The Rise of Environmentalism and the "New Regulation"

The coming of environmentalism marked more than just a turning point in domestic politics; it also marked a decisive turning point in the nature of government regulation, with far-reaching constitutional implications. Hitherto the object of government regulation was to ensure fairness—fairness to competitors and potential competitors, and fairness to consumers. The regulatory goal of fairness was clearly a derivative of the idea of equal rights and equal opportunity that is central to American political life. The new regulation starting in the 1970s was more ambitious and social in nature, and a marked departure from the old kind of regulation.

President Nixon's creation of the Environmental Protection Agency (EPA), which was cobbled together from parts of other federal agencies by executive order, marked the beginning of a regulatory revolution. No other federal agency has ever been created in this fashion. Nixon had first wanted an act of Congress to create a cabinet-level Department of Environment and Natural Resources, but abandoned the plan because of congressional opposition. Others in the Nixon White House thought the new EPA should be more like the National Institute of Health, conducting research and recommending environmental standards and strategies for Congress and the states to incorporate into legislation. But Nixon wanted the EPA to be an operating and enforcement-oriented agency. Ironically, the EPA that emerged is a more powerful agency than a cabinet-level department, because unlike a cabinet department that is more closely under the authority of the White House, the EPA enjoys more independence as an administrative agency.

The most striking aspect of the EPA and other regulatory agencies created contemporaneously, such as the Consumer Product Safety Commission (CPSC) and the Occupational Safety and Health Administration (OSHA), is that they were the first agencies with a mandate to range widely throughout the economy and set their own policy strategy largely without the deliberation or input of Congress. The CPSC, for example, originally considered regulating women's high-heel shoes, along with swimming pools, tricycles, and artificial turf. The CPSC's first chairman, Richard Simpson, remarked that, "It's possible to make this a complete witch-hunt . . . . I suppose if there were enough complaints about the hazards of wearing maxicoats, we could even regulate length."

Throughout the previous decades of the twentieth century, government regulatory agencies had always been highly specific to narrow aims and usually a single industry; the Securities and Exchange Commission and the Food and Drug Administration are good examples of the old kind of regulation. The one prior exception to single-industry regulation—the Federal Trade Commission, created in 1916—is the exception that proves the rule. Its undefined, wide-ranging scope caused Congress and the executive branch to curb its power within a few years of its creation precisely because of its unaccountability.

Not only was the EPA without specific statutory basis but the Nixon reorganization plan that created the agency left the term "environment" undefined. Nixon thought these matters should be left for the EPA's administrator to decide. The trouble with leaving "the environment" undefined is that it leaves ambiguous mankind's place in it. Are humans part of "the environment," and therefore the object for whom the agency was created? In other words, is the EPA just a glorified public health agency? Or is "the environment" a transcendent category, in which case the EPA may regulate in the interests of nature herself? The lack of congressional deliberation and a specific statutory mission has made the EPA a battleground for the competing views of what "the environment" comprises.

For example, in 1970, some members of Congress wondered whether the EPA might claim jurisdiction over population control. A Nixon-appointed commission had, after all, doubted whether rising population was of any future benefit to the United States. Ironically, Sen. Edmund Muskie (D-Maine) had proposed a bill in Congress that would have created an "Environmental Quality Administration." Muskie's bill would have demanded from Congress a detailed statement of the agency's goals and purposes, and would have included a congressional intent to balance environmental protection with economic growth, a proviso without which Muskie judged that the proposal would fail.

Muskie's "EQA" would have been a more circumspect agency than Nixon's EPA. But Muskie's bill never even earned a committee hearing. A similar proposal in 1967 had been opposed by Sen. Robert F. Kennedy. Quite aside from the ideological battles that would swirl around the EPA and other new quasi-independent, economy-wide regulatory agencies, there was the question of how this new kind of regulation changed the relations of citizens to their national government.

Under the new regulation, administrative questions that had always been strictly local in character were centralized in the federal bureaucracy. The EPA's earliest mission was essentially a public-works program to build new sewers and water treatment plants throughout the nation. Hardly a single yard of sewer line was subsequently laid without the direct involvement and supervision of the EPA. The centralization of previously local decisions had a necessarily degrading effect on state and local government and contributed to the rising sense of remoteness from government that has increasingly plagued American public life over the last generation.

All of this happened largely without any kind of fundamental, substantive public debate about the principles of the new regulation. As this regulation was extended further and further during the 1970s, a backlash would grow into a potent force. In many ways, the regulatory revolution was President Nixon's most profound legacy.

"Probably more new regulation was imposed on the economy during the Nixon administration than in any other presidency since the New Deal," wrote Herbert Stein, who served on Nixon's Council of Economic Advisers.1

Stein never bothered to count up the new agencies, or he would have struck the "probably" from the front of his sentence. Between 1970 and 1974, eight new independent regulatory agencies and eight new agencies within the executive branch were created. In addition, 13 existing independent agencies, and 22 executive branch agencies, were substantially reformed and strengthened during these years. It represented a vast expansion and centralization of government power, penetrating local and remote reaches of the private economy.

These numbers represent nearly three-quarters of the regulatory apparatus of the federal government. This was not obvious then or now because of the murkiness surrounding the constitutional status of the new economy-wide "social" regulation, and the abstract issue of the violation of the separation of powers implied by this kind of activity.

In the last few years, federal courts have begun to reassert the "non-delegation" doctrine in a few areas of regulatory rule-making, which stipulates that Congress cannot delegate any of its legislative functions to executive branch or other agencies. A Washington, D.C. Circuit Court of Appeals has held up the EPA's latest clean air rules for ozone on these grounds (American Trucking Association v. EPA). There has also been some sentiment to require Congress to vote on all regulations, so that elected officials, rather than appointed, and often anonymous, regulators would be publicly accountable for the rules that government agencies impose. Either reform would restore a measure of responsibility and accountability to the entire range of federal regulatory activities.2