The Glory Days of Environmental Regulation

Rightfully chagrined commentators often talk about the issue of Congress not legislating as if it reflected the eternal state of our government. But Congress wasn’t always reluctant to govern; even within a Zoomer’s lifetime, it once regulated regularly. Environmental laws present a particularly telling case study.

Between roughly 1963 and 1992, Congress passed significant environmental regulatory legislation every year. Environmental lawyers often talk nostalgically about the golden years of the 1960s and early ’70s, when Congress passed groundbreaking laws like the Clean Water Act and the National Environmental Policy Act, but the legislative engine kept on running for another couple of decades, passing new laws and repeatedly revisiting existing ones. Consider the 1974 Safe Drinking Water Act, which Congress overhauled in 1986 and 1996, or the 1963 Clean Air Act, which it amended six times between initial passage and 1990.

But in the mid-’90s, legislating fell off a cliff. Between 1997 and today, Congress has arguably passed only one piece of major environmental regulatory legislation. Others have relied almost completely on market-based carrots (but not sticks) like voluntary buy-in programs or subsidies, which are both expensive and modest in their results. They can also be unwieldy, as demonstrated by the tumultuous carbon credit market.

Environmental laws are no anomaly. For the last three decades, Congress has abandoned legislating in general. According to data from the Comparative Agendas Project, the 101st Congress, which sat between 1989 and 1991, held 1,437 legislation-related committee hearings. The last sitting before COVID-19, the 115th Congress, had just 265. The most recent complete sitting, the 117th Congress, held just 102. As former senator Ben Sasse once noted, “What we mostly do in this body is not pass laws.”

The Risks of Relying on Agency Regulations

In Congress’s absence, the executive branch has attempted to fill in the gaps. The Environmental Protection Agency (EPA) and its peer bodies have written new rules to regulate greenhouse gas emissions, protect water supplies from PFAS, and mitigate the harm of environmental injustices. For most of the three decades of Congress’s environmental silence, relying on these agency-made regulations worked alright. Agency regulations carry the weight of law; when the EPA adopted vehicle emission standards, automakers had to comply, no different than if Congress had set the standards itself. But thanks to the Supreme Court, that compliance can no longer be taken for granted.

Over the last several years, the conservative members of the Court have worked to systematically dismantle the administrative state by limiting the powers of administrative law judges, extending the window for challenging regulations, and changing the standard for congressional delegation of power.

Nowhere are the impacts of the onslaught of the Court more apparent than in the environmental wing of the executive branch. The court has packed critical hit after critical hit: West Virginia v. EPA killed the EPA’s efforts to set greenhouse emissions limits based on a shift to clean energy; Sackett v. EPA replaced the EPA and Army Corps of Engineers’ definition of wetlands with its own and in the process drastically reduced the scope of the Clean Water Act; and most recently, Loper Bright v. Raimondo killed the deference courts had long given to agencies in interpreting the statutes under which they operate.

The sum of these attacks is that those critical agency-promulgated regulations look pretty shaky. Loper and the rest of the Court’s anti–administrative law cases make it much easier for challengers to sue agencies, meaning just about all agency-promulgated regulation now sits under a question-mark-shaped sword of Damocles. The only certainty is lots and lots of litigation. Georgetown law professor Stephen Vladeck called Loper Bright “a jobs program for lawyers.”

So the judiciary has seized power away from the executive branch. But there’s another catch: it’s not equipped to actually use that power. What all the new litigation means is more work for the courts — an unmanageably large load. There are just too many regulations and too few federal judges. The resulting vacuum will be an absolute mess for regulators and the regulated alike. But there’s a solution that doesn’t involve praying that John Roberts, Brett Kavanaugh, and Amy Coney Barrett all listen to their better angels: Congress could do its job and regulate.

Is Congress Ready to Save the Day?

Congress has the power to parry the Supreme Court’s meddling. They could rewrite the Administrative Procedure Act — the most important law governing administrative agencies, the interpretation of which is at the heart of many recent cases gutting the administrative state — and protect agency action from further scrutiny by the court by more clearly delegating power. But Congress’s disinterest in regulation is the fundamental issue.

Our understandings of the environment and the type of regulations necessary to maintain a livable planet have shifted wildly in the three decades since Congress abandoned ship. Most obviously, we desperately need substantive climate change legislation. Dozens of other environmental issues would also benefit from democratic attention — to name just a few, forest management, plastic pollution, access to nature in cities, changing watersheds and flooding, and especially environmental injustice. These challenges demand more than Band-Aids from federal agencies; they need meaningful legislation.

Judging the 118th Congress’s suite of environmental bills, that legislation seems unlikely to materialize in the near future. Consider climate change. Three hundred and twelve bills mention the phrase somewhere in their text. Seven of those 312 have been enacted. All seven are exclusively appropriations — they allocate funds without any regulatory provisions. GovTrack.us — an independent organization that gives each bill a “prognosis” — gives no remaining bill mentioning climate change more than a 10 percent chance of passing. These remaining bills are small in scale or weak, robbed of power through language like “to the extent economically feasible.” If they overcame the odds and were passed, they might move things in the right direction but are a far cry from the comprehensive regulatory lawmaking an existential threat like climate change requires.

Even the Green New Deal limits its solutions to “economic mobilization” — policy proposals that are critically important but do not mirror historic environmental laws’ regulatory approach. Climate action must be multipronged; neither regulations prohibiting emissions nor major economic planning of the type outlined in existing proposals for a Green New Deal alone would be enough. Yet the path to both lies in legislation.

If the answer is Congress, there is also the problem of Congress. At this point, it’s trite to acknowledge that Congress is broken. But it’s gotten so bad recently that even lawmakers have started fleeing Washington. This year, roughly one in eight House members — forty-eight — are declining to seek reelection. That’s twice as many representatives as retired in 1990. As a recent piece in the New York Times captured, the energy within Congress is glum: “You look around that chamber, there’s just a look of despair,” according to retiring representative Brian Higgins.

Congress does still regulate from time to time. Notably, in 2016, Congress overhauled the Toxic Substances Control Act, perhaps the first major piece of environmental regulation of the century. And even the Inflation Reduction Act tucked away a provision legally defining greenhouse gases as pollutants, a direct response to the Supreme Court’s attack on the agency in West Virginia v. EPA. But these wins are few and far between.

Something happened to shut down lawmaking somewhere around the mid-’90s. Exactly what that something was is ripe for debate. Some point the finger at Newt Gingrich for instilling an anti-government mentality in the Republican Party; others blame 1970s-era reforms to internal Congressional rules that ultimately “ossified” the institution. Redistricting in the last few decades has tended to decrease competitiveness in general elections, allowing candidates to campaign mostly to their bases. In recent years, rampant gerrymandering and the influx of money into politics driven by the Citizens United decision have only made things worse. Congress isn’t going to clean up its act on its own. Fixing Congress will be a big, messy, incredibly hard task. But in the face of the chaos bound to follow Loper Bright and its sister decisions, it’s task we can’t avoid any longer.

What Next?

Two methods have emerged to get Congress to act on climate. The first aims to convince Republicans to sign on to climate legislation. This tack, taken by groups like the American Conservation Coalition and republicEN, hopes to create a new “EcoRight.” Proponents are apparently having some success, as reflected by the House of Representatives’ fledgling Conservative Climate Caucus, which presently has eighty-one members.

Despite this, there are some serious drawbacks to this approach. Centrally, getting individual Republican lawmakers on board will not be enough to overcome legislative inertia in an age where party leadership has so much control over the process. Second, even if Republicans care about climate change, those Republicans are highly unlikely to take a regulatory approach, instead favoring market-based solutions; that’s certainly the line taken by the Conservative Climate Caucus and its chair, Representative Mariannette Miller-Meeks of Iowa, who is more concerned about “radical environmentalists” than the fossil fuel industry and won’t vote for bills that would “take away choice.” And third, there’s a concerning elephant in the room: many of the conservatives most vocal about the environment have been white supremacists (perhaps unsurprising, given the American environmental movement’s unfortunate and lengthy history of racism and nativism).

If method one is “win GOP hearts and minds,” method two is “if democracy is broke, fix it.” This approach would attempt to make the legislative process more responsive to its constituents by addressing the fundamental problems plaguing Congress — including repealing Citizens United to counter the flood of corporate money that has resulted in unbalanced races and ending the partisan gerrymandering that skews congressional representation. These democratizing changes would have to be part of a much broader political effort to elect left-wing candidates to Congress and state legislatures. As monumental as such a push would be, the gravity of climate change demands it.

It would also entail forcing Democrats to fight — both to fix Congress and meaningfully address climate change. Neither problem is beyond the realm of possibility. We have already made significant progress on climate change. America’s climate emissions today are 60 percent of what they were in 2000. Technological breakthroughs for renewable energy sources have made a just energy transition feasible at a pace and scale no one imagined even a decade ago. And polling now shows that a vast majority of all Americans support government climate action.

Similarly, there’s no evidence that Congress is irreparably broken. For much of its life, and as recently as the 1990s, Congress worked just fine, so long as you define “working” as accomplishing the goals of the majority party.

Many progressives and young activists are nihilistic about the power of Congress or any democratic tools for change. But the truth is that representative legislative bodies are capable of solving immense problems — even climate change. One only has to look at the legacy of that spurt of environmental lawmaking from the 1960s through the 1990s. The ecological health of the United States today is unimaginable compared to the 1960s. For decades, our cities were clogged with the smoke of tetraethyl lead, a common additive in fuel. Then Congress prohibited the manufacture of cars running on leaded gas. In 1967, a survey failed to find even a single fish in the Cuyahoga River between Akron and Cleveland. By 2019, that same stretch was home to more than seventy species of fish, which the Ohio EPA declared safe to eat. Democratic action has already tackled massive transboundary environmental problems: we no longer worry about ozone-layer depletion or acid rain, thanks to the Montreal Protocol and the Clean Air Act.

If democratic action has the capacity to address climate change, the challenges lie in figuring out why it isn’t working and then adopting commensurate solutions. Kamala Harris and her party insist that climate change is an “existential threat.” It’s time they acted like it.