Academic journal article Duke Environmental Law & Policy Forum

The Lost Generation: Environmental Regulatory Reform in the Era of Congressional Abdication

Academic journal article Duke Environmental Law & Policy Forum

The Lost Generation: Environmental Regulatory Reform in the Era of Congressional Abdication

Article excerpt

Table of Contents  I.   Introduction 50 II.  Creating the "First Generation" of the Federal Environmental        Regulatory System: From Bipartisanship to Gridlock III. Searching for the Environmental Regulatory System's        "Next Generation" IV.  "Next Generation" Environmental Regulatory Reform Proposals      A. Market-Based Regulatory Instruments      B. Voluntary or "Self-Regulatory" Policies          1. Informational Regulation          2. Environmental Self-Management          3. Voluntary Environmental Programs      C. Contractual or Collaborative Decision Making          1. Negotiated Voluntary Agreements          2. Negotiated Regulations V.   Congressional Abdication and the "Lost Generation" of      Environmental Regulatory Reform VI.  Conclusion 

I. Introduction

On January 1, 1970, President Richard M. Nixon signed the National Environmental Policy Act (NEPA) (1) on national television, declaring that the 1970s would be the "decade of the environment." (2) This event precipitated an explosion of legislative activity that ushered in the modern environmental regulatory era. During the next two decades, from the signing of NEPA through the end of 1990, Congress enacted all of the major legislation constituting the United States modern federal environmental regulatory system. (3) The vast majority of these statutes were enacted between 1970 and 1977, with some new statutes and several major amendments to 1970s statutory programs enacted between 1980 and 1990. (4) In the ensuing three decades, however, environmental lawmaking in Congress has come to a grinding halt. (5) Congress has not passed any major environmental legislation since 1990, (6) creating a "policymaking vacuum" that seriously impairs the vitality and effectiveness of the nation's legal environmental protection framework. (7)

This Article examines Congress' wholesale abdication since 1990 of its responsibility to improve, modernize, and reform a badly outdated federal environmental regulatory system. Critical environmental protection problems that have challenged society since the mid-20th century have continued to flourish in the 25 years since Congress last enacted a major piece of environmental legislation. Policymakers have long sought effective and efficient ways to solve such problems, with particular emphasis on curbing the harmful impacts of corporate and industrial behavior. Environmental protection became an enormously divisive political issue in the United States during the 1990s as policymakers stridently debated the effectiveness and efficiency of direct regulatory approaches in light of their tremendous associated costs. (8) Since that time, the political consensus necessary for enactment of statutory authority for new or expanded mandatory regulatory programs to achieve desired environmental outcomes has been impossible to obtain. (9)

Concern over the effectiveness and efficiency of traditional environmental regulatory strategies has encouraged considerable exploration of potentially viable alternative approaches, either as substitutes for or as supplements to direct legal controls on corporate and industrial behavior. Over the last two decades, substantial experimentation has taken place with alternative environmental regulatory reform programs in the United States. (10) The primary focus was several reform or "reinvention" initiatives begun during the 1990s by the United States Environmental Protection Agency (EPA) under the Clinton Administration. (11) These efforts are viewed as having produced mixed and somewhat disappointing results. (12) Nonetheless, the public policy debate over strategies to improve the effectiveness of existing environmental regulatory systems continues, as does the search for innovative alternatives. (13)

The increasing complexity and scale of environmental challenges provides even greater incentive to employ alternative strategies to improve and supplement traditional approaches to regulating corporate and industrial environmental behavior. …

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