Environmental Postcards From the Edge: The Year That Was and the Year That Might Be

Hon. Patricia M. Wald

The author is a judge on the U.S. Court of Appeals for the District of Columbia Circuit. She served as Chief Judge from 1986 through 1991. This Dialogue is based on a speech the author delivered at the 26th Annual American Law Institute-American Bar Association Environmental Law Course of Study (cosponsored by the Environmental Law Institute and the Smithsonian Institution) on February 17, 1996.

[26 ELR 10182]

This past year has been one of upheaval and trauma for environmentalists. The issues have been big, fought out at the highest levels of government and in headlines and TV sound bites. The stakes are high, higher than at any time in the quarter century since the movement's birth. While politicians have loudly lamented the legacy of devastating debt that continued high spending will inflict on future generations, environmentalists have reminded us that radical retrenchment in our protection of the environment will despoil our children's heritage just as much, leaving them heirs to an overheated, species-depleted, soil-eroded, and water-contaminated planet.

This year, the revolutionary 104th Congress put many proposals before Congress to rollback environmental protections—schemes to convert the Arctic National Wildlife Refuge into the Alaska Oil Reserve, to log the Tongass Rain Forest, to extend a moratorium on the designation of endangered species and their habitats, to kill energy-efficiency programs, to postpone new corporate average fuel economy (CAFE) standards, to do away with the U.S. Environmental Protection Agency's (EPA's) veto over the U.S. Army Corps of Engineers' permits for wetlands development, to sell off public lands for private use, and to compensate private landowners for the ways in which public regulation restrains use of their property. A few of them actually got signed into law, including a "timber salvage" law suspending all environmental laws and judicial review with regard to cutting of "dying" or "dead" trees in national forests lands. Federal money for enforcement of environmental laws was cut by 25 percent and funds for building sewage treatment plants reduced severely; the Superfund law also suffered severe refunding problems.¹

Toward the end of the year, things picked up a little. Buoyed by polls indicating that most Americans did not want less protection for the environment—two-thirds of respondents in one of several national polls opposed drilling in Alaska; two-thirds didn't want reduced protection of endangered species or more logging and mining on public lands; in another poll 70 percent thought the federal government should be doing more, not less, for the environment²—the President began threatening and actually did veto some of the more extreme measures, moderate Republicans balked, and even some of the buccaneer House freshmen backed off a bit.³ Paul Tsongas defined the four principles of the "passionate center" to encompass a pro-environment stance.⁴ Bruce Babbitt came out of exile, miraculously transformed into a political asset, to canoe San Francisco Bay and fish the Great Lakes in trumpet of the environmental cause.⁵ In his State of the Union Address in January, the President mentioned environmental protection as one of the most important challenges facing America.⁶

And on a good day, buried in the back pages, one could even find an occasional snippet of substantive good news about the environment. Jessica Mathews reported that the international phaseout of CFCs (chlorofluorocarbons), the principal villain in ozone depletion, was proceeding well ahead of schedule; since 1987, CFC reduction goals had been raised; the number of banned chemicals increased, the timeline for their disappearance shortened—all well below anticipated costs. Contrary to the prophets of economic doom, the electronics industry still thrived, and CFC substitutes for critical air conditioning had been found. Similarly, acid rain curbs—so hotly debated throughout the 1980s—had already produced a lopsided cost-benefit equation: [26 ELR 10183] $ 2 to 3 billion in costs compared to an estimated $ 40 billion in health benefits.⁷

The Greening of the Courts

Of course, these macro-environmental policy wars were waged outside the courthouse. But it would be foolish, as Benjamin Cardozo reminded us almost a century ago, not to remember that "the great tides and currents which engulf the rest of men do not turn aside in their course, and pass the judges by.⁸ In a 1991 article, Professors Glicksman and Schroeder examined such dynamics in the environmental field.⁹ They reviewed the activist role played by the federal courts in getting the environmental movement off the ground in the late 1960s and early 1970s, reminding us that when Congress passed many of what Professor William Rodgers calls the "Seven Great Wonders"—including the Land and Water Conservation Act of 1964, the Wilderness Act of 1964, the National Environmental Policy Act of 1969, the Clean Air and Water Acts of 1972, the Endangered Species Act of 1973, and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)¹⁰—it very consciously wrote detailed provisions for judicial review into them, to insure that a passive or even a hostile bureaucracy would not leave them to gather dust on law library shelves. In response, older conservationist societies were reenergized and new ones sprung up to force the executive to act and, as appropriate, to challenge official actions not in compliance with the new pro-environment regime. The Natural Resources Defense Council, Environmental Defense Fund, Wilderness Society, Wildlife Federation, Sierra Club Legal Defense Fund, Audubon Society, Friends of the Earth, The Humane Society, and Greenpeace, as well as their local variants, became courthouse regulars.

Without a strong infusion of judicial hospitality, however, those laws—even backed by expert and enthusiastic advocacy—would not have gone very far toward the "greening of America." There had to be access to the courts for vigorous enforcement and resolution of exactly what the new statutes required from the executive and from private parties. As a starter, older notions of standing had to be expanded to take into account more than traditional property or economic rights; recreational and aesthetic expectations had to be judicially recognized as well. Similarly, it was a generous judicial construction of the fledgling National Environmental Protection Act (NEPA) that made that statute so useful a tool for environmental regulators and advocates in those early years. Even though NEPA neither specified what had to be in an environmental impact statement nor what weight it should be given by federal decisionmakers, Judge Skelly Wright of the D.C. Circuit decided in the Calvert Cliffs case that the environmental impact statement required for every major federal action must be not only thorough and complete, but actually considered in the decisionmaking process.¹¹ According to one commentator, Calvert Cliffs showed how a "court can construe a tightly worded statute so loosely that it can … be safely ignored by an understaffed and underfunded agency," or make it "into a stringent mandate."¹² Judge Wright accomplished the latter, at least for a while. His colleagues, Judge Leventhal on the D.C. Circuit, and Judge Oakes in the Second Circuit, injected their own high power intellects into the mastery of technical substantive pollution control technology to assure "aggressive" judicial review of agency implementation of environment laws, formulating in the process new concepts of hybrid rulemaking, "hard look" review, and agency-court "partnerships."¹³ Administrative law has not been the same since.

But one must ask why—why were the courts at that time so willing to embrace the environmental cause, to change old doctrines and improvise new procedures to insure that the green laws were energetically enforced? Glicksman and Schroeder attribute judicial engagement in that era to a "mix of enthusiasm for the project of environmental protection, respect for the public policy decisions of the Congress, and a rhetoric of close scrutiny of EPA's decisionmaking processes."¹⁴ This set of "political" assumptions or "values," if you will, set a tone of startling receptivity for the new doctrines and theories pushed by environmental advocates.¹⁵

That old devil—separation of powers—also played its customary Iago role. In the late 1960s and early 1970s, the executive and Congress were of different parties. Key judicial figures, many of whom had been appointed by earlier liberal Democratic administrations, as well as environmentalists, perceived Congress as the more accountable branch, the truer representative of the public interest. By comparison, the executive was still viewed with skepticism, prone to regulatory "capture" by the subjects of its regulatory efforts and thus meriting limited deference in its implementation of statutory directives. Along similar lines, the dominant academic and judicial rhetoric described the mission of the courts in construing and enforcing legislation as insuring fidelity to the intent of the Congress. And perhaps most importantly, the environment itself was considered special, anoncontroversial value transcending individual economic and property rights; its preservation was virtually synonymous with the public interest.¹⁶

In the 1980s, Glicksman and Schroeder continue, significant changes occurred outside the courthouses that affected the attitude of the judges within. First, a more cynical attitude toward congressional goings-on was developing in doctrinal theory; the law and economics school in particular painted legislators as rarely voting for any unified public interest but rather bargaining off special interests, their end product more often than not reflecting an incoherent cobbling [26 ELR 10184] of those special interests and hence not worthy of much deference. On the other hand, there was some evidence—though by no means a consensus—that an increasingly "together" executive was exerting greater internal checks on bureaucratic whims through Office of Management and Budget reviews, cost-benefit analyses, and more emphasis on internal policymaking procedures and personnel control, so that its choices were less likely to reflect interest group capture and thus deserved more deference.

Political and judicial rhetoric had also switched gears; the watchword was no longer fidelity to congressional intent, but rather judicial restraint—courts as unelected non-majoritarian bodies should scrupulously refrain from all undue incursion on the decisionmaking of the political branches. A triumvirate of U.S. Supreme Court decisions, Vermont Yankee, Chevron, and Heckler told lower courts to cool it; don't add any procedural niceties to bare-boned Administrative Procedure Act requirements; defer to the agencies on statutory construction unless Congress has spoken clearly to the precise issue; and rarely, if ever, interfere at all with resource-impacting enforcement decisions.¹⁷ Even with these new restrictions, judges were still regularly denounced for overly aggressive judicial review resulting in agency paralysis.¹⁸ Then, too, the executive and at least one of the legislative houses were in the same party's hands for at least a part of the decade, and by its end a majority of federal judges had been appointed by the same party.

Thus, in Glicksman's and Schroeder's parlance, the former "mix of enthusiasm for … environment protection, respect for … Congress, and a rhetoric of close scrutiny of EPA's decisionmaking" gave way in the courts to "neutrality toward environmental values, skepticism about whether environmental legislation expresses coherent public policy, and a rhetoric of deference toward EPA's decisions."¹⁹ All of these forces descended on the courts at a time when the first wave of eminently winnable, "cherrypicking" environmental cases ended and the second wave of tough, value-conflicting cases took their place, cases often pitting personal property uses and community employment against the pristineness of the environment—tradeoffs that seemed to many judges as well as administrators better suited for a cost-benefit methodology than for an unstintingly pro-environmental stance, if indeed judges should be making such tradeoffs at all.

We also saw the emergence in the early 1990s of a newly energized theory of "takings" in the Supreme Court, redrawing the conceptual line between heretofore uncompensated regulation of private property in the public interest and constitutionally required compensation for the taking of private property for public use.²⁰ And in my own court—encouraged in large part by the Supreme Court—we saw a retreat from the more generous notions of standing in the 1970s to one that increasingly required highly individualized and particularized allegations of imminent or existent injury that action of the court can substantially rectify. In a complex interdependent economy where government often works through tax incentives and the like to make private parties act in certain ways, such rigid standing requirements had the potential to frustrate access to the courts by many groups for whose benefit environmental laws were enacted.²¹ As we moved deeper into the 1990s, then, the broader forces that shape judicial decisionmaking were seemingly arrayed against—not in favor of—the vigorous judicial enforcement of "green" laws that marked the earlier years of the movement.

The Courts' Changing Role

There are already some indications that many of the themes of current environmental and regulatory debates, writ large, are finding corollaries in decisions made inside the courthouse. Cognizant that one swallow doth not a summer make, let me mention just a few.

Plain Meaning, Chevron, and Agency Discretion

Our judges seem to balk more often these days at going beyond the "plain" or "ordinary" meaning of the word or phrase being construed in the increasingly complex environmental laws and regulations we review. If I am right, such a trend has obviously troubling consequences for environmental advocates and for legislators. Opinions shy away particularly from appeals to the overall "purposes" of environmental laws, often written in more sweeping language than the specific provisions that follow, and refuse to validate these "goals" or "purposes" as a source of any extra elbow room for EPA or other agencies to infuse specific criteria set out in one part of the law with more generalized concerns of the statute as a whole.

In one recent case, Ethyl Corp. v. U.S. Environmental Protection Agency,²² we ruled against the Administrator's attempt to deny a waiver for a new fuel additive under § 211(f)(4) of the Clean Air Act²³ based on health and safety concerns, because the waiver section itself spoke only of the necessity to show that the additive "will not cause or contribute to a failure of any emission control device or system … to achieve complianceby the vehicle with the emission standards." The Administrator unsuccessfully argued that the waiver section was worded in discretionary, not mandatory, terms—the Administrator "may," not "must," grant a waiver and so why should she not be able to consider other factors in the public interest like health and safety, which are consistent with the Clean Air Act's mandate "to protect the quality of the Nation's air resources so as to protect and enhance the health and welfare … of its population."²⁴ Since Congress had not specifically forbade consideration of these other factors in the waiver [26 ELR 10185] section, a reasonable exercise of agency discretion to consider them should be honored under Chevron step two, under which if Congress has not spoken precisely to the issue, the agency's reasonable construction of a law must be upheld.

The court nixed the argument in no uncertain terms: "The language in § 211(f)(4) is clear, directing the Administrator to consider only emission effects, not public health effects, in waiver determinations." There were no gaps left to be filled by Chevron-type agency discretion; Congress' failure to explicitly bar health considerations in the waiver section created no ambiguity: "We refuse, once again, to presume a delegation of power merely because Congress has not expressly withheld such power." As to the "purposes" argument, the court commented tersely:

We look to the general purpose of the statute in interpreting a provision when Congress's intent is not clear from the plain language of the provision…. The agency may not simply disregard the specific scheme Congress has created for the regulation of fuels in order to follow a broad purpose statement.²⁵

For a nostalgic contrast, recall Judge Leventhal's statement back in 1976 in Portland Cement:

In ascertaining congressional intent we begin with the language of a statute, but this is subject to an overriding requirement of looking to all sources including purpose and legislative history, to ascertain discernible legislative purpose.²⁶

In another case, American Petroleum Institute v. U.S. Environmental Protection Agency,²⁷ the court again refused to find EPA authority under the Clean Air Act Amendments of 1990 to promulgate a 30 percent renewable oxygenate requirement in its regulations for the reformulated gasoline to be used in nonattainment areas. EPA said the 30 percent renewable oxygenate requirement would conserve fossil fuel reserves, reduce global warming, and act as an incentive to promote use of a promising new oxygenate product. The petitioners, however, strenuously and successfully argued that the purpose of the reformulated gasoline requirement was to reduce volatile organic compound (VOC) emissions, not to promote global cooling or encourage renewable oxygenates. In this case, interestingly enough, the section in question, § 211(k)(1) of the Clean Air Act Amendments specifically allowed for "taking into consideration … any nonair-quality and other air-quality related health and environmental impacts and energy requirements."²⁸ Accordingly, EPA had argued that Congress specifically gave it authority to insure that emissions reduction through reformulated gasoline was accomplished in a way that optimized cost, energy, and health and environmental impacts, and so Chevron deference was in order. The petitioners in turn said that the references to other air quality and energy considerations related only to choices among means of achieving VOC reductions, not to the pursuit of any independent goals like the promotion of promising oxygenates.

The court in striking down the oxygenate requirement invoked plain meaning:

The sole purpose of the [reformulated gasoline] program is to reduce air pollution, which it does through specific performance standards for reducing VOCs and toxics emissions….

…. EPA cannot rely on its general authority to make rules necessary to carry out its functions when a specific statutory directive defines the relevant functions of EPA in a particular area.²⁹

According to the court, EPA had a second time tried to stretch Chevron too far to say that because Congress had not expressly limited EPA's authority to require a certain percentage of renewable oxygenates, Chevron II deference would carry the day.

There were a few other cases of similar ilk, but you get the picture. Congress' feet are being held to the fire to say in the right chapter and verse what the purposes and criteria are for authorized agency activities. The generous faith placed in Congress during the 1960s and 1970s—along with the judicial willingness to fill in statutory gaps that accompanied it—eroded during the 1980s. But now in the 1990s, judicial distrust of former pre-1994 Congresses appears to be on the upswing as courts resist interpreting congressional intent to delegate authority for any purposes not plainly specified in the immediate sections under construction. And Chevron step two-type discretion, which at one time seemed a bottomless reservoir of potential judicial approval, seems to be giving way to stricter limits on the leeway granted agencies in implementing statutes. Even if Congress does not speak in preclusive terms—"thou shalt not" or "only if"—the courts will limit what the agency can do, and on what basis it can act, to the activities and the criteria that Congress does expressly talk about. It seems, indeed, that 1980s skepticism about Congress as the repository of the public interest is now matched by a similar suspicion of executive agencies who are perceived as susceptible to succumbing to the temptation of overextending their authority by construing pro-environmental legislation too broadly. The result: environmental advocates, fighting to preserve past gains in an increasingly antiregulatory atmosphere, cannot be confident of court confidence in either of the institutional allies they enjoyed through the 1970s and some of the 1980s.

The Madness of Standing Law

Another area of environmental law is appropriately summed up in the last lines of the movie, "Bridge Over the River Kwai," where the young officer surveys the human wreckage left in the wake of the clash between military codes and wartime realities, and cries out, "Madness, Madness." That, in my view, describes accurately certain aspects of environmental standing law.

Last year our D.C. Court of Appeals dismissed several environmental cases for lack of standing. One important case involving a suit to require a NEPA analysis for tax subsidies for sugar and corn crops used in ethanol manufacture in which a divided panel granted standing is currently under en banc consideration, so I will not discuss [26 ELR 10186] that.³⁰ But I will mention another that followed the lead of that jurisprudential wonder, Lujan v. Defenders of Wildlife.³¹ The D.C. Circuit case, Humane Society of the United States v. Babbitt,³² involved the Humane Society's attempt to challenge a U.S. Department of the Interior certificate permitting the transfer to an animal exhibition of an Asian elephant named Lota, formerly housed in the Milwaukee Zoo. The Endangered Species Act generally forbids such transfers for "commercial" purposes, and the real question in the case was whether this transfer was for a "commercial" purpose or not. But that question was fated never to be answered, for our court found that no one, neither the Humane Society, nor any of its members who had visited Lota in her zoo habitat and proclaimed their desire to do so again, nor the writers of the 250 letters and the 200 callers who registered concern over her new environment, had standing to raise it. Why not? Well, the court said, one regular visitor who claimed Lota's departure had deprived her of the opportunity to learn about endangered Asian elephants suffered no injury-in-fact since there were three other elephants like Lota in the zoo. Other members who alleged distress at Lota's absence were dismissed because "general emotional harm, no matter how deeply felt" cannot suffice for injury purposes in standing law. Still others who pleaded sorrow at not seeing Lota in a "conservation setting" instead of on exhibition were ineligible because they did not define conservation setting precisely enough. Finally, even if someone had shown an injury—the court said—the challenged certificate only covered Lota's transport from a holding station in Illinois to the exhibition farm, not her original departure from the Milwaukee Zoo (though one might ask whether the new owner would have taken her to the holding station if he did not have permission to take her on to the exhibition). Therefore her absence from the zoo—the source of the Humane Society's member's alleged injury—was not "fairly traceable" to the transfer certificate, and the second prong of standing, causation, was not met.

I ask you: Is this work for sophisticated adult jurists? There was a real dispute here, whether Lota's transfer to the animal exhibition in Illinois was in violation of the Endangered Species Act; and who was more qualified to raise it than those whose concern about animal welfare had caused them to join a professional organization dedicated to that cause, including members who had personally viewed and visited Lota, and yes, by golly, missed her and worried about her survival in her new environment? The descent into Talmudic refinements about whether one must be a student of the animal in that particular environment to bring suit, and whether the disputed permit covered the transport away from the zoo as well as to the animal exhibition would strike an ordinary person as the essence of caprice. More than most subjects of lawsuits, the use of our natural resources is a communitarian matter. Why then must a genuine dispute over an acknowledged injury to the environment stemming from a violation of law be judgeable only when one individual can show a minutely particularized use of the resource that is threatened, down to the last square inch of hiked soil, or the date of the next planned visit to the zoo? I believe it is truly time to reconceptualize environmental standing. Whether our substantive environmental law changes or remains the same, surely the incorporation into our law of more realistic notions of which affected persons or communities have the right to protest environmental violations is subject to rethinking. But in the meantime, as practical men and women of the law, I can only tell you to consult your zoology manual for details of the specialty fields of your putative plaintiffs and have them make their appointments well ahead of time at the local zoo. "Gotcha" is still the name of the standing game.

Regulatory Fairness

The environmental debate this past year featured many tales, real or apocryphal, of hapless little people caught up in a bureaucratic web of incomprehensible and irrational regulations, inadvertent violation of which caused their economic downfall. Justice Breyer wrote in his book, Breaking the Vicious Circle, of hazardous waste sites required to be cleaned up to the point that a child could eat a peck of dirt every day safely for five years; and a New York Times article pointed out that an EPA mandate to reduce tailpipe emissions contributing to ground-level ozone by 99.5 percent will cost double the price tag of reducing them by just 98 percent.³³ Although concerns about the cost of environmental protection are certainly not invalid, there is a troubling tendency by some to treat environmental violators or even environmental crimes as basically victimless; they are not, of course; the victims of environmental violations, human and nonhuman, are apt to be more far flung, more numerous, and their injuries more long lasting and intergenerational than the victims of ordinary street crime, for which our legislators keep adding new and heavier mandatory minimum sentences with what many say is monumental indifference to effects on the violators themselves, their families, or the priorities of the rest of society.

Despite conceptual differences in the way society treats street crime and environmental crime, a move toward more rational criminal enforcement of environmental laws is slowly gaining support. There has been some healthy academic discussion about whether environmental law needs reformulation in order to fully integrate the fundamental principles of liability and due process in our traditional criminal law into environmental law. Richard Lazarus, in a current article on the subject in the Georgetown Law Journal,³⁴ points out the relatively greater magnitude of harm caused by many environmental violations, as compared with most other crimes, but also the greater difficulty of assigning responsibility for that harm among many concurrent and often nonconspiracy wrongdoers, as well as the difficulties of tracing causation in a complex ecosystem where scientific uncertainty abounds on many basic causal issues. As a result, language in laws and regulations defining environmental behavioral standards is often arcane, obtuse (despite appellate courts' valiant [26 ELR 10187] attempts to construe its "plain meaning"), and difficult to comprehend. One EPA official is said to have remarked: "Only five people in the agency … understand what 'hazardous waste' is."³⁵ Lazarus sums up the tensions in environmental criminal law thus:

Criminal law requires more demanding proof to convict, but environmental law makes such a showing problematic because of scientific uncertainties and fragmented decisionmaking authority. Criminal law emphasizes settled norms, while environmental law constantly changes and aspires for fundamental and dramatic change. And, although criminal law requires clear, determinate, and readily accessible legal standards, familiar to the general public, environmental law is replete with obscure, indeterminate, and highly technical standards, the meaning of which few can claim genuine mastery.³⁶

Lazarus urges that Congress define more precisely those states of mind and types of environmental conduct that deserve criminal stigma as opposed to civil penalties, and suggests that the inherent complexity of some environmental laws requires there be a heightened mens rea for criminal conviction.

Some such reformulation effort may well deserve serious consideration to preserve the appearance and the reality of fairness in our environmental law enforcement. In this area, I am no expert. But I do see signs in our own cases—primarily civil, not criminal—that regulatory fairness is high on judges' agendas. We had two cases last year pointing in this direction. In General Electric Co. v. U.S. Environmental Protection Agency,³⁷ we upheld the agency's reading of a very complicated Toxic Substances Control Act regulation having to do with the processing and disposal of polychlorinated biphenyls used to clean out transformers. But because the regulation was so dense—certainly susceptible of EPA's interpretation, but not inevitably so—we refused to uphold the civil penalties imposed for violation on the grounds GE did not have "fair notice" of what was required. The court thought it would violate due process "if, by reviewing the regulations and other public statements issued by the agency, a regulated party acting in good faith would [not] be able to identify with 'ascertainable certainty,' the standards with which the agency expects parties to conform."³⁸ The unanimous panel consisted of Judge Tatel, the author, myself, and Judge Silberman.

Another case, Chemical Waste Management v. U.S. Environmental Protection Agency,³⁹ turned down a facial constitutional challenge to EPA's rule for classifying contractors as "unacceptable" for removal of wastes from Superfund sites. Under the rule, either the state or EPA could make a finding of Resource, Conservation, and Recovery Act (RCRA) violations by the facility and EPA would then issue a notice of its "unacceptability," including the specific acts, omissions, or conditions underlying the finding. The facility could then ask for an informal conference but it bore the burden of showing its acceptability, or the designation of unacceptability became effective within a number of days. The court was obviously bothered by the alleged due process violations: no threshold standard of proof of the underlying violation or impartial decisionmaker required for the finding; no standard for review of these findings by EPA; no opportunity at the informal conference to dispute the underlying finding of noncompliance; no right to discovery or subpoena—"Basically, the facility must refute an allegation of noncompliance by proving the absence of any violation," the court said.

The court rejected the facial challenge because that would require the challenger to establish that no set of circumstances could exist under which the rule would be valid; if, for instance, the facility raised no dispute as to its noncompliance with the RCRA requirements, the procedures would be adequate. Nonetheless, the court warned that "petitioners certainly raise serious—indeed grave—questions as to the adequacy of these procedures in their totality," adding ominously: "We stress our dismissal in no way reflects our approval of the procedural scheme at issue … we find petitioners' concerns regarding some of the procedures given, and the absence of others, troubling."⁴⁰

I believe legislators and rulemakers would do well to proceed in the immediate future with even greater caution than in the past in insuring that their rules give fair notice of what is expected of the regulated and fair procedures for disputing alleged violations. I predict courts will be increasingly sensitive to problems of regulatory fairness for some time to come.

Trends

Moving on, however, from these hints as to what judges are currently worrying about, the really interesting question is whether there will be any dramatic turn in the courts' attitude toward enforcement of environmental laws to parallel the change from the 1970s to the 1980s. After all, Glicksman and Schroeder wrote in 1991, before the 1992 Presidential election, before the so-called Republican revolution in 1994, before the addition of new Democratic appointments to the courts (though not in great enough numbers to alter the balance in the appellate courts). I certainly do not have all the answers, but I do have a few observations from my vantage point as the most senior (in service, that is) member on the reviewing court that does the most environmental business in the nation.

At the macro level, if Congress does end up making substantial cutbacks on existing environmental protection next term, the message will definitely seep through to many judges that environment no longer occupies any special rung on the value hierarchy, and that overregulation, not underregulation, is the evil to be avoided—that environmentally protective measures are to be construed narrowly, not broadly. If the White House does not change tenants and the political makeup of Congress does not change, we could, ironically, be back to the future—but in reverse. Whereas in days of old, the executive was distrusted for not being assertive enough in enforcing the laws and the courts saw their job as insisting on sufficient regulation to enforce those laws, the distrust now would be in the opposite direction; courts might well find themselves monitoring pro-active agencies to insure that they jump through all the [26 ELR 10188] hoops Congress has set up for them before they impose new regulatory burdens on anyone.

Turning to a more specific facet of judicial review, I would like to speculate a bit about what might happen if some form of last season's regulatory reform legislation passed. The centerpiece of that effort, S. 343, would have required agencies (EPA included) to undertake very refined kinds of risk and cost-benefit analyses before proposing new regulations. Despite the directive that failure to comply with such statutorily required analyses "may be considered by the court solely for the purpose of determining whether the final agency action is arbitrary and capricious or an abuse of discretion or unsupported by substantial evidence (if that is applicable),"⁴¹ I believe that the existence of these cost-benefit and risk analyses requirements as statutory mandates would almost certainly generate a quantitatively and eventually a qualitatively different kind of judicial review of environmental regulations. They would almost inevitably produce more of a checklist mentality on the part of reviewing courts; we judges would more often play the role of insuring that all these varied statutory tasks are performed to specifications, in contrast to the essentially diffuse role we now play as an ultimate safety valve to insure that bizarre things don't happen at the agency level.

The presence of these requirements in a statute, as opposed to an executive order, also would mean we would be likely to view their absence or inadequate accomplishment more seriously in evaluating the agency's overall performance. This is not to imply we would disregard the command of the law to consider the refined analyses only in the context of the whole rulemaking record. But having duly repeated that soporific, courts would still have to unbundle its varied implications and applications to see how and if it can really be done. How would conscientious judges distinguish between faulty analyses that do require overturning an entire rule and those that do not?

I think it would not be so simple as to just say to the court, "consider the analysis as part of the whole record." We are already constrained by Chenery⁴² to look at the agency's rationale, not just the record itself, to decide if a rule is arbitrary or capricious, and indeed, as many of you know all too well, we turn many rules back each year for failure of the agency to explain its reasoning satisfactorily. So if an agency did do these new complex analyses and relied on them in its rationale for the rule, and if, in turn, the analyses were faulty in some material way, it would not be so easy—nor should it be—for a court to divorce the agency's main rationale from the defective analyses. At the very least, the unbundling would require an extra step in our review process. More likely, the courts would identify a greater number of rules requiring remand, because there are so many ways in which a statutorily mandated cost-benefit analysis could go awry. For example, even if the agency's analysis showed that it assumed the regulation embodies the least expensive way of achieving the statutory objectives of the statute, it might omit the necessary explicit finding to this effect. Or, the agency might perform the requisite analysis but goof in some material calculation; in some circumstances the rest of the cost-benefit analysis might still support the agency's decision; but in other situations the mistake would significantly alter the outcome of a cost-benefit calculus. Even more permutations exist. When the cost-benefit analysis went wrong, in some cases the agency's entire rationale for the rule would certainly collapse, in others, the thrust of its reasoning might remain intact because it did not place much weight on the analysis anyway. But in virtually all cases the calculus of judicial review would subtly change.

Accordingly, I could envision a real climactic change in judicial review of an environmental regulation if something akin to last year's regulatory reform bill passed, even if nothing else happened on the political or legislative landscape. Minimally, rulemaking records would be longer, rules would take longer to issue, courts would have to read and check for more statutorily required analyses, court decisions might as a result themselves be slower to issue. It's hard to say whether more rules would be thrown out by courts, but I do suggest that the more facts and findings the agency has to put into the record, the more likely it is that a meticulous judge or advocate may find something in there that is inconsistent with something else and raise a plausible question of whether "reasoned decisionmaking" has taken place. That, of course, may be what Congress wants and if so, it is our job on the courts to give it to them. But it deserves thinking about by everyone in the process. Problems of institutional competence even more severe than those we face now in reviewing arcane, complicated regulations may arise; as lawyers, rather than scientists or statisticians, the judiciary may be ill-equipped to assess the complex analyses that this legislation mandates. And to return to a broad trend I discussed earlier, if Congress sends the courts the message that they should take "harder looks" at what the agency did to insure that it did not overstep its bounds, the presumption will be against substantive regulation, not for it. There is some irony in the fact that after a decade of being decried by the executive, sometimes Congress, and a large part of academia, for raining on the executive policymaking parade, a conservative Congress now turns to us to be its principal enforcer of more cautious regulation, and in that one peculiar sense, our powers of judicial review may be expanded, not contracted.

Everything I have been saying thus far relates to statutory construction and appellate review of agency regulations. Yet, much, perhaps most, of environmental law enforcement goes on in the trial courts, state and federal, a subject about which I have very limited knowledge and no expertise. I would, however, like to mention in that regard the thoughtful discussion and a few of the critical concerns Judge Jack Weinstein, of the Eastern District of New York, raised a few years ago in the context of how courts can cope constructively with the adjudication and remedial phases of mass tort action, concerns that resonate in the environmental field as well.⁴³

Judge Weinstein stressed the need for modifying the legal process to accommodate litigation that "affects larger communities than those that are encompassed by the litigants before the court." The ethical dilemmas he found in such nontraditional cases included: "To what extent should the judge relinquish the role of passive, neutral mediator in favor of a more activist, managerial stance …? What steps [26 ELR 10189] can a judge reasonably take to educate himself or herself about highly technical scientific matters without losing the appearance or fact of impartiality? Should the judge look beyond the case at bar and consider the needs of society in resolving a matter—and how should the judge resolve the inconsistencies between the needs of the parties and the public?"⁴⁴ His own answers to these mind-stretching questions were unconventional: Once a case is recognized as an institutional problem with sociopolitical implications beyond the courtroom—he said—a duty attaches to be responsive to the needs of the entire community. "We need to look not only to the individual's hurt but also to similar harm suffered by others in the community and suggested solutions for those who may be secondarily affected."⁴⁵ In an ever more activist tone, he goes on:

The judge cannot focus narrowly on the facts before the court, declining to take into account the relationship of those facts to the social realities beyond the courthouse door. The judge cannot depend upon the slow creep of case-by-case adjudication to yield just results and just rules of law…. A judge does not "legislate from the bench" simply because he or she considers the broadest implications of his or her decisions in such a case. Judges not only may take such a view; they must.⁴⁶

Judge Weinstein, of course, is an older judge—now senior—who, like me, has lived through the '60s, '70s, '80s, and half the '90s, so perhaps he is not typical of the newer breed of trial judges. But I sense his views may be more widely shared on the federal trial bench than one might think. And if so, we may have a schizophrenic federal judiciary consisting of appellate judges busy consulting their dictionaries to reign in overzealous agencies from construing their powers too broadly, alongside trial judges earnestly seeking ways to accommodate our one-on-one adversary system to communitywide environmental problems with ever-widening rippling effects, some of which will transcend even national boundaries. This is truly an enforcement challenge for the gods—how to provide necessary but fair remedies for massive environmental wrongs. Some would say when an enforcement problem gets too big and complicated, the courts must step back and let the political branches handle it. But that too is a worrisome solution; we have heard it advocated in the past for malfunctioning human care institutions, including jails, asylums for the mentally ill and retarded, and child welfare systems. Without judicial oversight and prodding, change in these institutions does not happen quickly, if at all. And abdicating responsibility concedes the inability of our courts and justice system to protect rights and enforce the laws in the meantime. I hope some of you out there dealing with complex environmental violations continue to work on the kind of reform effort Judge Weinstein calls for. If, as we know and endlessly reiterate, our ecosystem is interdependent, how can we adequately protect it on a case-by-case basis in an enclosed courtroom before a black-robed umpire-like figure constrained to consider only the evidence put before her by advocates from the most extreme ends of the spectrum? That question will and should remain in the forefront of environmental law for a long time to come.

Conclusion

Major environmental policy battles are being fought on the political front. The national debate they provoke, as well as its eventual outcome, are bound to affect the way courts construe and enforce old and new environmental laws and regulations. The aggressiveness of judicial review may take new twists and turns that are dependent on who holds the balance of power in the other two branches, not for obvious partisan reasons, but rather as a reflection of whether the Congress or the executive is trusted more or less. Current developments suggest that a generally growing cynicism toward government and suspicion of overregulation will bring in its wake more emphasis by the courts on making the legislators say precisely what they mean, according less Chevron step two-type deference to the regulators, and restricting access to the courts for those seeking to enforce environmental laws. A feeling abroad in the land that regulators are too imperious will also mean increased stress by the courts on procedural fairness and notice of what is to be expected from the subjects of regulation. So-called regulatory reform could alter dramatically the way courts view and do their job of judicial review, and even where ultimate presumptions lie. After 25 years, the relatively new field of environmental law may indeed need some mid-course correction, both as to trial and remedial processes in complex environmental disputes and as to its integration with fundamental tenets of criminal responsibility. In all of these efforts, the communitarian nature of environmental values cries out for approaches that appreciate the interdependence of our human and environmental ecosystems and the terrible effects of resource spoilage upon the livelihood and lifestyle of whole communities and our children for generations to come. It is a tough assignment—I hope we are up to it.

1. See, e.g., John H. Cushman Jr., Brief Clause in Bill Would Curb U.S. Power to Protect Wetlands, N.Y. TIMES, Dec. 12, 1995, at A1, D23; Tom Kenworthy & Gary Lee, Divided GOP Falters on Environmental Agenda, WASH. POST, Nov. 24, 1995, at A1, A10-11; Jessica Mathews, Battle for the Environment, WASH. POST, Nov. 27, 1995, at A21; Matthew L. Wald, Congress at Midpoint: To the Left or the Right, Gridlock Everywhere, N.Y. TIMES, Jan. 21, 1996, at A14.

2. A Greener White House (editorial), N.Y. TIMES, Nov. 26, 1995, at A10.

3. See John H. Cushman Jr., GOP Backing Off From Tough Stand Over Environment, N.Y. TIMES, Jan. 26, 1996, at A1, A12; Kenworthy & Lee, supra note 1.

4. Paul Tsongas, The Center Holds Out, N.Y. TIMES, Dec. 10, 1995, at D13.

5. Tom Kenworthy, After Time in the Wilds, Babbitt Takes a New Approach to Battling GOP, WASH. POST, Dec. 3, 1995, at A19.

6. Text of the State of the Union Address, WASH. POST, Jan. 24, 1996, at A13-14.

7. Jessica Mathews, Clean Sweeps: Two Success Stories for the Environment, WASH. POST, Dec. 18, 1995, at A23.

8. BENJAMIN CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 168 (1921).

9. Robert Glicksman & Christopher H. Schroeder, Twenty Years of Law and Politics, 54 LAW & CONTEMP. PROBS. 249 (1991).

10. William H. Rodgers Jr., The Seven Great Wonders, ENVTL. F., Nov./Dec. 1994, at 23-24.

11. Calvert Cliffs Coordinating Comm., Inc. v. Atomic Energy Comm'n, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971).

12. THOMAS M. HOBAN & RICHARD O. BROOKS, GREEN JUSTICE: THE ENVIRONMENT AND THE COURTS 60 (1987).

13. See, e.g., James L. Oakes, The Judicial Role in Environmental Law, 52 N.Y.U. L. REV. 498 (1977); Harold Leventhal, Environmental Decisionmaking and the Role of the Courts, 122 U. PA. L. REV. 509 (1974).

14. Glicksman & Schroeder, supra note 9, at 249.

15. Id. at 272-76.

16. Id. at 268-72.

17. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 8 ELR 20288 (1978); Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 14 ELR 20507 (1984); Heckler v. Chaney, 470 U.S. 821, 15 ELR 20335 (1985).

18. See, e.g., Richard J. Pierce Jr., Two Problems in Administrative Law: Political Polarity on the District of Columbia Circuit and Judicial Deterrence of Agency Rulemaking, 1988 DUKE L.J. 300; Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385 (1992).

19. Glicksman & Schroeder, supra note 9, at 249.

20. See, e.g., Dolan v. City of Tigard, 114 S. Ct. 2309, 24 ELR 21083 (1994).

21. See, e.g., Patricia M. Wald, The D.C. Circuit: Here and Now, 55 GEO. WASH. L. REV. 718 (1987).

22. 51 F.3d 1053, 25 ELR 20817 (D.C. Cir. 1995).

23. 42 U.S.C. § 7545(f)(4), ELR STAT. CAA § 211(f)(4).

24. Id. § 7401(b)(1), ELR STAT. CAA § 101(b)(1).

25. Ethyl Corp., 51 F.3d at 1060-61 n.9, 25 ELR at 20821 n.9.

26. Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 379-80, 3 ELR 20642, 20643 (D.C. Cir. 1973).

27. 52 F.3d 1113, 25 ELR 20824 (D.C. Cir. 1995).

28. 42 U.S.C. § 7545(k)(1), ELR STAT. CAA § 211(k)(1).

29. 52 F.3d at 1119, 25 ELR at 20827.

30. Florida Audubon Soc'y v. Bentsen, 54 F.3d 873, 25 ELR 21207 (D.C. Cir. 1995); see David Sive & Daniel Riesel, Environmental Law, NAT'L L.J., Nov. 20, 1995, at B5, B8.

31. 504 U.S. 555, 22 ELR 20913 (1992).

32. 46 F.3d 93, 25 ELR 20612 (D.C. Cir. 1995).

33. Peter Passell, With Cheap Fixes Completed, the Cost of Clean Air May Exceed the Benefits, N.Y. TIMES, Dec. 19, 1995, at D5.

34. Richard J. Lazarus, Meeting the Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law, 83 GEO. L.J. 2407 (1995).

35. Id. at 2434.

36. Id. at 2445.

37. 53 F.3d 1324, 25 ELR 20982 (D.C. Cir. 1995).

38. Id. at 1329.

39. 56 F.3d 1434, 25 ELR 21214 (D.C. Cir. 1995).

40. Id. at 1437-38, 25 ELR at 21216.

41. S. 343, 104th Cong., 1st Sess. § 625(d) (1995).

42. Securities Exchange Comm'n v. Chenery Corp., 318 U.S. 80 (1943).

43. Jack B. Weinstein, Ethical Dilemmas in Mass Tort Litigation, 88 NW. U.L. REV. 469 (1994).

44. Id. at 483.

45. Id. at 486.

46. Id. at 540-41.