The Environmental Protection Act of 1983 -- Is An Environmental Protection Commission Encessary?

The Environmental Protection Act of 1983 — Is An Environmental Protection Commission Encessary?

Phillip D. Reed

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— The Editors

[13 ELR 10064]

Senator Moynihan (D-N.Y.) and Congressman Scheuer (D-N.Y.) are pushing legislation to make the Environmental Protection Agency (EPA) into an independent commission. It is hardly necessary to recount the immediate reasons for the initiative; they are on the front pages of newspapers across the country. A press release announcing the legislation said simply:

We are paying the price, day in and day out, for an agency embroiled in controversy, paralyzed by distrust from without and defiance from within. It is time to begin anew.

The roots of the problem go deeper than the current uproar over EPA management or the constitutional struggle between House committees and EPA over Superfund documents. The Moynihan-Scheuer proposal to resolve those problems by changing EPA into an independent commission invites a reappraisal of the somewhat unusual institutional position the Agency now occupies. A preliminary review suggests that EPA is already in the best institutional niche from which to do its job.

Historically, EPA has been able to act like an independent agency even though organizationally it was as much an arm of the executive branch as any cabinet department. While individual EPA decisions often bore the marks of political pressure and policies shifted from one administration to the next, the basic programs of the Agency maintained a strong core of continuity in direction and in mid-level professional staff.

EPA's independence has several sources. One is a strong nationwide bipartisan support for the Agency's public health/environmental protection mission. Another is a close relationship to Congress and in particular to key committees and subcommittees in the House and Senate whose chairmen for the most part have been staunch advocates of environmental protection. A third source of EPA's independence is its scientific and technical expertise. Congress, the courts and the public at large have been willing to rely on the Agency's decisions because of this expertise.

EPA is also somewhat insulated from political manipulation by the White House because many of the duties assigned it by environmental laws are non-discretionary. With the public guaranteed access to the Agency's decisionmaking processes and authorized to take EPA to court to hold it to its non-discretionary duties, and with expert environmentalists able to bring their limited resources to bear intensively at the key leverage points in the decisionmaking process (thus offsetting the advantage in overall resources of the regulated community), EPA often operates beyond the control of the White House.

New EPA is accused of becoming an instrument of the Reagan Administration's political goals of deregulation and budget cutting to the detriment of its ability to carry out its statutory mandate to protect public health and the environment. Continuing turmoil in top positons has opened the Agency to charges of deregulation by management neglect or intentional incompetence. Budget cuts and a pronounced change in regulatory philosophy are alleged to have driven away many mid-level career professionals and weakened the Agency's technical and scientific expertise. Throughout this period, EPA and the Congress have squared off on issue after issue and the Agency seems to have lost the trust of Congress' environmental leadership. Decrying the politicization of environmental protection and the deterioration of EPA, the two prominent New York Democrats responded to the recent escalation of the controversy over EPA management by introducing their bill to move EPA further from presidential control.

The Moynihan-Scheuer Environmental Protection Act of 1983 would turn EPA's functions over to a five-member commission whose members would be appointed by the President for staggered seven-year terms. The commission would handle policy setting, rulemaking, adjudication and issuance of orders, while the professional staff would have a relatively free hand in administrative and managerial matters. The commission's budgetary and legislative recommendations would go to Congress without prior approval by the Office of Management and Budget (OMB), although OMB would receive budget submissions concurrently with their transmittal to Capitol Hill.

Through the power to make several appointments to the commission during a term and to name the chairperson, any president would be able to exert substantial influence over the commission. Nevertheless, that influence in theory would be more limited than the President now has over EPA, because commissioners would have fixed terms of office and most of the time the commission would include appointees of more than one president. In addition, the agency's professional staff in theory would be insulated to a degree from political manipulation by the commissioners in the implementation of their programmatic responsibilities. The bill directs the commissioners to stay out of administration and management.

But recasting EPA as the Federal Environmental Protection Commission may cause new problems more serious than any it solves. First, political sensitivity and accountability may be essential for EPA to do its job. EPA is the most powerful, intrusive and omnipresent regulatory agency in the federal government. An agency with the power to shut down entire cities and to put polluters in jail; an agency whose decisions have a profound impact on both the operations of every sector of American industry and on the health and well being of every American probably needs a direct line to both the center of political power and to sources of political feedback for its exercise of its power to be accepted as legitimate. Second, EPA's mission is so broad that it cuts across and in some ways conflicts with the missions of virtually every other federal agency. For EPA to do its job it must have a mechanism to ensure the cooperation of other federal agencies from Agriculture to Transportation and the White House is the only institution that can ensure that cooperation. The White House is also the logical place to resolve conflicts between the missions of the various agencies where Congress has not dictated the result. [13 ELR 10065] Third, a commission may be handicapped in performing the kinds of work required of EPA. A major portion of EPA's work is the promulgation of complex regulations on exceptionally technical subjects. EPA decisions are often on difficult, high-stakes questions and must be made in the face of serious scientific uncertainty. Trusting this process to a decisionmaker with five minds instead of one seems certain to slow and complicate it further.

At first glance, the Moynihan-Scheuer environmental protection commission bill is not responsive to the EPA problems that have been flooding the national press. It may have been nothing more than an effort to take partisan political advantage of the administration's most damaging scandal. Even so, Moynihan and Scheuer are part of the environmental leadership of Congress (Moynihan is an active member of the Senate Environment and Public Works Committee and Scheuer is chairman of the House Energy and Commerce Committee's Subcommittee on Science and Technology). That they would introduce a bill to drastically change the institutional framework for environmental protection is evidence to how serious EPA's problems look from Capitol Hill. And if the bill makes any progress at all, it will be evidence that the administration has failed to put out the fire now raging in its EPA.