Treading water while Congress ignores the nation's environment.

• Author: Zellmer, Sandra
• Position: Introduction through II. A Broken Minuet: The Agencies, the Courts, and Congress Since 1990 A. Agencies and the Court Assume the Dominant Role in Environmental Lawmaking, p. 2323-2349

INTRODUCTION

During the late 1960s, the nation's attention was riveted on graphic images of contaminated resources, such as smoldering rivers and oil-soaked seagulls, (1) as well as Rachel Carson's haunting prose about the "strange blight" (2) 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. (3)

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. (4) 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. (5) 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. (6)

In fact, since 1990, Congress has failed to take any meaningful action to reform our nation's pollution control laws. One might understandably think that the policymaking vacuum in our legislative branch has rendered our bedrock environmental provisions far less effective than they could be. Even when environmental catastrophes have occurred, such as the 2010 blowout of BP's Deepwater Horizon in the Gulf of Mexico, Congress has failed to respond. The federal agencies have frequently stepped in to fill the regulatory gaps. In reviewing the agencies' decisions, the federal courts have issued a variety of proclamations that shape the statutory playing field, sometimes in ways that Congress may have never anticipated when it adopted the lofty, environmentally protective statutory goals.

The CWA, in particular, has been a favorite environmental subject of the Supreme Court. Since the CWA's enactment, the Court has issued thirty-four CWA decisions, which constitutes thirty-four percent of the one hundred environmental opinions issued from 1972-2012. (7) The Clean Air Act is a distant second, with only twenty-two opinions issued during the same period. (8) The Court has reviewed nearly half of the CWA disputes since 1990, including cases challenging the jurisdictional scope of the Act as well as the Environmental Protection Agency's (EPA) enforcement powers and the division of authority between the EPA and the Corps of Engineers. (9)

Congress has failed to respond in a meaningful way to any of the post-1990 CWA judicial opinions. In contrast, throughout the 1970s and 1980s, a syncopated yet rhythmic dance took place between the agencies, the federal courts, and Congress. Federal agencies, including EPA, would issue regulations to implement the CWA and other keystone environmental statutes, the courts would resolve challenges to those regulations, in many cases based on ambiguous statutory language, (10) and Congress would subsequently either validate or repudiate the results. Examples include point source pollution exemptions, variances for discharges of toxic pollutants, and discharges from dredge and fill activities. (11)

Much has changed since the 1970s, and even since 1990. The bitterly partisan nature of environmental issues in Congress today suggests that comprehensive, thoughtful reforms tailored to the problems faced by modern society are unlikely. It is not clear, however, that congressional reticence or even gridlock is necessarily a bad thing when it comes to environmental law. Certainly, the physical environment and the tools available for addressing environmental problems have changed since most of our key statutes, including the CWA, were passed, making some existing provisions seem outdated and inadequate. (12) On the other hand, the objectives of the CWA and other bedrock environmental laws have not changed; if anything, these goals have become all the more compelling in the twenty-first century. As a society, we still expect clean and reliable water resources--an expectation that cannot be met unless we attain the CWA's goals of maintaining and restoring the chemical, physical, and biological integrity of the nation's waterways. (13) Yet if today's Congress were to take up the call to reform existing statutes, it may be more likely to dismantle provisions disliked by powerful, regulated entities than to pass comprehensive, forward-thinking legislation designed to solve contemporary environmental problems. (14)

Perhaps it is not necessary or wise, then, to push for a more responsive legislature. While Congress has been neglectful, the federal agencies have taken up the slack in some instances, crafting more innovative and, in some cases, more progressive solutions than might be expected in Congress. Although it has often taken a citizens' suit to push the agencies forward, the agencies have generally been more willing than congressional members to consider evolving scientific findings and conclusions and to adapt their strategies to the science.

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, (15) EPA's enforcement powers, (16) and the division of power between the EPA and the Corps of Engineers. (17) 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. (18) 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. (19) Although comprehensive legislative reform may be the "first best" option for addressing wicked problems like climate change and even nonpoint source...