21st Century Problems, 20th Century Laws

• Pages: 42-49

Page 42 ❧ THE ENVIRONMENTAL FORUM Copyright © 2011, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, Jan./Feb. 2011

THE FORUM

21st Century Problems,

20th Century Laws

EPA’s founding on December 2, 1970, co-

incided with the advent of modern en-

vironmental law. e National Environ-

mental Policy Act was signed in January

of that year. ere followed an outpour-

ing of congressional lawmaking spanning a decade:

the Clean Air Act, the Clean Water Act, the En-

dangered Species Act, the Resource Conservation

and Recovery Act, the Toxic Substances Control

Act, the Comprehensive Environmental Response,

Compensation, and Liability Act, plus several other

statutes, all calling on EPA (and other agencies) to

regulate pollution and environmental hazards. After

that, the Congress spent another 10 years strength-

ening and f‌ine-tuning its legislation, culminating in

the 1990 Clean Air Act Amendments.

But except for two minor updates in 1996, the

Congress has been silent on environmental law

in the two decades since the CAA amendments.

Meanwhile, EPA has moved forward on the man-

dates in the legislation, with the backing of the U.S.

Supreme Court’s 1984 Chevron decision, even as

new problems emerged. In fact, the Court pushed

the agency to use language written in the 1970s

in the CAA to address global warming in its 2007

Massachusetts decision, potentially giving EPA vast

dominion over much of the U.S. economy. On the

other hand, the Court’s 2006 Rapanos decision gave

confusing advice to the agency on regulating wet-

lands under the CWA, leaving “waters of the United

States” poorly def‌ined. And the Fifth Circuit’s 1991

Corrosion Proof Fittings decision left TSCA with

diminished authority to ban hazardous chemicals

in commerce. Today, caught between the mandates

of aging statutes and the interpretations of various

courts, the agency f‌inds itself facing new challenges

without new tools.

What’s to be done? For the ELI-Miriam Hamil-

ton Keare Policy Forum, held in conjunction with

the Annual Dinner, we assembled a panel of past

and present deputy administrators and general

counsels of the agency, as representive of the en-

vironmental profession and its potential to forge

progress in a dif‌f‌icult policy environment.