Scholar argues that a recalibration of administrative law is necessary to respect congressional intent in environmental statutes.
Federal environmental laws such as the Clean Air Act have played an important role in protecting the United States’ land and water. Yet some scholars have observed that the U.S. Supreme Court often views these laws with skepticism. Why does the Court appear reluctant to uphold these “codified commitments” to the environment?
In a recent article, Sanne Knudsen of University of Washington School of Law explores how the overlapping of administrative and environmental law can lead to judicial outcomes that “disregard” public-interest values. In addition to analyzing Supreme Court decisions, Knudsen argues that judicial-review doctrines should have built-in mechanisms to prevent the destabilization of environmental statutes.
Environmental problems are complex, challenging to address, and implicate a wide range of subjects. To account for this complexity, environmental statutes often contain broad mandates that various agencies must implement. Since administrative law is “the law governing judicial review of administrative action,” Knudsen explains that the close relationship between administrative and environmental law is not surprising.
In addition, Knudsen observes that the rise of the administrative state and agency rulemaking in the 1960s and 1970s coincided with the passage of major federal environmental statutes.
When federal agencies use these mandates from environmental statutes and wield their discretionary power to create environmental regulations, litigation often follows. Courts then turn to administrative law principles to guide their analyses. Knudsen notes that this reliance on administrative law is why the Supreme Court’s review of environmental decision-making by agencies has resulted in the development of several administrative law principles, such as the now-overruled Chevron doctrine.
For example, Knudsen notes that the Supreme Court has addressed the meaning of “waters of the United States” in the Clean Water Act four separate times—most recently in Sackett v. EPA. These Court decisions often dictate the “fundamental reach” of environmental regulatory policies, she explains.
Knudsen argues that administrative law and environmental law serve distinct and often conflicting values. To illustrate this point, she quotes scholars who identify various values embedded in administrative law, including upholding the rule of law, reinforcing constitutional structures, promoting accountability, and encouraging high-quality decision-making.
Knudsen also observes that Congress has delineated different values in its environmental lawmaking. Knudsen concedes that it is difficult to discern a “unifying set” of values within environmental law. By considering the broad statutory mandates within environmental laws, however, Knudsen extracts a holistic value: “self-restraint for self-preservation.” This purpose captures the congressional commitment to impose restraint to protect public health and welfare.
Knudsen points to the purpose statement in the National Environmental Policy Act (NEPA) as an example of this congressional commitment. NEPA states that Congress intends to encourage harmony between people and the environment, prevent environmental damage, and “stimulate the health and welfare.” Since these directives apply to all federal agencies, Congress codified the prioritization of “self-restraint for self-preservation” across the whole government, argues Knudsen.
According to Knudsen, this value mismatch between environmental and administrative law has impacted the Supreme Court’s jurisprudence. The Court often prioritizes the application of administrative law, which diminishes the implementation and reach of environmental statutes, she explains.
Knudsen highlights four prominent Supreme Court cases to illustrate the consequences of this value mismatch.
First, she argues that the Court’s decision in Lujan v. Defenders of Wildlife demonstrates how the Court can weaponize standing—the constitutional doctrine under which federal courts may decide only cases in which plaintiffs have themselves suffered a personal injury—to weaken a private citizen’s ability to bring suit for environmental-law violations. This weakening, Knudsen argues, runs counter to the congressional intent, as codified in the Endangered Species Act, to allow citizens to help enforce these statutes through citizen suits.
Second, Knudsen contends that the Court in Robertson v. Methow Valley Citizens stripped the NEPA of its “substantive commands” through a “vague recitation” of judicial review. She notes that in Robertson, the Court interpreted NEPA’s requirement that the federal government “use all practicable means” to “create and maintain conditions under which man and nature can exist in productive harmony” as a procedural hurdle, not an affirmative duty.
Third, Knudsen considers the Court’s decision in Michigan v. EPA as an example of the Court’s willingness to effectively write additional terms into a statute—the Clean Air Act. By requiring the U.S. Environmental Protection Agency to consider costs in deciding whether to regulate hazardous air pollutants from power plants, Knudsen argues that the Court circumvented the public health goals of the underlying statute.
Finally, Knudsen turns to the Court’s decision in Sackett and its ongoing difficulties in defining “waters of the United States.” This difficulty, Knudsen notes, demonstrates how the Court’s inconsistent approach to statutory interpretation and deference can undermine the success of statutes such as the Clean Water Act.
These decisions delineate a “constellation” of administrative law features that, as Knudsen explains, facilitate the sidestepping of environmental law. Knudsen observes that this sidestepping introduces anti-democratic risk into environmental law by undermining the will of Congress and concentrating power in the judiciary.
Knudsen concludes by offering a few guiding principles to provide a more stable foundation for environmental law in light of judicial review doctrines. Knudsen stresses that these principles are not new, but that courts apply them inconsistently.
To start, Congress should use statutory purpose statements to help check the reasonableness of a court’s statutory interpretations, she proposes. Knudsen explains that using enacted purpose statements could guide judicial review and allow a better alignment of administrative and environmental law values.
Knudsen also argues that the statutory purpose should constrain the court’s use of the hard look doctrine, which requires the careful review of agency action for reasonableness against its congressional directive. Knudsen notes that if judges followed this suggestion today, administrative law would be less likely to override environmental law’s normative aims.
Knudsen’s last principle calls for courts to be skeptical of regulatory back-sliding. Knudsen observes that environmental statutes should work as “one-way ratchets” to drive environmental protection over time. Agency decisions that weaken protections should be scrutinized, even if their decisions are technically within the bounds of the statute.
These principles, if followed by courts, would serve as necessary “bumpers” on administrative law, Knudsen contends. She expresses optimism that a recalibration will help ensure that courts respect the crucial values that Congress has adopted through its environmental laws.
