October 19, 2010

2010 Environmental Law Institute —
Miriam Hamilton Keare Policy Forum

Can You Teach Old Tools New Tricks?

Addressing 21st Century Problems With 20th Century Law

On October 19, the Environmental Protection Agency will receive the Environmental Law Institute's Annual Award, the first time an organization has received this prestigious honor. The award will help to mark the occasion of EPA's fortieth anniversary. As part of its day-long celebration, the Institute also holds the annual ELI-Miriam Hamilton Keare Policy Forum. The topic this year will focus on EPA's role in environmental protection and the legal underpinnings of its mandate.

EPA's founding on December 2, 1970, coincided with the advent of modern environmental law. The National Environmental Policy Act was signed in January of that year. There followed an outpouring of congressional lawmaking spanning a decade: the Clean Air Act, the Clean Water Act, the Endangered Species Act, the Resource Conservation and Recovery Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation, and Liability Act, plus several other statutes, all calling on EPA (and other agencies) to regulate pollution. After that, the Congress spent another decade strengthening and fine-tuning its legislation, culminating in the 1990 Clean Air Act Amendments.

But except for two minor updates in 1996, the Congress has been silent on environmental law in the two decades since the CAA amendments. Meanwhile, EPA has moved forward on the mandates in the legislation, with the backing of the U.S. Supreme Court's 1984 Chevron decision, even as new problems emerged. In fact, the Court pushed the agency to use language written in the 1970s in the CAA to address global warming in its 2007 Massachusetts decision, potentially giving EPA vast dominion over much of the U.S. economy. On the other hand, the Court's 2006 Rapanos decision gave confusing advice to the agency on regulating wetlands under the CWA, leaving "waters of the United States" poorly defined for purposes of regulation. And the Fifth Circuit's 1991 Corrosion Proof Fittings decision left TSCA with diminished authority to ban hazardous chemicals in commerce. Today, caught between the mandates of aging statutes and the interpretations of various courts, the agency finds itself facing new challenges without new tools.

What's to be done? Our panel will examine the question of "Whither Congress" as part of its debate over renewing congressional authority and will discuss how EPA can move forward on the problems of the 21st century using 20th century law.

Panelists:
Leslie Carothers, President, Environmental Law Institute (Moderator)
Jonathan Cannon, Professor of Law, University of Virginia [EPA General Counsel, 1995-1998]
Hank Habicht, Managing Partner, SAIL Venture Partners [EPA Deputy Administrator, 1989-1998]
Ann Klee, Vice President, Corporate and Environmental Programs, General Electric Company [EPA General Counsel, 2004-2006]
Bob Perciasepe, EPA Deputy Administrator, 2009-present