Evolution of an Environmental System in the United States

Evolution of an Environmental System in Environmental Law

Prior to the late 1960s and early 1970s, statutes dealing with environmental pollution were both rare and toothless. The primary environmental law in the United States, the Refuse Act, dated back to 1899. It made the Corps of Engineers the protectors of the waterways and prohibited discharges without a permit. But proof of violation under the Refuse Act was difficult. No method had been established to measure pollutants, and the states had been ineffective in setting standards for water quality. Pesticides were subject to the Insecticide Act of 1910, which regulated nothing but labeling. In 1947, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) was passed; it required registration and labeling, but it did not deal with safety.

Regulating pollution was also thwarted by the way responsibility for controlling it was sliced into pieces. The Department of Interior (DOI) received the water piece, and the Federal Water Quality Administration worked under the DOI umbrella. Pesticide studies were also concentrated in that department. The Department of Health, Education, and Welfare (HEW) took the air part along with solid waste and some of the pesticides issues. Programs were managed by a number of different agencies within HEW: the National Air Pollution Control Administration, the Bureau of Solid Waste Management, the Bureau of Water Hygiene, the Bureau of Radiological Health of the Environmental Control Administration, and the Food and Drug Administration. Pesticide registration and related activities vested in the Department of Agriculture. Radiation criteria and standards fell within the Atomic Energy Commission and the Federal Radiation Council. Another agency, the Council on Environmental Quality (CEQ), was responsible for studies relating to ecological systems.

Creation of the Environmental Protection Agency

Law that existed when Richard Nixon was president allowed him to issue an order for reorganization of departments and other agencies. So in 1970, Nixon issued an executive order for reorganization, Reorganization Plan No. 3, which created the Environmental Protection Agency and moved the environmental duties of the other agencies to the EPA. In his transmittal, he indicated that it was time to bring the functions of environmental protection into one agency. That was only the beginning of the work for the EPA, for soon Congress enacted numerous statutes that took advantage of the new system and greatly enlarged the EPA’s authority.

EPA headquarters is in Washington, D.C., but it also has ten regional offices. The headquarters, which houses the administrator (appointed by the president), deputy administrator, and assistant administrators, funnels information to the regional offices, reviews regional operations for consistency, establishes policy for the agency, and makes the final decision on many issues. Each regional office has a regional administrator (RA).

All RAs are political appointees, and all have the authority to represent the EPA within their regions. Their authority is not uncontrolled, however, for many of the RA’s decisions are reviewed by headquarters.

As a regulatory agency the EPA performs all three duties of government: legislating, executing, and judging. The EPA establishes standards with its legislative function, and procedural precautions make certain the public knows about the rulemaking.

By the time the EPA was created, people had begun to feel some of the effects of pollution and react to them. Smog choked the industrial corridors; water became so polluted it burst into flames; and Rachel Carson, in Silent Spring, focused the nation’s attention on the toxic byproducts of civilization. By the middle of the 1970s, the first comprehensive laws regulating water pollution, air pollution, environmental policy, and drinking water had been passed. By the beginning of the next decade, laws were in place to govern toxic substances, hazardous waste sites, hazardous materials and substances. These laws have not been forgotten like the old Refuse Act was for so many years. Instead, most of the federal environmental statutes have been extensively revised, reflecting the changes that have occurred in the American approach to environmental pollution.

Administrative Agencies

A number of complex statutes deal with many aspects of environmental law. Even so, they do not in themselves contain all of the legal guidance for environmental compliance. Regulations written by government agencies make up the bulk of the rules.

Administrative agencies have been a part of American government since the early 1900s, when the Interstate Commerce Commission and the Federal Trade Commission were established. They burgeoned, however, in the 1930s, as the country was struggling to recover from the Great Depression. Part of Franklin D. Roosevelt’s New Deal involved the creation of many agencies. They can be advisory, with no real power to force anyone to do more than listen, or they can be regulatory, with authority to make law, enforce it, and judge whether it has been violated. The EPA is a regulatory agency.

At first, statutes that delegated authority to agencies were very detailed. For example, cattle were to be destroyed if the cattle inspector found they had hoofandmouth disease. Under such a law, the inspector was told exactly what to do and exactly when to do it. Later the authority was amplified, allowing the cattle inspector to act if he found the cattle had a contagious disease. The inspector had to determine what cattle diseases were contagious and what type of action to take.

Today, the administrative agency may be given a broad responsibility, such as the EPA’s mandate to protect human health and the environment. But Congress hasn’t given sweeping control to the Environmental Protection Agency and then let it go off to decide what to do. Many current environmental statutes require the EPA to deal with specific issues. Also, given the agency’s history of missing deadlines for regulations, Congress not only sets the deadlines, but includes default provisions that take effect if the EPA fails to act. These are called hammer provisions.

The administrator of an agency may be one person, as it is within the EPA, or a group of people. The name for this position varies: commissioner, secretary, board, trustee, or administrator. When a statute names an agency to handle particular issues, the power it grants goes to the administrator, who then may delegate it to others within the agency.

Unless one’s activity is regulated by an administrative agency, one may not notice what it does or question its right to govern. Indeed, in our system today, agencies are so commonplace that they are taken for granted. Examples of agencies with muscle are the Internal Revenue Service, the National Labor Relations Board, the Food and Drug Administration, the Federal Communications Commission, the Security and Exchange Commission, and the Environmental Protection Agency.

Unless one’s activity is regulated by an administrative agency, one may not notice what it does or question its right to govern. Indeed, in our system today, agencies are so commonplace that they are taken for granted. Examples of agencies with muscle are the Internal Revenue Service, the National Labor Relations Board, the Food and Drug Administration, the Federal Communications Commission, the Security and Exchange Commission, and the Environmental Protection Agency.

Boards or bureaus, other types of administrative agencies, determine licensing requirements for many professions, issue the licenses, hear complaints, and have the power to revoke the licenses. Agencies determine a citizen’s right to Social Security payments, welfare, and other forms of governmental benefits. They may be authorized to disburse money in the form of grants or loans. All regulatory agencies get their
power from a statute.

One of the main reasons for the creation of an agency is the need for expertise in particular areas. Legislators, as a general rule, come into public office with a background in politics, and the experience they bring spans many fields and interests. But the average legislator would not be qualified to determine whether a drug is safe and effective, a chemical compound should be used as a pesticide, or an airplane is airworthy.

Although agencies are likely to be the interface between citizens and government today, they are oddities. The power they have defies our idea of separation of powers, and they are not mentioned in the Constitution, where the founders specified the roles of the branches.

Americans elect legislators and executives, not agencies, so a number of constitutional challenges arose in the early days of agency law. Perhaps the most critical question was whether Congress could delegate its legislative function. Courts determined that Congress was not prohibited from all delegations. Administrative agencies can indeed issue enforceable rules, but certain guidelines apply. First, Congress must define what types of rules the agency can create and state the parameters in the enabling legislation. Second, the regulations must fall within the scope of the statute. Today, attacks on agencies often focus on whether the agency stepped outside the bounds Congress set.

In addition to the limitations written into the enabling statutes, agencies’ powers are also limited in other ways. In 1946, Congress enacted the Administrative Procedure Act (APA), a statute that fills in the gaps for federal agencies when the enabling law isn’t clear about procedures. U.S. citizens have a right to due process under the Constitution, and the APA builds in safeguards to ensure that due process extends to agency action. Unbridled agency action is also limited by the Freedom of Information Act, a statute that requires federal agencies to supply citizens with information upon request, provided the information does not fall within an exception. Many states have similar laws.

Legislative Powers

Before a federal regulation can become law, it must be published in the Federal Register, a daily publication that prints all proposed and final regulations generated by federal administrative agencies. After it is published, the public may provide comments to the agency and in some cases, a hearing is held. The agency must consider the comments it receives. When the final regulation is published, the agency will also provide a summary of the comments and its response to them. A final regulation may be challenged by interested parties after it is promulgated. But in most situations, it must be disputed within a short period of time, and the suit can only be brought in a specified court.

Examples of regulations the EPA has established demonstrate the breadth of its power to legislate. Toxic air and water pollutants and hazardous substances have been listed, procedures have been set for obtaining permits, testing criteria have been established, cleanup criteria for hazardous waste sites have been detailed, air quality districts have been outlined, targeted industries have been given directives, and hazardous waste sites have been ranked in order of priority for cleanup.

Just as statutes are presumed valid, so are rules created by the EPA or other administrative agency. Statutes can only be contested on the basis of their constitutionality; a regulation may be disputed on both constitutional and statutory grounds. The rule must be consistent with congressional intent, authorized by the enabling statute, and cannot be arbitrary and capricious. The arbitrary and capricious standard is the one used by courts to determine whether an agency acted in good faith, basing its decision on the record. It is difficult to prove that an action was arbitrary and capricious, though. The expertise of the agency receives great deference.

Executive Power

In its executive role, the EPA maintains records, issues permits, investigates allegations of unlawful activity, responds in emergencies, and enforces the law. When a permit is granted, the permittee is subject to a number of reporting activities. Since the agency collects and reviews the reports, the permittee is in the uncomfortable position of providing the enforcer with evidence of its permit violations. Filing a false report, however, is a crime.

The administrator or regional administrator of the EPA has discretion to act or not act in most situations involving a violation of a law. This common principle is called prosecutorial discretion and is carried over from criminal law. If action is determined necessary, the administrator has many options, ranging from merely investigating the situation to bringing a criminal lawsuit against the regulated person. Because enforcement authority is such an extensive topic, it is discussed more fully later in this introduction.

Judicial Power

The EPA has the power to judge whether a law has been violated. The judicial function is exercised both formally and informally. The EPA may arrange for the regulated person to meet informally with an agency employee to respond to a letter or proposed order. At such a meeting, the person has the opportunity to explain or otherwise contest the finding of violation. The regional administrator determines later what action should be taken based on the internal record and the regulated person’s evidence.

A more formal way to reach a decision is through a hearing. There are two types of hearings for enforcement proceedings: APA hearings and nonAPA hearings. APA hearings are formal and must follow the guidelines in the APA. NonAPA hearings are subject to the EPA’s own rules, which are called the Consolidated Rules of Practice. In either case, the person who acts as judge is an employee of the EPA, and the final decision is made by the administrator. The informal hearing judge is a hearing officer, generally appointed by the regional administrator out of the Office of Regional Counsel. After the hearing, recommendations are made to the RA, who decides the outcome. In an APA hearing, an administrative law judge (ALJ) decides the case. ALJs are not quartered in the regional offices. They receive cases according to docket assignment, listen to the evidence and review the record, then reach a decision. The administrator may, however, reject the ALJ’s judgment.

In 1992, the EPA established an Environmental Appeals Board. The Board comprises three members, and at least two of them must meet and agree on a decision or the administrator must break the tie. One of the main reasons the board was created was the increase in administrative actions. Due to amendments of major statutes, the EPA now has greater authority to impose penalties through administrative actions than it had in its infancy. Not only are penalty actions growing as a result, but the regulated person may face many other types of regulatory decisions that could greatly impact it, such as permit decisions or cancellation of registration of a pesticide. Those appeals may also be taken to the Environmental Appeals Board.

Standing in the wings, watching over administrative agency decisions, is the branch of government one would expect: the federal judiciary. After a person has gone through the administrative process, an appeal of the final agency decision may be taken to a district court. The court will still use the arbitrary and capricious standard for judgment calls, but constitutional challenges or a challenge based on the statutory guidance may be successful.
Based on “Environment and the Law. A Dictionary”.