February 22, 2021
On December 2, 1970, the United States Environmental Protection Agency opened its doors for the first time. The new agency, created by the Executive Order of President Nixon, was cobbled together from bits and pieces of various federal agencies and departments, including functions from the Department of the Interior, Department of Health, Education, and Welfare, and the Department of Agriculture. It was intended to serve as a single unified body to regulate and enforce environmental laws in the United States in the wake of one of the most tumultuous decades in U.S. History, both broadly and in terms of environmental disasters.
The 1960s opened the eyes of the public to the negative effects of a lack of comprehensive environmental regulation. Silent Spring was published in 1962, shining a spotlight on the adverse impact of overusing pesticides and herbicides. The Cuyahoga River in Ohio famously caught on fire in 1969 (for the 13th time since the Civil War), and placed national attention on the state of our waterways. New York City suffered from one of several episodes of “killer smog” on Thanksgiving weekend 1966, increasing calls for national air quality standards and regulations. The Santa Barbara Oil Spill was, at the time it occurred, the largest oil spill disaster the United States had ever seen. The clamor for environmental protections became so loud that the Congressional appetite for sweeping environmental legislation was the highest it had ever been (and would likely ever be again). The 70s dawned with the signing of the National Environmental Policy Act on January 1, 1970, which was followed throughout the ten years by the Clean Air Act, the Clean Water Act, the Endangered Species Act, and the Safe Drinking Water Act. Implementation and enforcement for most of these new, broad mandates fell to the infant EPA.
The early years of the EPA were tumultuous. The political expedience of passing comprehensive legislation faded somewhat as the rubber met the road in developing new national air standards. EPA’s first test managing a major environmental disaster at Love Canal, New York, won the agency few laurels, but resulted in the Congressional passage of the Comprehensive Environmental Response, Compensation, and Liability Act in 1980. And EPA’s relationship with local regulators in those early days was, at best, mixed. Within weeks of his confirmation as EPA’s first administrator, William Ruckelshaus announced to a conference of major city mayors that the agency was at that moment serving notices to comply on the cities of Detroit, Cleveland, and Atlanta for violations of water quality standards.
EPA’s working relationship with states and tribes has evolved over the years. In its fifty years thus far, the agency has, to greater or lesser degrees, implemented principles of federalism and delegated authority to local regulators to serve as the front line with their own regulated communities in the vast majority of environmental programs. Still, EPA retains oversight over all federal programs and has the ability to step in to take direct enforcement where they perceive local action to be lacking.
EPA has celebrated a number of environmental successes over the last 50 years. Perhaps most notably, the implementation of national air standards has reduced air pollution by more than three-quarters from pre-Clean Air Act levels. Enforcement of bans on DDT and similar products has brought a number of endangered species back from the brink of extinction, and EPA’s rules regarding lead-based paint have drastically reduced the occurrence of lead in children’s blood in the United States. And the advent of the Safe Drinking Water Act has improved our community water systems to the point that 9 out of ten meet all health-based standards, up from only 60% before EPA existed.
EPA faces a number of challenges in the coming years. To begin with, environmental protection, and by extension the direction and focus of the agency, has become more partisan than ever. When EPA was created in 1970 it was with broad, bipartisan support. While that support diminished somewhat when it came time to do the hard work of implementing tough, protective environmental regulations, there was still enough cross-party support in the importance of EPA’s mission to pass critical legislation and approve agency actions where it was needed. In recent years, EPA has been accused of politicizing decisions and ignoring science, and partisan bickering over agency appointments and the decisions of the agency have become tumultuous. Whether these are fair criticisms or not, it is clear that the priorities and objectives of EPA have shifted wildly with changes of administration through the last two decades. And with a new president in office in 2021, it is fair to wonder where EPA will go in its 51st year.
The new administration’s focus on climate change will dictate a great deal of EPA’s focus over the next several years, as new rulemakings will likely scrutinize greenhouse gas emissions and incorporate consideration of “cumulative impacts” such as incremental impacts to climate into permitting decisions. With the rejoining of the Paris Climate Agreement, EPA will also have to focus on international cooperation. EPA will be faced with more challenges in the arena of Environmental Justice, and projects that have the potential to disproportionately impact minority and marginalized communities will face increased hurdles. And all of these new priorities will require a rapid about-face from the regulatory direction of the last administration. The shift risks giving the regulated community whiplash as they attempt to stay on top of their compliance requirements and the uncertainty that always accompanies swift change.
EPA’s mission remains critical to the health of our citizens, our environment, and our long-term economy. The next several years will present the agency and the regulated community with unprecedented challenges and opportunities. EPA has its work cut out for it for the second 50 years.
If you are interested in learning more about the development of environmental law in the U.S. or in sharing this topic with teachers and students in your social sphere, we recommend the following resources from the American Bar Association, developed as part of the 2020 SEER Leadership Development Program. These resources are free to all.