by Bill Schillaci
There are about 19 federal environmental or environment-related laws. The majority of these have withstood the test of time. But the two supreme examples of U.S. environmental law – the Clean Air Act and the Clean Water Act – are deficient in ways that are so fundamental to the purposes of the laws, one would think Congress would have found ways to fill in the gaping omissions. But year after year, Congress has failed to do so. Moreover, Congress is now so enfeebled by party politics, the likelihood that its members will come together and repair the leaks in these bedrock statutes is more remote than ever.
Admittedly, the writers of the Constitution made the passage of laws and amendments to laws an exhaustingly complex and drawn-out process. This was intentional. Issuing laws that affect everyone should be done with the utmost deliberation and checks and balances. But Congress was also invented to address the nation’s needs, and when it comes to protecting human health and the environment – or, as some might put it, protecting the environment without threatening growth of the American economy – those needs are not being met.
Here’s what I mean.
The Clean Air Act, to put it bluntly, does not adequately address the towering environmental challenge of this generation and perhaps any generation – climate change. It is true that the CAA provides the Environmental Protection Agency with certain powers that can be used to regulate pollutants that Congress did not specifically contemplate when writing the statute. But no one – not even the most ardent believers in the need to control greenhouse gases – believes that those tiny provisions were intended to be used by the Agency to issue regulations that can transform the nation in such dramatic ways. However, all bills to fold the control of GHGs into the American and global market economies have failed. Moreover, some lawmakers have sought to rewrite the CAA to explicitly prohibit the EPA from taking any action to cut down on GHG emission. Those bills also made a quick splash and then sunk to the bottom of the Congressional swimming pool, just like all the others.
The principle omission in the Clean Water Act is even more stunning because the Congress could not use insufficient data about the issue – which, arguably, was once true with GHGs – as an excuse for it. Simply put, lawmakers neglected to explain in clear terms which waters are subject to the jurisdiction of the CWA. Instead, the lawmakers inserted the regal-sounding phrase waters of the United States minus instructions about which of the great variety of isolated and interconnected surface waters those words are supposed to apply to. The consequence is that federal agencies, mainly the EPA and the Army Corps of Engineers, have had to come up with their own interpretation of the phrase. Predictably that has led to legal challenges from those who believe the interpretations have been either too inclusive or not inclusive enough. Some cases have reached the Supreme Court, but the resulting decisions have been narrow since it is not the role of the high court to write the law in the way that Congress should have.
Both of these omissions have caused endless uncertainty and conflict that I see as a phenomenal waste of human energy that can be put to much better use. Federal and state agencies, the business sector, and environmental groups have rushed to court to fight battle after battle. But these conflicts rarely resolve anything no matter who “wins” a case. The “final” decisions simply serve as a segue into the next round of attack and counter-attack. Of course, rewriting the statues with the needed improvements will not put an end to legal conflicts; going to court is, after all, the American way. But bear in mind that there are consequential aspects of the CAA and the CWA that are rarely if ever the subject of litigation. And one reason for that is that Congress did a good job of writing the relevant sections in the first place.
There are other environmental statutes desperately in need of revision. The cumbersome processes mandated in the Endangered Species Act have squashed opportunities for human ingenuity and cooperation between developers and conservationists. The Toxic Substances Control Act could be the most misnamed of all environmental statutes since it has proved to be virtually useless in controlling toxic substances already in commerce. Among the major environmental statutes, TSCA reform has probably advanced the furthest, but a recent bipartisan bill was so hampered by concessions to interest groups that potential supporters backed out.
The divisions in Congress inhibiting environmental reform are of course also evident in other areas, such as health care and taxation. Many in Congress apparently do not care a great deal that this august body is widely viewed as dysfunctional. Yes, lawmakers keep themselves busy by holding hearings, interrogating witnesses, writing letters to the heads of federal agencies, and making speeches. They also draft and introduce environmental bills with great fanfare that gradually peters out and dies in a whisper. Overall it seems more important to our lawmakers that they defend an ideology than engage in the work of lawmaking. There are exceptions of course, typically after a disaster that exposes some part of the national legal framework as dangerously deficient. That deficiency is already apparent to many regarding GHGs and the still degraded condition of waters of the United States, however you define that term, more than 40 years after the Clean Water Act was signed into law with the number one goal of restoring the quality of the nation’s waters. Many believe the environmental disasters are already unfolding, but is Congress paying attention?