Despite these obstacles, the seeds of environmental law germinated several
decades ago, and by 1970 its roots were firmly planted. While the term
“environmental law” wasn't formally coined until 1969,
numerous natural resources and pollution control laws were on the
books far beforehand. Early federal regulation of forests, minerals, and other
resources favored private economic exploitation. Beginning within
the early to mid-20th century, Congress enacted a
group of natural resources laws that gently jettisoned
this one-sided approach and commenced embracing the goals of
preservation and conservation. Early laws like the Antiquities Act of
1935 set the stage for a series of even more protective ones within
the 1960s, culminating with the Wilderness Act of 1964 and therefore
the Wild and Scenic Rivers Act of 1968. At an equivalent time,
Congress passed variety of unpolluted air and water
laws within the 1960s that served as precedents for even more
ambitious lawmaking to return .
Public consciousness of environmental issues was also growing.
Publications like Silent Spring—Rachel Carson’s 1962 missive against
pesticide use—captured the nation’s attention. So did highly visible
environmental disasters later within the decade, including the 1969
oil spill off the Santa Barbara coast and, famously, the burning of
the polluted Cuyahoga River. By 1970 the stage had been set: a diffuse body of
environmental law already existed, and therefore the public supported
more.
The 1970s was a seminal decade for environmental protection. Its first year saw
three major accomplishments: the National Environmental Policy Act (NEPA), the
Clean Air Act, and therefore the creation of the EPA. NEPA alone was
groundbreaking. Often called the “Magna Carta of environmental law,” it articulated
a broad declaration of national policy to guard the environment.
NEPA’s action-forcing requirements were even more significant than its
aspirational policy statements. The law required federal agencies to assess the
environmental impacts of their actions and to spot alternatives less
likely to harm the environment. This “look-before- you-leap” approach changed
the way the federal bureaucracy operated and proved—along with the law’s
information disclosure requirements—NEPA’s most enduring legacy.
Congress enacted nearly twenty-four environmental laws over the
course of the last decade , and it did so with overwhelming
bipartisan majorities. The federal environmental laws of the 1970s were
dramatic, sweeping, and uncompromising. additionally to
NEPA, there have been public health and pollution control
laws like the Clean Air Act and Clean Water Act. there have
been also natural resources laws like the species Act,
Natural Forest Management Act, and Marine Mammal Protection Act. The natural
resources laws of the 1970s were particularly noteworthy for the balance they
struck in favor of conservation and against exploitation. the
foremost sweeping—the species Act—went even farther, making the
prevention of extinction its overriding policy objective.
The 1970s also witnessed the emergence of the criticism and controversy that
face environmental law to the present day.
Ironically, Nixon began the last decade together of
environmental law’s biggest supporters but ended his term a skeptic of the very
laws he initially championed. Controversy arose in other corners, too. Some
environmentalists were dissatisfied with the pace of progress, while regulated
industries argued that EPA was overreaching. By the top of the
last decade , the federalist and regulatory reform movements that
might later flourish had begun to require shape. Nonetheless,
Congress continued passing far-reaching laws, and therefore
the courts—including the Supreme Court—broadly interpreted them both in
terms of their jurisdictional reach and their regulatory rigor.
The 1980s: Consensus Breaks Down
The 1980s were tumultuous years that saw numerous challenges to environmental
law—but within the end confirmed its surprising
persistence. Nixon may have begun his administration as a cheerleader
for environmental law and ended as a skeptic, but
President Reagan left little question about where he stood
on the body of laws enacted within the 1970s. Reagan aligned himself
with the “Sagebrush Rebels,” a movement of western opponents of federal
ownership of public lands. Immediately after his inauguration, he launched a
cabinet-level task force on “regulatory relief” that suspended numerous pending
regulations and encouraged industry to focus on particularly
burdensome ones. Similarly, he signed an executive order
requiring analysis of major rules and giving the Office of Management
and Budget significant authority to review and shape regulations.
The heads of Reagan’s Department of the Interior and EPA—James Watt
and Anne Gorsuch (mother of now U.S. Supreme Court justice Neil
Gorsuch, and therefore the first woman to steer the
agency)—were openly hostile toward the agencies they led. Watt
described the inside Department as “oppressive,” and Gorsuch drew
fire for attempting to chop EPA’s budget by the maximum amount together third.
Both eventually left their posts with controversy in their wake (Gorsuch’s
refusal to show over documents to Congress led to an inter-branch
confrontation and therefore the ultimate perjury conviction of
1 of her assistants). Ironically, Watt and Gorsuch were such lightning
rods that they undermined Reagan’s environmental agenda. While Watt succeeded
in expanding oil, gas, and mineral leasing on public lands, he and
Gorsuch did not achieve many of the large reversals of
environmental protection that Reagan supported.
Indeed, environmental law not only withstood challenges but grew and expanded
during the 1980s. President Carter ended his term in 1980 by signing
two key laws. The Alaska National Interest Lands Conservation Act reaffirmed federal
stewardship of public lands in Alaska. and therefore
the Comprehensive Environmental Response, Compensation, and Liability Act,
enacted in response to the toxic industrial waste crisis at Love
Canal and other abandoned and inactive hazardous waste sites across the
country, created a dramatic new liability program that forced polluting
industries to buy the value of toxic industrial
waste cleanup. Congress also amended and strengthened existing
laws, like the Clean Water Act and therefore the Resource Conservation
and Recovery Act, over the course of the last decade . Reflecting
Congress’s dwindling trust within the Executive Office of the
President , the new laws were increasingly prescriptive and
fewer deferential to agency expertise; they added tough new
deadlines on EPA’s implementation of latest regulatory
programs, and that they imposed even stricter controls on industry.
Finally, Congress reaffirmed the importance of data disclosure that
it first embraced in NEPA, passing the Emergency Planning and Community
Right to understand Act of 1986. Enacted within the wake of
a factory explosion in Bhopal, India, the law required
industry to tell communities when it used and released dangerous
substances.
The 1990s: Partisan Gridlock
The political makeup of the federal changed dramatically within
the 1990s. President George Bush, like Nixon, marked the
start of his term with environmental accomplishments, signing the 1990
Clean Air Act amendments into law. And like Nixon, Bush ended his term a
skeptic, proposing to drill for oil in Alaska’s Arctic National Wildlife Refuge
and only grudgingly attending the 1992 Earth Summit in Rio. The election of
President Clinton changed the chief branch’s approach to
environmental law, but countervailing changes within the composition
of Congress and therefore the courts led to increasing conflicts over
environmental goals and policies.
In 1994, Republican congressional candidates swept into power, capturing
control of the House and Senate. As a part of its “Contract with America,”
the 104th Congress proposed legislation to elevate the rights of landowners,
require analysis of environmental laws, and single out environmental
programs for disproportionate budget cuts. While his campaign for the
presidency stressed the economy and not a green agenda, Clinton found political
advantage in fighting Congress’s proposed environmental reforms—and few
ultimately became law. This same partisan gridlock prevented the legislative
overhauls that characterized the previous 20 years . Interior
Secretary Bruce Babbitt and EPA administrator Carol Browner responded by
pursuing an activist, ambitious lawmaking agenda by administrative regulation.
Congress successively sought to dam new regulations by
attaching “riders,” or unrelated policy provisions, to its annual spending
bills.
Controversy, gridlock, and therefore the demise of bipartisanship
were hallmarks of environmental lawmaking within the 1990s. These
hallmarks have continued throughout the present Bush
administration , which suspended a number of Clinton-era
environmental regulations immediately upon taking office. The Bush
administration also drew fire for promoting energy and national forest
policies that emphasized exploitation of natural resources. When Congress took
up these issues, it divided largely on party lines. This continuing
deterioration of bipartisanship stands in stark contrast to the broad
congressional support that environmental law drew from both parties in its
early decades.
The courts also underwent major changes beginning within the 1990s,
as years of conservative judicial appointments by Presidents Reagan and Bush
came to fruition. The courts became increasingly skeptical of the efficacy of
environmental protection laws. during a series of cases narrowing
Congress’s authority to manage economic activity under the
Constitution’s Commerce Clause, the Supreme Court called into question the very
foundation on which laws like the species Act rest.
While domestic environmental law persisted, international environmental law became
environmental law’s most engaging and dynamic area within the 1990s.
By the top of the last decade , the United
Nations listed approximately 1,000 international environmental
agreements of 1 kind or another—far greater than the 52 agreements
that existed in 1970. At an equivalent time, concern about the
intersection of trade and therefore
the environment, also as energy and therefore
the environment, arose.
The Future
The 21st century has brought new challenges, none greater
than heating . the foremost powerful and wealthiest
nations within the world are the best explanation
for greenhouse emission emissions; against this , many of
the poorest parts of the world are most immediately and devastatingly
threatened. Effective control of worldwide warming, moreover, would
require not only major reductions by the world’s most powerful countries
but also the agreement of developing nations now caught during a bind
between economic development and therefore the environment.
In short, environmental lawmaking to deal
with heating will got to conquer an
equivalent quite hurdles it's always faced, which have made
environmental lawmaking so difficult and controversial. the
sole significant difference is that the hurdles are now much higher in
light of worldwide warming’s extraordinary spatial and temporal
dimensions. Lawmaking to deal with heating would
require sweeping international and domestic laws, the creation of
latest international lawmaking institutions, and maybe also new
domestic institutions. The challenges are enormous, but so too are
environmental law’s past achievements and future aspirations.
About
the Author: Safeer Ahmad finds his interests in Pakistan and comparative politics,
public expenditure and budgeting, and government-business relations.
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