By David Schoenbrod
Although Congress enacts all federal environmental statutes, these statutes leave the making of most federal environmental laws –commonly known as regulations– to the Environmental Protection Agency. The difference between Congress making laws (as the U.S. Constitution instructs it to do) and leaving that job to the EPA is a critical one. If Congress voted on the regulations that control private conduct, such as a requirement that electric-power plants meet certain emission limits, legislators would face feedback. They would inevitably anger those voters who want a stricter, more protective law as well as those who want a weaker, less burdensome one.
By leaving lawmaking to the EPA, legislators sashay away from such responsibility. They bestow a right to protection without themselves imposing any burden. The anger falls on the EPA because it is left with the job of allocating the burdens among pollution sources. The EPA takes the blame for denying rights and imposing burdens.
Congress does sometimes impose the laws itself, but generally as a last resort. More often, it tells the EPA to set emission limits that are "reasonable" or to set air-quality standards to "protect health" with a "reasonable margin of safety," knowing full well that these supposed standards are as elastic as a rubber band. So the EPA is left to decide how clean is clean enough and how to allocate the cleanup burden.
The scope of the EPA’s discretion is in some ways even broader today than it was in the early 1970s. Then, the pollution problems, such as raw sewage in rivers and black soot from factories, seemed obvious. Now, science can detect vanishingly small levels of pollution, hypothesize equivalently small risks, and get rid of them at costs that are as high as the risks are small. So the EPA is confronted with a wide range of possibilities in deciding such issues as how clean is clean enough.
The Supreme Court today squares such delegation of lawmaking power with the US Constitution by claiming that Congress is making the laws and the EPA is only implementing them, but the justices know this is a pretext. They let Congress decide whether to delegate.
What Legislators Claim
Legislators’ excuses for leaving the lawmaking to agencies have changed over time. At the dawn of the twentieth century, it was said that Congress had not really left policy-making discretion to the experts in the agencies because the statutes had instructed the experts to use scientific methods to deduce the correct laws.
Later, Congress had a new excuse: It did not have the time to do all of the lawmaking work of these agencies. More recently, the argument is that Congress should leave making pollution laws to the EPA because the agency produces stronger laws than does Congress.
None of these excuses withstands scrutiny. Science does not dictate uniquely correct environmental laws. If Congress made environmental laws, the legislators would require EPA scientists and policy analysts to provide them with the information about health effects and control technologies that they now provide to EPA lawmakers and would also require these officials to propose statutory language. State and local legislators would seek similar help from their environmental agencies. The laws that would come from legislators would not necessarily be the same as those that would come from the EPA, but elected legislators would be accountable for the laws at the polls.
If Congress were the lawmaker, the public could be given an opportunity to comment on the agency’s proposed recommendations as it now comments on proposed agency laws. There would thus be no loss in public participation. What would be lost is agency rationalization. And good riddance, because the elaborate rationalization needed for agency laws to survive judicial review slows the EPA’s response to new science.
Lack of time is also no excuse for Congress to delegate its responsibility. In an average year the EPA now issues five "major" rules, officially defined as rules with benefits or costs greater than $100 million (Crews 2003). Our legislators can surely take the time to vote on five pollution-control laws per year. The EPA of course also issues many minor pollution laws, but these present no practical impediment to the legislators’ taking responsibility. The number of minor laws would drop precipitously were Congress to limit federal involvement to those pollution-control issues truly requiring federal attention. The balance could be handled expeditiously, yet in a way that would leave the legislators responsible.
Congress Acts When It Wants To
Supreme Court Justice Stephen Breyer pointed out in an article (written before he became a judge) that Congress could enact a statute requiring that all agencies submit laws for enactment through the legislative process (Breyer 1984). Congress never accepted Justice Breyer’s idea, but we had a recent impromptu experiment with it.
In 2003, a federal district court judge held that the Federal Trade Commission lacked authority to promulgate its "Do Not Call" law, which would allow people to opt out of annoying sales calls. The next day the House and the Senate passed legislation authorizing the program.
The legislators are capable of accepting responsibility when they want to, and they can arrange to do so even for run-of-the-mill regulatory laws. Justice Breyer offered many variations on this approach. One was an expedited legislative process for agency recommendations, but with the provision that a set fraction of the legislators could require that an agency law be ejected from the expedited process and sent to committee for consideration. Justice Breyer’s idea is not an ideal solution –that will come only with a smaller federal role– but it is better than what we have now. In his scheme, power would shift from unelected agency staffers to unelected congressional staffers, but with a critical difference: Elected legislators would have to take responsibility for the laws in the end.
Delegation often leads in precisely the opposite direction. The EPA often deals with controversial issues by stalling, as it did with lead in gasoline and interstate pollution, beginning in the 1970s. Some of the largest reductions in pollution have come when legislators intervened to push pollution control at a much faster pace than the EPA had previously achieved.
Examples include emission controls on new cars in 1970 and acid rain and hazardous air pollutants in 1990. Commenting on a Senate vote on global warming that environmental groups hailed, the president of Environmental Defense, Fred Krupp, stated, "When these things come out of the back room into the sunshine, we tend to win." (Fialka 2003).
If the legislators made the laws, they would be personally responsible for the health hazards to which the public remained exposed and the burdens imposed on the public. Take for example what happened under a law Congress enacted to prohibit all carcinogens in food (the 1958 Delaney clause). When nearly twenty years later the FDA determined that saccharin was a carcinogen and had to be removed from the market, there was a public outcry. The outcry was aimed at Congress rather than the FDA because the FDA was enforcing a law that Congress had written. Critics pointed out that saccharin was at worst a very weak carcinogen and protected the lives of diabetics who cannot tolerate sugar. Credible experts predicted that the ban on saccharin would shorten more lives than it would extend. Congress responded by allowing saccharin to be sold.
A Two-Way Street
As the saccharin story illustrates, representation in our republic is supposed to be a two-way street. The Framers intended to force representatives not only to hear the demands of the people but also to explain to the people why their every demand cannot be satisfied. If legislators made the laws themselves, they would have to explain why some risks cannot be eliminated. Legislators understandably prefer to tell the EPA to make laws to get rid of all risks. The EPA cannot do this, and that is the source of public distrust.
The problem, in short, is Congress, not the EPA. Congress itself has gone through a learning process. It has made the Clean Air Act more realistic as time has gone by. Yet meanwhile it has piled new, equally impossible tasks on the EPA. The ultimate genesis of the problem is that we, the public, want a clean environment without the burdens of producing it. If it made the laws, Congress would have to tell us that it cannot be so.
Breyer, Stephen. 1984. The Legislative Veto after Chadha. Georgetown Law Journal 72: 785-818.
Crews, Clyde Wayne, Jr. 2003. Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State. Washington, DC: Cato Institute.
Fialka, John J. 2003. Senate Rejects Mandatory Curbs on Gas Emissions in 55ï¿½??43 Vote. Wall Street Journal, October, 31.
David Schoenbrod is a professor of law at New York Law School and an adjunct scholar with the Cato Institute. This article is excerpted from his book Saving Our Environment from Washington (Yale University Press, 2005). A previous article by Schoenbrod can be found in the March 1999 PERC Reports.