In 2011, Congress amended the Safe Drinking Water Act (SDWA) to clarify that lead-free requirements do not apply to “toilets” or “fixtures…that are used exclusively for nonpotable services … or any other uses where the water is not anticipated to be used for human consumption.” See Pub. L. 111-380. Almost three years later, the U.S. Environmental Protection Agency (EPA)—the federal office tasked with administering SDWA—posted a “Frequently Asked Questions” (FAQ) document on its website, stating definitively that “fire hydrants” are not covered by this exclusion. Why? Because an official within EPA decided that fire hydrants should be lead-free since those may be used in “emergency situations to provide drinking water”—all without a rulemaking process or even a showing that treating fire hydrants in this manner was necessary to protect public health.
Boom! The mere act of posting this relatively obscure FAQ document obsolesced tens of thousands of fire hydrants sitting on the shelves of municipal governments across the country. Chicago, New York City, Los Angeles, and other cities and counties large and small were faced with the prospects of scrapping stockpiles of fire hydrants and buying all new, lead-free ones. Efforts to convince EPA to remove the FAQ document were unsuccessful. Congress responded with the Community Fire Safety Act (Pub. L. 113-64), expressly exempting fire hydrants from the SDWA’s lead-free mandate. Phew.
But can Congress do more than correct blatant regulatory glitches like this?
More generally, what is the role of Congress, today, in environmental law?
This is the question that will be addressed in a Saturday morning panel at this year’s Federalist Society Convention. The audience will hear from a balanced panel comprised of law professors, including Eric Claeys (George Mason Law School) and David Schoenbrod (NY Law School), as well as from two of the top environmental advisors on Capitol Hill: Bettina Poirier, who serves as chief counsel to Sen. Barbara Boxer (D-CA), the Ranking Member of the Senate Committee on Environment and Public Works; and Neil Chatterjee, senior advisor to Senate Majority Leader Mitch McConnell.
Obviously, the short answer to the question is that Congress enacts environmental laws. When it does so, Congress relies primarily on its power to regulate interstate commerce. Other powers have been cited as well, but noticeably absent from the Constitution is any provision or amendment expressly granting Congress power to “protect the environment,” as such. This is why, as Chief Justice Rehnquist told us in SWANCC, expansive interpretations of jurisdictional terms in environmental statutes like the Clean Water Act raise serious constitutional questions. Views about the powers of Congress to regulate activities impacting the environment are highly debated in the courts and among legal commentators. Beyond that, Congress has a track record of punting critical questions on complex environmental issues to the regulatory bureaucracy, which inevitably leads to further conflict as these issues are resolved through regulatory actions and in the courts. The recent back-and-forth over the meaning of “Waters of the United States” is one such example.
Beyond writing laws, Congress has other obvious roles such as exercising oversight of the relevant agencies through investigations (such as the recent congressional inquiries into missteps at EPA involving former senior EPA official John Beale) and regular congressional hearings.
Congress also has the lead role in setting funding levels for environmental programs. For example, Congress gladly gave the Administration less than a penny when the President recently requested billions of dollars for the United Nations Climate Fund, although Congress has been less effective at blocking the Administration’s highest priority actions on environmental matters. And the Senate gives—or, at times, does not give—advice and consent to the President for key environmental posts such as the Secretary of the Interior, the Administrator of the Environmental Protection Agency, the Director of the Fish and Wildlife Service, and dozens of other positions.
The convention panel on environmental law will delve into these and other related questions. For instance, in an era of unilateral Executive Orders by the President, expansive reinterpretations of laws and regulations, collusive sue-and-settle arrangements that have the effect of law, and perceptions that Congress lacks an ability to respond effectively to these challenges, does Congress have a real role in environmental law anymore? Has Congress become too passive or too incapacitated to respond to challenges to its legitimate lawmaking and oversight functions? Are there still areas of environmental interest where Congress needs to establish new legal frameworks and policies to achieve common goals? What are the proper relations between Congress and the EPA? And between Congress and the courts? And between Congress and the States? And between Congress and activist groups who are deputized by citizen suit provisions to serve as “private attorneys general”? If these relations are out of alignment, can Congress realign them and how? How effective is the Congressional Review Act in this context, and what are the merits of bills like the REINS Act, which would essentially require congressional approval before major regulations could become effective? Panelists will explore these and other questions.
Jeff Wood served as environmental counsel to Sen. Jeff Sessions from 2011-2014, and as Republican Staff Director of the Senate Subcommittee on Water & Wildlife (112th Congress) and Republican Staff Director of the Senate Subcommittee on Clean Air & Nuclear Safety (113th Congress). He is currently a partner in the Washington DC office of Balch & Bingham LLP (www.balch.com), and is a member of the Executive Committee of the Federalist Society’s Environmental & Property Rights Practice Group.