When it comes to environmental policy, the United States is living in the past.
It’s been more than 15 years since Congress passed or overhauled any major piece of environmental legislation. Advocates have instead focused on pushing government to enforce current environmental-protection laws and on defending some that are seriously outdated.
“A generation has passed, and we’re in gridlock in terms of advancing policy at the federal level where a lot of these problems have to be solved,” said Wesley Warren, a former official in the Clinton White House who is now the Natural Resources Defense Council’s director of programs.
Advocates recall the heyday of the movement in the 1970s when Republican lawmakers such as Sens. John Chafee of Rhode Island, Mark Hatfield of Oregon, and Robert Stafford of Vermont led the way on many environmental issues and two Republican presidents—Richard Nixon and Gerald Ford—signed a slew of landmark measures into law.
Today, 41 years after the first Earth Day on April 22, 1970, the environment has become one more partisan battleground, as evidenced by GOP efforts earlier this month to use the debate over a continuing resolution for the fiscal 2011 budget to limit the Environmental Protection Agency’s authority. It is now part of Republican Party orthodoxy that environmental regulations have gone too far and have unnecessarily restrained energy development and economic growth.
“The Republican Party today is not even recognizable to the one I used to deal with in the ’70s,” said Patrick Parenteau, who held several jobs at the National Wildlife Federation throughout the 1970s and ’80s and is now a professor at Vermont Law School. “I don’t know if we’ll ever see [again] the era of environmental movement that I saw.”
After Congress passed a wave of environmental legislation in the 1970s, bipartisan support for the movement started to erode as the GOP became more conservative and voters rarely made the environment a top-tier issue on Election Day.
David Jenkins, a lobbyist for the advocacy group Republicans for Environmental Protection, said that a political turning point came in 1994 when Republicans won control of the House and Speaker Newt Gingrich “put libertarian-minded Westerners—with an environmental ax to grind—in charge of the Natural Resources Committee.” Jenkins pointed to then-Reps. Richard Pombo of California and Helen Chenoweth of Idaho, and Rep. Don Young of Alaska, who played important roles on the panel. “That coincided with the rise of polarizing and equally libertarian talk radio,” he said.
Gingrich’s House was unsuccessful in rolling back environmental laws, but GOP hostility toward environmental issues, mainly pushed by Democrats, has continued to grow. “The resentment didn’t go away, and it festered, and it’s now erupted in various ways,” Parenteau said, referring to the rise of the tea party movement.
Some of conservatives’ opposition is fueled by the perception that environmentalists are East Coast or West Coast elitists out of touch with the real-world concerns of people in the heartland who are trying to make ends meet. Congressional Democrats in energy-producing states have also become wary of aggressive environmental regulation, particularly at a time when unemployment remains high.
Opinion polls reveal the environmental movement’s political problems. Increasingly, respondents express doubts about the validity of climate change, despite mounting scientific evidence that the planet is warming. Republicans have blocked a cap-and-trade system—denouncing it as “cap-and-tax”—to reduce the carbon emissions that contribute to climate change, even though the idea is modeled after the 1990 Clean Air Act amendments that President George H.W. Bush signed and that effectively cut the sulfur dioxide emissions that cause acid rain.
Diane Katz, a research fellow in regulatory policy for the conservative Heritage Foundation, disagrees with the characterization that Congress has not passed major environmental policy in almost two decades. She cited the Energy Independence and Security Act of 2007, which established renewable-fuel standards and appliance- and lighting-efficiency standards; and the 2008 farm bill, which imposed, for the first time in many cases, environmental standards on farm operations. Katz said that environmental concerns are far less pressing than in the ’70s, when rivers were catching fire because of pollution. “It’d have been pretty difficult to not take action back then,” she said. For Congress, the issues today are much costlier relative to their environmental benefits than they used to be, Katz added.
Climate change is only one of the issues that environmentalists are pressuring Congress to address. Little-known but important laws such as the Toxic Substances Control Act and the Oil Pollution Act are due for overhaul. And others, such as the National Forest Management Act and the Endangered Species Act, are coming under criticism from lawmakers and interest groups because they say they are overly restrictive and hinder economic development.
Here is a rundown of a dozen pivotal environmental-policy laws enacted since Nixon established the Environmental Protection Agency in 1970. Lawmakers have left some of these statutes relatively untouched for years. Others—namely the Clean Air Act—are now under attack like never before.
The Clean Air Act
Most current lawmakers view the Clean Air Act through the prism of President Obama’s politically divisive climate-change rules. Under the law’s authority, EPA is gearing up to implement standards that will control greenhouse-gas emissions from coal-fired power plants, manufacturing facilities, and other major polluters. That rulemaking has raised the ire of virtually all congressional Republicans as well as many Democrats from energy-intensive states where the regulations would have the greatest impact. House-passed legislation to preempt the rules entirely faces an uphill climb to passage in the Senate, but Democrats have warmed to less-sweeping measures that would limit but not take away EPA’s power to regulate greenhouse-gas emissions.
The Clean Air Act is much more than just that set of standards for carbon emissions, though. Passed in 1970 and significantly amended in 1990, the landmark act set the nation’s first-ever goals and standards for air quality to protect human health. The 1990 amendments included a market-based cap-and-trade system to cut sulfur dioxide emissions from acid rain, which environmentalists and industry officials alike have deemed largely successful in cutting pollution without crippling industry.
EPA Administrator Lisa Jackson is rolling out other major rules under the Clean Air Act to slash toxic air pollutants such as mercury emitted by power plants, industrial boilers, and incinerators.
The National Environmental Policy Act
Also passed in 1970, the National Environmental Protection Act was one of the first cornerstones of modern U.S. environmental policy. It requires federal agencies to, as environmentalists say, “look before you leap.” Under the act, the government must assess the environmental effects of all the major activities it funds before approving them. It also established the president’s Council on Environmental Quality.
The law has recently reentered the congressional debate primarily because of growing calls for Washington to add climate change to the environmental impacts it weighs in doing environmental assessments. Environmental experts say that the act should include that authority, but congressional Republicans have introduced measures to block the expansion.
The Clean Water Act and the Safe Drinking Water Act
These two laws taken together give government the authority to ensure that the nation’s waterways are clean and its drinking-water supplies are safe. Congress passed the Clean Water Act in 1972 and then significantly amended it in 1987 and 1990 to increase controls on toxic pollutants and to more effectively address oil spills. The Safe Drinking Water Act, signed into law in 1974, ensures a potable drinking-water supply by, among other things, funding the construction of purification plants. “One [law] removes pollution from wastewater before it goes into a river and the other ensures quality drinking water coming out of it,” Warren says.
Environmental experts hope and predict that lawmakers will reintroduce legislation in this Congress to amend the Clean Water Act to more effectively address interstate water pollution and other issues.
The Endangered Species Act
Environmental experts say that the government should invoke the 1973 Endangered Species Act only as a “safety net” if other laws fail to protect endangered animals. “If we do our job, we wouldn’t have to invoke the Endangered Species Act,” said Bob Irvin, senior vice president of conservation programs at the Defenders of Wildlife. “It’s the law that comes into play when everything else has failed because the species is on the brink of extinction.” The statute aims to protect and recover endangered or threatened species and to preserve their habitats.
House Republicans in this Congress have sought to overturn the entire law or parts of it; some, for example, want to “delist” gray wolves in the northern Rocky Mountains from the law’s protections.
Congress approved the country’s first-ever corporate average fuel economy standards for vehicles in 1975 in response to OPEC’s embargo. Oil experts say that the standards, first established under the Energy Policy Conservation Act and gradually increased since then, have been instrumental in constraining America’s insatiable appetite for oil to power its transportation sector and successful in improving air quality.
In 2010, Obama significantly raised fuel-economy standards after 2016 and issued the first-ever carbon-emissions standards for vehicles. In response, House-passed legislation would put the Transportation Department solely in charge of setting fuel-efficiency standards past 2016, prohibiting EPA involvement. The legislation would roll back the fuel-economy rules the administration is finalizing now.
The National Forest Management Act
After a series of debates over the clear-cutting of national forests, Congress passed this law in 1976 to manage the government’s woodlands. It directed the U.S. Forest Service to develop rules governing timber companies’ cutting practices and mandating prompt reforestation of harvested areas.
The law has been the focal point of legal fights since at least the presidency of George W. Bush, and the political landscape is no different on Obama’s watch. His administration is seeking comment now on revised rules to implement the planning provisions of the law, and environmental groups are not satisfied with what they’ve seen so far. “In terms of protecting wildlife and habitat, [the administration’s proposal] leaves too much to the discretion of individual forest managers,” said Irvin, whose group is leading the charge to ensure that the rules meet the environmental community’s standards. “As a result, it doesn’t have the enforceability that it really needs to make sure its aspirations are fulfilled.”
The administration will issue its final rules later this year.
The Federal Land Policy and Management Act
This 1976 law governs the way the Interior Department’s Bureau of Land Management administers public lands. Interior Secretary Ken Salazar issued an order in December that instructs officials to consider designating certain additional public lands as “wild lands.” It is a less restrictive designation than “wilderness,” but it would probably put energy production and other major activities off-limits. Salazar is facing criticism from House Natural Resources Committee Chairman Doc Hastings, R-Wash., and other Republicans, who say that the administration is closing off too much land to energy development. The agency is engaged in its two-step process of gathering public comment.
The overwhelming percentage of the public lands in the Intermountain West states of Colorado, Montana, New Mexico, Utah, and Wyoming, where oil-and-gas development is the most prevalent, are not designated as wilderness and won’t necessarily be designated as wild lands. To date, the bureau has protected just 1 percent of Western public land as wilderness and has leased 42 percent of it to oil and gas companies. The agency is eyeing parts of the remaining 57 percent of the land, which is now categorized as “mixed use.”
In a bit of a twist, the Federal Land Policy and Management Act has also come into play in battles pitting environmental groups against clean-energy developers seeking to build large solar-panel and wind farms in the West. Green groups have protested the location of and hastiness in planning certain projects in California and Arizona because of their potential to affect wildlife, especially endangered species. “It would be the ultimate irony in the push to address the harmful impacts of climate change if we ended up doing more harm by where we located some of these renewable-energy sources,” Irvin said, “just as we have to be concerned when we develop more-conventional sources of energy like oil and gas.”
The Surface Mining Control and Reclamation Act
Passed in 1977, this law is the government’s primary authority to regulate the environmental impacts of surface and mountaintop-removal mining. It also requires that mining companies restore abandoned mining areas to a beneficial use. The Interior Department is writing new rules to protect streams from the effects of all types of mining. The Office of Surface Mining Reclamation and Enforcement expects to issue draft rules later this year. In the Appalachian states, mining companies practice mountaintop-removal mining—essentially blowing off the tops of mountains—to get access to coal. Residents and environmental groups decry the method for its destructive impact on the land and especially on waterways.
The Toxic Substances Control Act and Superfund
Taken together, these two laws have been instrumental in ensuring that businesses properly manage toxic chemicals—and clean up after themselves if their work contaminates a site with toxic waste. Congress passed the Toxic Substances Control Act in 1976 and Superfund, officially known as the Comprehensive Environmental Response, Compensation and Liability Act, in 1980. Superfund is particularly significant because it allows the government to hold companies liable for disposal of waste that took place before the law was enacted. The Toxic Substances Control Act authorizes EPA to regulate certain toxic chemicals throughout the manufacturing, distribution, and importation and exportation processes.
Sen. Frank Lautenberg, D-N.J., could reintroduce legislation in this Congress to revise the Toxic Substances Control Act for the first time in 35 years. His bill would require manufacturers to provide information about the chemicals contained in consumer products.
The Oil Pollution Act
Congress passed the Oil Pollution Act in 1990, a year and a half after the Exxon Valdez spill. It streamlined the federal government’s response to oil disasters, increased oil companies’ liability, and imposed other measures to guard against another tanker spill.
In the aftermath of the BP oil spill last year, which far eclipsed the Exxon tanker disaster as the worst in U.S. waters, experts say that Congress needs to update the statute. BP’s spill occurred in the Gulf of Mexico’s deep waters and presented a whole set of problems that the government and oil industry didn’t have to contend with two decades ago. The 1990 law focused on tanker safety, not on a deepwater-well blowout. In addition, Congress has not adjusted oil companies’ economic liability for a spill. Most analysts now see the $75 million ceiling as inadequate, but congressional lawmakers have not agreed on a new cap or formula.
This article appears in the April 16, 2011, edition of National Journal Magazine.