Date of this Version
Notre Dame Law Review 88:5 (2013), pp. 2323-2398
During the late 1960s, the nation’s attention was riveted on graphic images of contaminated resources, such as smoldering rivers and oil-soaked seagulls, as well as Rachel Carson’s haunting prose about the “strange blight” of chemical pesticides afflicting land, water, and wildlife. Policymakers recognized the need for strong legal protections for public health and the environment, and Congress responded with sweeping legislation governing the pollution of water, air, and soil, and the demise of threatened and endangered species.
The Clean Water Act of 1972 (CWA), which regulates discharges of pollutants into waters of the United States, is one of the most significant statutes among this body of legislation. Under the CWA and related federal environmental legislation, the nation has made tremendous strides in improving our water quality along with the waste management practices that affect water, air, and soil. However, since the basic statutory framework was adopted in the 1970s, there have been many ecological, technological, social, and political changes in the United States, but Congress has adopted very few significant amendments, causing some to question whether federal environmental laws have passed their prime.
This Article begins in the 1970s, when the nation’s environmental framework was expressed in statutes governing a wide variety of topics, including water, air, environmental analysis, and endangered species. Part I explores the intricate interplay between the agencies charged with implementing these statutes, the federal courts, and Congress, and demonstrates how Congress routinely amended the statutes as needed to ensure that the agencies and the courts were staying true to its purposes and implementation strategies.
Part II moves forward in time and looks at the dramatically different legislative landscape since 1990. Very little by way of significant environmental legislation has been enacted in the past two decades. This is so despite the fact that the Supreme Court has reviewed a surprising number of Clean Water Act cases during this era, including cases challenging the jurisdictional scope of the Act, EPA’s enforcement powers,and the division of power between the EPA and the Corps of Engineers. Meanwhile, significant changes in the physical environment and in our understanding of the environment have occurred, without any meaningful response from Congress. Part III explores a variety of reasons for congressional failures since 1990. Congress has produced relatively little by way of comprehensive legislation across the board—not just on environmental issues. The lack of controls on campaign financing and the corruptive influence of money from special interest groups is one reason. A dramatic increase in the number of filibusters is another. However, there have been moments of “civic republicanism” where Congress has managed to pass broad-reaching statutes to address health care, national security, banking, and several other topics.
Part III explains how environmental law is different than other types of legislation, and why gridlock is so much more palpable in the environmental arena. Despite high profile catastrophes such as the BP Deepwater Horizon blowout and the failure of the levee system in New Orleans in the wake of Hurricane Katrina, Congress has done virtually nothing on the environmental front. The chronic problems posed by hyper-partisanship and campaign funding are present here, too, but there is something more afoot. Heated rhetoric, conveyed in inflammatory sound-bites—“job killing” regulatory measures and private property rights “abuse” among them—is even more evident when it comes to environmental law than in other areas. Equally troubling is congressional mistrust—even disdain—for science.
Part IV considers the implications of Congress’s failure to act, and explores the ways in which the federal agencies either have stepped into the vacuum or could fill the vacuum left by congressional inaction. It posits that environmental gridlock may not be such a bad thing after all. True, from the standpoint of democratic legitimacy, Congress ought to be doing its job. But from the standpoint of environmental protection, perhaps Congress should leave well enough alone (or at least we will be no worse off if it does remain silent). Neither congressional members nor their staffs have sufficient time, inclination, or expertise to craft adequate responses to modern environmental problems, many of which are far more complex than the issues faced in the 1970s. When it comes to water quality, at least, the low-hanging fruit has already been picked and the remaining issues, such as nonpoint source pollution and the protection of isolated wetlands and ephemeral streams, call for solutions that are both more nuanced and more politically charged than the basic mandates issued in the 1970s were. Congress has always been better able to deal with “macro”-level issues and pose broad-brush policy-oriented solutions, but complex problems tend to be over-simplified, for example, one is either “for or against” wetlands protection or “for or against” hamstringing the economy by regulating industrial discharges. Moreover, given that the environmental laws of the 1970s, with their lofty objectives, are the high water mark, and also that the value of safe, clean water for drinking, fisheries, and recreation remains intact, it is possible we have nowhere to go but down if Congress were to start tinkering.
The Article concludes in Part V with an assessment of several “portaging strategies” that offer an opportunity to work around the congressional logjam and move the environmental ball forward through non-legislative means. Although comprehensive legislative reform may be the “first best” option for addressing wicked problems like climate change and even nonpoint source pollution, empowering agencies to engage in more progressive environmental action presents a viable “second best” alternative. This alternative turns in part on empowering citizens to motivate agency action through petitions for rulemaking and citizens’ suits, and in part on clearing away impediments to agency action while minimizing agency capture by anti-regulatory interests. A coordinated strategy of regulation, Executive Orders, and enforcement might take us beyond merely “treading water” while Congress ignores the environment.