THE ENVIRONMENTAL PROTECTION AGENCY TURNS FIFTY.

• Author: Adler, Jonathan H.

On July 9, 1970, President Richard Nixon informed Congress of his plan to create a federal environmental-protection agency. (1) In response to growing environmental concerns and perceptions of an "environmental crisis," (2) Nixon called for a new executive-branch agency tasked with protecting the nation's people and resources from pollution and environmental harm. Although many environmental programs and offices existed throughout the federal government, Nixon explained that "only by reorganizing our Federal efforts" would it be possible to "effectively ensure the protection, development and enhancement of the total environment itself." (3) In his reorganization plan, Nixon called for the establishment of a single agency, the Environmental Protection Agency (EPA), that would be empowered to "make a coordinated attack on the pollutants which debate the air we breathe, the water we drink, and the land that grows our food." (4)

Creating this new agency required reassembling offices, bureaus and responsibilities spread throughout the federal government, including divisions within the Departments of Agriculture and the Interior, and what was then known as the Department of Health, Education, and Welfare. (5) Other offices were transferred from smaller agencies, such as the Atomic Energy Commission, the Federal Radiation Council, and the newly created Council on Environmental Quality. (6) Although Nixon was on record opposing the creation of new federal agencies, the need for a more coordinated and effective federal response to environmental concerns justified a one-time exception. (7)

From its inception, the EPA's role and orientation was the subject of conflict and debate. (8) Although President Nixon rejected proposals to create a federal environmental agency that would be simultaneously responsible for environmental protection and resource development, (9) he nonetheless expected the Agency to integrate and balance environmental protections with economic concerns. (10) Some members of Congress had other ideas, as did leaders in the rapidly expanding environmental movement. (11) In their view, the EPA should be an unrelenting champion of environmental protection and a counterweight to those agencies institutionally prone to support resource development and economic growth. (12)

The EPA officially opened its doors on December 2, 1970. (13) Its first Administrator, William Ruckleshaus, took quickly to the role. He vigorously pursued the enforcement of federal environmental laws, including the newly enacted Clean Air Act. (14) Indeed, during the first sixty days of the EPA's existence, it "brought five times as many enforcement actions as the agencies it inherited had brought during any similar period." (15) The new agency quickly made its presence felt.

Though Ruckleshaus may have hit the ground running, not all of his successors would pursue enforcement with the same vigor, nor would every subsequent administration support expansive conceptions of the federal government's role in addressing environmental pollution. President Ford "effectively disowned the EPA" during his brief tenure in office. (16) The Reagan Administration, in particular, sought to curtail the Agency's footprint on the American economy. (17) Others with more environmentally friendly reputations have also sought to balance economic and environmental concerns. Even the Obama Administration risked an environmental backlash by overruling an EPA decision to tighten air-quality standards, reportedly due to concerns about the political fallout. (18)

Virtually all human activity has an environmental effect, so environmental concerns are omnipresent in modern society.

Consequently, environmental regulations have the potential to reach all manner of economically productive activity, and such regulatory impositions are not always received warmly by those subject to regulation. (19) President George H. W. Bush may have campaigned to be the "environmental president" in 1988, (20) but in 1992 he criticized environmental extremism as part of his reelection effort. (21) As a candidate, Donald Trump went even farther, calling EPA regulation a "disgrace" (22) and threatening to bring environmental protection "back to the states" (23)--although as President he has touted the nation's environmental leadership and proclaimed his support for "the cleanest air" and "crystal-clean water." (24)

In anticipation of the fiftieth anniversary of the EPA's founding, the Coleman P. Burke Center for Environmental Law and the Case Western Reserve Law Review sponsored a symposium to look at the past, present, and future of the EPA. (25) The conference featured an array of environmental-law and -policy experts, including individuals who served in environmental-policy positions in each of the last four presidential administrations, as well as the current EPA Administrator, Andrew Wheeler. The articles from this conference are published in this special symposium issue of the law review.

After fifty years, the EPA is still concerned with maintaining and improving air and water quality, controlling and cleaning up hazardous wastes, and limiting the environmental toll of modern industry. Yet much has changed. The focus on larger, more conspicuous sources of environmental harms has given way to more dispersed, more diffuse, and often harder-to-identify environmental concerns. (26) Nonpoint-source water pollution and climate change have also brought environmental concerns, and their causes, closer to home for many Americans. Any illusion that environmental protection can be pursued merely by regulating some distant industrial source has been dispelled. (27)

The Clean Air Act (CAA) is among the "most far-reaching," and most successful, regulatory enactments. (28) The phase-out of lead from gasoline, in particular, stands out as a highlight of the Agency's potential to advance public health through pollution control. (29) The CAA also provided the EPA with the legal authority to impose limits on vehicular emissions and to phase-out chloroflourocarbons and other chemicals that deplete the stratospheric ozone.

The "heart" of the CAA comprises the provisions providing for the creation and enforcement of National Ambient Air Quality Standards that each metropolitan area in the nation is required to meet. (30) Although urban concentrations of some...