Environmental Law's Greatest Tragedy

 

Ask John or Jane Q. Public about how the environmental laws in this country are implemented, and you’re likely to get a blank stare. No one really knows, but with the BP spill and Vermont Yankee nuclear power plant leaks in the headlines, people are sure the system isn’t working. As a practicing environmental lawyer, I’ll be the first to admit that this nation’s environmental law framework is dense and arcane. I’ll also be the first to second-guess its efficacy. So join me, won’t you, on a fantastic voyage into the murky underworld of environmental administrative law?

Like many others, I think the nation’s system of environmental laws and regulations, both at the state and federal level, is broken and its problems need to be addressed. One of the biggest problems can be summed up in two words:  “agency deference.” “Agency deference” is the judicial doctrine that precludes judges from revisiting administrative agency decisions (s/a those made by the Bureau of Land Management, the Fish and Wildlife Service, and the Forest Service) except in the most extreme circumstances. It’s also the doctrine that has made it nearly impossible for there to be any independent and dispassionate review of decisions made by federal agencies that have become more like industry enablers than hard-nosed neutral regulators.  

The seminal case outlining the doctrine of agency deference is the 1984 decision in Chevron v. NRDC. In that case, the U.S. Supreme Court explicitly outlined the “agency deference” doctrine. The agency deference doctrine essentially stakes out the territory of administrative agencies and courts in preventing and remediating pollution. The Supreme Court essentially determined that a court’s role in engaging the environmental law framework is very limited; the primary responsibility for environmental protection rests with administrative agencies. When a court reviews an agency determination about an environmental matter or an interpretation of an environmental statute or regulation, it must assume an exceptionally deferential posture, only re-visiting the agency decision if it’s “arbitrary”, “capricious” or “manifestly contrary to the statute” – vague concepts that readily give judges the opportunity to evade deciding a difficult issue because they’re perceived as too technical or complicated. Although the Chevron decision applied to federal agencies and statutes, most state courts have adopted a similar, if not identical, doctrine of extreme deference to regulatory agencies. 

The Supreme Court’s reasons for deferring to administrative agencies were twofold. First, the Court felt that since Congress delegated broad authority to agencies to enforce laws, and environmental laws in particular, the separation of powers doctrine dictated that the judiciary remain at arm’s length from day to day enforcement decisions. Second, and more important, was the Court’s determination that because agencies supposedly have the technical expertise to deal with highly complex and technical issues, and the judiciary is made up of lawyers, deferring to agency judgment on technical issues was the most appropriate thing for judges to do.  

Although it may or may not have been the Supreme Court’s intent, the Chevron case effectively gives administrative agencies nearly unlimited power over whether or not a community is subjected to pollution. The statistics bear this out. At the U.S. Court of Appeals for the 10th Circuit, for example, agency decisions are overturned just 1.5 percent of the time [PDF p.10].    

In a perfect world where regulatory agencies are serious and neutral regulators concerned with protecting the environment and the public health and impervious to political whims, turning life and death decisions over to a class of technocrats might have made sense. But in the real world, regulatory agencies are more often than not under substantial pressure from elected officials to acquiesce to demands from regulated industries. And they are often staffed by bureaucrats who anticipate plum jobs in the industries they regulate once their government pensions have vested. 

At best, these circumstances result in agencies that have a pronounced bias in favor of the industries they regulate. At worst, agencies that are charged with protecting the public health and environment become active, and sometimes aggressive, advocates for the polluting industries they regulate.  And when the corporate goal is to externalize costs and socialize risk as much as possible – as is usually the case with polluting industry – the public is put at significant risk.  

On the other hand, communities that are impacted by polluting industry generally have very little influence with regulatory agencies. Community members can certainly meet with regulators – and many do – but they generally have no leverage other than to appeal to the regulators’ sense of integrity and duty to represent the public interest. Almost invariably, the public interest is subordinated to the corporate bottom line.    

So what to do? There are probably a million different solutions to the problem - from getting money out of politics to abolishing corporate personhood. But I think there are three concrete things that can be done immediately to at least begin to address the problems created by Chevron and its progeny. 

First, the federal and state governments need to codify the precautionary principle. The precautionary principle requires that a polluter prove that a dangerous activity is harmless. Using the precautionary principle would relieve pollution impacted communities of the current burden of proving that a polluting activity is dangerous, which is what agencies currently require.     

Second, state and federal judges should no longer abdicate their review authority over administrative agencies.  Our federal Constitution and all state constitutions give the judicial branch the authority to review the actions of the other branches of government to make sure they’re in line with the governing laws and constitutional provisions. They should exercise their authority. Reviewing courts should carefully scrutinize agency decisions and be aggressive in revisiting agency decisions that put communities at risk. If expertise is the issue, then judges who have technical backgrounds should be recruited and appointed to the bench.  Alternatively, judges could specialize in particular areas of administrative law and develop a deep understanding of the technical issues in that area – just like practicing lawyers do.  

Finally, the judiciary needs to abandon the cult of the technocrat. Instead of throwing up their hands and relying on the ostensible “expertise” of agency bureaucrats, judges should instead begin to respect the expertise of the people that live in communities impacted by polluting industry. Members of communities impacted by polluting industry know who has been sick in their neighborhoods and when they got sick. They know which water sources are discolored and smell bad. They know whose child has had a recent asthma attack.  This kind of knowledge should not be subordinated to the knowledge brought in by hired guns with lots of letters after their names, although it usually is (ironically, the Rhino decision linked to here is an instance where a reviewing court actually stepped in and rigorously evaluated an agency’s decision) .  

These suggestions are by no means a panacea. But I think they’re a good place to begin fixing our environmental regulation framework. 

Eric Jantz is a staff attorney at the New Mexico Environmental Law Center.

Gutting of Environmental Law
Joe Sitarzewski
Joe Sitarzewski
Jul 07, 2010 09:17 AM
Eric writes like a true lawyer. Let's let the lawyers and the courts become the "experts" on the environment so that the decisions and conclusions by the trained professionals can be second guessed by someone with a law degree. It now takes years to get something done; using his ideas nothing would ever get done. Talk about theater of the absurd.
Thanks
Leo
Leo
Jul 07, 2010 11:11 AM
Thanks for the column Eric. Sounds like you are genuinely concerned about the people and the environment. My hope is that you will continue to be part of the solution.

Joe, your response sounds like that of a genuine industrial magnate...
Joe speaks like ...
Socratic Gadfly
Socratic Gadfly
Jul 07, 2010 05:16 PM
A true anti-environmentalist libertarian.
Some truth to the article
fyzixman
fyzixman
Jul 07, 2010 12:46 PM
Joe:

How csan you ignore the Department of Interiors recent revalations about the MMS or the current debacle in the gulf and not find some points of truth in what Eric said?

The revloving door problem at regulatory agencies of theg Federal govenment have been pointed out by a number of envestigative reporters over the last few years. The actions of Ronald Reagan and David Stockman in the 1980's made it that much easier to swing the revolving doors.

The problem is not just unique to the Department of the Interior either. Does anyone remember the fiasco with Boeing and the DOD over aerial refuleing planes just two or three years ago?
Interesting Thoughts
JDub
JDub
Jul 07, 2010 04:48 PM
This all sounds a bit too dreamy. While codifying the precautionary principle would be great for environmental protection, it will never happen because, as you say, legislators are too beholden to private interests. Disregarding agency deference is also likely a nonstarter, for judges will never becomes the experts complete review requires. Nevertheless, kudos to your creativity and commitment to reforming a broken system.