The EPA at 40: An Historical Perspective

By Andrews, Richard N. L. | Duke Environmental Law & Policy Forum, Spring 2011 | Go to article overview
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The EPA at 40: An Historical Perspective


Andrews, Richard N. L., Duke Environmental Law & Policy Forum


I. INTRODUCTION

The Environmental Protection Agency is in many respects a unique agency in the overall structure of United States governance. (1) Created in 1970 by presidential initiative rather than congressional legislation, it was given a sweeping new series of statutory mandates and powers that both nationalized the core functions of pollution and toxic chemicals control, and defined them overwhelmingly as regulatory functions--augmented in some cases by federal subsidies--rather than broader and more integrated management responsibilities. Paradoxically, it was given these mandates in response to massive bipartisan popular demand for federal leadership in solving the pollution problem at a time when the public was otherwise increasingly skeptical of and even hostile to the federal government. Liberals were opposed to the government's Vietnam War policies; conservatives resisted the government's civil rights policies; and the growing environmental movement itself questioned the government's policies of multipurpose dam-building and stream channelization, clear-cutting of the national forests, promotion and subsidization of nuclear power, and more generally promoting the use of the natural environment primarily for industrial resource extraction and economic development.

In the academic literature of the 1960s and early 1970s, political scientists were writing scathingly about the capture of agencies by the businesses they were supposed to be regulating, and about the control of policymaking by "iron triangles" of favored interests, congressional subcommittees beholden to them, and the agencies they oversaw. Economists were becoming increasingly vocal against these traits in economic regulatory agencies responsible for regulating the airline, trucking and railroad, and telecommunications industries. In short, the Progressive ideal that had justified the discretionary powers of the federal agencies for two-thirds of a century since Theodore Roosevelt--the ideal of good government through scientific management by politically neutral, technocratic administrators--was becoming increasingly discredited from the left as well as the right. (2)

Yet in the midst of all these criticisms of government, both academic and popular, a conservative Republican president, Richard Nixon, created the Environmental Protection Agency. And in the Congress, solidly bipartisan majorities vested this new agency with sweeping new powers to regulate pollution and toxic chemicals, to impose federal mandates on state and local governments both to implement and comply with these regulations, and to subsidize both state regulatory agencies and local wastewater treatment facilities on an unprecedented scale.

By the end of its first decade, EPA had begun to achieve significant results in reducing pollution from the sources it was empowered to regulate, although the limitations and costs of those successes were also becoming evident. A more serious problem was developing, however: a fracturing of the bipartisan support that EPA had initially enjoyed. While environmental protection remained a widely supported and largely nonpartisan value for the general public, among elected politicians and interest groups it became a surrogate for an increasingly ideological and partisan conflict over the role of government regulation in achieving it. This refraining of the issue pitted liberal Democrats, and a dwindling minority of moderate Republicans, against an increasingly vocal anti-government core of the Republican Party which was augmented on individual issues by Democrats from districts whose businesses were burdened by environmental regulations.

As a result, the EPA has become confined to incomplete and variable implementation of a set of laws and policies that, with few exceptions, were put in place more than thirty years ago. It has been chronically underfunded and subjected to increasing burdens of proof, oversight, and litigation; and with changes in presidential administrations, its priorities have repeatedly been subjected to radical swings and even attempts at fundamental reversal.

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