Congress/ Courts and the Environment

Tools used by members of Congress to make change

1) regulatory reform

2) Use of the appropriations process

3) policy proposals

4)Influence on the appointment process

Partisan voting records diverging over time

• 1970s - the environmental decade in Congress

• 1980s - Congress reacting to Reagan while he was in office, and once he left 

  • 1986 - superfund

• 1990 - major changes to CAA

• 1992 - intense gridlock from here to nearly present day with a few limited exceptions

When did partisan voting records start to polarize

Shift from bipartisanship to grid lock and polarization beginning in mid 90s

Congressional Review Act

is a key tool Congress can use to overturn recent federal regulations issued by executive agencies

• gives Congress a way to review and revoke federal agency regulations

• during trump administration (2017), republicans used it aggressively to dismantle Obama era regulations 14 in total, several of which targeted environmental protections 

Rider

a non-budget policy provision attached to a must-pass appropriations bill that changes how environmental laws are implemented, funded, or enforced

• used to quietly alter or weaken enviro laws by controlling how those laws are funded, enforced, or applied - allows congress to shape enviro outcomes without formally amending the enviro statutes themselves 

How do members of Congress use hearings and caucuses to get items on the agenda/bills passed?

• strategic tools that shape the policy agenda, build support for legislation, and influence public opinion

• use hearings to put enviro or other policy issues in the spotlight and influence how they are understood, while caucuses work behind the scenes to organize support, coordinate messaging, and keep issues on the agenda

How many congressional committees address enviro issues?

There is not single environmental committee, spread across roughly 15-20 committees and subcommittees in both House and Senate

What are the challenges with the congressional committee structure that addresses enviro issues 

• fragmentation

• jurisdictional overlap

• slow policy development

• partisan polarization across committees

What are the primary explanations for Congressional gridlock on the environment?

• partisan polarization 

• Interest Group lobbying

• institutional fragmentation

• short-term political incentives

The Green New Deal

a congressional resolution, a statement of goals and principles 

• called for a massive national mobilization to address climate change (net-zero greenhouse gas emissions), economic inequality, and social justice

• It did not pass

How do Republicans talk about the carbon cap and trade law in particular 

more focused on specific policy proposals or resistance to certain policies, their language presents skepticism framing via costs and regulatory burdens rather than flat-out rejecting climate science

Envrio Conflict Resolution

refers to all the ways environmental disputes are handled from negotiation and mediation to litigation

Do environmental conflicts end up in courts?

No - most enviro conflicts do not end up it court

• if they do they can go to either the federal or state courts depending on the issue

3 considerations to have standing

• injury in face

• causation

• likelihood of redress 

Injury in Fact

• a plaintiff must have suffered “an invasion of a legally protected interest” that meets two additional criteria

1. It is “concrete and particularized”

2. It is “actual or imminent,” as opposed to hypothetical

Causation

the plaintiff’s injury must be “fairly traceable” to the conduct that is the subject of the lawsuit

Likelihood of Redress

• A decision in the plaintiff’s favor must be likely to provide an adequate remedy for the plaintiff's injuries

5 ways the courts shape policy

• 1) Standing

• 2) Ripeness

• 3) Standard of Review

• 4) Interpretation of laws

• 5) Remedies they choose

Massachusetts v. EPA

• established that greenhouse gases are air pollutants under the Clean Air Act, giving the EPA the authority to regulate them

• Massachusetts sued EPA bc they did not regulate CO2- the case was brough after the EPA denied a petition to regulate greenhouse gases under the CAA

In the Massachusetts v. EPA, what federal law was not being applied?

The law not being applied was the Clean Air Act - specifically section 202(a)(1) which requires the EPA to set standards for an air pollutant emitted by motor vehicles that may endanger public health

• whether EPA has authority to regulate greenhouse gases

How did groups use the Courts to push back on Trumps executive orders

• to challenge executive orders and regulatory rollbacks

• These legal challenges were largely successful

Juliana v. United States

• 21 plaintiffs argue that the government’s affirmative action causes climate change, it has violated the youngest generations’ constitutional rights to life, liberty, and property, and failed to protect essential public trust resources

• The case is currently before the Inter-American Commission of Human Rights

Held v. State of Montana

• The state’s constitution says that their residents have “the right to a clean and healthful environment”

• The court sided with the plaintiffs, who argued that “a Montana law stopping agencies from considering climate impacts while issuing permits violates their right to a clean and healthy environment

• US v. Riverside Bayview Homes - Waters of the US (WOTUS

• 1985 definition “waters and wetlands adjacent to or having a significant nexus with navigable waters, interstate waters of their tributaries

Rapanos v US

•  split decision, but court affirms that wetlands hydrological connection to navigable waters qualifies them as WOTUS 

  • Kennedy’s interpretation vs. Scalia

Sacket v. EPA

• the clean water act extends only to wetlands that have a continuous surface connection with “water” of the US - i.e. with a relatively permanent body of water connected to traditional interstate navigable waters

Kennedy’s interpretation of WOTUS

“those waters that require protection in order to restore and maintain the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, and the territorial seas”

Scalia’s interpretation of WOTUS

• excluding ephemeral features that contain water only during or in response to rainfall; groundwater; many ditches; and isolated wetlands

Chevron Doctrine

• “when congress has spoken clearly to the precise question at issue the rule of law demands agency adherence. However, if Congress has not addressed the matter precisely, then an agency may adopt any reasonable interpretation - regardless of whether a reviewing court may consider some other interpretation more reasonable”

What are the 3 types of enviro interest groups

1) The Public interest lobby

2) the participatory protest organization 

3) the professional protest organization 

The Public Interest Lobby

an organization that seeks to influence government policy to produce outcomes that benefit the general public 

• insider

The Participatory Protest Organization

a type of pollical organization that focused on mobilizing ordinary citizens to take direct action such as protest

• outsider

The Professional Protest Organization

a social movement organization that began through protest and activism but now uses formal structures, paid staff, and institutional resources to plan, coordinate, and sustain political action

• outsider

Traditional/insider groups

electioneering, petitions, lobbying, donations, endorsements

Less traditional/ outsider

sit-ins, protests, sometimes attention-seeking radical behaviors