Improving Agency Capacity for Handling Environmental Issues

Eliot R. Cutler, Attorney, Winston & Strawn

Federal agency decision makers with environmental responsibilities have discovered the hidden truth which Lincoln forgot to mention. It is, in fact, possible to please none of the people all of the time.

No one is satisfied with the performance of administrative agencies in the area of environmental protection. For example, the mission agencies may for the most part comply with NEPA's procedural requirements, but that act has brought few substantive changes to those agencies' views of their missions. And the Environmental Protection Agency may respond on its own to the specific directives of the Clean Air Act, but it has tackled the Clean Air Act problems of non-degradation, transportation controls, and complex source regulation only in response to court orders.

Do these patterns of glacial change in the mission agencies and reluctant creativity in EPA suggest that the administrative process is inherently inadequate and that we must look increasingly to the judicial process for the development of environmental law? I think not. We should examine the judicial competence in this area with some skepticism, but that is the responsibility of the afternoon panel. Assuming, however, for the purposes of this discussion, that the courts are not fully competent to solve the myriad dilemmas of developing environmental law, I would like to take a more positive view of the agencies' potential role in this area. Can we postpone sounding the alarm and calling for the full assistance of the courts in developing, as opposed to enforcing, environmental law?

I think there are some ways to improve the administrative agencies' capacity to deal with environmental issues, and there are some important reasons for pursuing that course as an alternative to abandoning the agencies in favor of increased reliance on the courts.

First, however, I would urge that we beg the question a bit and enlarge somewhat our institutional frame of reference. Neither the courts nor the administrative agencies operate independently of the Congress. Some agencies may be more insulated than others from legislative direction and control, but the facts of life are that both the agencies and the courts depend on the Congress for the definition of their authority and responsibilities and for the enlargement or limitation of their powers. The nature of the legislative decisions to be implemented by the courts or by the agencies can vary from the general (i.e., the arguably substantive rights in NEPA) to the specific (i.e., the automotive emissions standards established by the Clean Air Act).

Indeed, the extent to which the quality of the agencies' performance depends upon the quality of the legislative decisions was illustrated by the reluctance of the EPA to establish transportation control and complex source regulations under the Clean Air Act and by the shortcomings in the rules which were finally issued by the Agency. Although the ultimate issue of EPA's authority to establish these regulations is being litigated at the present time, it is apparent that the Congress recognized when it passed the Clean Air Act that some authority to implement and enforce land use and transportation controls would be necessary if the primary ambient air quality standards were to be achieved and maintained. But the act itself says no more than that, and the legislative history is of little help in spelling out what form these controls should take. EPA was reluctant to venture into this uncharted area, and the Natural Resources Defense Council was forced to obtain a court order requiring, in effect, that the Agency promulgate the necessary regulations. The rules which have been promulgated predictably have provoked a storm of protest from affected industries, states, and cities, and towns, since they threaten many localities with stringent restrictions on economic growth and on the use of automobiles. The quality of those regulations, to say the least, has been questioned.

In fact, there are persuasive reasons for giving the legislative-administrative process a chance to work.

Traditionally in America, we have committed to the special wisdom of legislatures the task of resolving basic social, economic, and political conflicts. The more fundamental are the values at stake (so long as they are not constitutionally protected), the less removed from politics should be the resolutions of conflicts among them. These democratic notions have particular relevance in the development of a body of environmental law, where the conflicts to be resolved are seldom simple and straightforward, but rather cut across a seamless web of basic social, economic, and political values. The fact that decisions about these matters require the weighing of conflicting values is, for one practitioner of environmental law, the reason why "the weigher should be a court, a generalist, rather than an administrative agency whose outlook is organically developmental and provincial." But ultimately the same argument which favors courts over agencies should also favor Congress and the agencies over the courts. The resolutions of these conflicts ought to be made by popularly elected and politically responsible legislators.

Right now, however, many of these conflicts have not — by and large — been resolved by the Congress. This lack of resolution, along with grossly inadequate funding, are the principal reasons for many of the shortcomings of [4 ELR 50139] agency decision-making in the environmental area.

The Clean Air Act at once offers the best example of how the relationship between Congress and the agencies can work in this area, and a good example of why it often does not work.

In enacting the Clean Air Act, the Congress determined that the nation required ambient air quality protective of public health. In many respects, the statutory guidance on this point is so detailed that EPA is left little room for the exercise of discretion. The Congress made a number of decisions which bore such far-reaching political, social, and economic consequences that only it among the branches of government was likely to assert the authority to do so. For example, no court or administrative agency acting on its own would have excluded considerations of economic and technological feasibility and required that ambient air quality standards be set solely on the basis of public health.

The Act also recognized that specific, detailed standards and regulations to cover a multitude of parties and activities must be prescribed and enforced in order to achieve and maintain the required ambient air quality standards. As far as automotive emissions were concerned, the Congress gave EPA little discretion; if any change other than a one-year extension from the requirements set forth in the Act was necessary, the Congress retained the authority and responsibility to make that change. This decision was appropriate, given both the economic and social impact of the 90 percent reductions in emissions which the act required, on the one hand, and the consequences of delay in those reductions on the other hand.

But the Congress did not legislate so specifically with respect to transportation and land-use controls. The Act gave the Agency little guidance as to what kinds of controls would be appropriate or acceptable. Yet the economic and social impact of these regulations potentially is even greater than the impact of the automotive emissions requirements.

At the same time, the Agency is faced with a serious shortage of data regarding the health effects of pollutants and the ways in which automobile use and growth patterns affect the concentrations of those pollutants. To a large extent, this shortage of data — and manpower — is due to the fact that appropriations for the Agency have not kept pace with the demands made upon it.

But could the courts have done a better job, could they have resolved the conflicts more equitably, could they have better implemented the legislative intent? Could the courts have come up with better transportation control plans or indirect source regulations, given the meager legislative guidance? Would they have tried?

I doubt it.

These comments apply in much the same way to the development-oriented, mission agencies as they do to the regulatory agency.

Yes, many agencies tend to favor development interests — but only so far as they are allowed to do so by the statutes under which they function. Specific, substantive statutory guidance — analogous to some of the provisions of the Clean Air Act — can reform and restrict the substance of agency decision-making. Section 4(f) of the Highway Act and the Water Pollution Control Act restrictions on agency licensing activities are two examples.

But procedural guidelines, or even arguably substantive guidelines when phrased in the broad, general terms of NEPA § 101, will not and have not reformed the substance of agency decision-making.

And although there may be "law to apply" in § 101 of NEPA, can the courts define and apply that vague rhetoric more consistently, more effectively, and more equitably than the agencies? Will they try?

Again, I have real doubts.

So I don't believe that we ought to give up on the legislative-administrative partnership before we fully test its potential. And that potential will not be tested fully until the Congress provides precise, legislative definitions of the substantive policies which it expects the agencies to implement.

That is not an impossible task. The Congress has demonstrated that it is capable of making the necessary kinds of difficult public policy decisions in parts of the Clean Air Act, the Water Pollution Control Act, and other similar "standards-setting" statutes. Few other areas of public policy require the balancing of conflicting interests and the consideration of trade-offs in such agonizing detail, but those requirements should not be an excuse for deferring to the courts. Congress ought to define the substance of environmental policy through detailed descriptions of operative principles and specific standards on the basis of which agencies can act and courts — where necessary — can adjudicate. I am not talking about procedural guidelines here, or even procedural guidelines phrased as substantive instructions, with an invitation to the courts to substitute their wisdom. I am suggesting that the Congress make the important public policy decisions by issuing substantive, detailed instructions to the agencies, and by requiring that Agency decisions be made strictly according to those instructions … with respect to every program or agency which has an essentially unregulated environmental impact.

One set of general instructions, by definition, will not be sufficient. Different considerations must be applied in dealing with different elements of environmental quality; the policy considerations that support the provisions of the Clean Air Act would not have been correctly applied to cope with the problems of water pollution. On the contrary, detailed policy decisions must be made and precise, substantive instructions for the protection of environmental quality must be issued for every program and/or every agency which has an environmental impact unregulated by existing statutes, criteria, and standards.These legislative decisions should form the basis for the rules and regulations that have been missing in the pattern [4 ELR 50140] of environmental law and that the courts have been asked to create.

The practical problems associated with the enactment of these laws should not be understated. Obviously, the organic statutes authorizing specific programs or controlling specific agencies could be amended, or a series of new laws cound be enacted to provide the criteria and standards for the programs and agencies affecting each sphere of environmental concern. The jurisdictional divisions among House and Senate committees clearly pose a serious obstacle to any meaningful effort in this area, and a successful effort will require either jurisdictional changes or accommodations by many committees with respect to their jurisdictional prerogatives. The unresolved problems associated with committee jurisdiction, along with the quality of the laws which the Congress writes, should be two central concerns of any serious attempt to revitalize the legislative-administrative partnership and to improve the way it works. It may be a less glamourous battle than those that can be fought, and perhaps won, in the courts, but winning that battle could well have a more lasting and salutary impact upon the quality of environmental law than any number of victories in court.