Environmental Environmental Agencies Agencies

& the Regulatory & the Regulatory ProcessProcess

Environmental Environmental Agencies Agencies

& the Regulatory & the Regulatory ProcessProcess

by Craig Collins, Ph.D.

The Law-Making & Regulatory Process——The ConstitutionThe Constitution——

President Congress Courts

Regulatory Bureaucracy (EPA, DoI, etc.)

Regulatory Bureaucracy (EPA, DoI, etc.)

Enforcement Regulation Adjudication

MAKE LAWS• Approve Apts • Pass Budget• Oversight & Investigation• Ratify Treaties (Senate)

ENFORCE LAWS• Appoint Heads• Propose Laws/Budget• Veto/Sign Laws• Sign Treaties• Signing Statements• Ex. Orders

INTERPRET LAWS Judicial Review—Congressional Intent—Constitutionality—Procedural Violations—Arbitrary & Capricious

(Executive function) (Legislative function) (Judicial function)

Congress & Regulation• Rival interests try to influence Congress & shape

environmental laws.– Polluters are more powerful than environmentalists

• Strong bills get ambushed & crippled in committee.

• Congress passes general/vague enabling legislation. Why?– It lacks the time & expertise to be more specific.– It wants to pass the legal controversies surrounding

the law over to the agencies to work out the details.– Agencies will supposedly be more knowledgeable,

politically neutral & impartial than Congress.

Types of Agencies & DepartmentsGovernment agencies have legislative, executive

& judicial powers.• There are 3 types of Government Agency:

– Executive (like the Dept. of Interior)• Cabinet level departments, chiefs chosen or removed by

president, departments have broad powers.

– Independent (like Food & Drug Administration)• Not cabinet level, fixed term chiefs, limited powers.

– Hybrid (like the EPA)• Not cabinet level, chiefs chosen or removed by president,

broad powers.

EPA’s 3 Perspectives & 5 Cliques• Perspectives:

(1) Careerists(2) Get-alongs(3) Enviros

• Cliques:– Legalists

• General Councils Office– Scientists

• Office of Research & Development

– Economists• Office of Policy, Planning &

Evaluation– Regionalists

• Officers who staff EPA’s 10 regional offices

– Program Honchos• Presidential appointees at

National Headquarters

Two Approaches To RegulationTwo Approaches To Regulation

• Media Specific Laws:– Attempt to regulate the levels of pollution within

a specific media--like air and water. The foremost examples being the Clean Air Act (CAA) and the Clean Water Act (CWA).

• Pollution Specific Laws:– Target specific kinds of pollutants like pesticides

(FIFRA), toxic chemicals (TSCA), toxic waste (RCRA & Superfund).

• Media Specific Laws:– Attempt to regulate the levels of pollution within

a specific media--like air and water. The foremost examples being the Clean Air Act (CAA) and the Clean Water Act (CWA).

• Pollution Specific Laws:– Target specific kinds of pollutants like pesticides

(FIFRA), toxic chemicals (TSCA), toxic waste (RCRA & Superfund).

Regulatory PerformanceRegulatory Performance

May be judged by 6 performance criteria:• Administrative Feasibility• Legal Survivability• Enforceability• Efficiency• Fairness (Equity)• Capacity to Foster Technological Innovation*These criteria often conflict with each other*These criteria often conflict with each other.

Regulatory RoadblocksRegulatory Roadblocks

• Scientific Uncertainty• Cost vs. Benefits• Economic Imperatives

– Profit– Growth

• “Iron Triangles” “Revolving Doors” & “Captured Agencies”

Other Government Agencies with Environmental Responsibilities

Other Government Agencies with Environmental Responsibilities

• The Department of the Interior– Bureau of Land Management– US Fish & Wildlife Service– National Park Service– Minerals Management Service

• The Department of Agriculture– US Forest Service

• The Department of Labor– Occupational Health & Safety Administration

• The Consumer Product Safety Commission• The Food & Drug Administration

• The Department of the Interior– Bureau of Land Management– US Fish & Wildlife Service– National Park Service– Minerals Management Service

• The Department of Agriculture– US Forest Service

• The Department of Labor– Occupational Health & Safety Administration

• The Consumer Product Safety Commission• The Food & Drug Administration

Congress(key Congressional committees)

Congress(key Congressional committees)

Private IndustryPrivate IndustryPollutersPolluters

“Captured” Agency?The EPA

“Captured” Agency?The EPA

IRON TRIANGLES:IRON TRIANGLES:Powerful, 3-way, mutually reinforcing policy-makingPowerful, 3-way, mutually reinforcing policy-makingrelationships between...relationships between...

TAXE$

Campaign cashLobbying

Operating Budget & Policy control

“Revolving Door”

President PresidentCampaign cashLobbying

Appointagency heads

Lax Regulations

Judicial ReviewJudicial ReviewJudicial ReviewJudicial Review• Courts play an important but “passive” role.• Courts defer to the agency’s rules unless the

contesting party can prove they were:(1) "arbitrary & capricious" (didn’t link means to

ends).(2) violated a constitutional standard (free speech,

illegal search, etc.).(3) beyond the scope of power granted by Congress.

*OR prove that the agency didn’t follow proper procedures while making the rule.

The Law-Making & Regulatory ProcessThe Law-Making & Regulatory ProcessThe Law-Making & Regulatory ProcessThe Law-Making & Regulatory Process——————The ConstitutionThe Constitution——— ———

President Congress Courts——————The ConstitutionThe Constitution——— ———

President Congress Courts

Regulatory Bureaucracy

—The EPA—Regulatory Bureaucracy

—The EPA—

Enforcement Regulation Adjudication

• Approve Apts • Make Laws• Pass Budget• Oversight & Investigation• Ratify Treaties (Senate)

• Appoint Agency Heads• Propose Laws/Budget• Veto Laws• Sign Treaties

• Judicial Review—Congressional Intent—Constitutionality—Procedural Violations

State EPAsState EPAs

PollutersPollutersLobbying & PACsLobbying & PACsPollutersPolluters

Lobbying & PACsLobbying & PACsRevolving Doors

Citizens Suits

Against EPA & Polluters

Stan

din

g?

Campaign $$$