Constitution Daily

Smart conversation from the National Constitution Center

Earth Day, politics and the law

April 22, 2016 by Jonathan Stahl


April 22, 2016, marks not only the 46th Earth Day, but also the day that the United States and China will formally sign the historic Paris Agreement on climate change that was finalized last year. Earth Day’s purpose is to bring attention to conservation and environmental protection, and the inherently political nature of these goals is underscored this year by the singing of the accords.

EarthDay20140422GlobalSelfie-640Given the strong connection between environmental protection and government action, environmental regulation has been a salient issue in American politics for decades. Conflicts over environmental regulation have often found their way to the courts, and involve constitutional questions ranging from separation of powers to administrative procedure.

Before the 1960s, environmental protection legislation was largely handled by the states, but in light of the growing awareness of environmental degradation during the 1960s, there was a movement to pass robust policies on the federal level. In the late 1960s, the first batch of federal environmental legislation was passed, including bills like the National Environmental Policy Act, which aimed to “eliminate damage to the environment and biosphere.”

NEPA and similar bills produced a confusing and complicated regulatory delegation scheme to multiple executive agencies. To streamline the regulation process, President Richard Nixon introduced an executive order in 1970 to create one independent agency with the sole task of enforcing environmental regulation. On December 2, 1970, the Environmental Protection Agency (EPA) was born; it was given the power to administer legislation such as the Clean Air Act of 1970. By the 1990s, the EPA was administering 12 pieces of federal environmental protection legislation, including the Clean Water Act and the Federal Environmental Pesticide Control Act.

As an independent administrative agency, the EPA has the power to issue regulations and implement statutes, but the nature and proper extent of congressional delegation to executive agencies has long been the subject of constitutional debate.

The idea of congressional delegation to agencies outside the legislative branch stems from the concern that Congress might lack the capacity, expertise, or swiftness to deal with intricate issues like environmental regulation. One of the first major modern affirmations of Congress’ authority to delegate legislative power came in 1928, when the Supreme Court ruled that Congress can delegate power to executive agencies but must also, through statute, lay out an “intelligible principle” to guide the actions of the agency.

Since the establishment of the EPA, its actions have been challenged countless times in courts across the nation, and the agency has often been a party to cases before the Supreme Court. One of the major cases involving the EPA that had long lasting effects on the relationship between the courts and regulatory agencies took place in 1984, when Chevron challenged the EPA’s implementation of a part of the Clean Air Act.

Chevron wanted the Court to invalidate the EPA’s interpretation of a mandate from the Clean Air Act, but the Supreme Court refused, maintaining that courts should generally be deferential to the decisions and statutory interpretation of regulatory agencies. The Court ruled that when a law like the Clean Air Act is ambiguous as to how specific provisions should be actualized, courts should defer to agency judgment so long as it is reasonable, meaning that it is not “arbitrary, capricious, or manifestly contrary to the statute”.

More recently, the Court has heard cases dealing with federalist concerns that stem from the actions of the EPA. In 2006, Massachusetts sued the EPA claiming that it was failing to fulfill its obligation under the Clean Air Act to sufficiently regulate carbon dioxide emissions. A major question in this case was whether the EPA’s failure to regulate carbon emissions harmed Massachusetts in a direct and impactful enough way such that it could have standing before federal courts.

The Supreme Court granted Massachusetts standing, and determined that potential harm due to global warming as a result of unregulated carbon emissions gave the state a sufficient “stake in protecting its quasi-sovereign interests” to sue. Chief Justice Roberts, who is known for his narrow interpretation of standing, dissented, claiming that the harms to Massachusetts due to global warming were not sufficiently concrete.

Finally, earlier this year the Supreme Court garnered considerable attention when it took an unprecedented action to block a regulation issued by the EPA that aimed to reduce emissions from electric power plans. A major component of the commitments that President Obama made at the Paris climate change conference, the regulation was temporarily blocked by the Supreme Court before it was even reviewed by a federal appeals court. A lower court is going to rule on the substance of the regulation later this year, and a ruling against the regulation would be a major impediment to President Obama’s ambitious emissions reduction goals.

Given that environmental protection is inextricably linked to politics, it is no surprise that the executive, legislative and judicial branch have all had a role in these ongoing debates. The Supreme Court has been an integral player in the trajectory of environmental protection legislation and regulation, and will continue to make impactful rulings on what the proper role of the government is in this domain for the foreseeable future.


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