition to NEPA, there were public health and pollution control laws such as the Clean Air Act and Clean Water Act. There were also natural resources laws such as the Endangered Species Act, Natural Forest Management Act, and Marine Mammal Protection Act. The natural resources laws of the 1970s were particularly noteworthy for the balance they struck in favor of conservation and against exploitation. The most sweeping—the Endangered Species Act—went even farther, making the prevention of extinction its overriding policy objective.

The 1970s also witnessed the emergence of the criticism and controversy that face environmental law to this day. Ironically, President Nixon began the decade as one of environmental law’s biggest supporters but ended his term a skeptic of the very laws he initially championed. Controversy arose in other corners, too. Some environmentalists were dissatisfied with the pace of progress, while regulated industries argued that EPA was overreaching. By the end of the decade, the federalist and regulatory reform movements that would later flourish had begun to take shape. Nonetheless, Congress continued passing far-reaching laws, and the courts—including the Supreme Court—broadly interpreted them both in terms of their jurisdictional reach and their regulatory rigor.

The 1980s: Consensus Breaks Down

The 1980s were tumultuous years that saw numerous challenges to environmental law—but in the end confirmed its surprising persistence. President Nixon may have begun his administration as a cheerleader for environmental law and ended as a skeptic, but President Ronald Reagan left no doubt about where he stood on the body of laws enacted in the 1970s. Reagan aligned himself with the “Sagebrush Rebels,” a movement of western opponents of federal ownership of public lands. Immediately after his inauguration, he launched a cabinet-level task force on “regulatory relief” that suspended numerous pending regulations and encouraged industry to target particularly burdensome ones. Similarly, he signed an executive order requiring cost-benefit analysis of major rules and giving the Office of Management and Budget significant authority to review and shape regulations.

The heads of Reagan’s Interior Department and EPA—James Watt and Anne Gorsuch (mother of now U.S. Supreme Court justice Neil Gorsuch, and the first woman to lead the agency)—were openly hostile toward the agencies they led. Watt described the Interior Department as “oppressive,” and Gorsuch drew fire for attempting to cut EPA’s budget by as much as one third. Both eventually left their posts with controversy in their wake (Gorsuch’s refusal to turn over documents to Congress led to an inter-branch confrontation and the ultimate perjury conviction of one of her assistants). Ironically, Watt and Gorsuch were such lightning rods that they undermined Reagan’s environmental agenda. While Watt succeeded in expanding oil, gas, and mineral leasing on public lands, he and Gorsuch failed to achieve many of the big reversals of environmental protection that Reagan supported.

Indeed, environmental law not only withstood challenges but grew and expanded during the 1980s. President Jimmy Carter ended his term in 1980 by signing two key laws. The Alaska National Interest Lands Conservation Act reaffirmed federal stewardship of public lands in Alaska. And the Comprehensive Environmental Response, Compensation, and Liability Act, enacted in response to the toxic waste crisis at Love Canal and other abandoned and inactive hazardous waste sites across the country, created a dramatic new liability program that forced polluting industries to pay for the cost of toxic waste cleanup. Congress also amended and strengthened existing laws, such as the Clean Water Act and the Resource Conservation and Recovery Act, over the course of the decade. Reflecting Congress’s dwindling trust in the executive branch, the new laws were increasingly prescriptive and less deferential to federal agency expertise; they added tough new deadlines on EPA’s implementation of new regulatory programs, and they imposed even stricter controls on industry. Finally, Congress reaffirmed the importance of information disclosure that it first embraced in NEPA, passing the Emergency Planning and Community Right to Know Act of 1986. Enacted in the wake of a chemical plant explosion in Bhopal, India, the law required industry to inform communities when it used and released dangerous substances.

The 1990s: Partisan Gridlock

The political makeup of the federal government changed dramatically in the 1990s. President George Bush, like Nixon, marked the beginning of his term with environmental accomplishments, signing the 1990 Clean Air Act amendments into law. And like Nixon, Bush ended his term a skeptic, proposing to drill for oil in Alaska’s Arctic National Wildlife Refuge and only grudgingly attending the 1992 Earth Summit in Rio. The election of President Bill Clinton changed the executive branch’s approach to environmental law, but countervailing changes in the composition of Congress and the courts led to increasing conflicts over environmental goals and policies.

In 1994, Republican congressional candidates swept into power, capturing control of the House and Senate. As part of its “Contract with America,” the 104th Congress proposed legislation to elevate the rights of landowners, require cost-benefit analysis of environmental laws, and single out environmental programs for disproportionate budget cuts. While his campaign for the presidency stressed the economy and not a green agenda, Clinton found political advantage in fighting Congress’s proposed environmental reforms—and few ultimately became law. This same partisan gridlock prevented the legislative overhauls that characterized the previous two decades. Interior Secretary Bruce Babbitt and EPA administrator Carol Browner responded by pursuing an activist, ambitious lawmaking agenda by administrative regulation. Congress in turn sought to block new regulations by attaching “riders,” or unrelated policy provisions, to its annual spending bills.

Controversy, gridlock, and the demise of bipartisanship were hallmarks of environmental lawmaking in the 1990s. These hallmarks have continued throughout the current Bush administration, which suspended a host of Clinton-era environmental regulations immediately upon taking office. The Bush administration also drew fire for promoting energy and national forest policies that emphasized exploitation of natural resources. When Congress took up these issues, it divided largely on party lines. This continuing deterioration of bipartisanship stands in stark contrast to the broad congressional support that environmental law drew from both parties in its early decades.

The courts also underwent major changes beginning in the 1990s, as years of conservative judicial appointments by Presidents Reagan and Bush came to fruition. The courts became increasingly skeptical of the efficacy of environmental protection laws. In a series of cases narrowing Congress’s authority to regulate economic activity under the Constitution’s Commerce Clause, the Supreme Court called into question the very foundation on which laws such as the Endangered Species Act rest.

While domestic environmental law persisted, international environmental law became environmental law’s most engaging and dynamic area in the 1990s. By the end of the decade, the United Nations listed approximately 1,000 international environmental agreements of one kind or another—far greater than the 52 agreements that existed in 1970. At the same time, concern about the intersection of trade and the environment, as well as energy and the environment, arose.

The Future

The 21st century has brought new challenges, none greater than global warming. The most powerful and wealthiest nations in the world are the greatest cause of greenhouse gas emissions; by contrast, many of the poorest parts of the globe are most immediately and devastatingly threatened. Effective control of global warming, moreover, will require not only major reductions by the world’s most powerful countries but also the agreement of developing nations now caught in a bind between economic development and the environment.

In short, environmental lawmaking to address global warming will need to conquer the same kind of hurdles it has always faced, which have made environmental lawmaking so difficult and controversial. The only significant difference is that the hurdles are now much higher in light of global warming’s extraordinary spatial and temporal dimensions. Lawmaking to address global warming will require sweeping international and domestic laws, the creation of new international lawmaking institutions, and perhaps also new domestic institutions. The challenges are enormous, but so too are environmental law’s past achievements and future aspirations.

Richard J. Lazarus

Professor of law at Harvard University Law School

Richard J. Lazarus is professor of law at Harvard University Law School. He served as executive director of the National Commission on the BP Deep Water Horizon Spill, which President Barack Obama appointed members to in 2010. He was the principle author of the Commission’s Final Report to the President, which was submitted to the president in 2011. In 2008, he was a professor at the Georgetown University Law Center and director of the Georgetown University Supreme Court Institute. His books include The Making of Environmental Law (University of Chicago Press, 2004). 

Sara Zdeb

Lawyer with O’Melveny & Myers

Sara Zdeb is a lawyer with O’Melveny & Myers in Washington, DC. She was a 2008 graduate of the Georgetown University Law Center. She is the author of “From Georgia v. Tennessee Copper to Massachusetts v. EPA: Parens Patriae Standing for State Global-Warming Plaintiffs.” (Georgetown Law Journal, 2008).