How America protects the environment, from Nixon to Trump (2023)

Just under 50 years ago, President Richard Nixon partnered with a Democratic Congress to pass legislation that transformed the daily experience of nearly every citizen in the United States. These laws grew out of a series of laws, almost all within the same two-year period, and they had surprisingly large goals. They sought to curb toxic air pollution across the country, clean up hundreds of streams and rivers, and establish a permanent federally empowered environmental protection agency.

This is the amazing thing about these laws: they worked. Although they contained shortcomings, the laws achieved their goals more successfully than critics predicted; and its rules are costing companies less money than its proponents predicted.

The laws are still in effect today, though the EPA still disputes with various industries over their scope. EPA employees consult the latest scientific knowledge about conventional air or water pollution, develop rules to protect the public from these dangers, and implement them as law. According to most studies, the American public benefits from this process; Ya vast majority of AmericansTell the pollsters that you agree. The system seems to work.

Or at least it worked. The Trump administration has indicated through its proposed budget and the choices it has made in its appointments that it cannot accept the status quo. The proposed budget cuts billions from the agency's budget, and thatstarted the revocation processYears of Obama-era regulatory work.

Trump could be the most hostile president to ever sit at the helm of the agency. His only rival is Ronald Reagan, who did not enjoy a Republican Congress. Suffice to say, this scares a lot of Americans. Many of them have re-examined the environmental policy machinery behind the government and have essentially asked:Wait, the old? how does it worktheTo work?

This is a quick guide on how it works.

How do we protect the environment in the United States?

We mostly do it with laws and regulations. A statute is a law passed by Congress, while an ordinance is a law made by a federal agency.

Here's how the process works: Congress passes legislation with a general goal, for example, cleaner air across the country. This law officially empowers the EPA, an independent agency of the federal government, to make regulations about what businesses must do to contribute to cleaner air. Congress also gives money to the EPA to enforce these rules. Some of that money will go to the states, which will enforce some of the regulations themselves.

What are the main laws governing the EPO?

There are two keys that Congress passed within two years of Richard Nixon's presidency:

The Clean Air Act of 1970asks the EPA to set rules for what kinds of toxic air pollutants can be released into "ambient air," whether from factories or cars and trucks.

The Clean Water Act of 1972directs the EPA to set standards for what pollutants can be released into lakes, streams, and rivers, and requires polluters to obtain permits to do so.

When these statutes were passed, they were popular, bipartisan bills. Nixon signed the Clean Air Act in a high-profile ceremony.*"I think 1970 will be known as the beginning year, when we really started to address the issues of clean air and water and open space for America's future generations," he told reporters.

There are two other laws that do not affect the EPA as directly, but that date from the same time and have expanded the environmental powers of the government:

Das National Environmental Policy Act of 1970 (NEPA)requires the federal government to carry out an extensive environmental impact study every time it wants to build, license or renovate something.

The Species Protection Act of 1973NOAA and the Fish and Wildlife Service protect endangered species and give the US government enormous powers to do so. (This is partly because it was drafted by environmentalists and quickly signed off by Nixon, who was trying to distract the press from the Watergate scandal over Christmas.)

How does the Basic Law play into this?

Congress has the power to "regulate commerce with foreign nations and between states and with Indian tribes." All major environmental laws after 1970 are based on this constitutional authority:the commercial clausein Article I, Section 8 – to limit air and water pollution and protect endangered species.

But isn't that a power of Congress? How does this power become the EPA?

Because Congress delegated it to the EPA. In the Clean Air Act and the Clean Water Act, Congress defines a specific version of this authority and gives it to EPA. EPA can then make rules under these delegated powers. Those EPA rules then have the force of law, but they can still be overturned by an act of Congress because Congress is still the higher power.

This type of delegation essentially empowers all executive or independent agencies. Congress has taken this approach many times in the 20th century. Lawmakers from both parties believed that subject matter experts in technical bureaus could make better and more constantly up-to-date regulations than professional lawmakers.

Why doesn't the constitution explicitly protect the environment?

Because the constitution is very old, and the idea ofthe environmentit's very young

I spoke with Jedediah Purdy, a Duke University law professor and author ofaccording to nature, an intellectual history of the environment in America. "The concept of the environment as we understand it, an interlocking system that is almost like a planetary organism, interconnected at every point, and fragile and resilient, was not talked about that way until the middle of the 20th century," he said. he told me.

"Also the concept that one must manage resources such as forests, water and soil extensively, otherwise they could be misused and wasted until there is a supply crisis, even that is not taken seriously in the US. until the decades after the Civil War," he added. .The environmentit's a newer idea than the invisible hand, equal justice under the law, and free speech.

How does the EPA create a regulation?

He is going through a great process.

To demonstrate this, imagine a new rule about air pollution.

An employee of the Office of Air and Radiation is in charge of regulation. First, this person asks the Bureau's policy staff to describe what the new rule will and will say. The office then hires outside consultants to summarize health and environmental studies on the subject of the rule. They are also running economic models on how the new rule might affect the cost of doing business. This process takes months.

Finally, the consultants report to the EPA. The Administrator oversees any changes to the rule and then takes the draft to the White House Office of Management and Budget, which is responsible for overseeing the President's executive branch. If the White House approves it, the EPA will publish a draft rule in the Federal Register.

The process is far from over.

After a draft rule is published, comments from citizens, activists, nonprofits, and businesses feed into the agency. Agency officials are holding meetings across the country to explain the rule and solicit criticism. Legally, an EPO employee or contractor must read, categorize, and respond to each of these comments (even if that response is mechanical).

This "notice and comment period" is stipulated in the Administrative Procedure Law. After the Obama administration released a draft Clean Power Plan, the EPA came up with its signature climate-focused rule for the power sector.over 4 million public comments.

The EPA then changes the rule again in response to public comments, changes in the economy, and any significant new research on the topic. The Administrator and senior EPA officials again push the final rule past the White House. It's finally published.

"It's a long process, but it's also an analytically challenging process for the complexity rules that EPA typically encounters," said Jonathan Cannon, who was the agency's general counsel from 1995 to 1998.

Why is this process taking so long?

Because the agency knows that they will be sued later. After the EPA publishes a new rule, industry groups often try to weaken the regulation and delay enforcement in court. In these court cases, judges pore over the EPA's "administrative record," the paper trail of how an idea became a regulation.

"EPA faces many challenges, but mostly it wins," says Ann Carlson, a professor of environmental law at the University of California, Los Angeles.told me this month."And one of the reasons they win, even in conservative courts, is that they're very cautious about really looking at the science and creating an administrative record that demonstrates expertise, care and consideration."

"If the agency decides to repeal the Clean Power Plan, the final rule could be quite simple, but it must be based on a record," Cannon said.

Will states have a say in regulating pollutants?

Yes. In general, the EPA sets a lower limit for strict regulation of a contaminant. But there is no upper limit: states can go further if they wish.

An exception is the Clean Air Act rules on car tailpipe emissions, where only California isallowed to set stricter standardsthan the EPA. Then other states can follow California's stricter rules.

Let's go back to Congress for a moment. Was there any new environmental legislation after Nixon left office?

Yes, but they mostly fiddled around the edges. In 1976, Congress passed the EPAregulate toxic chemicals. In 1977, President Jimmy Carter and a Democratic Congress amended the Clean Air Act to ensure clean air stays clean. In 1980, Carter and Congress passed the law.who created a federal "superfund" for toxic waste cleanup.

In 1990, Congress under President George HW Bush again amended the Clean Air Act to address the new pollutants and risks of acid rain. And that's all, although last year's Congressupdated the Toxic Chemical Substances Law.

So the United States has gone almost 30 years without significant new environmental legislation?

Y.

Did the courts do anything?

Somehow. In the 1970s, courts largely upheld the constitutionality of major environmental laws but refused to extend them. At the beginning of the decade, environmental groups hoped that the judiciary would expand environmental protections just as it had expanded civil rights protections the previous decade. The courts did not seize the opportunity.

“There was a feeling among liberal advocates, rooted in actual experience from the civil rights era, that the courts could do a lot in this area,” Purdy says. "People thought it was possible to redirect all federal policy toward ecological protection through NEPA lawsuits."

It didn't happen. By the middle of the decade, the judiciary had ruled that NEPA was "procedural rather than substantive." In other words, he told you the steps to take, but didn't anticipate any results. There is a pattern here, from NEPA to EPA's retention of administrative records: Since major environmental laws deal primarily with procedural matters, lawsuits with an environmental goal in mind will argue over the procedural details of achieving a different result.

Did President Reagan do something?

In a way, his administration ultimately made the EPA that much more powerful because he so vehemently opposed it.

In 1980, Reagan appointed Anne Gorsuch Burford to head the agency. (She is, in a delightful twist on American history, the mother of Neil Gorsuch.) Burford opposed most of the EPA's agenda, spending the unpopular three years of it weakening its regulations. Her leadership also helped politicize the EPA.

In 1984, the Supreme Court examined the legality of one of its weak new rules. The judges ruled that they found the EPA's new rule to be inconsistent with the text of the Clean Air Act, but ultimately had to defer to the EPA's understanding of its own statutes. this inauguratedthe teaching ofChevron Tribute: the idea that if a federal agency has a plausible legal basis for its regulation, a court should leave it that way, even if the courts don't find it to be the best legal case.

Democratic governments have generally used this idea to expand the authority of the EPA, and Republican governments have generally used it to weaken the agency.

If no major environmental legislation has been passed in 30 years, how does the EPA regulate climate change?

You can thank the Supreme Court. In 2007, the court decided in the caseMassachusetts vs. EPAthat the EPA must assess whether carbon dioxide and other greenhouse gases are harmful pollutants under the Clean Air Act. The court disagreed with Chevron's consideration of doing so and dismissed the Bush-era EPA's argument that it had no authority to regulate unconventional pollutants.

This has led to a strange political arrangement: The United States uses a set of laws designed for conventional pollutants to regulate the noxious but non-toxic gases that lead to climate change.

* * *

Do all environmental laws include the EPA?

There is no second category of environmental laws, most of which predate EPA laws. They control how the US government uses federally owned public lands. This is more important than it sounds, given that about a quarter of all land in the United States is federally owned, and the government has a lot of power over how it uses that land.

These laws tend to be less well known in cities and suburbs, particularly on the East Coast, where most land is private. But more than 70 percent of all the land in Utah and Nevada is federally owned. However, these land laws are important beyond the West, as they contain most of the environmental legislation that predates the laws of the 1970s.

Does the government really think about the environment when dividing up public lands?

From time to time. The law sets somewhat conflicting goals for how the government should use the land. So it says that the country z. B. should be used for logging, grazing, hiking, nature conservation, and hunting. Then the government reserves part of the cultivated area for each objective.

The White House and Department of the Interior can also issue general policies on how this land will be used. President Obama focused many of his public land enactments on climate change mitigation: he issued a moratoriumfor coal mining on public land, and restrictedhow much methaneIt can be issued on public land. The Trump administration has already struck down some of them.

Are there special environmental protection laws for public lands?

Yes. The most environmentally friendly public land laws are essentially conservation laws.The Organic Law of the National Parks Service of 1916for example, it introduced the national park system and introduced a process for creating new national parks. ThatAntiquities Act of 1906it does something similar, with a twist: it allows the president to unilaterally reserve federal land for special cultural or environmental protections. These treaties become “national monuments”.

Are there any public land laws that are particularly strange?

Funny you ask! Yes, there is, at least from the point of view of environmentalists. Is namedthe Wildlife Act of 1964. The Wilderness Act allows the President and Congress to work together to set aside state land for wilderness designation. Once the land becomes desert, it can no longer be logged, mined, used for economic production, or made roads. More than170,500 square miles of landin the United States they are federal wilderness areas, an area larger than California. (Unlike,only 81,000 square milesThey are in the national park system.)

"What's really striking about the Wildlife Act, apart from being excellent, is that it really is wonderful legislation. The preamble and the definition of wilderness are worth reading because they look like they were written by John Muir," says Purdy. In fact, this is an excerpt from the law itself:

The law goes on (much like casual mid-century sexism) to define wilderness as a place where "the imprint of man's labor is essentially imperceptible" and which has "prominent possibilities for solitude or a wild, primitive kind of of recreation". The law sounds so much like Muir because it was largely written by an environmentalist named Howard Zahniser. Zahniser was not a legislator but a longtime director of a nonprofit organization, the Wilderness Society. He helped introduce the bill in 1956 and campaigned for it for eight more years, dying just months before it passed in 1964.

What next for environmental law?

First of all, it depends on what happens with climate change. For nearly two decades, environmental politicians have been writing bills aimed at reducing greenhouse gas emissions. These work primarily by including the long-term costs of climate change in the price of fossil fuels. But in 2009, a Democrat-controlled Congress couldn't happen.Waxman–Markey calculation, which would have established a national carbon trading system.

"When Waxman-Markey failed, I think there was a whole generation of reform thinking that went with it," Purdy told me. "And there is no paradigm that can replace it, although there are voices for reform."

Some of these voices belong to environmental justice advocates who argue that the larger progressive movement for racial and economic equality must consider the environment. The NAACP, for example, has todemonstrated that communities are close to coal-fired power plantsthey tend to be poorer and less white than the national average. EPA has had an Office of Environmental Justice since the Clinton administration, but it is constantly underfunded and itsThe longtime leader recently resigned.

However, no major piece of environmental justice is in the starting blocks.

Some conservative voices would like to see more indoor environmental protection measuresthe judicial system and the customary law that provides for it. Jonathan Adler, a professor of law at Case Western Reserve University, argues that property rights should be expanded to allow communities and defenders to negotiate their own natural resources.

“Who am I talking to in a stream? What if you could negotiate with a local community?” she asked rhetorically. This would allow environmental results to focus more on the context and actual harm from each individual polluter, she argues. Such a technique would also allow for further experimentation with state environmental regulations, although it would require removing some of the modern permitting infrastructure.

However, perhaps the biggest battle of the next few years will be whether the basic mechanisms of the EPA survive. A Republican-controlled Congress could amend the Clean Air Act, perhaps to block greenhouse gas regulation or strip California of its special exemption. However, both plans would likely require 60 votes in the Senate.

When those fights happen, Cannon hopes people will remember how much the EPA has done. "What people forget is that these laws, which essentially established the authority of the EPA, were approved by large majorities in both parties in Congress," he told me.

“Programs have become victims of their own success. People take the quality of the environment for granted and don't see the mechanisms in place," she said. "I mean, nobody likes regulations, right? You only agree to regulations when you believe the benefits are worth it. And if you don't see the benefits, assume that's the bottom line."

*That article originally said that Nixon had signed the Clean Water Act. In fact, Congress passed the law despite his veto. We are sorry for the mistake.