Law and Regulation: The Dual Transformation
We stand on the threshold of a new era in the history of the long and fruitful
collaboration of administrative agencies and reviewing courts.
-- Chief Judge David Bazelon in
Environmental Defense Fund v. Ruckelshaus, 1971
Recent history would indicate that the prime mover behind implementation of the Clean Air Act has not been Congress or EPA, but the courts--specifically this court. -- Judge Malcolm Wilkey in Ethyl Corp. v. EPA, 1976
LITTLE MORE than a decade ago a book on the influence of federal court decisions on national air pollution control policy would have been a short one indeed. Before 1970 the norm of judicial deference to agency expertise guided the courts in their review of the relatively minor regulatory decisions made by federal administrators. State courts handled the few public nuisance suits brought by private citizens against individual polluters. Yet by 1980 the federal courts had not only heard hundreds of cases dealing with air pollution, but had issued scores of rulings profoundly affecting national environmental policies.
The federal courts have done far more than adjudicate disputes between private parties or prevent administrators from exceeding their statutory authority. They have announced sweeping rulings on policy issues left unresolved by existing legislation, often expanding the scope of government programs in the process. Consider, for example, the following decisions issued under the Clean Air Act of 1970.1
--In Sierra Club v. Ruckelshaus, the district court for the District of Columbia instructed the Environmental Protection Agency (EPA) to design a program that would prevent the "significant deterioration" of air quality in areas already meeting statutory air quality standards.2 The court based its decision on the act's preface, which announced Congress's____________________