The EPA and the Separation of Powers

By David Watkins

Hi! I'm delighted to welcome you to this blog, and to the study of American politics. News about American politics today is focusing a great deal on the upcoming election and the next president, so for my first post I wanted to direct your attention back to the current president. Like other recent two-term presidents, George W. Bush's second term in office has been marked by controversies and scandals. One that has drawn little public attention involved the Environmental Protection Agency, or EPA. The EPA is, of course, part of the executive branch. It was created in 1970 with the passage of the National Environmental Protection Act, or NEPA. Most major environmental laws, including the Clean Air and Clean Water acts, were written with the EPA as the primary agency in charge of implementation and enforcement.

So the EPA was created by Congress, enforces laws written by Congress, but is part of the executive branch of government. Each president appoints his or her own EPA administrator, so the priorities of the current administration are reflected to no small degree in the EPA. We know that in theory, the legislative branch of government writes the law, and the executive branch of government enforces the law. But that leaves unanswered a number of important questions. For example, how much power does each branch have in shaping environmental policy in practice?

The history of the Bush administration's EPA provides ample opportunities to reflect on this question. Consider the EPA's handling of the Clean Air Act. This landmark piece of environmental legislation, first passed in 1970 and substantially amended in 1977 and 1990, has long been one of the most important enforcement tasks for the EPA. In March of 2002, a senior EPA official in charge of enforcing Clean Air Act provision, Eric Schaeffer, resigned in protest of the Bush Administration's interference with efforts to enforce the Clean Air Act. (Along with other former EPA employees, he founded the Environmental Integrity Project, an interest group devoted to the enforcement of environmental laws). Later that year, Bush announced substantial changes to the source reviews that the EPA would do in enforcing the Clean Air Act. This rollback changed the EPA's enforcement procedures substantially in several ways. One example: prior to these changes, if a source of pollution wished to expand their operation in a way that increased their emissions, they were required to apply for permission from the EPA and undergo a period of public comment. Now it was up to EPA inspectors to see if these new facilities were compliant, and Bush's changes made inspections rarer than before.

All of these changes took place without any involvement from Congress. However, in the 2003 budget bill, the Senate passed an amendment that cleared the way for Bush's changes. Congress helped make the changes into law, but it was the Executive branch who clearly led the way.

More recently, controversies surrounding the Clean Air Act have also included the judicial branch of government, as well as state and local governments. In 2003, the EPA announced that the Clean Air Act did not apply to carbon dioxide, by far the most substantial greenhouse gas emitted in the US, as well as other greenhouse gases. The EPA argued that global warming did not fall under the regulatory boundaries of the Clean Air Act. This was a controversial reading of the act. While greenhouse gases are not on the list of gases included in the original bill, the legislation also says that the clean air act governs "any pollutant" from motor vehicles that the EPA director judges to be a cause or contributor to air pollution and harmful to public health. There is a strong case that greenhouse gases meet this criteria.

But in this case it was not congress who challenged the EPA on this front. Twelve state governments and several cities sued the EPA. In 2007, the Supreme Court ruled (overturning the decision of the DC circuit court) by a narrow 5-4 decision that greenhouse gases fell under the category of an "air pollutant" under the CAA and were to be regulated by the EPA. The text of the case can be found here and a useful discussion can be found here.

At this point it might appear that the power of the executive branch was checked not by the legislative branch, but by the judicial branch (with an assist from state and local governments). But the story does not end there. In the year and a half since that decision was handed down, little has actually changed. Congress has investigated the EPA's progress, or lack thereof, and concluded that while the EPA did, in fact, comply with the decision and worked hard on a plan to comply with it, but that plan was rejected by administration officials. Congressional investigations came up with evidence that the White House may have simply ignored and not opened emails dealing with this decision. Further investigations into the matter have been thwarted by a refusal to testify or turn over documents. The Bush Administration continues to lose court cases about how they've handled the Clean Air Act, but with less than four months to go, it now seems unlikely any of these cases will have an effect on actual EPA policies and practices.

So what does all this mean? You can draw your own conclusions, of course. But when thinking about the separation of powers in American politics, the formal rules and roles of the different branches of government don't tell the whole story. As the incidents discussed in this post indicate, there are many informal ways the executive branch can substantially alter the impact, power, and scope of legislation and judicial decisions. The actual scope of executive power often cuts into the terrain of other branches of government.

Comments

[Scott Lemieux]

Ironically, this was the subject of my lecture today; the basic theme being "separation of powers is always messy." I always like to compare the size of the U.S. Code and the CFR...