When the fundamental structure of American environmental law was put into place in the 1970s and 1980s, protecting the environment was a consensus, a nonpartisan goal supported by over two-thirds of the American public. Support was so widespread that the 1972 Clean Water Act was enacted over then President Richard Nixon’s veto. There was a real debate about how to best protect the environment and Congress knew how to compromise. The deal that led to the Superfund toxic waste clean-up bill in 1980 was a compromise between conservative Senator Jesse Helms and liberal then-Representative (later New Jersey Governor) Jim Florio. The political attack on environmental regulation from the right began with Ronald Reagan as an attack on big government regulation, not on the goal of protecting the environment. Since that time, the environment has become a more partisan issue. Huge majorities of Democrats and Independents support environmental regulation, and while Republican support often exceeds 50%, it is lukewarm at best. The problem remains, how do you keep the environment from being polluted without laws making pollution illegal?
The answer is you can’t prevent pollution without rules, and because all air pollution crosses state boundaries and many water pollution problems also cross state borders, some of the rules must be set by the federal government. In the case of climate change, greenhouse gas pollution crosses both state and national boundaries. Still, many environmental issues are local and state specific. In these cases, state and local rules can be very effective in maintaining environmental quality. Additionally, over the past several decades, a central strategy of the U.S. Environmental Protection Agency has been to delegate federal regulatory authority to the states. EPA did this, in part, due to federal resource constraints, and in part due to a belief that environmental rules needed to be adjusted to the specific needs of America’s diverse local conditions. Each community has its own economic, social, political, cultural and ecological environment and what works in Portland, Oregon, might not work in Portland, Maine.
Today we have an EPA Administrator who is willfully and aggressively deregulating elements of environmental protection. He is not trying to repeal environmental laws, since he knows he will lose those battles. Instead he is focusing his attention on regulations, starting with rolling back rules issued under the Obama Administration. He is revising rules without the advice of long-time EPA professionals and instead consulting with outside think tanks, industry representatives, and conservative advocates to redraft rules. While this means that many Obama-era rules will not be implemented, it does not mean that the new weaker rules will automatically be put into effect. Courts will be reviewing these changes, and some will be rejected due to an inadequate process of public participation prior to revision, while others will be rejected because they do not fulfill the intended mandates of the law. Regardless of federal action, states may well continue their own more stringent rules. We are in uncharted territory with a determined, anti-environmental EPA Administrator. The only point that is certain is that environmental lawyers will be fully employed during Scott Pruitt’s shameful term as EPA Administrator.
One of the key arguments for national environmental standards nearly half a century ago was the fear that states and localities would use lower environmental standards to compete for industry. However, in the last several decades the connection between pollution and health became widely understood, and the desire to protect housing values and a community’s way of life led to the development of NIMBY- the “not in my backyard” syndrome. Local opposition to new factories, waste treatment facilities, power plants, and, in some cases, any construction at all has resulted in local anti-development politics that can be quite powerful. When development is permitted it is often only allowed once developers commit to specific measures designed to limit pollution, traffic, and other factors that impact local quality of life. This local and state level political force was not widespread when EPA was established in 1970. It is not universal since there are communities that will accept any kind of development they can get, but NIMBY is a major political force in a majority of American communities.
Another change since 1970 has been the growth of environmental liability law and the development of internal practices of sustainability management in many large corporations. Companies are more careful about their environmental impacts because they fear being sued by those who suffer damages due to those impacts. They are also more careful about their use of energy, water and other materials due to the rising costs of those resources.
I mention these factors not to argue that EPA is unimportant, because the agency is very important, but because EPA is not the only institution available to protect the environment. It’s no longer the 1970s or ‘80s. Environmental protection is hardwired into America’s governmental, nonprofit and private institutions. It can be weakened, and unscrupulous businesses may take advantage of Trump’s approach and could start drilling soon on public lands and in fragile ocean environments. But when the first leak, spill or environmental disaster takes place, these folks will come to learn that Americans do not want to see their beaches or national parks damaged or destroyed. Most people really like to breathe and they expect government to ensure that their air, water and land is free of poisons.
The starting point for opposing environmental deregulation is the recognition that the U.S. federal government is not all powerful. The founders designed a political structure of checks and balances and shared sovereignty. States, cities, corporations and large nonprofits have enormous power and resources. While it would be helpful for the federal government to do its fair share of the heavy lifting in protecting the environment, it is not essential. Federal deregulation should and will be fought in the courts.
States will be suing, as will environmental interest groups. The environmental groups will need private money to battle the federal government. But in addition to fighting weakened rules, we should focus our attention and creativity on state, local and private institutions. Let’s not be defined by opposition. Let’s not be overly engaged with stopping foolish federal policies and instead look to develop more creative and positive approaches that ignore and bypass the federal government.
We’ve been used to a dysfunctional and deadlocked federal government for decades. What we’ve not seen since the days of Anne Gorsuch in the early Reagan years is an effort to attack and dismantle fundamental environmental rules. As in those years, it is not clear how successful Pruitt will be in modifying his corner of the “administrative state”. After two years of noise, President Reagan’s political advisors convinced him to cut loose his Interior Secretary and EPA Administrator, after which Reagan brought back the first EPA Administrator, William Ruckelshaus, a serious and creative environmentalist. It is far from clear that anything like that could ever happen under Trump’s very strange decision-making process.
But just as Trump and his attention-getting antics are a distraction from the difficult work of governance, Pruitt’s moves at deregulation must be countered, but not obsessed over. The long and difficult transition from a finite resource to a renewable resource based economy was never going to originate in Washington anyway. The main engine of change will be communities, businesses, nonprofits and cities. So, while we resist federal cutbacks in environmental protection policies and programs, we need to continue to keep our eye on the daily, operational tasks of creating sustainable homes, businesses, cities and communities. We need to build the public-private partnerships that will transform the way we live. We need to counter the effort of state-level electric utilities that want to destroy the household solar industry. And we should remember to offer Scott Pruitt a discount when he stops by in a few years, finally in the market for a used Tesla.