Monday, April 8, 2013

Environmental Policy and Congressional "Gridlock"

By Nick Cunningham

That the government suffers from "gridlock" has been something of a ubiquitous cliche in recent years, with the American public fed up with the inability of the government to deal with big problems. This extends to environmental policy, where environmental groups (as well as business interests on the other side) throw up their hands in frustration from time to time, lamenting the fact that nothing can get done. Congress hasn't really passed major environmental legislation in decades.

However, legislative gridlock is different than total policy gridlock. I'm currently reading "American Environmental Policy, 1990-2006," which takes a look at this issue, and although it is 5 years old, it is a fascinating read. The authors, Christopher McGrory Klyza and David Sousa, argue that while the federal legislative path for environmental reform is blocked, policy is still quite active on a variety of other avenues: policy is made through the executive branch by forming or gutting regulation; environmental and business groups sue the government, allowing courts to set precedents; "riders" are attached to appropriation bills, which can change law outside of the normal legislative process; and states make their own environmental policy, providing a sort of environmental policy laboratory.

LBJ Signs Clean Air Act in 1967 (Photo: LBJ Presidential Library)
The legislative route hasn't always been so barren. The environmental "golden era" of the 1960s-1980's saw sweeping environmental legislation, often with overwhelming bipartisan support. The authors write: "the Federal Water Pollution Control Act of 1972, described by Congressional Quarterly as then the most expansive federal environmental law in history, was passed by the Senate 74-0 and by the House 336-11." Also, the Endangered Species Act of 1973 was passed by a 345-4 vote in the House without a single vote against it in the Senate.

Why have things since broken down?  Klyza and Sousa believe there were several causes. Partisanship on the environment began in the 80's under Reagan, when the deregulation mentality became in vogue. Before that, environmentalism was something everyone could get behind, and for politicians, supporting the environment had upsides with very little downsides. But, an environmental backlash began in the 80's, with Reagan leading the charge. The book notes other causes, such as corporate spending in politics, hyper-active media cycles, and declining trust in government to solve problems amongst others.

Back to the earlier point - policy making is not really ever static, but is in constant motion. Although there haven't been significant legislative changes to environmental statutes in decades, the constant fighting of competing interest groups shifts policies back and forth.

For example, when Newt Gingrich and his followers seized control of the House in 1994, they felt their victory gave them a broad mandate to roll back environmental protections. They largely failed in this regard, with Clinton painting them as extremists. However, Clinton also failed to pass his "Btu tax." Having failed the legislative route, Clinton made aggressive use of The Antiquities Act to designate lands as "national monuments," preserving them for conservation. Seeing legislative avenues blocked, Clinton used executive powers.

Going the other direction, under George W. Bush, his administration reclassified what constitutes "fill" in the Clean Water Act to include mining waste. Dumping "fill" into streams and rivers was allowed, but by including mining waste under that definition, his administration gutted the environmental protections in place. This opened the door to an era of rampant environmental damage, and led to increased mountaintop removal.

Former EPA Administrator Lisa Jackson announces
"Endangerment Finding" Dec. 2009
A more recent example of non-legislative policy-making include the Supreme Court's 2007 decision (Massachusetts v. EPA) that found that the EPA not only has the authority to regulate greenhouse gases, but has the duty to do so if it found that greenhouse gases were an endangerment to public health. Under President Obama, the EPA did just that with its "endangerment" finding in 2009. From that, last year the EPA issued regulations on new power plants that limit greenhouse gases. And now in 2013, environmental groups are hoping for additional regulations for GHGs put on existing power plants.

Only a few weeks ago at the end of March, the EPA proposed new "Tier 3" standards for motor fuel, requiring reductions in sulfur in gasoline.

These fights are all happening within a legal framework that is decades old. The Antiquities Act dates back to 1906. Bush's redefinition of "fill" for mining fell under the authority of the Clean Water Act (1977). The EPA's authority to regulate greenhouse gases comes from the Clean Air Act, which was passed in 1967 with major amendments to it made in 1970, 1977, and 1990. Other major laws over which we fight today include the National Environmental Policy Act (1970), Federal Water Pollution Control Act (1972), Endangered Species Act (1973), Clean Water Act (1977), Surface Mining Control and Reclamation Act (1977), to name a few.

Times have changed, but the legal framework for environmental policy largely dates from this "golden era" of the 1970's. Congress is indeed in gridlock. However, as Klyza and Sousa note, this does not mean that policy is in gridlock. The fights continue in the courts, in the states, in the appropriations process and in the federal rulemaking process.

Moreover, the failure of Congress to update the legal framework ensures that environmental reformers are going to seek the alternative pathways. Whether or not that is a sound way to make policy (almost certainly not), it seems to be the way things will be for the foreseeable future. the The Obama administration has seemingly given up on the legislative process, and instead is seeking ways to advance environmental goals through executive powers (stronger EPA regulations on fuels and power plants for example); out-sized importance for judicial nominees; and fights at the state level over Renewable Portfolio Standards, for example.

It is important to remember that congressional "gridlock" does not mean "policy gridlock."  These fights will continue - and policy will continue to be made outside of the legislative process - as long as Congress cannot agree upon a 21st Century framework for environmental protection.

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