Changes Do Not Necessarily Bring About Change

• Date: 01 January 2009

39 ELR 10074 ENVIRONMENTAL LAW REPORT ER 1-2009

The election of Sen. Barack Obama ( D-Ill.) w ill result

in political appointments to the environmental agen-

cies and the policies they pursue which will be much

more to the liking of the nongovernmental organization (NGO)

community and much less so to industry. The impact of this

change will be amplif‌ied by Rep. Henry Waxman’s (D- Cal.)

ouster of Rep. John Dingell ( D-Mich.) as chair of the U.S.

House of Representatives’ Energy and Commerce Committee.

Indeed, environmental policies will take on a distinctly Cali-

fornia character with Rep. Nancy Pelosi (D-Cal.) as Speaker of

the House and Sen. Barbara Boxer (D-Cal.) chairing the U.S.

Senate Environment and Public Works Committee.

The new Congress is also almost certainly going to be more

favorable to new environmental controls and have a more

aggressive environmental agenda. However, the change in ori-

entation and approach of the federal government after January

20, 2009, will not immediately result in a f‌lood of new legisla-

tion or sweeping changes in regulations.

The list of issues awaiting congressional resolution is long.

Just some examples: Under the Clean Water Act (CWA),1

major controversies about such issues as the scope of jurisdic-

tion, wetland regulation, water transfers, and the application

of total maximum daily loadings of pollutants need congres-

sional clarif‌ication or resolution. In the area of air pollu-

tion control, there are controversies surrounding new source

review, regulation of hazardous air pollutants, emissions cap-

and-trade programs for traditional pollutants a nd, of course,

controls for greenhouse gases. Federal preemption of state

mobile source (automotive) air pollution controls—or the lack

of preemption—continues to fester. The issue of renewable

fuels and their impacts on air and water quality, deforestation,

and hunger will probably also get much more scrutiny than in

the past. In fact, these and other major CAA or related energy

requirements, both in the area of emission controls and in the

setting of ambient air quality standards, would be enough to

tie the cognizant congressional committees in knots for at least

two sessions of Congress.

1. 33 U.S.C. §§1251-1387, ELR Stat. FWPCA §§101-607.

Wrangling over def‌initional issues and remediation

requirements in the Resource Conservation and Recovery Act

(RCRA)2 and the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA)3 continue, though

they increasingly are so arcane as to rob them of political force.

There are signif‌icant implications in terms of costs and the

interests of various g roups that benef‌it from stringent waste

management and remediation measures, but the difference in

public health consequences are relatively minor and unlikely

to create the broad national interest and pressure that will be

needed to move any legislation.

Environmental protection is a mature f‌ield. Legislation

over the past 40 years has given federal and state regulators

broad authority to address the release of pollutants, disposal

of wastes, and conservation of natural resources. Given the

breadth of existing authorities, it is remarkable how much

unf‌inished business there is under the existing body of law

and how many major national issues still require legislation

to be resolved.

Some of the issues that arguably require federal legisla-

tion for resolution already have been the subjects of regula-

tion and/or litigation, but the results are unsatisfactory to

stakeholders with political clout such as state regulators or

important environmental NGOs. Others involve matters that

have arisen since Congress was last able to move controver-

sial environmental legislation—that is, more than a decade

ago. Some would argue it has been much longer. Each of these

unresolved areas is likely to be the subject of drives for federal

legislative resolution.

Countering the preferences of the congressional leadership

and the Obama Administration is the fact that with the pos-

sible exception of climate change, there is no broad public

pressure for new laws but there is pressure for action in many

other areas. Without such pressure, there will be no action.

Even with such pressure, those wanting major changes in envi-

2. 42 U.S.C. §§6901-6992k, ELR Stat. RCRA §§1001-11011.

3. Id. §§9601-9675, ELR Stat. CERCLA §§101-405.

Changes Do Not Necessarily Bring

About Change

Don’t expect signif‌icant new environmental laws under

a new administration and Congress

by Ernie Rosenberg

Ernie Rosenberg is President and Chief Executive Off‌icer of the Soap and Detergent Association.