Respecting EPA

• Date: 01 January 2009

39 ELR 10080 ENVIRONMENTAL LAW REPORT ER 1-2009

When President Richard M. Nixon created the U.S.

Environmental P rotection Agency (EPA) in 1970,

his vision was of “a strong, independent agency.”1

The f‌irst EPA Administrator, William D. Ruckelshaus, estab-

lished three principles for the Agency: (1) support for the sci-

entif‌ic process and reliance on scientif‌ic results; (2) adherence

to rule of law, including faithful implementation and enforce-

ment of environmental laws; and (3) avoidance of excessive

politicization. T hese principles have guided EPA leadership

and decisionmaking for much of the Agency’s history, in both

Republican and Democratic Administrations. Obvious and

signif‌icant departures from them at EPA under President

George W. Bush, however, raise questions about whether

these principles are compatible with the current preference

for presidential administration, whether we can hope for their

resurrection in future EPAs, and whether we should. This

commentary brief‌ly documents this most recent chapter of

EPA’s history, tr ies to understand its signif‌icance, and sug-

gests a future path for White House relations with EPA (and

perhaps by extension other executive branch agencies with

signif‌icant regulatory responsibilities involving technical or

scientif‌ic expertise).

I. Presidential Administration

There is potential tension between the Ruckelshaus principles

and the prevailing model of the federal administrative state,

the presidential control model or presidential administration.

Under this model, agencies work under the active control of

the Chief Executive. Agency actions are also subject to con-

gressional oversight and judicial review for arbitrariness and

illegality, although proponents of this model argue against

intrusive review. But presidential oversight is considered

essential to political accountability and political accountabil-

ity essential to agency legitimacy.

1. Special Message From the President to the Congress About Reorganization

Plans to Establish the Environmental Protection Agency and the National Oce-

anic and Atmospheric Administration, Reorganization Plan No. 3 of 1970 (July

9, 1970).

The presidential control model dominates recent schol-

arly opinion, although it also attracts considerable criticism.2

It also dominates recent practice in both Democratic and

Republican Administrations.3

II. The Bush EPA

Animated by its vision of the strong executive, the Bush Admin-

istration has given short shrift to the Ruckelshaus principles.

A. Science

While the Bush Administration has claimed to follow “sound

science,” there is evidence that it has ignored, suppressed,

or misrepresented scientif‌ic information generated by EPA

in pursuit of predetermined policy goals. In an April 20 08

survey of over 1,500 EPA staff scientists by the Union of Con-

cerned Scientists, 889 of the scientists reported that they had

experienced political pressure in carrying out their duties,

400 had seen their work misrepresented by Agency policy-

makers, and 285 had observed Agency policies justif‌ied by

partial or biased information. Specif‌ic examples of ignoring or

misrepresenting science have been the focus of congressional

attention, including the infamous editing of an EPA climate

change report by White House staffer, Philip A. Cooney, a for-

mer oil industry lobbyist without scientif‌ic training.

B. Legal Restraint

In some of its efforts to avoid or limit the costs of environ-

mental measures, the Bush Administration has relied on mar-

ginal statutory interpretations. The courts have rebuffed a

number of these interpretations in high-prof‌ile decisions that

have been dismissive of the Agency’s legal reasoning. These

cases include Massachusetts v. U.S. Environmental Protection

2. See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy

in the Administrative State, 78 N.Y.U. L. REV. 461, 463 n.1 (2003).

3. Id. at 487-88; Elena Kagan, Presidential Administration, 114 HARV. L. REV.

2245, 2277-82 (2001).

Respecting EPA

Restraining presidential inf‌luence in EPA decisionmaking

leads to better environmental and political outcomes

by Jonathan Cannon

Jonathan Cannon is the Blaine T. Phillips Distinguished Professor of Environmental Law and Director,

Environmental and Land Use Law Program, University of Virginia School of Law.