31 ELR 10942 | Environmental Law Reporter | copyright © 2001 | All rights reserved

EPA and Congress (1994-2000): Who's Been Yanking Whose Chain?

Professor and Director of Environmental Programs, University of Virginia School of Law. I am grateful for helpful comments on earlier drafts of this Article received from William Buzbee, Barry Cushman, Richard Frandsen, Gary Guzy, Elizabeth Magill, Richard Merrill, Daniel Ortiz, Peter Robertson, and Steven Shimberg. I am also grateful for the research assistance of Amy Lincoln, Amy Potter, and Nessa Horewitch.

[31 ELR 10942]

Congressional efforts to control the actions of the U.S. Environmental Protection Agency (EPA or the Agency) have dominated much of the Agency's history. In the 1980s and early 1990s, Congress cast itself in the role of EPA watchdog—acting to ensure that the Agency carried out environmental laws, often in conflict with Administration officials seen as unsympathetic to those laws. Six years ago that dynamic was transformed with the arrival of a Republican majority in Congress committed to regulatory reform (with particular attention to reform of environmental regulation), paired with a Democratic administration generally considered pro-environment.

In this Article, I describe the dynamic between EPA and Congress that emerged in the wake of the 1994 congressional elections. My account centers around the crucial showdown between EPA—backed, after some initial hesitation, by the White House—and the 104th Congress over legislative proposals for substantial regulatory reforms affecting the Agency's programs and for deep cuts in the Agency's budget. It differs from other accounts of this confrontation in its attention to the role played by the Agency, as distinct from the roles played by the White House or the Administration generally and by environmental interest groups.¹

Very early in the 104th Congress, when the new majority in the House was pushing its reform agenda with lightning speed, the Agency initiated an aggressive outreach effort to alert the public to the reform proposals and express the Agency's strong opposition to them. The Agency carried out this campaign in partnership with environmental nongovernmental organizations (NGOs) and allies in Congress but chose a highly visible role for itself, using its informational resources and credibility with the press and the public to strategic advantage. Some in Congress sought to put an end to the Agency's "lobbying,"² but these efforts only seemed to stiffen the Agency's resolve. Under pressure from environmental NGOs, and with polls suggesting emerging public opposition to the reform agenda, the president then took up the antireform battle himself, raising its visibility and bringing environmental reform into the 1996 elections.

In the wake of this confrontation, public opinion in support of existing environmental controls forced Congress to abandon the bulk of its reform agenda. In subsequent Republican-controlled Congresses during the Clinton Administration, the Agency, with White House support, was successful in resisting most efforts to legislate reforms or other relief from Agency regulations; at the same time, in order to limit its political exposure, it pursued its own regulatory "reinvention" strategies. The White House realized a substantial political advantage over congressional Republicans on environmental issues which it was to enjoy for the remainder of Clinton's presidency.

These events demonstrate the importance of two phenomena, which I explore in the concluding portions of the Article. The first is the competition between the two major political parties for control of environmental policy. The dynamic between Congress and EPA over the last six years can be understood as another chapter in this struggle—with Republicans seeking to satisfy key business and other pro-reform constituencies and the Democrats seeking to capitalize on continuing widespread public support for strong environmental controls. I explore this struggle, suggest why it is likely to be more complicated in the future than it has been in the recent past, and speculate on how it might be expected to play out in the new Administration.

The second phenomenon is the role of federal agencies in defining the public debate on legislative issues and in influencing the outcome of that debate. The events of the last six years illustrate that—rather than simply being more or less reliable instruments of policies devised by Congress and the president—agencies may play an important role in shaping the preferences of the public and ensuring that those preferences are reflected in the policies adopted (or rejected) by elected officials. In some circumstances at least, agencies may help ensure the political accountability of Congress and the president, not simply the reverse, as is commonly understood. [31 ELR 10943] I explore some of the implications of this possibility, including concerns about undue influence of agencies on the legislative process.

A Brief History of EPA and Congress Through 1994

EPA is 30. The major regulatory statutes under which it operates were enacted in the first 10 years of its existence, although they have continued to be debated and revised.³ Almost from the outset, EPA's administration of these statutes was the subject of competition between the White House and Congress for control of the environmental agenda.⁴ For most of EPA's history prior to 1994, Republicans held the White House, while Democrats were the majority in Congress.⁵ Generally, the Office of Management and Budget (OMB), which is charged with oversight of federal agencies' regulatory activity, was preoccupied with preventing dominance of Agency policymaking by environmentalists and agency staff sympathetic to their point of view. Dominant forces in Congresses prior to 1994 suspected Agency capture by economic interests and fought to limit OMB influence over Agency policy and to ensure faithful execution of environmental laws (as members of Congress understood them.)⁶

One strategy used by Congress in this battle was successive tightenings of EPA statutes, with provisions for citizen enforcement as an additional check on EPA's implementation. Typically these enactments were with concurrence by the president, although the White House often disagreed with the majority in Congress over their implementation. Reauthorizations of major environmental laws from 1977 to 1990, as Richard Lazarus has observed, "all exhibit the same trend. Each eliminated substantial EPA discretion, imposed more deadlines, and included more prescription."⁷ This trend culminated with the passage in 1990 of the 700-page Clean Air Act (CAA) Amendments, which stand as an imposing monument to the regulatory state—"one of the most complex pieces of regulatory legislation … ever adopted, and one of the most impenetrable."⁸ The fundamental purpose of all these reauthorizations was "to minimize the possibility of bureaucratic neglect and compromise and of agency capture by regulated industry."⁹

In addition to increasingly prescriptive statutory mandates, the Agency's history was also marked by intense oversight by Congress (as well as by the White House). "Beating up on EPA" is a tradition on Capitol Hill.¹⁰ The Agency is within the jurisdiction of some 90 congressional committees and subcommittees.¹¹ Agency officials appear in hearings before those committees and subcommittees dozens of times during each Congress, in addition to responding to extensive requests for documents, submitting congressionally mandated reports, and attending informal meetings with members or congressional staff.¹² The hearings have often been used to chastise and correct Agency officials. Until the transfer of power to a new Republican congressional majority in 1994, "veteran subcommittee leaders tended to view [environmental laws] as their laws, and were not shy about explaining to administrators what they meant."¹³

And their views had to be taken seriously, particularly to the extent that they represented the political consensus supporting environmental protection. In 1983, the Reagan Administration's first EPA Administrator, Anne Burford, was forced to resign in the wake of "massive oversight efforts" involving allegations that she and her political appointees had been derelict in their enforcement of the laws and were undercutting the Agency's effectiveness.¹⁴ Opinion polls in 1982 and 1983, showing that a substantial majority of the public opposed Reagan's environmental policies, no doubt emboldened congressional leaders seeking her ouster.¹⁵ Subsequent EPA Administrators during the Reagan and Bush Administrations held "policy preferences … consistently to the left of the President's."¹⁶ These appointments accommodated public expectations of the Agency's leadership in light of its mission and avoided a repeat of the Burford fiasco. The relatively pro-environment leanings of these administrators were daily reinforced by the pressure of congressional oversight, its power so recently confirmed by Burford's demise, as well as by pressures from within the Agency itself.

Oversight focused not only on EPA's implementation of its substantive responsibilities (e.g., has the Agency correctly interpreted the statutory standards for cleanup decisions under the Comprehensive Environmental Response, Compensation, and Liability Act) but also on its management (e.g., whether EPA is following proper contracting procedures). Congressional inquiries into alleged "fraud, waste and abuse"—or threats thereof—were used to maintain a dominant role in the affairs of the Agency as well as for broader political purposes. In the spring of 1992, as the [31 ELR 10944] presidential elections approached, intense oversight hearings on EPA's procurement practices, led by the House Commerce Committee Chairman, Rep. John Dingell (D-Mich.), put the Agency's leadership on the defensive and spawned a host of internal investigations and reforms, as the Agency struggled to regain credibility. After the elections, and very soon after a new Administrator of EPA, Carol Browner, had taken office, Chairman Dingell held further hearings on EPA procurement, ostensibly to rehearse the vagaries of the Agency's prior management but perhaps also to assert continuing influence over the Agency's affairs in the Clinton Administration.¹⁷

Commentators have offered differing views on how much congressional oversight during this period actually influenced EPA policies and on whether the influence was largely destructive or constructive.¹⁸ Although congressional influence can be exaggerated, the evidence that it was a significant factor in agency policymaking is persuasive.¹⁹ For reasons I discuss below, however, in the years following the 1994 elections, congressional oversight was less successful in affecting agency behavior.

The Clinton Era Dynamic, 1994-2000

The political forces that had defined EPA's operating environment were radically realigned in 1994. The process of realignment actually began in 1992, when the first Democratic administration in over a decade came into power with a vice president who was an avowed environmentalist. Although committed to environmental protection, the new Administration was also sensitive to growing criticisms of government regulation (including—and perhaps particularly—EPA) as inefficient, burdensome, and unresponsive. The National Performance Review, begun soon after the new Administration took office, under the vice president's direction, was designed to address those concerns, and it featured a push for administrative reforms of regulation. Regulatory reform took on a different cast, however, when the Republicans captured both the Senate and the House of Representatives in 1994. This was the first time in over 40 years (since before the first Earth Day and the development of current federal environmental laws) that a Democratic president and a Republican-controlled House and Senate had faced each other.²⁰ The policy battle which ensued defined anew the relationship between EPA and Congress.

The Contract With America

The new Republican majority came armed with the Contract With America (Contract), which contained provisions aimed at improving the efficiency and cost-effectiveness of regulations and protecting property rights and the procedural rights of regulated entities²¹; it featured "A Citizen's Regulatory Bill of Rights" that would have subjected agencies and their employees to civil penalties for engaging in "prohibited regulatory practices."²² Although they did not focus on environmental programs specifically, the Contract's regulatory reform components contemplated fundamental changes in EPA's programs and policies.

The House moved quickly on the Contract legislation. In January 1995, it passed a year-long moratorium on "regulatory rulemaking actions" by federal agencies pending enactment of reform legislation.²³ The Risk Reform and Cost Benefit Act,²⁴ passed by the House in late February 1995, would have required formal risk assessments and cost-benefit analyses of major EPA regulations; made economic cost-benefit justification a touchstone of EPA decisionmaking, superseding standards that make human health and environmental concerns controlling; and provided for judicial review of agency actions under these new procedural and substantive mandates.²⁵ Soon afterwards in March, the House passed the Private Property Protection Act, which provided for compensation for property owners for "regulatory takings" that would reduce the value of their land by as little as 20% of its fair market value.²⁶

In the Senate, Robert Dole (R-Kan.) introduced the Comprehensive Regulatory Reform Act (Dole bill)²⁷ covering issues addressed in the House-passed Risk Reform and Cost-Benefit Act. A compromise was negotiated between the Dole bill and a more moderate Republican proposal, sponsored by Sen. William Roth (R-Del.),²⁸ but the resulting bill did not attract sufficient support to bring it to a vote in the Senate. The compromise spawned a third Senate bill²⁹ favored by many Democrats and including as a sponsor Sen. John Chafee, a moderate Republican from Rhode Island with a strong record in favor of environmental protection. None of these bills passed the Senate. Nor, with the exception of bipartisan measures that were later to be worked out with the Administration, as discussed below, did other regulatory reform legislation pass the Senate.

[31 ELR 10945]

While broad scale regulatory reform was debated, revisions to specific laws were also underway. For example, in May 1995, the House passed the Clean Water Act (CWA) Amendments,³⁰ which would have made cost-benefit justification a central feature of water pollution policy, curtailed the scope of wetlands regulation, and liberalized compensation of landowner interests affected by regulation. In July 1995, the appropriations bill for EPA³¹ was introduced in the House; it would have cut EPA's budget by 30% below its current (fiscal year (FY) 1995) levels and contained numerous riders preventing or limiting use of funds for specific applications in EPA's programs. Like the regulatory reform legislation, the CWA Amendments died in the Senate; the antiregulatory riders and budget cuts proposed by the House appropriations subcommittee were also ultimately abandoned, although the final outcome remained uncertain into calendar year 1996. In what follows, I explore how, with a fresh electoral mandate that seemed to embrace the Contract and its antiregulatory thrust, the Republican Congress found itself suddenly without the political support to realize its environmental reform objectives.

EPA's Response

As soon as the Contract legislation was introduced in the House, EPA organized to oppose it. In a January 13, 1995 interview, EPA Administrator Browner characterized the Republican initiatives as a "rollback" of environmental protection, a characterization that was to become the rallying cry of the Contract's environmental opponents and the Administration's resistance.³² This was the beginning of a stream of public utterances—speeches, press statements, and interviews—by the Administrator and her senior political appointees condemning the Contract.³³ When the House Appropriations Committee voted out the FY 1996 budget proposal, including EPA riders and a one-third cut for EPA, Browner expanded the charge: "It is clear that this is a concerted effort. If they can't get it one place, they try it another place. This is about shutting us down, there can be no mistake."³⁴

The efforts of EPA's leadership extended beyond speeches and statements to the press. In early January 1995, EPA formed an internal working group with the purpose to "get our message out about [the Contract's] impacts on environmental protection."³⁵ The audience targeted included "the Hill, industry groups, editorial writers, other outside groups."³⁶ The working group produced "fact sheets" containing the detailed assessments of the Contract's projected effects on its programs. These fact sheets were shared with environmental groups for outreach to their members as well as with the press and potential allies on the Hill. With an even broader audience in mind, beginning in February 1995, the Agency faxed fact sheets, press statements, and speeches by the Administrator to more than 100 interest groups, from the Chemical Producers and Distributors Association to Ducks Unlimited. These distributions were to be characterized by the conservative press as "a call to arms to EPA's left-wing allies to rally opposition to the [Grand Old Party (GOP)] Contract."³⁷ They continued at least through March of that year. The Agency has estimated that a total of 268 employees were involved to some degree or other in the Agency's efforts to resist the Contract, with approximately $ 400,000 in salary and expenses in connection with this work.³⁸

The speed of the Agency's reaction was significant. The reform proposals were being moved and passed by the House at an unprecedented pace, and their likely effects on the regulatory process were not always readily apparent. "The press largely was caught flat footed and proved unable to cope. Thus, the public too saw only a blur."³⁹ Although the pace in the Senate would likely have been more deliberate in any event, EPA's early identification of the issues, assessment of consequences, and strong statements of opposition helped galvanize environmental groups, the press, the White House, and ultimately the public to slow the momentum of reform.

The Agency's activities did not go unnoticed on the Hill. In a letter of March 2, 1995, Rep. David M. McIntosh (R-Ind.), Chairman of the Subcommittee on Economic Growth,Natural Resources, and Regulatory Affairs of the Committee on Government Reform and Oversight and one of the architects of the majority's regulatory reform agenda, raised concerns that the broad distribution of the Agency's fact sheets and other materials on the Contract violated federal law, "including the criminal provisions of the Anti-Lobbying Act."⁴⁰ The Anti-Lobbying Act prohibits agency [31 ELR 10946] use of appropriated funds for private communications, e.g., telephone calls, letters, advertisements, "intended or designed" to influence members of Congress on legislation. In prior administrations, the U.S. Department of Justice (DOJ), through its Office of Legal Counsel, had issued opinions substantially narrowing the scope of the anti-lobbying prohibition. These opinions sought to protect what were understood as the constitutional prerogatives of the president to advance his legislative agenda and to communicate with the American people about it, even if those communications came within the common understanding of "lobbying."⁴¹ Under DOJ's interpretation, the Anti-Lobbying Act's prohibition does not apply to lobbying by the president himself, his aides or cabinet officials.⁴² More generally, DOJ interpreted the Act to prohibit only "the use of appropriated funds for large-scale, high-expenditure campaigns specifically urging private recipients to contact Members of Congress about pending legislative matters on behalf of an Administration position."⁴³

Based on this interpretation, White House counsel dismissed Representative McIntosh's claims of illegality.⁴⁴ Seeking to turn Representative McIntosh's effort to quiet the Agency to her advantage, Administrator Browner stated, in comments widely reported in the press, that Representative McIntosh's letter was an effort to intimidate her and that she would not be silenced.⁴⁵ Representative McIntosh pressed his investigation, demanding boxfuls of Agency documents relating to the Contract, and ultimately holding oversight hearings on alleged violations of the Anti-Lobbying Act.⁴⁶ These hearings featured a hooded witness, Mr. X, the head of an undisclosed trade association who had received unsolicited faxes from EPA on the Contract and claimed to have been intimidated by them. But by the time of the hearings, in May 1996, the policy battle that had provoked Representative McIntosh's invocation of the Anti-Lobbying Act was largely over, and the hearings served as little more than a footnote to it.⁴⁷

Public Reaction

When the Contract legislation was introduced in the House, Frank Luntz, a pollster who worked with the Republican leadership in drafting the legislation, stated that "Americans believe Washington has gone too far in regulating and they want to turn the clock and paperwork back."⁴⁸ But it does not appear that this assertion had been tested with respect to environmental issues.⁴⁹ In a poll conducted in August 1994, just before the congressional elections, 74% of those polled agreed with the statement that "protecting the environment is so important that requirements and standards cannot be too high, and continuing environmental improvements must be made regardless of cost"; only 27% disagreed.⁵⁰ This result was not an anomaly: substantial majorities had agreed with this same statement in prior years and continued to agree with it through the 1990s.⁵¹ In January 1995, when the Contract legislation was introduced, a Time/CNN poll found that 71% of those polled believed that the environmental laws currently on the books were either adequate or should go further than they did; only 23% believed that they went too far.⁵² A poll from the same period showed that 67% did not believe that the government should cut back spending on the environment, while 27% believed it should.⁵³ In March 1995, Luntz himself found that "62[%] of the public wanted stricter environmental controls; only 29[%] wanted the federal government to cut regulations."⁵⁴ Essentially the same results were repeated in other polls during the spring and summer of 1995.

The challenge for EPA and its allies was to convert prevailing public support for strong environmental controls into opposition to the regulatory reform agenda. And in late March and early April, there was evidence that this conversion was beginning to take place. A Harris poll conducted in the latter part of March and first days of April was among the first to pose the issue of relaxing environmental controls in the specific context of the Republican reform proposals. It found that 61% of those polled disagreed with "relaxing environmental control regulations," as among the "changes in federal government policy which have been under consideration [31 ELR 10947] … as the result of the Republicans taking over control of Congress"; 32% agreed.⁵⁵ An ABC News/Washington Post poll in early April 1995 found that 59% of those polled approved of the way that the Republicans in Congress were handling the issue of environmental protection, while 38% disapproved⁵⁶; later that same month, however, a USA Today poll showed that 49% percent of those polled thought that Republican proposals in Congress would not provide adequate protection for the environment, while 30% believed that they would.⁵⁷ National polls in August and September confirmed significant public opposition to environmental regulatory reforms identified with the congressional Republicans.⁵⁸

Of particular significance was a May 1995 poll conducted by Dick Morris in Virginia, a conservative state in which most voters supported the antiregulatory provisions of the Contract.⁵⁹ The Morris poll showed that despite general support for the Contract in Virginia, a majority (55% to 41%) opposed reducing environmental regulation.⁶⁰ Moreover, the poll found that the public distinguished between "reforming" and "cutting back" environmental regulations: just over one-half of those polled favored "reform" of environmental regulation, but only 6% favored "cut back."⁶¹ Thus, the charge of "rollback" could be expected to resonate even with those who might support more modest reforms.⁶²

The polls suggested a similar consolidation of public opinion against the proposed EPA budget cuts, although that issue developed more slowly than the issues surrounding the Contract legislation. In mid-March 1995, 27% of those polled thought that "the Republicans in Congress [were] trying to make too many cuts" in programs protecting the environment; 34% thought the Republicans were trying to make too few cuts.⁶³ In a June 1995 poll, however, 62% opposed "making major spending reductions in … the environment," while 35% favored such reductions.⁶⁴ Similarly, an August poll documented majority opposition to "proposals to … cut the budget of [EPA] by 30%."⁶⁵

The President Steps Up

In the early days of the 104th Congress, EPA's—and particularly Administrator Browner's—outreach efforts on the environmental regulatory aspects of the Contract seemed a lonely mission.⁶⁶ There was speculation that Browner, in choosing to go on the attack and forcefully take her case to the public, had miscalculated.⁶⁷ The White House's efforts during this period focused on developing and publicizing its own "reinvention" strategy to counter Congress' reform initiatives.⁶⁸ In testimony before Congress, the Administration's spokesperson on administrative reform acknowledged the "legitimacy" of criticisms of the existing regulatory system, and, while arguing that the Contract legislation fell short of the mark, emphasized the Administration's support for risk and cost-benefit legislation that was "fair, effective, and affordable."⁶⁹

But as the public's resistance to reducing environmental regulation was confirmed in the polls and under pressure from the environmental community and members of his own Administration, the president joined the attack, although gingerly at first. In mid-March, in remarks at a print shop in Alexandria, Virginia, President Bill Clinton criticized the Republican proposals "for one-size-fits-all deregulation and cutbacks," although the main focus of his remarks was the need for reforms that would release businesses from the stranglehold of unnecessary regulation.⁷⁰ On April 21, 1995, at an Earth Day observance in Havre de Grace, Maryland, Clinton entered whole-heartedly into the fray. "Roll back health and safety? No. Let DDT back in our food again? Not on your life. Create more tainted water or toxic waste …? Never. No…. Just say no to what they are doing."⁷¹ The president continued this theme in public statements, [31 ELR 10948] including his State of the Union Address the following January⁷²; threatened a veto of Dole's regulatory reform bill in July⁷³; again threatened to veto the proposed EPA budget cuts and riders as "a stealth attack on the environment"⁷⁴; and brought the differences between his Administration and the Republicans in Congress on environmental issues into the 1996 presidential race.

The White House acknowledged that its posture on environmental regulatory issues had become more "assertive" than in the early days of the 104th Congress. It claimed, however, that "rather than changing the Administration's positions, … the poll results have validated them politically."⁷⁵ Vice President Al Gore had already let it be known publicly that he had lobbied from the beginning within the Administration for "'a more aggressive counterattack' on environmental legislation."⁷⁶

There is evidence that even before he took up the cudgel against the proposed regulatory reforms, Clinton enjoyed a substantial public opinion advantage over the Republicans in Congress on environmental issues. In a poll conducted in mid-March 1995, 54% had "the most confidence" in Clinton to handle environmental problems; 32% had the most confidence in the Republicans in Congress.⁷⁷ A June 1995 poll showed that 55% approved of the way that Clinton was handling the environment, while only 25% approved of House Majority Leader Newt Gingrich's handling of the environment.⁷⁸ Clinton (and the Democrats in Congress) continued to enjoy a substantial public opinion advantage over congressional Republicans on the environment through the rest of 1995 and into 1996.⁷⁹ By January 1996, a Republican pollster was reporting to her clients in Congress that the party was "out of sync with mainstream American opinion" on environmental issues.⁸⁰

Clinton's playing of the "green card" benefitted his candidacy against Senator Dole in the 1996 presidential race. By the time of the election in November, Clinton enjoyed a 2 to 1 advantage in the polls over Dole on his handling of environmental issues,⁸¹ and his environmental stance appeared to figure importantly in the decisions of those who voted for him.⁸² The environment was also on voters' minds in the 1996 congressional elections. Environmental groups, such as the League of Conservation Voters and Sierra Club, claimed success in electing pro-environment candidates and in unseating incumbents on environmentalists' "hit lists,"⁸³ although some commentators sought to discredit their claims.⁸⁴ In one exit poll, one-third of the voters said that the environment "was among the most important things that made a real difference" in how they voted⁸⁵; the percentage of Americans who considered a congressional candidate's position on environmental issues "an important factor in who to vote for" was reported to have more than doubled since the 1994 elections.⁸⁶ EPA, the president and the rest of his Administration, and their allies had succeeded in raising the salience of environmental "good governance." The Republican leadership of the 104th Congress had made a costly political miscalculation, eerily similar to the one that the Reagan Administration had made in the early 1980s.

The Denouement

The consolidation of public opinion against environmental regulatory reform and EPA budget cuts in the spring and early summer of 1995 emboldened environmentalist sympathizers within the ranks of the Republican party itself, led by Rep. Sherwood Boehlert (R-N.Y.). On July 28, 1995, Representative Boehlert orchestrated the defeat in the House of Republican-sponsored budget riders affecting implementation of the CAA and the CWA.⁸⁷ Although the House leadership regrouped and won a second vote, the House majority's appetite for environmental reforms was [31 ELR 10949] waning, as the political risks of votes that could be characterized as antienvironmental became clearer. There followed, in essence, a rollback of rollback. In its final FY 1996 budget, negotiated in early 1996, instead of budget reductions of 20% to 35%, as had initially been threatened, EPA took a 1.5% reduction—from $ 6.6 to $ 6.5 billion.⁸⁸ As the 1996 elections approached, congressional Republicans began to work with congressional Democrats and the Administration to fashion less intrusive regulatory reform legislation and amendments to environmental statutes that could be characterized as environmentally beneficial. This effort produced the Unfunded Mandates Reform Act of 1995 (UMRA),⁸⁹ the Paperwork Reduction Act of 1995,⁹⁰ and the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).⁹¹ Although these pieces of legislation were designed to address the concerns of politically important constituencies, including state and local governments and the small business community, it is not clear that the essentially procedural requirements they imposed on federal agencies have occasioned or are likely to occasion significant policy shifts within EPA (or elsewhere in government)⁹²; indeed, in key rulemakings since their enactment, the Agency successfully avoided these procedural requirements.⁹³ The two pieces of bipartisan environmental legislation enacted in the waning days of the 104th Congress, the Safe Drinking Water Act Amendments of 1996⁹⁴ and the Food Quality Protection Act of 1996 (FQPA),⁹⁵ included both reform features and increased environmental safeguards. The FQPA has been interpreted by the Agency to require more stringent controls on pesticides; both bills contained special protections for vulnerable subpopulations such as children.

Post-Contract Relationship

By the end of the 104th Congress, it was clear that the public consensus for strong environmental controls that had under-written two decades of growth in the federal regulatory apparatus had held, at least for the time being. It is not certain that EPA's rhetoric or even the president's pronouncements changed public preferences concerning the relative importance of environmental protection, but it does seem that they contributed to mobilizing public opinion against the Republican agenda. By reaching out directly to the press and to the public as well as by encouraging and supporting efforts by others, e.g., the White House and the Agency's allies on the Hill and in the NGO community, EPA helped reaffirm the privileged position of environmental protection in the national political arena and insulated itself (its budget as well as its regulatory authorities) against future attacks by a hostile Congress.

But EPA programs were by no means politically invulnerable.⁹⁶ The public's desire for economic growth and freedom from governmental intrusion may qualify its demand for pro-environment policies.⁹⁷ In particular, strong environmental regulation may command broad public approval only to the extent that the costs are concentrated on a relatively few large sources (as with stereotypical smokestack polluters) or centralized production facilities (as with automobile manufacturers and vehicular emissions controls), with benefits more generally distributed.⁹⁸ Thus, although EPA may count on widespread support for its programs generally, it may find resistence to programs that impose palpable burdens on individuals or some small businesses.⁹⁹ This suggests that the existing regulatory system, with its concentration on large sources, may be relatively easy to defend politically, particularly if those sources are able to pass on costs to consumers in ways that are not identified with controls. The Agency may face difficulty, however, in seeking to extend controls to more diffuse sources, such as nonpoint sources of water pollution in agricultural areas or small air emission sources in urban areas, which contribute significantly to the remaining environmental problems.¹⁰⁰

[31 ELR 10950]

Also, the consolidation of public opinion in opposition to congressional proposals for regulatory reform depended on the ability of EPA and others to characterize such proposals, persuasively, as a serious attack on established environmentally protective policies. This was accomplished with the Contract reform proposals, but it was uncertain whether public support for the Agency's programs could be tapped so successfully against more surgical deregulatory or reform efforts. Discrete efforts to provide regulatory relief would not be likely to have the same salience as broad-scale reform efforts. Having been forced to abandon its frontal assault, the Republican Congress adopted a more strategic approach, chipping away at specific requirements in issue-specific bills, appropriations riders or attachments to other legislation, wherever it could do so without serious political cost. For its part, while continuing to carry its case to the people for strong environmental controls and resisting Congress' "piecemeal" attacks, the Agency also pursued reinvention programs designed to reduce the burden of regulation and to neutralize discontent with its programs and policies. These programs, while providing some benefits for regulated entities (and provoking concerns among environmental groups), fell far short of what Congress, or its new majority, might have wished.¹⁰¹

Reviewing EPA Policies

The enactment of the Congressional Review Act (CRA) in 1996, with provisions for joint resolution of disapproval of Agency rules, signaled an intent by Congress to get serious about ex post controls on Agency decisionmaking. That intent saw only modest fulfillment. Although oversight hearings on EPA rulemakings were plentiful in the 105th and 106th Congresses, Congress did not disapprove an EPA rule under the CRA, nor is it clear that the threat that it might do so significantly deflected the Agency from its desired course in important rulemakings. Two key rulemakings during the post-contract period exemplified the Agency's ability, with some bargaining, to advance strong environmental policies against congressional opposition, although they also demonstrated the limits of that ability.

In July 1997, for example, EPA revised the national ambient air quality standards (NAAQS) for ozone, making it more stringent, and created a NAAQS for fine particulate matter¹⁰²; the Agency took both actions over strong objections from both the House and the Senate reflecting the concerns of state and local interests as well as industry. Numerous oversight hearings were held prior to the final decision, at which both the scientific and the policy justifications for the proposed rules were roundly attacked. Yet EPA issued the final rules with only minor changes from the proposals, although to assuage opponents the Administration did offer a plan for implementing the standards designed to minimize the costs.¹⁰³ Joint resolutions of disapproval under the CRA gained little momentum in either House. It was a decision by the D.C. Circuit Court of Appeals, not action by Congress, that eventually overturned the new NAAQS, at least temporarily, pending review by the U.S. Supreme Court and now proceedings on remand before the D.C. Circuit.¹⁰⁴

EPA was also successful in preventing congressional action to overrule its July 2000 regulation applying the total maximum daily load (TMDL) provisions of the CWA, although Congress postponed implementation of the new rule, and the rule appears unlikely under the new Administration to go into effect in its present form. The regulation interpreted the requirement that states prepare TMDLs for waters that could not be expected to meet state water quality standards after application of technology-based standards to point source dischargers. EPA proposed that TMDLs be prepared not only for waters that could not meet water quality standards due to point source discharges, but also for those that could not meet water quality standards due to nonpoint source discharges (for example, stormwater runoff from farmland and managed forests), over which EPA does not have direct regulatory authority. In addition, the proposal required the states to prepare an implementation plan, as part of its TMDL, addressing both point source and nonpoint source contributors to water quality problems. There was widespread opposition to the rule in Congress, reflecting the objections of states, industrial interests, woodlot owners, and farmers that the rule was burdensome and administratively infeasible and intruded upon state prerogatives. To the extent it required states preparing TMDLs to come to terms with pollution from agricultural and other nonpoint sources as well as point sources, the costs anticipated by the rule were widespread and affected well-organized interests, from the farm lobby to the utility industry. The proposed rule also encountered opposition from some environmental groups that argued that it was not demanding enough.

Although the Agency made some changes in the proposed rule to accommodate state and private interests as well as to shore up support within the environmental community, these changes did not meet some of the basic objections of those interests. In July 2000, with significant support among Democrats as well as Republicans, Congress attached a "TMDL rider" to a military appropriations bill that prohibited EPA from using funds appropriated for FY 2000 or FY 2001 to issue a final TMDL rule or to implement it¹⁰⁵; Congress had resorted to such riders, attaching controversial provisions to budget bills or other legislation, in order [31 ELR 10951] not only to protect against presidential veto but also to avoid a vote that might be characterized as antienvironmental and minimize the risk of displeasing voters. The Agency issued the final TMDL regulation before the president signed the bill, thus thwarting Congress' effort to prevent its promulgation. Despite expressions ofoutrage from key Republicans on the Hill in response to the Administration's move¹⁰⁶ and the introduction of joint resolutions of disapproval under the CRA in both the House and the Senate,¹⁰⁷ the 106th Congress did not act to overturn the rule. As in the past, Republicans were not anxious to cast a distinguishable "antienvironmental" vote that could be used against them in the upcoming elections, particularly given that the TMDL rule could not be implemented by EPA with currently appropriated funds and the possibility that a new Republican administration would rescind the rule or at least make it a politically less risky target in the next Congress, as has proved to be the case.

Commentators have pointed out that, as a general matter, Congress has difficulty in constraining Agency behavior through ex post controls.¹⁰⁸ On environmental issues, Congress' efforts to push the Agency in a less protective direction, including threatened reversal of Agency rules, have been further complicated by the public's general resistence to reducing protection. "Attempts by politicians to exert ex post control over [Agency policy choices] may increase issue salience, thereby increasing both the political costs of attempting to exert control and the likelihood that politicians will be forced to act on their induced, rather than their true, preferences."¹⁰⁹ Frequently in the last six years of the Clinton Administration, the more controversy the Congress generated over an EPA proposal, the more politically difficult it became to overrule the Agency—a realization that did not discourage the Agency or the Administration from defining themselves against the Republican-led Congress on environmental issues. As the case of the TMDL rule shows, however, there were limits to the effectiveness of that strategy.

Management Oversight

As discussed above, before the elections of 1994, Congress used oversight of EPA's management, including alleged instances of fraud, waste, and abuse, to keep close reins on the Agency. Management oversight could be used subtly or not so subtly to intimidate Agency officials and staff, reinforce accountability to Congress rather than to the White House, and undermine the Agency's credibility with the public, making it more susceptible to congressional control. It might be supposed that the Republican-dominated Congress would make liberal use of its oversight powers on management issues; by focusing on these issues, committee chairs might hope to gain some control over the Agency, or at least reduce the Agency's stature and thereby its influence with the public, while avoiding clashes on policy issues that might offend the public's environmental preferences.

In the last six years of the Clinton Administration, congressional committees sought to take EPA to task on management (grants, etc.) as well as policy issues. Their efforts did not yield the results that Democrat-controlled Congresses achieved in prior administrations. It is not clear why this is so. It is possible that the Agency had become better at avoiding instances of fraud, waste, and abuse, or correcting them quickly when they are found. It is also possible that Republican congressional leaders, lacking long experience as the majority party in Congress, were simply not as adept at oversight involving often arcane management issues as their Democratic counterparts had become. Or it is possible that the Republicans' relative lack of credibility with the public on environmental issues undercut their effectiveness in attacks on Agency management and policy. In any event, the Republican-controlled Congress was unable to exploit alleged Agency mismanagement to significant advantage.

In sum, after the House changed hands in the 1994 elections, Congress did not demonstrate particular success in controlling Agency behavior either through ex ante or ex post controls, although it was able to make some inroads, as with the TMDL rule. The frustrations of the Republican leadership certainly had much to do with the difficulties inherent in all legislative action.¹¹⁰ But the evidence suggests that the Republican-controlled Congresses in the last six years of the Clinton Administration found it more difficult to direct less aggressive environmental policies by the Agency than previous Democratic-controlled Congresses found it to direct more aggressive policies. Even in what has been described as a deregulatory era, pro-environment, to put it crudely, still seemed to carry greater political resonance than antiregulation—a proposition that will be explored further below.

Understanding the Past; Looking to the Future

The Role of Party Politics

Mark Landy and Kyle Dell have attributed the failure of regulatory reform legislation in the 104th Congress to two factors. The first is presidential politics—in particular Senator Dole's refusal to make further compromises with moderate Republicans and Democrats that might have undermined his pursuit of the Republican presidential nomination against conservative rivals and Clinton's ability to "tap into the public's longstanding support for environmental regulation."¹¹¹ The second is the public's receptivity to the "rights-oriented" rhetoric employed by the legislation's opponents.¹¹²

[31 ELR 10952]

The account here confirms the role of presidential politics. More generally, however, the failure of regulatory reform in the 104th Congress and the dynamic that emerged among the Agency, the White House, and Congress in the wake of that failure are attributable to the differences on environmental issues that have come to characterize the Republican and Democratic parties over the last several decades. Like the Reagan Administration in the early 1980s, the Republican leadership in the 104th Congress embraced policies favorable to business constituencies that their Democratic antagonists were able successfully to characterize as antienvironmental (rollback). Proposals to relax standards, cut Agency budgets, and punish regulatory officials (in addition to requiring risk assessments and cost-benefit studies) made "reform" look like deregulation, and the public responded as might have been expected based on long-standing preferences to preserve environmental gains.¹¹³ The public's response may have been colored by concern that the Republican proposals were driven by business interests seeking to lighten their environmental regulatory burdens.¹¹⁴ The Republicans in Congress were also disadvantaged by long-standing public perceptions that Republicans are less to be trusted than Democrats to protect the environment¹¹⁵—perceptions that presumably have something to do with the way the public assesses the dominant ideology of the party as well as its dependence on constituencies opposed to strong environmental controls.

Is this pattern likely to change in the new dispensation, with the Republicans in control of the White House as well as the House (but no longer the Senate)? If the environment is "the sleeping grizzly of Republican politics," has the party learned to step around it?¹¹⁶ Will the Republican leadership adopt a more moderate course than the early Reagan Administration or the House leadership in the 104th Congress? Or, in the absence of partisan opposition from the administration, will "reform" proposals generate less public resistance and therefore be less problematic politically for the Republicans, than in the past?

Political parties as "superagents" may increase the accountability of elected officials to the electorate, but they may also enhance the influence of special interests. "The modern party organization is the fundraiser and media handler of the candidate. It depends upon infusions of cash. In this system, interest groups have much that parties need to deliver votes to the parties' candidates."¹¹⁷ During the 1999-2000 national election cycle, contributions from industries heavily impacted by environmental regulation—for example, oil and gas, coal, electric utilities, and miscellaneous manufacturing—went predominantly to Republicans; other industries less affected by environmental regulation and for which other issues are much more important (for example, TV/movies/music and lawyers/law firms), unions and environmental groups gave predominantly to Democrats.¹¹⁸

Parties may manage elected officials for the benefit of large contributors or other influential individuals or groups more than for the benefit of other party members.¹¹⁹ Where a party claims a majority of legislators or controls the executive, it may secure benefits for its members or some portion of them and impose costs on others, even if the general welfare suffers as a result.¹²⁰ Although if their preferences are not well represented, voters can change parties or vote for candidates from another party in the next election, parties may be successful in controlling information flowing to [31 ELR 10953] members affecting their choices or in reshaping their preferences.¹²¹ In the current two-party system, lack of competition in the political marketplace may also make parties less responsive to the wishes of the public.¹²²

These factors may help explain why the Republican leadership has at times almost reflexively placed itself to the right of prevailing public opinion on environmental issues and why it has done so even though substantial percentages of Republicans—on some issues, the majority of Republicans—have disagreed with its stance. Yet the ability to accommodate special interests or ideological extremes is limited. Although a two-party system may not provide maximum competition, it certainly provides some. The 1996 national elections showed that environmental concerns can make a difference at the polls. Republicans therefore still have incentives not to offend the environmental sensitivities of the electorate, just as Democrats (with environmental groups among their special interest constituencies) have incentives to respond to concerns within the business community and other constituencies that feel the burdens of regulation. Moreover, as Representative Boehlert's revolt in the 104th Congress demonstrated, parties may not be able to discipline members in elected positions who are responding to constituent pressures (or their own environmental preferences); Democrats faced the same phenomenon with defections among their members in Congress in opposition to the 1997 NAAQS revisions and the TMDL rule.

The early days of the new Administration have made clear, yet again, the challenges that the Republican leadership faces in managing its environmental agenda. President George W. Bush's decisions to renounce regulation of carbon dioxide,¹²³ the most pervasive greenhouse gas, and abandon the Kyoto Protocol on global climate change,¹²⁴ for example, appeared to go against dominant public opinion on these issues, even among Republicans, and were seen by most of the public as accommodations to large oil and coal interests.¹²⁵ The decisions drew fire from environmental groups and Democratic leaders. Similarly, the Bush Administration's suspension of drinking water standards for arsenic adopted at the end of the Clinton Administration was portrayed by environmental commentators as a concession to the mining industry and, evoking prior battles, a "rollback" of protective regulation.¹²⁶ When Sen. James Jeffords (I-Vt.) defected from the Republican party in May of this year, throwing control of the Senate to the Democrats, he cited the Administration's stance on environmental issues, among a number of others, as provoking his action.¹²⁷ At the time of Senator Jeffords' switch, another Republican Senator who criticized Jeffords' defection nevertheless took the occasion to name the Administration's lack of sensitivity to environmental concerns as posing a "voting issue" for her constituents.¹²⁸ A June poll showed a weakening of Bush's job approval rating, with "widespread worries about Bush's energy and environmental policies … feeding the drop in his approval score."¹²⁹

Although some of the new administration's actions on environmental issues have been reminiscent of the early years of the Reagan Administration and the 104th Congress, it seems unlikely, despite whatever ideological commitments or obligations to contributors the president or the Republicans in Congress may have, that this Administration or the House of Representatives will maintain the provocative assaults on environmental programs that characterized these earlier episodes. Particularly given the closeness of the 2000 presidential election, the slim Republican margin in the House, and the loss of control of the Senate, their efforts to moderate environmental regulations and prevent their spread are likely to be more strategic, with careful attention to balancing policy (for example, prominently supporting Everglades restoration after rejecting the Kyoto Protocol and suspending the arsenic standard), influencing public preferences (for example, pointing to an "energy crisis" to moderate public demand for strong environmental controls and stressing uncertainties about global climate change), and keeping environmental issues at low salience.

Of course, predicting the future of environmental policy in this country, even in the short term, is seeing through a glass darkly. Environmental or economic conditions affecting [31 ELR 10954] public preferences will certainly change.¹³⁰ We know already that the ground on which environmental policy issues have been fought is shifting. More high visibility issues such as climate change and regional fisheries are global or transnational and thus subject to the additional complexities of international politics. Also, the next generation of environmental issues doesnot lend itself to characterization in the same stark terms, pitting Republican/business interests/regulatory cost-bearers against Democrat/environmental consumers/regulatory beneficiaries. Public perceptions of environmental problems are still dominated by the concept of large, concentrated polluting facilities.¹³¹ But for many of the environmental issues that remain largely unresolved, such as nonpoint source pollution, urban sprawl, habitat destruction, and air emissions as a function of vehicle miles traveled, the sources of the problem are numerous and diffuse. In dealing with these sources, it may be more difficult than it has been in past disputes to draw a bright line between the beneficiaries and the immediate cost-bearers of regulation. Moreover, the cost-bearers may increasingly include traditionally pro-environment swing-voters (such as middle-class suburbanites). Finally, to the extent that these problems are addressed locally, the broad ideological differences that have characterized the parties at the national level may break down in the more direct give-and-take between elected officials and their constituents that occurs at the local level.

The Agency Factor

This story of the confrontation in the 104th Congress features an agency—EPA—that took the initiative in resisting changes in its authorizing statutes and deep cuts in its budget. It defined the terms of the public debate on these changes (rollback), provided deep information on program impacts for use by its allies, and conducted a vigorous outreach program, using a variety of means (blast faxes of fact sheets and "statements," speeches and press interviews) to get its message out to the public. There were no doubt many factors that contributed to the failure of the regulatory reform effort—including, as some have suggested, even the Oklahoma City bombing.¹³² But it seems plausible that the Agency's early, visible, and aggressive posture on the reforms had a significant effect on the ultimate success of the opponents of regulatory reform and that the Agency's role in defeating the reform agenda helped insulate it from congressional assaults through the remainder of the Clinton presidency. The Agency's leadership put pressure on the White House to adopt a more aggressive role itself, and the president's involvement was crucial to the outcome. By providing information and leadership, the Agency also served to reduce transaction costs among NGOs and other opponents of the reforms and enhance the effectiveness of their efforts. Finally, although Administrator Browner's voice would not have the same sway with the public as President Clinton's, it is possible that through speeches and interviews widely reported in the press, the Agency's leadership had a direct impact on public perceptions of what the Republican Congress was about. A Harris poll conducted at the end of 1995, showed that the public had more confidence in EPA to protect the environment than in either Clinton or Gore and much more confidence than in business or the Republican-controlled Congress.¹³³ It is not unreasonable to think that when EPA speaks (on environmental issues), people listen. It is unlikely that Representative McIntosh would have gone to such lengths to quiet the Agency if he had not been concerned that the Agency's utterances would have an effect.

Agencies like EPA are commonly seen "as agents of politicians, implementing policies formulated by an enacting coalition"¹³⁴; the politicians themselves are agents of those who elected them. Even before the congressional elections of 1994, there was sentiment among policy experts and popular commentators¹³⁵ as well as within the business community for reform of existing regulatory structures—sentiment that resonated with the "new Democrat" Clinton. The 104th Congress, with its pronounced antiregulatory tone, represented a further shift in the enacting coalitions responsible for the core of EPA's authorizing legislation. The Agency's response to the emerging resistence to its programs was twofold. On the one hand, in order to appease reformers both within the Administration and on the Hill, the Agency moved to reinvent its regulatory programs and devolve more of its authorities to the states; its reinvention efforts sometimes stretched the limits of its statutory authority but were encouraged (indeed demanded) by both the White House and the Hill.¹³⁶ On the other hand, in its efforts to prevent Congress from changing its statutes and also from overruling regulatory decisions consistent with them, EPA sought to reach past the Congress to tap the consensus support for strong environmental controls that had brought that legislation into being. To discipline the pro-reform Republicans in Congress, it appealed to their principals.

Representative McIntosh and other members of his Subcommittee on Economic Growth, Natural Resources, and Regulatory Affairs understood that this was happening, and reacted strongly. In invoking the Anti-Lobbying Act, the subcommittee was concerned that Agency officials might use (squander) public funds "to increase their budgets or protect their jobs" in "grass roots lobbying designed to thwart the public will."¹³⁷ This concern sounded in the assumed [31 ELR 10955] lackof political accountability of agencies. Agency officials not directly accountable to the electorate might be more inclined than elected officials to advance their institutional interests, e.g., protecting their budgets or resisting constraints on their regulatory authorities, or their own ideological bent in ways that do not reflect the public interest or to be captured by special interests. Thus, their ability to advocate with the people should be closely constrained.

The difficulty, of course, is that elected representatives, including members of Congress, do not necessarily express "the will of the people." In the 1995-1996 showdown with Congress, rather than frustrating the desires of the public, EPA played a role in bringing public opinion to bear on Congress' regulatory reform efforts. If the Agency's efforts had failed to stir a positive public response, presumably its views could have been ignored by Congress, its authorities circumscribed and its budget reduced with impunity. However, to the extent its message resonated with the public (and fostered the active engagement of the president), its actions contributed to reining in Congress, enhancing its accountability. Thus, in Madisonian fashion, agency freedom to "lobby"—at the agency's own political risk—could be expected to increase the system's responsiveness.¹³⁸ The possibility that this might occur, and the evidence that it did occur in the interchange between EPA and Congress in 1995 and 1996, would seem to put the burden on those who increase the limits, ex ante, on the expressive or "lobbying" prerogatives of an agency like EPA.

The subcommittee's concerns also reflected its understanding that "in a free society, [the Anti-Lobbying] Act serves an even more important purpose of preventing executive branch agencies from using tax dollars to disseminate propaganda and 'reeducate' the public about pending legislation."¹³⁹ Rather than eliciting the true preferences of the public, an agency might use public funds to misrepresent information or otherwise mislead the public, creating support for positions that the public does not, in some sense, really want. The campaign against the Contract legislation was characterized by those on the other side as demagoguery¹⁴⁰ and "fearmongering"¹⁴¹—with the suggestion that widespread resistance to it did not represent the public's true preferences.

This concern is a serious one. One can imagine situations in which agency campaigns to create demand for an agency's product might generate artificial preferences and be objectionable. Even under the DOJ's generous (to the agencies) gloss, however, "large-scale, high expenditure" grass-roots lobbying campaigns by agencies are prohibited,¹⁴² although they must also involve explicit urgings to contact members of Congress. Morever, although in debates with Congress the Agency may have certain advantages, including its intimate knowledge of its programs and its credibility with the public on environmental issues, Congress has the means at its disposal to counter ill-founded or misleading impressions created by an agency. These include hearings at which nonagency experts can be featured. Congress can also cultivate alternative governmental sources of information and evaluation, e.g., the General Accounting Office (GAO), as well as NGOs that could provide well-documented support for reform legislation and be used to rebut EPA claims. Indeed, with the collapse of the regulatory reform effort in 1996, Congress funded a series of policy studies through the National Academy of Public Administration; these studies were to track and evaluate the progress of agency reinvention initiatives and offer a series of recommendations for further reforms, including legislative changes, which could support action by the new Congress.¹⁴³ Congress has also enacted the Truth in Regulating Act, establishing a three-year pilot project for independent GAO evaluations of significant agency rules.¹⁴⁴

Of particular interest, in the new configuration, will be the relationship between EPA and its overseers in the White House and on the Hill. In past Republican administrations, EPA Administrators were observably more pro-environment than the White House.¹⁴⁵ That pattern appears to be continuing in the new Bush Administration, with the appointment of environmental moderates as Administrator and Deputy Administrator. (This is in contrast to the leadership of the U.S. Department of the Interior, whose views of record are less sympathetic to environmental concerns.)¹⁴⁶

One would not expect Administrator Christine Todd Whitman, against the wishes of the White House, to engage in public comment critical of reform proposals originating within the Administration or in the House. But the Agency, with its claim to represent prevailing public views on environmental issues, may be persuasive in internal Administration debates. There are also subtle ways for EPA in a Republican administration, whether at the leadership or staff level, to send messages that may affect the public's views. Leaked memos, e.g., Whitman's confidential memo to President Bush urging him "to recognize that global warming is a real and serious issue,"¹⁴⁷ and accounts filtered to the press of positions taken in deliberations within the Administration are among them.

Committees in the now Democrat-controlled Senate, including the Environment and Public Works Committee chaired by none other than Senator Jeffords, may take on a watchdog role, conducting oversight critical of actions by EPA and the Administration. But those committees may also function, in a tacit support role that sometimes characterized [31 ELR 10956] relationships between EPA and Democrat-controlled committees in past Republican administrations, to advance the Agency's interests within the Administration.

Conclusion

Environmental politics at the national level continues to be defined by the dominant constituencies and ideologies of the two major political parties. However, it is important not to underestimate the influence of EPA as an actor separate from its political overseers on the Hill and in the White House. The Agency has its own interests, which are to some degree independent of party, and as we have seen can engage in actions effectively to further those interests. In the new configuration, the interaction among Agency interests, public preferences and expectations, and party politics will continue to determine, as it has in the past, the relationship between EPA and Congress.

1. See, e.g., John D. Graham, The New Congress: A Strong Finish on Regulatory Reform, in Perspectives on Risk Policy: Behind the Bitter Debate (1997); Sally Katzen, Administration Perspectives on the 1995 Regulatory Reform Legislation, 48 ADMIN. L. REV. 331 (1996); Nandan Kenkeremath, Legislative Efforts Concerning Risk Assessment and Cost-Benefit Analysis for New Regulations, 48 ADMIN. L. REV. 321 (1996); Mark Landy & Kyle Dell, The Failure of Risk Reform Legislation in the 104th Congress, 9 DUKE ENVTL. L. & POL'Y F. 113 (1998); Kyle McSlarrow, Senate Perspectives on Regulatory Reform Legislation, 48 ADMIN. L. REV. 328 (1996); James T. O'Reilly, EPA Rulemaking After the 104th Congress: Death From Near Fatal Wounds?, 3 ENVTL. LAW. 1 (1996); Zygmunt Plater, Environmental Law as a Mirror of the Future: Civic Values Confronting Market Force Dynamics in a Time of Counter-Revolution, 23 B.C. ENVTL. AFF. L. REV. 733 (1996); Christopher H. Schroeder, Clear Consensus, Ambiguous Commitment, 98 MICH. L. REV. 1876 (2000).

2. The word "lobbying" in connection with those efforts appears in quotation marks here and elsewhere to indicate my view that the Agency's outreach efforts, while helping to mobilize public opinion against the Republican proposals, did not run afoul of the Anti-Lobbying Act, as interpreted by the U.S. Department of Justice (DOJ). There is no evidence, for example, that the Agency expressly called on members of the public to express their views to Congress—a necessary element of the offense under the DOJ's gloss. See infra notes 40-47 and accompanying text.

3. See ROBERT PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 106-08 (1996) (providing a statutorychronology).

4. See Richard Lazarus, The Tragedy of Distrust in the Implementation of Federal Environmental Law, 54 J.L. & CONTEMP. PROBS. 311, 348 (1991).

5. Democrats were the majority in the House of Representatives from 1969 to 1995; they also controlled the Senate from 1969 to 1981 and from 1987 to 1995. CONGRESSIONAL QUARTERLY, INC., GUIDE TO CONGRESS, Vol. II, at 1095-96 (1999).

6. See Lazarus, Tragedy, supra note 4, at 337; Richard Lazarus, The Neglected Question of Congressional Oversight of EPA: Quis Custodiet Ipsos Custodes (Who Shall Watch the Watchers Themselves)?, 54 J.L. & CONTEMP. PROBS. 203, 214-18 (1991) (citing congressional allegations both of neglect and overreaching by EPA) [hereinafter Lazarus, Oversight].

7. Lazarus, Tragedy, supra note 4, at 341. For an analysis that ties the trend toward greater prescriptiveness by Congress to increased restraint in judicial review of agency action, see Sidney A. Shapiro & Robert L. Glicksman, Congress, the Supreme Court, and the Quiet Revolution in Administrative Law, 1988 DUKE L.J. 819.

8. Henry V. Nickel, Now the Race to Regulate, ENVTL. F., Jan./Feb. 1991, at 18, 22.

9. Lazarus, Tragedy, supra note 4, at 320.

10. JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 184 (1997).

11. See S. REP. NO. 101-262, at 27 (1990).

12. See Lazarus, Oversight, supra note 6, at 212.

13. R. Shep Melnick, Strange Bedfellows Make Normal Politics, 9 DUKE ENVTL. L. & POL'Y F. 75, 85 (1998) (emphasis added).

14. Lazarus, Oversight, supra note 6, at 216-17; see RICHARD A. HARRIS & SIDNEY M. MILKUS, THE POLITICS OF REGULATORY CHANGE: A TALE OF TWO AGENCIES (1996).

15. See Michael A. Kraft, A New Environmental Policy Agenda: The 1980 Presidential Campaign and Its Aftermath, in ENVIRONMENTAL POLICY IN THE 1980S: REAGAN'S NEW AGENDA 29, 45-47 (Norman J. Vig & Michael E. Kraft eds., 1984).

16. David B. Spence, Administrative Law and Policy-Making: Rethinking the Positive Theory of Political Control, 14 YALE J. ON REG. 407, 431 (1997).

17. EPA Contracting: Hearings Before the Subcomm. on Oversight and Investigations, House Comm. on Energy and Commerce, 103d Cong. (1993).

18. Compare Lazarus, Oversight, supra note 6, with Steven Shimberg, Checks and Balances: Limitations on the Power of Congressional Oversight, 54 J.L. & CONTEMP. PROBS. 241 (1991).

19. See, e.g., Lazarus, Oversight, supra note 6; JOEL A. MINTZ, ENFORCEMENT AT THE EPA: HIGH STAKES AND HARD CHOICES (1995); James J. Florio, Congress as Reluctant Regulator: Hazardous Waste Policy in the 1980s, 3 YALE J. ON REG. 351 (1986) (characterizing Congress' role in hazardous waste management as "executive regulator").

20. The last time this alignment occurred was in the 80th Congress.

21. See, e.g., H.R. 9, 104th Cong. tits. III (Risk Assessment and Cost-Benefit Analysis for New Regulations), VI (Strengthening Regulatory Flexibility), IX (Private Property Rights Protections and Compensation) (as introduced Jan. 4, 1995).

22. Id., tit. VIII (Protection Against Federal Regulatory Abuse).

23. H.R. 450, 104th Cong. §§ 3, 6 (1995). The moratorium would have run generally through November 1995, or until passage of cost-benefit and risk assessment legislation, whichever occurred first.

24. H.R. 1022, 104th Cong. (1995). For a detailed account of regulatory reform proposals in the 104th Congress, see William W. Buzbee, Regulatory Reform or Statutory Muddle: The "Legislative Mirage" of Single Statute Regulatory Reform, 5 N.Y.U. ENVTL. L.J. 298, 302-12 (1996).

25. See H.R. 1022, 104th Cong. § 202(a)(2) (requiring EPA to certify that incremental benefits of new EPA rules "will be likely to justify" the rules' incremental costs and that other approaches would be either less cost-effective or would provide less flexibility); § 202(b)(1) (providing that these new decisional criteria would "supersede the decision criteria for rulemaking otherwise applicable under the statute pursuant to which the rule is promulgated"); § 401 (providing for judicial review to assure Agency compliance with these requirements) (1995).

26. H.R. 925, 104th Cong. § 3 (1995).

27. S. 343, 104th Cong. (1995). Senator Dole also introduced the Omnibus Property Rights Act Bill, S. 605, 104th Cong. (1995).

28. S. 291, 104th Cong. (1995).

29. S. 1001, 104th Cong. (1995); see Buzbee, supra note 24, at 303.

30. H.R. 961, 104th Cong. (1995).

31. H.R. 2099, 104th Cong. (1995) (Veterans Administration, Housing and Urban Development, and Independent Agencies Appropriations Bill).

32. Joe Frolik, EPA Chief Calls for Clear Goals, Flexibility, THE PLAIN DEALER, Jan. 13, 1995, at 10A.

33. E.g., Statement of U.S. EPA Administrator Carol M. Browner on House Markup of the "Risk" Bill (Feb. 9, 1995); John H. Cushman Jr., Backed by Business, G.O.P. Takes Steps to Overhaul Environmental Regulations, N.Y. TIMES, Feb. 10, 1995, at A22; Booth Gunter, Browner Says GOP Would Limit EPA, TAMPA TRIB., Feb. 15, 1995, at 5; Statement of Carol M. Browner on House Passage of H.R. 450 Regulatory Transition Act (Feb. 24, 1995); Statement of Carol M. Browner on House Vote on H.R. 1022, Risk Assessment and Cost-Benefit Act of 1995 (Feb. 28, 1995); Statement of Carol M. Browner, House Passage of the Private Property Protection Act (Mar. 3, 1995); Sabrina Easton, Backlash Against the GOP's "Contract," EPA Chief Leads War on Congress' Agenda, THE PLAIN DEALER, Mar. 5, 1995, at 1A; Fred Thomas, EPA's Chief Vows to Fight GOP Plans, OMAHA WORLD HERALD, Mar. 8, 1995, at 11SF; Statement of Carol M. Browner, Senate Government Affairs Committee Approval of Regulatory Moratorium (Mar. 9, 1995).

34. John H. Cushman Jr., GOP's Plan for Environment Is Facing a Big Test in Congress, N.Y. TIMES, July 17, 1995, at 1A; see, e.g., Pamela Burdman, EPA Chief Warns of Peril to Bay in S.F.; She Says GOP Budget Jeopardizes Water Quality Pact, S.F. CHRON., July 15, 1995, at A17.

35. Contract With America Meeting of EPA Group (Jan. 5, 1994) (attachment to May 15, 1996 hearings).

36. Id.

37. Editorial, Worthy … or Risky Reprieve From Regulations, WASH. TIMES, Mar. 12, 1995, at A10.

38. Hearings on H.R. 3078 Before the Comm. on Government Reform and Oversight, 104th Cong. 67 (1996) [hereinafter Government Reform Hearings] (response to written questions submitted by Hon. William F. Clinger to Jonathan Z. Cannon).

39. Plater, supra note 1, at 743.

40. Letter from Rep. David M. McIntosh to Carol M. Browner, Mar. 2, 1995. Passed in 1918, the Anti-Lobbying Act provides that

no part of the money appropriated by any enactment of Congress shall … be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or any other device, intended or designed to influence in any manner a Member of Congress, to favor or oppose, by vote or otherwise, any legislation or appropriation by Congress….

18 U.S.C. § 1913.

41. E.g., Memorandum for the Solicitor, U.S. Department of the Interior (DOI), from John M. Harmon, Assistant Attorney General, Office of Legal Counsel (July 18, 1978); Memorandum for John R. Bolton. Assistant Attorney General, Office of Legislative Affairs, from Charles Cooper, Assistant Attorney General, Office of Legal Counsel (Oct. 27, 1987); Memorandum Opinion for Counsel to the President from Charles Cooper, Assistant Attorney General, Office of Legal Counsel (Feb. 1, 1988) [hereinafter February 1, 1988 Memorandum Opinion]; Memorandum for Dick Thornburgh, Attorney General, from William P. Barr, Assistant Attorney General, Office of Legal Counsel (Sept. 28, 1989) [hereinafter September 28, 1989 Memorandum Opinion].

42. February 1, 1988 Memorandum Opinion, supra note 41.

43. September 28, 1989 Memorandum Opinion, supra note 41, at 3-4.

44. Letter to Rep. David McIntosh from Abner Mikva, Counsel to the President (Mar. 4, 1995).

45. E.g., EPA Chief Accused of Illegal Lobbying Vows to Fight, FT. LAUDERDALE SUN-SENTINEL, Mar. 5, 1995, at 11A; "I Will Not Be Silenced," EPA Administrator Insists, ST. LOUIS POST-DISPATCH, Mar. 5, 1995, at 10A; Gary Lee, Lawmaker Says EPA Chief Violates Anti-Lobbying Act, WASH. POST, Mar. 5, 1995, at A16.

46. Government Reform Hearings, supra note 38.

47. In a related effort to prevent the Administration from using public funds to influence the public on environmental and other issues, Representative McIntosh and other members of Congress pursued legislation to restrict grants to organizations that lobbied Congress. Id.

48. Cindy Skrzycki, Hill Republicans Promise a Regulatory Revolution: Lawmakers Target Rules and Rulemakers, WASH. POST, Jan. 4, 1995, at A1.

49. See Schroeder, supra note 1, at 724 (observing that House Republican's had failed to take note of 1994 polls indicating voter preferences for candidates with high ratings by environmental organizations); Frank Greve, GOP Pollster Gauged Appeal of Slogans, Not of "Contract," SAN DIEGO UNION-TRIB., Nov. 12, 1995, at A33 (reporting that Luntz's polling "merely measured the popularity of the strongest slogans that the contract's drafters could come up with.").

50. Wirthlin Group, Wirthlin Quorum (survey release date August 1994).

51. See Schroeder, supra note 1, at 726.

52. Yankelovich Partners, Inc., Time/CNN/Yankelovich Partners poll (survey release date January 1995) (Among Republicans, 63% believed that current environmental protections were either adequate or should go further; 31% believed they went too far.). See EVERETT CARLL LADD & KARLYN H. BOWMAN, ATTITUDES TOWARD THE ENVIRONMENT 21 (American Enterprise Inst. Special Studies in Public Opinion 1995) (comparing poll results from the same or similar questions).

53. Los Angeles Times poll (survey ending date Jan. 22, 1995) (Among Republicans, 56% opposed cuts in environmental spending; 37% favored such cuts.).

54. Margaret Kriz, How Green the Grass Roots, NAT'L J. Sept. 16, 1995, at 2265.

55. Peter Y. Harris Research Group, The Feminist Majority Foundation (survey release date Apr. 25, 1995). See John H. Cushman Jr., Environment Gets a Push From Clinton, N.Y. TIMES, July 5, 1995, at A11 (reporting results of polling by Dick Morris in Virginia).

56. ABC News/Washington Post poll (survey ending date Apr. 5, 1995).

57. Gallup/CNN/USA Today poll (survey ending date Apr. 19, 1995).

58. Louis Harris and Associates, Harris poll (survey ending date Aug. 6, 1995) (Sixty percent opposed "new legislation to reduce the powers of [EPA]" supported by "the Republican majority in Congress": 37% favored it.); Los Angeles Times poll (survey ending date Sept. 18, 1995) (Forty-seven percent thought "Republican congressional proposals" to "curtail environmental regulation" were a "bad thing"; 38% thought them a "good thing." Among Republicans, 40% thought the proposals advanced by their party leaders were bad, while a bare majority (51%) thought they were good.).

59. Report on Survey of Opinions on Environmental Issues in Virginia, prepared for Virginia Environmental Endowment by Dick Morris (June 1995) (on file with author). It has been reported that Morris' May 1995 poll had an important effect on the president's approach to environmental regulatory reform. Bill Turque & Thomas Rosenstiel, Turning Clinton Green, NEWSWEEK, July 15, 1996, at 26 (quoting a statement by Gore that Morris' data was "the key piece of evidence" in persuading the president to take a more aggressive stance).

60. Id. at 6.

61. Id. at 9.

62. Morris' poll suggested that people tended to favor reforms that "planned for development and economic growth in such a way that it doesn't endanger the environment" or "bringing business into the regulatory decision-making process so their needs are recognized" but rejected (by a margin of 2 to 1) reforms that would let "businesses reduce their pollution in their own way with minimum standards." Id. at 10.

63. ABC News/Washington Post poll (survey ending date Mar. 19, 1995).

64. Louis Harris and Associates, Medicare poll (survey ending date June 5, 1995).

65. Princeton Survey Research Associates, Times-Mirror poll (survey ending date Aug. 20, 1995).

66. Within the Administration, Bruce Babbitt, Secretary of the Interior, also waged a personal campaign against efforts in the new Congress to reduce environmental protections, focusing both on issues of federal land management and environmental regulatory controls. He commenced his 67 city "Natural Heritage Tours," publicizing the benefits of existing environmental programs, in April 1995. See John D. Leshy, The Babbitt Legacy at the Department of [the] Interior: A Preliminary View, 31 ENVTL. LAW. 199, 204-05 (2001).

67. Jeff Nesbit, Clinton Rides GOP Regulatory Bandwagon, WASH. TIMES, Mar. 17, 1995, at B8.

68. Memorandum from William J. Clinton to the Heads of Departments and Agencies (Mar. 4, 1995) (setting forth the Administration's program for "regulatory reform," including a directive that agencies "negotiate, don't dictate") (released through White House Press Office Mar. 6, 1995).

69. Testimony of Sally Katzen, Director of Office of Information and Regulatory Affairs, OMB, Before Subcomm. on Commerce Trade, and Hazardous Materials and Subcomm. on Health and Environment of House Commerce Comm., 104th Cong. (Feb. 1-2, 1995).

70. Remarks of William J. Clinton at Rego Event (Mar. 16, 1995).

71. Remarks of William J. Clinton on the 25th Observance of Earth Day inHavre de Grace, Maryland (Apr. 21, 1995); for press reaction, see Ann Devroy, Clinton Issues Broadside on Environment: President Takes Aim at GOP Legislation, WASH. POST, Apr. 22, 1995, at A3; Doyle McManus, GOP Bills Put Focus on "Green" Issues, L.A. TIMES, Apr. 22, 1995, at A4.

72. E.g., Remarks on Environmental Protection In Baltimore, Maryland (Aug. 8, 1995); Address Before a Joint Session of the Congress on the State of the Union [84] (Jan. 23, 1996).

73. John H. Cushman Jr., Clinton Threatens a Veto of Bill Curbing Regulatory Powers, N.Y. TIMES, June 24, 1995, at 48.

74. Margaret Kris, Drawing a Green Line in the Sand, 27 NAT'L J. 2076 (1995).

75. John H. Cushman Jr., Environment Gets a Push From Clinton, N.Y. TIMES, July 5, 1995, at 11A.

76. Devroy, supra note 71.

77. Gallup/CNN/USA Today poll (survey ending date Mar. 17, 1996). Almost identical results were obtained in an ABC News/Washington Post poll (survey ending date Mar. 16, 1995).

78. Gallup/CNN/USA Today poll (survey ending date June 6, 1995).

79. Princeton Survey Research Research Associates, News Interest Index poll (survey ending date Oct. 1, 1995); Gallup Organization, Gallup/CNN/USA Today poll (survey ending date Mar. 15, 1996); New York Times poll (survey ending date June 23, 1996); Hart and Teeter Research Companies, NBC News/Wall Street Journal poll (survey ending date Dec. 9, 1996).

80. John M. Cushman Jr., GOP Backing off From Tough Stand Over the Environment, N.Y. TIMES, Jan. 26, 1996, at A1.

81. Louis Harris and Associates, Harris poll (survey ending date Nov. 3, 1996).

82. Zogby Group, Reuters/Zogby Group poll (ending date Aug. 5, 1996); Penn and Schoen Associates, Inc., Post Election poll (survey ending date Nov. 11, 1996) (Eighty-seven percent responded that Clinton's defense of education and the environment against cuts proposed by the Republican Congress was "very important" in their decision to vote for him.); Research, Strategy, Management, Inc., America Speaks Out on Energy: '96 Post-Election Views Survey (ending date Nov. 14, 1996) (Thirty-three percent of respondents believed that the environment made a real difference in how they voted for president) [hereinafter Research, Strategy, Management, Inc.].

83. See, e.g., B.J. Bergman, Majority Rules, and It's Green: How the Environmental Movement Affected the Recent Congressional Elections, 82 SIERRA 50 (1997); Brad Knickerbocker, In 1987, Expect Moderation in All Things Environmental, CHRISTIAN SCI. MONITOR, Nov. 14, 1996, at 3 (quoting Deborah Callahan).

84. E.g., John H. Cushman Jr., After the Election: The Constituencies, N.Y. TIMES, Nov. 8, 1996, at A30 (quoting Jonathan Adler of the American Enterprise Institute):

The [League of Conservation Voters] and the Sierra Club tried to make much of this election a referendum on environmental issues, … but it is hard to say they were successful. Given all the missteps that the Republicans made, the fact that the [League of Conservation Voters] and the Sierra Club were not more successful suggests that their position has less power and saliency than they suggested.

85. Research, Strategy, Management, Inc., supra note 82. The environment made a "real difference" to a smaller percentage of those polled than public education (49%), crime (47%), and health care (48%), but it ranked ahead of social security (28%) and party affiliation (24%). See Carl Pope, 82 SIERRA 52 (1997) ("An exit poll commissioned by the Republican Party showed that the environmental issue had cost them twice as many votes as any other, even Social Security and Medicare.").

86. Glenn Hess, Elections Show the Environment Was Key to Many Voting Decisions: Congressional Elections, 1996, CHEM. MARKET REP. Nov. 11, 1996, at 1 ("More than three-quarters of Americans now consider a congressional candidate's stand on the environment to be an important factor in deciding who to vote for—up from 30 percent two years ago, according to Democratic pollsters.").

87. Margaret Kriz, The Green Card, NAT'L J., Sept. 16, 1995, at 2262.

88. Stephen Barr et al., The 1996 Budget: Winners and Losers, WASH. POST, Apr. 29, 1995, at A15.

89. Pub. L. No. 104-4, 109 Stat. 48.

90. Id. 104-13, 109 Stat. 163.

91. Id. 104-121, 110 Stat. 857.

92. See, e.g., Jeffrey J. Polich, Judicial Reviewand the Small Business Regulatory Enforcement Fairness Act: An Early Examination of When and Where Judges Are Using Their Newly Granted Power Over Federal Regulatory Agencies, 41 WM. & MARY L. REV. 1425 (2000) (finding that federal agencies subject to SBREFA have limited the scope of the Act's procedural requirements and have adopted alternatives that disproportionately burden small businesses); but see O'Reilly, supra note 1.

93. See, e.g., American Trucking Ass'n v. EPA, 175 F.3d 1027, 1043-45, 29 ELR 21071, 21075 (D.C. Cir.) (per curiam), modified per curiam, 195 F.3d 4, 30 ELR 20119 (D.C. Cir. 1999), cert. granted, No. 99-1253 (U.S. May 23, 2000), aff'd in part & rev'd in part on other grounds sub nom. Whitman v. American Trucking Ass'n, 531 U.S. 457, 31 ELR 20512 (2001) (Regulatory Flexibility Act, as amended by SBREFA, does not require an analysis of impacts on small business where an agency rule—in this case national ambient air quality standards—does not directly regulate small businesses; agency refusal to prepare regulatory impact statement under UMRA is not judicially reviewable); Michigan v. EPA, 213 F.3d 663, 688-89, 30 ELR 20416 (D.C. Cir. 2000) (similar disposition of SBREFA claim).

94. Pub. L. No. 104-182, 110 Stat. 1613.

95. Id. 104-170, 110 Stat. 1489.

96. There was speculation in early 1996 that the environment was a "third rail"—politically untouchable, like social security. See Cushman, GOP Backing off From Tough Stand Over Environment, supra note 80, at A1. Although the environment is a "valence issue," considerable differences of opinion affect design and implementation of particular programs. Schroeder, supra note 1.

97. Schroeder, supra note 1, at 1903. Schroeder also identifies a third factor—"people's perceptions of the current condition of the environment"—as affecting support for environmental programs.

98. Classic theory of regulation posits that concentrated costs and widely dispersed benefits are not conducive to regulation, because the lower transaction costs of the cost-bearers will allow them to organize more effectively and deflect legislation. This has challenged theorists to account for the existence and persistence of the federal environmental regulatory regime. E.g., E. Donald Elliott et al., Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. ECON. & ORG. 313 (1985); Daniel A. Farber, Politics and Procedure in Environmental Law, 8 J.L. ECON. & ORG. 59, 66-67 (1992); Christopher H. Schroeder, Rational Choice Versus Republican Moment—Explanations for Environmental Laws, 1969-1973, 9 DUKE ENVTL. L. & POL'Y F. 29 (1998); Melnick, supra note 13. The account in this Article is consistent with Schroeder's point, supra, at 37-38: that large segments of the public with a preference for environmental regulation can produce votes for politicians and therefore may compete politically with, and even prevail over, concentrated interests opposed to regulation whose tools are primarily financial.

99. For example, EPA has encountered public resistance to centralized automobile inspection and maintenance requirements under the CAA, which requires individuals to have their automobile emissions tested at central facilities.

100. For example, the Agency expressly declined to implement the Employee Trip Reduction requirement of the 1990 CAA Amendments in order to avoid threatened revisions of the Act by Congress. This strategic retreat was credited with holding off significant revisions of the Act. See Craig Oren, Getting Commuters Out of Their Cars: What Went Wrong?, 17 STAN. ENVTL. L.J. 141, 145 (1998); Daniel A. Farber, Taking Slippage Seriously: Noncompliance and Creative Compliance in Environmental Law, 23 HARV. ENVTL. L. REV. 297, 301-03 (1999) (discussing "negative slippage" in the form of nonimplementation of mandates that would have politically unacceptable consequences).

101. See Status of Recommendations Made by the National Academy of Public Administration on Reforming the Environmental Protection Agency: Hearings Before the Subcomm. of the Senate Comm. on Appropriations, 104th Cong. (1996).

102. National Ambient Air Quality Standards for Ozone, 62 Fed. Reg. 38856 (July 18, 1997); National Ambient Air Quality Standards for Particulate Matter, 62 Fed. Reg. 38652 (July 18, 1997).

103. Implementation of Revised Air Quality Standards for Ozone and Particulate Matter, 62 Fed. Reg. 38421 (July 18, 1997). For an account of EPA's bargaining with the White House and others to gain needed support for the new standards, see Jon Cannon, Bargaining, Politics, and Law in Environmental Regulation, in ENVIRONMENTAL CONTRACTS: COMPARATIVE APPROACHES TO REGULATORY INNOVATION IN THE UNITED STATES AND EUROPE 31, 56-61 (Kurt Deketelaere & Eric Orts eds., 2001).

104. See American Trucking Ass'n v. EPA, 175 F.3d 1027, 29 ELR 21071 (D.C. Cir.), modified per curiam, 195 F.3d 4, 30 ELR 20119 (D.C. Cir. 1999), cert. granted, No. 99-1253 (U.S. May 23, 2000), aff'd in part & rev'd in part on other grounds sub nom. Whitman v. American Trucking Ass'n, 531 U.S. 457, 31 ELR 20512 (2001).

105. P.L. 106-246, 114 Stat. 511, 567 (July 13, 2000).

106. Even pro-environment Republicans like Representative Boehlert were displeased with EPA's action. See Statement of the Hon. Sherwood Boehlert on Introduction of H.R. 4922, the TMDL Regulatory Accountability Act of 2000 (July 24, 2000)

107. Susan Bruniga, Joint Resolutions Aimed at Blocking TMDL Final Rule Introduced in Congress, 31 Env't Rep. (BNA) 1521 (July 21, 2000).

108. Matthew D. McCubbins, Roger G. Noll, and Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (concluding that constraining the flexibility of agencies at the beginning is far more effective than any kind of reward, punishment or oversight method).

109. Spence, supra note 16, at 441.

110. Id. at 436 ("Theoretically, almost any major agency policy choice can be overturned by legislation. As a practical matter, however, Congress is handicapped by the very same collective choice problems that impede ex ante controls.").

111. Landy & Dell, supra note 1, at 119-26.

112. Id. at 121-28 (positing that the public debate on environmental regulatory reform was not a matter of "a reasonable versus an unreasonable approach to environmental issues, but rather a struggle between two realms of discourse: one utilitarian, andthe other rights-oriented"); see John Graham, Legislative Approaches to Achieving More Protection Against Risks at Less Cost, 1997 U. CHI. LEGAL F. 13, 57. There is evidence, however, that public support for environmental regulation has a variety of sources, some of them utilitarian, see WILLETT KEMPTON ET AL., ENVIRONMENTAL VALUES IN AMERICAN CULTURE 87 (1995), and thus the public might support reforms if it were confident that those reforms would maintain adequate levels of protection with lower burdens or costs.

113. Some proponents of reform legislation were "embarrassed by the drastic budget cutbacks proposed in the budgets at EPA and [the Occupational Safety and Health Administration], a collection of special-interest riders … , and a misguided effort to rewrite the [CWA]." GRAHAM, supra note 1, at 40. Also the "relief" rhetoric of House Republican leaders was "so at odds with the principled case for regulatory reform that [it] frightened moderates, energized extremists on the left, and made it difficult for journalists to distinguish responsible reformers from antiregulatory extremists." Id. See Robert L. Glicksman & Stephen B. Chapman, Regulatory Reform and (Breach of) the Contract With America: Improving Environmental Policy or Destroying Environmental Protection, 5 KAN. J. L. & PUB. POL'Y 9, 16-17 (1996) (concluding that the Contract legislation offered up as "regulatory reform" was really "deregulation").

114. See Princeton Survey Research Associates Survey (conducted for Pew Research Center) (survey ending date July 28, 1996) (Sixty-five percent thought that the Republican party and its leaders were better described as "concerned with the needs and interests of business and other powerful groups" than the Democratic party and its leaders; 19% thought the opposite.). This is not to suggest that the majority of the public saw the Republicans as particularly subject to special interests but only to special interests of a certain kind. A survey conducted later in 1996 by Hart and Teeter Research for NBC News and the Wall Street Journal revealed a roughly even split between those who thought the Democratic party "is more influenced by special interests and lobbyists" (32%) and those who thought the Republican party is more influenced by them (29%), with 28% answering both equally. Nov. 3, 1996, Public Opinion Online.

115. See LADD & BOWMAN, supra note 52, at 43 (tbl. 16); sources cited supra notes 58 & 59.

116. Nina J. Easton, The GOP Has Forgotten the Good of Being Green, WASH. POST, Jan. 14, 2001, at B1.

117. Richard L. Hasen, Entrenching the Duopoly: Why the Supreme Court Should Not Allow the States to Protect the Democrats and Republicans From Political Competition, 1997 SUP. CT. REV. 331, 359.

118. See Center for Responsive Politics, 2000 Election Cycle: Top Industries, at http://www.opensecrets.org (last visited May 30, 2001) (comparing 1999-2000 contributions from political action committees (PACs), soft money donors and individuals for oil and gas, electric utilities, lawyers/law firms and public sector unions); id. Environment Top Contributors (last visited June 12, 2001) (comparing 1999-2000 contributions from PACs, soft money donors and individuals identified with nine environmental groups); Holly Bailey, Read My Lips: A Look at Coal Mining Industry Contributions to Bush and the GOP (Mar. 14, 2001) (website of Center for Responsive Politics, last visited June 4, 2001) ("During the 1999-2000 election cycle, the coal mining industry contributed more than $ 3.8 million in soft money, PAC and individual contributions to federal parties and candidates, with the dollars going almost entirely to Republicans. That's more than three times what the industry gave during 1995-96, the last presidential cycle.") (available at http://www.opensecrets.org/alerts/v6/alertv6_11.asp).

119. See Samuel Issacharoff & Daniel R. Ortiz, Governing Through Intermediaries, 85 VA. L. REV. 1627, 1630-32 (1999) (discussing agency costs associated with political intermediaries). This analysis treats the relationship between political parties and their members as a principal-agent relationship. For other ways of conceptualizing the relationship, see Daniel R. Ortiz, Law and Political Parties: Duopoly Versus Autonomy: How the Two-Party System Harms the Major Parties, 100 COLUM. L. REV. 753 (2000) (voters as consumers, parties as producing policy products for voters to choose among); Kevin A. Kordana, Political Parties as Donative Intermediaries, 85 VA. L. REV. 1683 (1999) (voters as donors, parties as nonprofit firms).

120. Issacharoff & Ortiz, supra note 119, at 1632-33 (discussing enhanced rent-seeking through political intermediaries).

121. Jonathan R. Macey, Mediating Institutions: Beyond the Public Private Distinction, 61 U. CHI. L. REV. 1443, 1460-71 (1994) (analyzing effect of party affiliation on voters' preferences).

122. For thorough and interesting examinations of the shortcomings of the two-party system, see Hasen, supra note 117; Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643 (1998); Ortiz, supra note 119.

123. Letter from President George W. Bush to Senator Chuck Hagel (Mar. 13, 2001).

124. Id.; Eric Pianin, U.S. Aims to Pull Out of Warming Treaty, WASH. POST, Mar. 28, 2001, at A1 (reporting Administrator Whitman's announcement that the "Kyoto protocol was dead as far as the administration was concerned").

125. Polls taken around the time the president announced his decisions on the Kyoto Protocol and regulation of carbon dioxide (CO₂) showed varying levels of disapproval. Gallup poll (survey ending date Apr. 8, 2001) (Forty-eight percent disapproved of Bush's decision "not to adhere" to the Kyoto Protocol; 41% approved.); ABC News poll (survey ending date Apr. 15, 2001) (Sixty-one percent stated that the United States should join the Kyoto Protocol; 26% said that it should not. Among Republicans respondents, 52% said the United States should join; 37% said it should not.); CBS News poll (survey ending date Apr. 5, 2001) (Fifty-nine percent opposed Bush's decision "not to reduce [CO]2[] emissions"; 29% favored it.). In a poll conducted by Princeton Survey Associates and sponsored by Newsweek, 53% believed that Bush's decision not to regulate CO₂ stemmed from "special interest pressure from coal producers and others in the energy industry"; 29% believed Bush based his decision on "doubts about whether there is enough hard scientific evidence and concerns about effects on energy prices." In an April 2001 poll, conducted by the Gallup Organization (survey ending date Apr. 22, 2001), 63% responded that "big business does … have too much influence over the decisions made by the Bush Administration."

126. Erik Olson, Editorial, Arsenic Everywhere, and Bush Is Not Helping, BALT. SUN, May 14, 2001, at 9A. See Douglas Jehl, EPA to Abandon New Arsenic Limits for Water Supply, N.Y. TIMES, Mar. 21, 2001, at A1 (characterizing action as a "victory" for the mining industry).

127. Statement of Sen. James M. Jeffords, reprinted in WASH. POST, May 25, 2001, at A15 ("Looking ahead, I can see more and more instances where I'll disagree with the president on very fundamental issues—the issues of choice, the direction of the judiciary, tax and spending decisions, missile defense, energy and the environment, and a host of other issues large and small.").

128. Thomas B. Edsall & David S. Broder, A Defection Highlights GOP's Fragile Coalition, WASH. POST, May 26, 2001, at A1 (quoting Senator Collins of Maine).

129. Richard Morin & Claudia Deane, Poll Finds Support for Bush Declining, WASH. POST, June 5, 2001, at A1. The Washington Post-ABC News poll (conducted by TNS Research) (survey ending date June 3, 2001) showed that 50% disapproved of Bush's handling of the environment; 41% approved. Almost 70% of Republicans approved of Bush's handling of environmental issues, but only 35% of Independents approved.

130. There has been remarkable consistency over the years in the public's response to some questions indicating strong support for environmental programs, See, e.g., http://PollingReport.com (last visited May 9, 2001) (showing little variation in Gallup poll results from 1984 through 2000 in response to question whether protecting the environment should be given priority, even at the risk of curbing economic growth, or whether economic growth should be given priority, even if the environment suffers to some extent). However, there are discernible trends in response to other questions. As an example of the latter, in 1989, three-quarters of the public considered themselves to be "an environmentalist"; in 1999 only one-half did. Id. (arraying Gallup/CNN/USA Today poll results from 1989 to 1999 on the question).

131. See KEMPTON ET AL., supra note 112, at 64-66; Michael P. Vandenbergh, The Social Meaning of Environmental Command and Control, 20 VA. ENVTL. L.J. 191, 197-99 (2001).

132. Landy & Dell, supra note 1, at 124.

133. Louis Harris and Associates, Harris poll (survey ending date Nov. 6, 1995).

134. KENNETH SHEPSLE & MARK BONCHEK, ANALYZING POLITICS 367 (1997).

135. See, e.g., PHILLIP HOWARD, THE DEATH OF COMMON SENSE (1994) (a critique of the regulatory state often cited by Clinton in support of his Administration's reform initiatives).

136. Cannon, supra note 103, at 49-61.

137. The Anti-Lobbying Act, Government Reform Hearings, supra note 38. This document offers justification for the subcommittee's pursuit of Anti-Lobbying Act claims against Administrator Browner and EPA.

138. See MASHAW, supra note 10, at 151-57 (arguing that broad delegations to administrative agencies increase the responsiveness of the political system); Spence, supra note 16, at 410 (arguing that "the public is sometimes better served by less political control over agency policy-making").

139. Government Reform Hearings, supra note 38.

140. GRAHAM, supra note 1, at 40.

141. Kenkeremath, supra note 1, at 326.

142. See supra text accompanying notes 40-47.

143. See National Academy of Public Administration, Environment.Com (2000) (making extensive recommendations for reforms, including legislation steps to enhance flexibility, cost-effectiveness and use of market mechanisms in environmental programs). Congress has also earmarked funds for a number of other studies by nongovernmental institutions that could be used in future policy debates with the Agency.

144. See 31 Env't Rep. (BNA) 2272 (Oct. 27, 2000).

145. See supra text accompanying note 16.

146. The EPA appointments may be seen as concessions to pro-environment constituencies, particularly in the Northeast and on the West Coast, while the DOI's appointments are designed to satisfy constituencies, particularly in the South, the Plains states and the Rocky Mountain West, that have resented environmental regulation and chaffed under federal land management policies.

147. Eric Pianin, EPA Chief Lobbied on Warming Before Bush's Emissions Switch, WASH. POST, Mar. 27, 2001, at A7 (quoting from Administrator Whitman's Mar. 6, 2001 memo).

31 ELR 10942 | Environmental Law Reporter | copyright © 2001 | All rights reserved