Regulation and the Courts: The Case of the Clean Air Act

Regulation and the Courts: The Case of the Clean Air Act

Regulation and the Courts: The Case of the Clean Air Act

Regulation and the Courts: The Case of the Clean Air Act

Synopsis

In recent years, federal courts have become increasingly aggressive in shaping regulatory policy, abandoning their traditional deference to bureaucratic expertise. This new judicial activism has been particular evident in the regulation of air pollution. R. Shep Melnick analyzes the effects a variety of court decisions have had on federal air pollution control policy and assesses the courts' institutional capacity for policymaking in such a complex arena. In six cases studies of environmental programs or issues he examines the interplay among the courts, the Environmental Protection Agency, Congress, and the White House. The conventional wisdom is that the courts have improved environmental policymaking, but Melnick concludes that as a whole 'the consequences of court action under the Clean Air Act are neither random nor beneficial.' He finds that 'court action has encouraged legislators and administrators to establish goals without considering how they can be achieved,' widening the gap between promise and performance. The results, he charges, have been increased cynicism, serious inefficiencies and inequities, and a lack of rational debate. An analysis of the institutional characteristics of the judicial branch reveals how these problems have come about and why they are likely to afflict other programs as well as environmental regulation. The author proposes several reforms to improve the courts' ability to handle regulatory cases.

Excerpt

Over the past two decades federal judges--who for years had quietly deferred to the expertise of administrators--have become increasingly aggressive in their oversight of administrative action. This judicial activism has drawn praise from critics of bureaucracy spanning the political spectrum, but surprisingly little attention has been paid to its consequences for national policy and national institutions. Have the courts in fact improved policymaking? Or have they, as Felix Frankfurter might have predicted, exceeded their institutional capacity?

In this book R. Shep Melnick, assistant professor of government at Harvard University and former research fellow and research associate in the Brookings Governmental Studies program, examines how the federal courts have influenced policymaking in one highly significant and controversial area, the regulation of air pollution. He probes the longterm effects of a variety of court decisions that have helped to shape environmental policy during the 1970s. His analysis of the bureaucratic and congressional politics of air pollution control provides insight into the process of environmental regulation as well as the effects of judicial activism.

Melnick shows not only that court decisions had consequences unforeseen by judges and legal commentators, but also that the net effect of a large number of trial and appellate court decisions was to widen the gap between the promise and performance of the programs administered by the Environmental Protection Agency. He explains how these . . .

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