Do we paint too grim a picture of the status of environmental politics in the United States? What might be ways that the polarized politics around the EPA can be changed, such that the agency can fulfill its mission of protecting human health and the envi

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Chapter Twelve

Environmental Politics David M. Konisky and Megan Mullin

The EPA was created at a momentous time in US politics. The Vietnam War was escalating, large-scale movements to secure civil rights for African Americans and equal rights for women were ongoing, and political and social unrest was erupting in the streets in large cities from Los Angeles to Chicago to Baltimore. Although we tend to look back at this period of time as one of tumult and crisis, in many important areas of public policy, it was also a period of great optimism and promise. This is certainly the case for environ- mental protection. As Jim Barnes describes in Chapter 1, there was both a rising tide of concern about environmental problems and, just as importantly, a strong collective conviction that the federal government could effectively intervene to solve them. A responsive Congress and executive branch took heed by enacting far-reaching and wide-ranging laws that reshaped environ- mental policy in the United States for the next half century.

The newly created EPA would be tasked with implementing these new laws and was buoyed in its efforts by several important features of US politics at the time. First, there was general agreement across party lines, at both the elite and mass public levels, regarding the importance of environmental problems. Second, by historical standards, and despite the previously mentioned political unrest, public trust and confidence in government institutions was high. Third, an emerging set of advocacy organizations had the legal and scientific capacity to help defend the mission of the nascent EPA. And, fourth, there was general agreement about the nature of the problems to be confronted and who should bear responsibility—mainly, large business and heavy industry. This widely shared definition of the problem of environmental degradation helped provide clarity as to the appropriate policy interventions.

In sum, the creation of the EPA in December 1970 came during a political moment when the new agency enjoyed broad, bipartisan support, built on a

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widely held belief that EPA’s mission “to protect human health and the en- vironment” was both important and urgent. These conditions have changed profoundly over the succeeding five decades, such that the politics surround- ing the EPA now interfere with the agency’s ability to effectively carry out its mission. To be clear, as previous chapters in this book have documented, the EPA in many ways has delivered on the promise to improve environmental quality and social welfare for most Americans. But, despite these successes, the agency has become mired in political conflict that now affects nearly every aspect of its work. Some of the conflict reflects broader developments in the American political system, while other aspects are specific to the EPA, its mission, and the policy tools it employs. Taken as a whole, the agency has become a political football, with every major decision seemingly shrouded in controversy.

In this chapter, we document changes in environmental politics since the EPA’s establishment and trace the ways that politics have influenced the agency’s ability to administer and enforce environmental laws. Although a wide range of activity external and internal to the EPA can fall under the moniker of “politics,” our discussion will emphasize the most sweeping and consequential change in the American political system during this period— the growth of partisan polarization among elected officials and in the broader mass public. We begin by demonstrating that polarization has been particu- larly pronounced on the issue of the environment. We show how polarization saturates the EPA’s political context, setting the stage for conflict over the agency’s activities within Congress and the courts, between states, among stakeholders and the mass public, and within presidential administrations themselves. The stark partisan divide on environmental regulation has pro- duced swings in policy but also has contributed to enduring changes in EPA budget and authority. Being asked to do more with fewer resources leaves more room for discretion in policy implementation, contributing to environ- mental outcomes that can vary widely across communities. Finally, we dis- cuss the changing nature of the environmental problems that EPA confronts. Because the most pressing contemporary challenges are less visible than those that motivated the EPA’s formation, they do not arouse widespread public demands for action that could help mitigate polarization’s effects.

PARTISAN POLARIZATION ON THE ENVIRONMENT

The Bipartisanship of the “Environmental Decade”

Many scholars of environmental politics and policy refer to the 1970s as the “environmental decade,” bracketed by the enactment of the National

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Environmental Policy Act in 1970 and the passage of the Superfund law in 1980.1 Until that time, responsibility for environmental protection had rested largely at the state and local levels, attracting differing levels of interest and seriousness across jurisdictions.2 For its part, the federal government gener- ally limited its activities to conducting research, providing guidance, and encouraging (but not compelling) performance standards.

During the environmental decade, the US environmental protection sys- tem was remade. Congress enacted more than a dozen major statutes, in areas ranging from air and water pollution to chemicals and pesticides to waste management and contaminated site remediation. Table 12.1 lists the major statutes assigned to the fledgling EPA during this time, each of which receives more detailed attention elsewhere in this book.3 Collectively, these federal programs are striking for their scale, ambition, and largely prescrip- tive approach to addressing environmental problems.

Table 12.1. Major Statutes Enacted from 1970–1980

National Environmental Policy Act (1970) Clean Air Act (1970) (amended in 1977) Federal Water Pollution Control Act Amendments (Clean Water Act, 1972) (amended

in 1977) Federal Environmental Pesticide Control Act (1972) Safe Drinking Water Act (1974) Resource Conservation and Recovery Act (1976) Toxic Substances Control Act (1976) Comprehensive Environmental Response, Compensation, and Liability Act (1980)

The newly enacted laws are also remarkable for the bipartisan support they received. In the modern era, most consequential laws are passed on par- tisan votes, often relying on arcane rules of budget reconciliation that enable Congress to bypass the supermajority voting constraints of the US Senate.4 By comparison, the laws of the environmental decade garnered substantial levels of support from both sides of the political aisle. As illustrations, the legislation that eventually became the 1970 Clean Air Act passed the House by a vote of 374-1 and the Senate by a vote of 73-4 (the final legislation passed each chamber by voice vote),5 the 1972 Clean Water Act passed the House by a vote of 366-11 and a Senate vote of 74-0,6 and the 1976 Resource Conservation and Recovery Act passed the House by a vote of 367-8 and the Senate by a vote of 88-3.7 The ambition of many of these laws is attributable to competition between President Richard Nixon and Democratic Senator Edwin Muskie, who engaged in a “tit-for-tat” legislative negotiation, each at- tempting to one-up the other in order to appeal to an electorate with a growing

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environmental consciousness. Even when President Nixon faltered, vetoing the Clean Water Act in 1972 out of concern for its “staggering” cost ($24.6 billion to cover the federal share of upgrading wastewater treatment plants),8 113 Congressional Republicans voted with their Democratic colleagues to override the veto.9

The bipartisanship of the environmental decade, however, was short-lived. US politics has become more polarized in the decades that have followed, both among political elites and in the general public. This polarization shapes the EPA’s relations with its external stakeholders, with important implica- tions for its agenda, the policy tools it uses to advance its goals, and the reac- tions to its activities.

The Rise of Partisan Polarization

Political scientists studying the ideological composition of Congress have shown that the middle of the twentieth century was a period of unusually low levels of party conflict. Republicans and Democrats overlapped in their roll call voting more than at any other time before or since.10 The environmental decade occurred during the end of this period of depolarization. Since that time, political elites have become more divided—the parties are both inter- nally more homogeneous and farther apart from one another. Issues that pre- viously had split politicians along regional lines started to become absorbed into partisan conflict.

Many factors have contributed to the rise of partisan polarization. A start- ing point is the 1960s civil rights reforms, which produced a realignment of the South in which conservative, white districts came to be represented by Republicans rather than by Democrats. Meanwhile, expanded opportunities for participation by Black and Latinx politicians and voters resulted in some districts electing more liberal Democrats than they had before. The decisions these politicians made once in office, combined with broader changes in the political, social, and economic environments, reinforced patterns of polariza- tion and spread its effects across regions and issues.11 Rising inequality, the growing residential segregation of Americans by party, changes in electoral rules, and the fragmentation of media all have played a role.12

Polarization is sharpest among elected office holders and other political elites but over time has spread to ordinary Americans who identify with one of the parties. Issues that have low salience, or importance, are more susceptible to becoming polarized.13 Thus, as the environment has become less of a priority to the American public, partisans have more readily taken up positions to match those of political elites. There is little evidence to in- dicate growing divides in policy attitudes among the broader mass public,

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which raises important questions about representation as politicians and their partisan supporters become more polarized.14 Increasingly, politicians have incentive to respond to the more extreme preferences of those who vote in primaries rather than to the median voters in their districts.15

It is important to note that the overall divergence in party positions across issues has not been symmetric—Republicans have moved farther to the right over recent decades than Democrats have moved to the left.16 This asym- metric polarization is particularly evident on the environment. With the base constituencies of the Republican party growing more hostile toward govern- ment power, regulation, and threats to the fossil fuel economy, it has become politically risky for Republican politicians to take overtly pro-environment stances. While the Democratic party has moved left in seeking over time to more aggressively address environmental risks, Republicans have made a bigger leap by challenging the core of EPA scope and authority. This fun- damental partisan conflict dominates every aspect of the agency’s political environment.

Polarization in Congress

With respect to the environment specifically, consider first polarization in Congress. The League of Conservation Voters (LCV) has been tracking congressional voting behavior on the environment in a systematic way since 1970. Each year, the LCV identifies a series of votes on what the organization considers to be important environmental decisions, and then tracks whether members of Congress vote to support the organization’s position. For ex- ample, in 2017, among the votes that the LCV included in its scores was the confirmation vote of former EPA Administrator Scott Pruitt and several votes to allow oil and gas drilling in the Arctic National Wildlife Refuge.17 The LCV then aggregates these votes into a single score for each representative and senator. Figure 12.1 shows the average score for members of each politi- cal party, separately for the House and Senate, from 1970 to 2018. The rise in polarization is striking. The difference in average scores between Repub- licans and Democrats during the environmental decade was approximately twenty percentage points. Beginning in the late 1980s and early 1990s, this margin began to widen, and over the last decade, the split has grown to as large as eighty points. Although interest group scores may exaggerate differ- ences due to the strategic selection of the votes analyzed, studies of a broader set of votes have found similar levels of polarization.18

The stark polarization that now characterizes US national politics is also prevalent at the state level, in some cases even more strongly in state leg- islatures than in Congress.19 Increasingly, American politics is becoming

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U.S House

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Figure 12.1. League of Conservation Voter Scores, 1970–2018. Author-generated

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nationalized, with shared partisanship as a force that binds people together more than local issues or regional loyalties.20 One implication of this nation- alization is that the political climate around the EPA at the state level begins to resemble its contentious nature at the national level, further complicating the agency’s efforts to effectively carry out its mission. We discuss the rela- tionship between the EPA and the states in greater depth later in the chapter.

Polarization in the Mass Public

Large differences in environmental attitudes also exist among self-identified partisans in the general American public. A common measure of Americans’ preferences toward the environment is their views about the allocation of government resources. Figure 12.2 displays the trend in one such measure. The General Social Survey (GSS), a national survey conducted by the Na- tional Opinion Research Center, has since 1972 included a question that asks a nationally representative sample of Americans whether the federal govern- ment is spending too much, too little, or about the right amount of money on the environment. These data show a pattern of polarization that resembles the voting pattern of members of Congress. What had been modest differences between the opinions of Republicans and Democrats during the 1970s and 1980s rose sharply in the 1990s, and polarization continues to grow through today.

The bottom panel of Figure 12.2 demonstrates that among the mass public, environment stands out as an issue of unusually high polarization. During the 1970s and 1980s, the difference between Democrats and Republicans in beliefs about spending on the environment ranged from about five to fifteen percentage points, which is similar to that for education, health, drugs, cities, and foreign aid. However, over the past thirty years, the partisan difference has increased to about twenty-five to thirty points, while remaining about the same for these other issues. Polarization on government spending on the environment is now among the most divisive issues included on the survey, comparable only to military spending and issues of race and welfare.

Noticeable in this figure is the short period of time around 1990 when partisans converged in their support for environmental spending. In 1988, Republican candidate and incumbent Vice President George H.W. Bush spotlighted environmental issues during his presidential campaign, declaring on the shores of Lake Erie, “I am an environmentalist. Always have been . . . and I always will be.”21 Less than six months after taking office, President Bush proposed ambitious revisions to the Clean Air Act to address acid rain and urban smog. With his leadership, the set of amendments eventu- ally passed Congress with overwhelming majorities and broad Republican

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B el

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a bo

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in g

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) Too little

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Health Education & Foreign Aid

Cities Drugs

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to o

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Figure 12.2. Government Spending Priorities, 1970–2018. Author-generated

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support. Separate from President Bush’s effort in signaling that environ- ment could be bipartisan issue, other events around this time—especially the historic 1989 Exxon Valdez oil spill in Alaska’s Prince William Sound and the heavily marketed global celebrations of the twentieth anniversary of Earth Day—raised the salience of the environment without igniting partisan division. By 1992 President Bush had changed his political strategy to more often emphasize the economic costs of environmental protection, and the gap in opinion among partisans in the mass public not only reemerged, but quickly escalated.22

Wider divides in opinion about the environment do not signal rising levels of public concern. In fact, just the opposite seems to be true. Whereas public opinion polls during the 1970s revealed widespread concern about environ- mental quality, the environment now barely registers in most surveys that ask Americans to indicate the most important problems facing the country. For example, in a poll conducted by the Gallup Organization in 1975, fifty-three percent of Americans identified “reducing pollution of air and water” as one of top three problems requiring action in the United States. This represented a thirty-six percent increase from 1965 and trailed only “reducing crime” among the issues identified.23 By comparison, across the first three months of 2019, only three to four percent of Americans mentioned environment or pollution in response to a similar inquiry from Gallup.24 The receding salience of public opinion toward the environment may a reflect a version of what economist Anthony Downs referred to as the “issue-attention cycle”—the tendency for surges of public attention to an issue to recede after collective realization of the costs and challenges of fully addressing it.25

Polarization in External Political Climate

Three key elements of the external political climate around the EPA have transformed over the last fifty years in ways that further politicize environ- mental policy-making. First, the appointment process for federal judges has become a political battleground, with important implications for the scope of EPA authority. Second, the density of interest groups and other information providers seeking to influence EPA policy has increased, creating a more ac- tive and antagonistic set of stakeholders that engages with the agency. And, third, changes in the structure of the news media have fragmented audiences and set up competing narratives about environmental policy issues. We dis- cuss each in turn.

Although politics have always influenced judicial selection and decision- making, polarization has expanded its importance. Ideological consistency is now the primary consideration for presidential nominations to federal courts,

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and ever since the 1987 blocked Supreme Court nomination of Robert Bork, nominees now consistently receive close ideological scrutiny. Polarization and divided government contribute to confirmation delay,26 and overall rates of confirmation have fallen: whereas approximately ninety percent of ap- pellate court nominees were confirmed in the 1970s, only about half were confirmed under President George W. Bush.27 Interest groups have become more active in nomination politics, and nominees are now more ideologically extreme.28

These developments have an impact on judicial decision-making. Judges very often reach decisions about legal questions that are in line with their predispositions and policy preferences.29 This is especially true in the absence of other constraints, such as fidelity to precedent for the lower courts. In an analysis of environmental decisions by the DC Circuit Court from 1970 to 1994, legal scholar Richard Revesz found that the partisanship of a judge’s appointing president was a strong predictor of the judge’s votes, especially if the judge had a co-partisan on the panel and the case was unlikely to be reviewed by the Supreme Court.30 The selection of more ideological judges through more ideological processes produces courts that are more divided along ideological lines. For the Supreme Court in recent years, this has meant a large proportion of cases decided by a one-vote margin. In the lower courts, expectations about the ideological direction of a court ruling may influence the behavior of environmental agency personnel who seek to avoid litigation over their decisions.31

Regarding the changing interest group community, the EPA was estab- lished during a period in which the number of interest groups was beginning to skyrocket. In 1970, an estimated 4,000 groups were based in Washington, DC—double the number that had existed in 1950—and the number continued to grow, reaching about 17,000 in 2010.32 The composition of groups has changed as well, with particular growth in the number of citizen groups (as distinct from labor unions or business-oriented groups, such as trade associa- tions), especially in the area of the environment. During the agency’s early years, environmental movement pressure originated mostly from a few major organizations—the Natural Resources Defense Council (NRDC), Environ- mental Defense Fund (EDF, now Environmental Defense), and the Sierra Club—that had deep expertise and sharp focus on agency activities. These groups participate through the entire policy process—from legislative nego- tiation and enactment through the regulatory process, the courts, and state implementation. They play an important role inside the Democratic party and often represent the environmental movement to the broader public. Now there are myriad groups with a wide range of priorities, goals, strategies, and capacities pushing the EPA toward a stricter regulatory approach.

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Environmental advocacy organizations have greatly expanded their ca- pacity. Data collected by political scientists Frank Baumgartner and Beth Leech indicates that there were 119 environmental groups with a combined staff of 316 people at the beginning of the 1960s; by the mid-1990s, these numbers had increased to more than 300 groups and 3,000 staffers.33 As of 2005, this number had grown further to more than 560 such groups.34 Other estimates place the total even higher. In his study of environmental orga- nizations, political scientist Christopher Bosso estimated that the full-time staffs of twenty-five major groups in 2000 combined to more than 7,600 people.35

Alongside this growth in environmental groups has been a proliferation of organizations that are often outwardly hostile to EPA’s core mission. In response to government expansion during the 1960s and early 1970s, the business community became more politically active and organized to advo- cate for business-oriented tax cuts, deregulation, reductions in social wel- fare spending, and contraction of labor union rights.36 New organizations, such as the Business Roundtable in 1972, and strengthened existing enti- ties, such as the US Chamber of Commerce and the National Association of Manufacturers, helped to forward these goals. Corporations also started investing in lobbyists; in 1971, 175 companies had registered lobbyists in Washington, DC, whereas by 1978, almost 2,000 corporate trade associa- tions had lobbyists. Similarly, the number of political action committees associated with businesses increased from fewer than 250 in 1974 to over 1,100 in 1978.37 Thus, just as the EPA was finding its feet as a new federal agency, the business community was ramping up its efforts to challenge the regulations the agency was unveiling. These increases have continued in the decades since. For example, as of 2010, the number of federal political action committees (PACs) exceeds 4,500, nearly 40% of which are affili- ated with business firms. In a typical election year, PACs associated with businesses and trade associations account for about two-thirds of all PAC contributions to federal candidates.38

At the same time that businesses were becoming more politically active, the conservative political movement that had emerged in the 1950s and 1960s became institutionalized in the form of think tanks such as American Enterprise Institute, The Heritage Foundation, the CATO Institute, and legal organizations including the Pacific Legal Foundation and the Mountain States Legal Foundation.39 These business groups and conservative movement or- ganizations generally were not established as a direct response to the EPA or environmental policy, but their agendas of promoting limited government and free enterprise often conflict with the EPA’s efforts to administer the laws Congress assigned to the agency. Moreover, their efforts have been buttressed

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by the political movement that challenges federal environmental policy in the domain of private property rights and Western public lands management. Although this movement—monikered the Sagebrush Rebellion and the Wise-Use Movement, in different iterations—directs its objections primarily toward other federal agencies (e.g., Bureau of Land Management, US Fish and Wildlife Service), it mobilizes activism and funding toward challenging environmental regulation in broad terms, contributing to contestation in the EPA’s political landscape. As political scientist Judy Layzer has shown, the business community has worked in concert with the conservative movement to construct and disseminate an anti-regulation storyline that challenges EPA decision-making.40 Their efforts have included a well-documented disinfor- mation campaign aimed at debunking the science about climate change,41 which further contributed to the spread of competing narratives about the EPA and its activities.

These competing narratives have been enabled by changes in the news me- dia—the third important element of the EPA’s external context. Over recent decades, fragmentation in media audiences has reduced the public’s inciden- tal exposure to political news and allowed people to select news sources that cater to their political predispositions. As audiences for broadcast television news and print newspapers have declined, Americans have more opportunity to select the media they consume—opting in to partisan news programming, or opting out of news consumption altogether.42 The online news media en- vironment fragments audiences not only by partisan orientation but also by interest in particular news topics.43 While online, specialized media outlets proliferate, traditional outlets for delivering content of general interest are disappearing: over the course of just the last 15 years, an estimated 1,400 American cities and towns lost a newspaper,44 which in itself may contribute to polarization.45

Major changes in media sources covering the environment have occurred as part of these broader developments. According to data provided by the So- ciety of Environmental Journalists, a professional association for journalists reporting on the environment, overall membership has risen since the early 1990s. However, as shown in Figure 12.3, the number of newspaper journal- ist members has declined significantly, from 358 in 1995 to 170 in 2019.46

The content of environmental coverage has also changed. Studies of reporting on climate change, for example, have found that reporting tends to amplify extreme viewpoints, instead of emphasizing convergent agree- ment.47 One illustration is that reporters have tended to give an equal voice to individuals doubting the merits of climate science, even when they express viewpoints outside the mainstream.48

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CONSEQUENCES OF PARTISAN POLARIZATION FOR THE EPA

Legislative Gridlock

The consequences of the changing political climate for the EPA are sig- nificant and multi-faceted. First is legislative gridlock, a product of the deep partisan polarization in Congress. As the ideological distance between the parties has grown, Congress has failed to act on a greater proportion of the issues on the national policy agenda. Gridlock across all salient policy issues is about fifty percent more common than it was when the EPA was created.49 On the environment, Congress has produced very little during the forty years following the environmental decade. Most of the major laws have not been revised by Congress in more than two decades; for example, the last major round of amendments to the Clean Water Act occurred in 1987, the Clean Air Act in 1990, the Resource Conservation and Recovery Act in 1996, and the Safe Drinking Water Act in 1996. The only major exception is the recent update to the Toxic Substances Control Act, which was amended in 2016.

There are several implications of Congressional gridlock for the EPA. First, broadly-recognized problems or gaps in environmental laws remain

Year

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unfixed. For example, the drafters of the Clean Air Act did not anticipate that some large sources of air pollution (e.g., coal-fired power plants) that existed prior to the law would still be in operation decades later. As we discuss be- low, these sources of air pollution continue to adversely affect air quality in many parts of the country, and they are large sources of the greenhouse gases contributing to climate change. Second, problems that Congress elected to ig- nore (e.g., nonpoint water pollution from agricultural sources), or did not ad- dress at all because they were not yet well understood (e.g., climate change), are left uncovered by explicit statutory authority. As a result, the EPA relies on ad hoc or voluntary approaches to address these problems, or it stretches the authorities that Congress has granted under existing statutes—setting up political battles in rule making processes and the courts. And finally, con- gressional gridlock means that the EPA often is subject to the efforts of other political actors in setting its policy agenda, as John Graham and Jonathan Weiner discuss more in the next chapter.

Importance of Party Control in Congress

In addition to creating a barrier to lawmaking, the growing partisan divide in environmental policy preferences magnifies the effects of partisan control of Congress. In his study of party issue ownership, political scientist Patrick Egan found dramatic changes in party advantage on the environment over the period 1970-2011.50 In the 1970s, Americans were slightly more likely to believe that Democrats would do a better job than Republicans at handling the environment, but the Democratic advantage on this issue was smaller than for health care, education, and jobs. Whereas party-issue advantage on other issues has varied in level and even direction over time, on the environment it has only grown, such that Americans more clearly perceive this issue as the domain of one party than for any other issue on the national policy agenda.

The Democrats’ issue ownership of the environment has important con- sequences for the policies that both parties pursue. When Democrats are in power, they are more likely to prioritize the environment, and they may do so in a way that diverges from broad public opinion and instead responds to activists and other more extreme voices in their political coalition. Egan shows that the environmental policy preferences of Democrats who say that the environment is personally “extremely important” to them are far more liberal than the preferences of the average American.51 And Republican poli- ticians may not feel there is anything to gain from taking on environmental problems—that is, why should Republicans bother prioritizing solutions to environmental problems if voters are unlikely to give them any electoral credit for doing so?

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Contrast this to the early days of the EPA when its obligations under stat- utes such as the Clean Air Act and Clean Water Act resulted, in part, from ef- forts by Republican and Democratic politicians to compete for environmental votes. In the current political environment, it is uncommon for Republican political leaders to discuss, let alone promote, policies intended to mitigate environmental problems. The last Republican presidential candidate who strongly campaigned on an environmental message was George H.W. Bush, and he softened that message when he ran for reelection. During periods of recent GOP control of Congress, the agenda has focused on restricting the EPA rather than on expanding its authorities.

Partisanship in Congress also has changed the exercise of oversight activities. In 1981 incoming President Ronald Reagan brought an abrupt end to the environmental decade when he appointed conservative Colorado legislator Anne Gorsuch as EPA administrator. Committed to reducing the EPA’s scope and delegating more authority to the states, Administra- tor Gorsuch oversaw sharp cuts in the agency’s budget and reduction in enforcement actions and penalties. Congress held combative oversight hearings in which members from both parties accused the administrator of undermining federal laws—including in the Senate, which was under Re- publican majority control.52 Gorsuch ultimately resigned in 1983 in a cloud of scandal related to management of the Superfund program. With con- gressional investigations underway over the agency’s activities, President Reagan appointed as Gorsuch’s replacement the first EPA administrator, William Ruckelshaus.

President Donald Trump’s appointment of Administrator Scott Pruitt in 2017 presented a similarly strong challenge to the EPA’s mission, but in this case, Congress did not provide a similar check. Pronouncing himself a “leading advocate against the EPA’s activist agenda,” Pruitt in his position as Oklahoma attorney general had sued the agency more than a dozen times over its rulemaking efforts. While leading the EPA, Administrator Pruitt pushed to reduce the agency’s budget and workforce, weaken enforcement efforts, and roll back a range of regulations. Congress—this time with Republican majorities in both houses—did not approve the entirety of the proposed budget cuts but otherwise did not challenge these efforts to steer the agency in a much more conservative direction.53 Even as Pruitt came under fire for ethics scandals, response to the charges was strongly partisan, and congres- sional oversight committees were slow to act. After his eventual resignation, Pruitt was replaced by agency deputy Andrew Wheeler, who shared Pruitt’s deregulation priorities.

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Use of Executive Authority

Another direct consequence of the legislative gridlock and partisanship in Congress has been a presidential turn toward administrative tools to pursue their environmental policy agendas. Recent presidents have come to office with legislative goals only to be stymied by partisan discord in the House or Senate, forcing them to adjust to an administrative strategy as the only viable alternative. Two examples illustrate this point, one in the area of air pollution during the George W. Bush administration and the other in climate policy during the Barack Obama administration.

Upon entering office in 2001, President Bush’s top environmental goal was to improve air quality through cost-effective mechanisms. Initially, the Bush administration pursued this goal through new legislation, referred to as the Clear Skies Initiative, which aimed to reduce emissions from electric utilities through a cap-and-trade program loosely modeled after the successful SO2 program that was created under the 1990 Clean Air Act Amendments— through the leadership of his father, among others.54 The Clear Skies legisla- tion did not advance in Congress, however, first stymied by Vermont Senator Jim Jeffords, who had recently switched his party affiliation from Republican to Independent, and later, after the Republicans retook the Senate in 2002, by more conservative senators who did not prioritize clean air legislation.55

The Clear Skies legislation included provisions to weaken the Clean Air Act’s New Source Review (NSR) program, which requires facilities that existed before the 1970 law to upgrade pollution control technology when modifying or upgrading their operations. These facilities were given “grand- father” protections under the 1970 CAA,56 creating an important gap in air pollution control because these sources release a disproportionate amount of emissions of SO2, NOx, CO2, and other pollutants.57 Toward the end of President Clinton’s second term, the EPA pursued aggressive enforcement of what it then viewed to be violations of the NSR program, claiming that facilities were deliberately mischaracterizing major renovations as routine maintenance as a way to avoid upgrading their pollution control systems as required by the NSR program.58

The Bush administration sought to alleviate this enforcement pressure, specifically on coal-fired power plants, and more generally to weaken the NSR requirements through legislative fixes as part of the Clear Skies legisla- tion. However, when it became clear that Congress would not enact any such legislation, President Bush instead opted to pursue an administrative strategy through a series of rulemakings, including a 2003 EPA rule to exempt power plants and other facilities making “routine” repairs (defined to mean up to twenty percent of a facility’s replacement cost per year) from NSR require- ments. These NSR reforms were met by stiff opposition in Congress and a

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lawsuit filed by national environmental organizations and fourteen states. The DC Circuit Court of Appeals issued an injunction and eventually invalidated the rule entirely, asserting that it was based on faulty interpretation of the CAA.

President Obama followed a similar course in his attempts to fulfill a cam- paign pledge to address climate change by reducing CO2 emissions from the electric power sector. At first, Democrats in the US House took the lead to devise a cap-and-trade policy as part of broader legislation on energy and cli- mate change. The prospects for legislation on the surface seemed promising, given that Democrats held strong majorities in both chambers of Congress. Although the US House was able to muster sufficient votes to narrowly pass a bill (219-212), colloquially referred to as the Waxman-Markey bill (named after California Democrat Henry Waxman and Massachusetts Democrat Ed Markey), negotiations broke down in the US Senate and the legislation was abandoned in 2010. According to an analysis by political scientist Theda Skocpol, the climate bill’s failure was attributable to the Republican party’s hardening stance on environmental issues; without a groundswell of public support, the bill’s supporters were unable to overcome an organized opposi- tion assembled by the Tea Party and fossil fuel interests.59

After winning reelection in 2012, the Obama administration returned its attention to climate policy, although this time—following in the footsteps of President Bush—decided to pursue policy administratively through EPA rulemaking. At a speech at Georgetown University in July 2013, President Obama announced that he was directing EPA Administrator Gina McCarthy to use the agency’s authority under the CAA to regulate CO2 emissions from existing coal-fired power plants. This was the beginning of what became the Clean Power Plan, discussed in more detail in Jody Freeman’s chapter in this volume. Upon release of the rule, Scott Pruitt (as Oklahoma attorney general) led a group of fossil fuel interests, business organizations, and states in a legal challenge. President Obama’s Clean Power Plan met a similar fate as Presi- dent Bush’s NSR reforms. In September 2016, the US Court of Appeals heard arguments, but the court failed to issue a judgment in the case, and has instead issued a series of continuations in light of the efforts of the EPA under the Trump administration to rescind and replace the plan altogether. Earlier in the same year, the US Supreme Court issued a nationwide stay on enforcement of the Clean Power Plan, the first time the Supreme Court had ever stayed a regulation prior to a decision from the Court of Appeals.

Presidential reliance on EPA rulemaking to pursue controversial policy goals, as illustrated in these two examples, has important implications. First, it requires the agency to justify policy proposals that may not be fully sup- ported by evidence and may have questionable legal authority. Second, unlike

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legislation, pushing through new rules (or rescinding existing rules) does not require building a broad political coalition of support. Third, because rule- making is less transparent than the legislative process, it favors organized, professionalized advocacy groups that have access and expertise to shape not only content of rules, but which rules come under consideration. The voices of less powerful stakeholders often go unheard and unrepresented in decision-making, perpetuating historical inequities and failures of procedural justice. Finally, rulemaking elevates the importance of internal White House politics, especially by enhancing the role of agencies and offices (e.g., Office of Management and Budget (OMB)) that may have missions and goals that conflict with those of the EPA.

Judicial Review

With the rise in legislative gridlock and reliance on executive authority, courts have taken on a critical role in defining EPA authority and obligations. As other chapters in this volume describe, litigation has been central to EPA activities since the agency’s founding. The EPA pursues enforcement actions through the courts, and citizen suit provisions included in many of the major environmental laws empower third parties to engage directly in the laws’ enforcement. The complexity of environmental law and ongoing advances in scientific knowledge create ample opportunity for judicial review of EPA rulemaking, and questions about the consistency of agency decisions with the underlying statutory authority have become all the more heated as polariza- tion has increased.

Courts provide an alternative venue for interest group conflict over envi- ronmental policy. Environmental interest groups have long battled with pol- luting industries and conservative public interest law firms in environmental litigation.60 Yet although environmental groups generally have been sympa- thetic to the EPA’s mission, they often have acted as the agency’s strident adversaries. From the EPA’s earliest years, they indicated a willingness to press the agency, as when the Environmental Defense Fund sued to compel fulfillment of the EPA’s commitment to identify and regulate hazardous air pollutants under the Clean Air Act. Bringing and joining in lawsuits was an important part of how the “Group of Ten” major environmental groups responded to the Reagan administration’s redirection at the EPA.61 Indeed, the key feature that distinguishes environmental groups from other interest groups active in Washington, DC, is their level of participation in litigation.62 Industry and conservative think tanks and interest groups also have turned to the courts to pursue their own goals, including with use of the SLAPP—the strategic lawsuit against public participation—in an effort to check environ- mental groups’ use of citizen suits.

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In the early years after enactment of the foundational statutes assigned to the EPA, federal courts tended to exercise aggressive judicial review in an effort to ensure consistency with congressional intent.63 As time passed, the courts backed off this approach in favor of granting more deference to agency decisions. The Supreme Court established the Chevron doctrine in a 1984 decision upholding the EPA’s Clean Air Act “bubble policy,” which allowed firms flexibility in where to reduce their emissions from multiple points within a single facility. The Chevron doctrine has become one of the most important features of administrative law, allowing the EPA (and other federal agencies) to move forward with rulemakings as long as they are rea- sonable interpretations of statute in circumstances where Congress itself is not explicit. The scope and character of agency deference is highly contested, however, as what is considered reasonable is subjective. And, as selection processes for federal judges have become more explicitly political, environ- mental and industry groups have responded by forum shopping to find the most favorable venue for their legal claims. Overall, judicial review of EPA activities now serves to reinforce, not dampen, polarization’s divisive pull.

AGENCY INSTITUTIONALIZATION

The EPA over fifty years has evolved from a small agency, threaded together from existing federal agencies, to a large bureaucracy with offices throughout the country and staffed by seasoned personnel who have deep experience in rulemaking, enforcement, and scientific assessment. As the EPA has institu- tionalized, it has also encountered extended periods of resource constraints, changing priorities from frequent changes in agency leadership, and intense conflicts with the White House.

EPA Budget Constraints

The EPA’s responsibilities have expanded in significant ways over the course of the agency’s five-decade history, owing to the broad scope of its mandate to implement legislation, new presidential initiatives, economic growth that produces more regulated activity, and the increasingly technical complexity of the problems it is required to address. Yet, the EPA’s budget has not in- creased commensurately. In most respects, the EPA is being asked to do more with less, both in terms of resources and staff.

As shown in Figure 12.4, the EPA budget ramped up for most of its first two and a half decades, with temporary disruptions in the mid-1970s and then again during the early years of the Reagan administration. It has remained relative flat in nominal terms since the early 1990s, ranging from about $7

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billion to $9 billion. In real terms, the EPA’s budget has been in decline, interrupted only by the one-time influx of appropriations following the Great Recession. The agency’s current, inflation-adjusted budget stands at about the same level as in 1980. Staffing levels continued to rise in the 1990s even as real funding levels fell, but over the last decade the number of employees has fallen seventeen percent. Currently, much of EPA’s staff is not located in its Washington office, but instead in one of the agency’s regional or technical offices in other parts of the country.

The topline budget information disguises the fact that much of the money Congress provides to the EPA is not discretionary. About half of the agency’s current budget includes appropriations that are dedicated to specific purposes, including pass-through funding for state and tribal assistance and the state- operated clean water and drinking water revolving loan fund programs to finance water infrastructure upgrades, as well as money specifically allocated to remediate contaminated sites under the Superfund program. In fiscal year 2018, of the agency’s $8 billion budget, 57% went to just these three pur- poses.64 With only the balance of this budget can the EPA fund the rest of its operations, including its administration and enforcement of pollution control programs and all of its science and technical activities.

Fiscal Year

Enacted Budget Enacted Budget (1980 Dollars)

16

10

6

0

1970 1980 2000 2010 20201990

2 5000

10000

15000

20000

4

8

B ill

io n

D ol

la rs

FT E

12

14

FTE

Figure 12.4. EPA Budget and FTE, FY1970-FY2019. Author-generated

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It is difficult to say what an ideal budget might be for the EPA; however, with a declining real budget over the past thirty-five years, the agency has had to make difficult choices about where to invest its resources. Moreover, independents estimates have shown that the EPA budget falls well short of what is needed for addressing issues like contaminated properties under the Superfund program65 and deteriorating water and wastewater infrastructure.66 Budget constraints also limit the resources available for enforcement, plac- ing more burden on state environmental agencies to make sure that regulated sources are meeting their obligations. Another consequence of the agency’s limited budget is that the EPA has been less able to expand its agenda to address new and pressing issues, which may be one reason that issues such as nonpoint source pollution and environmental justice—that do not have specific statutory authorities—have been back-burner issues for most of the agency’s history.

Despite that the fact that the EPA budget amounts to a minuscule portion of the annual federal budget (about 0.2 percent currently), it has been a target for presidents and Congress since the agency’s outset. In most cases, EPA budgets have been reduced during periods of Republican presidents and/or Republican majorities in Congress. Most strikingly, as part of President Rea- gan’s broader efforts to reduce the size of the federal government, EPA’s av- erage budget during his administration’s first three years was a third less than during the final three years of the Carter administration. Contentious fights over EPA budgets have been regular occurrences over the last twenty-five years during periods when Republicans have controlled at least one chamber of Congress. Under the leadership of Newt Gingrich, John Boehner, and Paul Ryan, Republicans in the US House in particular have attempted to reduce, or at least curtail the growth in, the EPA budget. In addition to proposing less money through the regular appropriation process, Republicans have used budgetary riders that target specific areas of EPA spending.67

The recurring fights over the EPA’s budget speak to only one dimension of partisan efforts to shape EPA policy. In turning toward what political sci- entists call the administrative presidency,68 executives use their authorities to appoint officials and reconfigure decision-making procedures in order to expand their influence over agency decisions. Both Democrats and Republi- cans use these tools and authorities and have been doing so since the outset of the EPA. In periods of divided government, when the party presiding in the White House does not control both houses of Congress, the EPA and other agencies are answerable to two principals competing for control over the agency’s activities. But because the parties have such divergent aims with respect to the EPA,69 the consequences for this agency can be particularly striking.

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EPA Administrator Discretion

Presidents have taken different approaches to selecting individuals for EPA’s top position. More so than any other position in the federal government, including the chair of the White House Office of Environmental Quality, the EPA administrator has become the government’s public point person on environmental policy. The position of EPA administrator requires managing a large bureaucracy and its multi-billion-dollar budget, making decisions about technically complex issues, managing relationships with key players at the White House and other federal agencies, and effectively engaging with diverse stakeholders external to the agency. Appointment of an EPA adminis- trator can be an opportunity to try to align the agency with a president’s policy preferences. Research from political scientists has found that career staffers at the EPA are among the most liberal of staffers at any federal agency.70 Thus, for presidents such as George H.W. Bush, Bill Clinton, and Barack Obama who came to office having campaigned to improve environmental protection, the task is somewhat easier since their preferences were more clearly aligned with those of career officials at the agency. For newly elected presidents with agendas to limit the size of government and cut environmental regulation, such as Ronald Reagan, George W. Bush, and Donald Trump, the challenge of moving the agency closer to their preferences is more difficult.

Presidents have chosen EPA administrators with varying professional backgrounds: known principally at the time of their appointment for service in federal government positions (William Ruckelshaus, Doug Costle, Lee Thomas), for running state environmental agencies (Carol Browner, Lisa Jackson, Gina McCarthy), for holding state elected office (Ann Gorsuch, Christie Todd Whitman, Michael Leavitt, Scott Pruitt), for working at envi- ronmental advocacy organizations (Russell Train, William Reilly), and for representing industry as a lobbyist (Andrew Wheeler). Only one former EPA administrator, Stephen Johnson, was a career civil servant with the agency itself. Each administrator came to the position with a different set of objec- tives and policy priorities, as well as differing sets of existing relationships with important stakeholder communities and varying degrees of influence within the White House.

EPA administrators not only manage a president’s environmental policy agenda, but also are able to establish their own priorities for the agency. The evolution of EPA environmental justice policy illustrates this opportunity. Environmental justice emerged on the EPA’s agenda at the tail end of the George H.W. Bush administration. In response to growing evidence that com- munities of color and low-income communities experience disproportionate burdens from the presence of hazardous waste landfills and incinerators, the location of contaminated sites, and industrial sources of pollution,71 there was

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a groundswell of public attention and activism about this issue. Following a meeting with members of the Congressional Black Caucus, political activ- ists, and academics, Administrator William K. Reilly created the Environ- mental Equity Workgroup in July 1990. This group produced a two-volume report, Environmental Equity: Reducing Risk in All Communities, that made a series of recommendations including the establishment of a new Office of Environmental Equity (later renamed the Office of Environmental Justice).72 Although Administrator Reilly was under no statutory or legal obligation to take on environmental justice, he chose to do so using his discretion. Over the next two decades, his successors also used their discretion to proceed on this issue, but in divergent ways.73

The EPA’s engagement with environmental justice continued during the early years of the Clinton administration, in large measure sparked by Presi- dent Clinton’s signing of Executive Order 12898 (EO 12898), which required each federal agency to “make achieving environmental justice part of its mis- sion by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority and low-income populations.”74 Among other pro- visions, EO 12898 called for the creation of an interagency working group to be led by the EPA administrator; required each federal agency to develop an environmental justice strategy; called for new data collection and analysis on risks to human health broken out by race, national origin, and income; and called for greater transparency and inclusiveness in government decision- making. EPA Administrator Carol Browner expressed interest in pursuing environmental justice, declaring it as one of her top four priorities,75 and the agency respond to the EO12898 by developing an environmental justice strat- egy in 199576 and publishing an implementation plan the following year.77

Environmental justice receded on the EPA’s agenda in the final years of the Clinton administration and did not reappear during the George W. Bush administration. Implementation of EO 12898 stalled, and numerous reports, including from the GAO and the EPA’s own inspector general, found that the agency was failing to take environmental justice issues into account in its decision-making.78 In a 2004 report, the EPA inspector general concluded: “Although the Agency has been actively involved in implementing Executive Order 12898 for 10 years, it has not developed a clear vision or a compre- hensive strategic plan, and has not established values, goals, expectation, and performance measurements.” The inspector general was specifically critical of the EPA’s position, articulated in a 2001 memorandum from Administrator Christie Todd Whitman, that the agency was working to achieve environ- mental justice for everyone. According to the inspector general, this position deemphasized minority and low-income populations, and in so doing moved

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the EPA away from the basic tenets of EO 12898.79 Studies from various academic scholars have reached similar conclusions, noting the failure of the EPA to effectively integrate equity considerations into its permitting, rule- making, and enforcement activities and to adequately handle petitions made to the agency under the Title VI of the Civil Rights Act.80

Environmental justice returned to the EPA’s agenda during the Obama administration, under the leadership of EPA Administrators Lisa Jackson and Gina McCarthy, each of whom stated that environmental justice was a priority. During these years, the EPA developed actions under Plan EJ 2014 to create new policy guidance, assessment and information tools, and public outreach procedures to better integrate environmental justice into its pro- grams, policies, and activities.81 The agency also slowly began to incorporate equity considerations into decisions in the final years of the Obama adminis- tration, building them into rulemaking on toxic emissions from oil refineries and CO2 regulations as part of the Clean Power Plan, as well considering it more regularly as part of regulatory impact analyses.82

The ebb and flow of attention to environmental justice across the past twenty-five years illustrates how EPA administrators can use their discretion to shape agency efforts. The leadership and prioritization of issues is espe- cially important on problems that are not mandated for attention by statute or prioritized by influential stakeholders, such as leading interest groups.

On environmental justice specifically, the EPA is not under any formal le- gal obligation to address the disproportionate pollution burdens experienced by many communities of color and low-income. And, the courts have virtu- ally foreclosed the opportunity for citizen groups to sue the EPA and other environmental agencies for decisions that create disparate impacts, for ex- ample in permitting, unless they can demonstrate intentional discrimination.83 Moreover, mainstream environmental advocacy organizations, such as EDF, NRDC, and the Sierra Club have not regularly prioritized these communities or the issue of social justice, which is one reason for the historical friction between these organizations and grassroots environmental justice groups. The fact that environmental justice has remained a low priority, even during Democratic presidential administrations, may also suggest the Democrats have not shifted far to the ideological left in their approach to environmental policy-making.

White House Oversight

As an additional check on the EPA and other federal agencies, presidents have created offices and procedures within the White House itself that cen- tralize rulemaking and promote closer alignment between agency activity and

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presidential goals. Many of these institutions were specifically established in response to concerns that the types of social regulation coming out of agen- cies like the EPA conflicted with other priorities such as economic growth.

These efforts began at the outset of the EPA. Although President Richard Nixon is rightly credited for creating the agency and signing laws such as the National Environmental Policy Act and the Clean Air Act, the Nixon administration also created obstacles to the early work of the EPA. A notable example of these efforts was “Quality of Life Reviews,” which were intended to reduce costs of regulation through a process managed by the newly created OMB. Under these reviews, other federal agencies were invited to scrutinize EPA regulations, and the OMB required the EPA to perform extensive analy- sis of the costs of proposed regulations.84 This process led to both delays in the rulemaking process, and, in some cases, substantive changes. The con- flicts over Quality of Life reviews escalated to the point that EPA Admin- istrator Ruckelshaus threatened to resign unless Nixon fully empowered the EPA to issue rules without undue OMB interference.85

President Nixon also created a commission of industry leaders, called the National Industry Pollution Control Council, that was housed in the Depart- ment of Commerce to advise the president on health, safety, and environ- mental policy. Congressional backlash was severe, and this commission only lasted for a few years before being defunded by Congress.86 Collectively, these efforts were consequential. John Quarles, the EPA’s initial general counsel and assistant administrator for enforcement, wrote in his memoir that the “EPA [was] forced to establish a balance in its decisions. It [had] to be sufficiently sensitive to the economic, social, and other impacts of envi- ronmental regulations to preserve a degree of harmony with the rest of the government.”87

There is no better example of a president attempting to shape environmen- tal policy through administrative means than Ronald Reagan, who famously pronounced in his 1981 inaugural address that “[g]overnment is the not solu- tion to our problem; government is the problem.”88 With this goal in mind, ac- cording to public administration scholar Bob Durant, the “Reagan administra- tion applied an administrative strategy with a fervor and comprehensiveness unparalleled by its predecessors.”89 One of the president’s top priorities was the delegation of programs to state governments. Statutes including the Clean Water Act, the Safe Drinking Water Act, and the Resource Conservation and Recovery Act allow willing states to administer these pollution control laws, provided that states demonstrate they have sufficient legal and administra- tive capacity to effectively manage the programs. As part of a broader “New Federalism” strategy to empower states, the EPA and other federal agencies (e.g., Occupational Health and Safety Administration, the Office of Surface

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Mining and Reclamation) hastened formal delegation to state agencies.90 For example, from 1984 to 1986, more than forty states were delegated authority to enforce the hazardous waste provisions of the Resource Conservation and Recovery Act.91

The most important and durable manifestation of the Reagan adminis- tration’s approach was the further empowerment of the OMB to oversee rulemaking through the signing of Executive Order 12291 (EO 12291). Dis- cussed at greater length in Richard Morgenstern’s chapter on environmental economics, EO 12291 required all executive agencies (but not independent regulatory agencies such as the Consumer Product Safety Commission or the Nuclear Regulatory Commission) to perform a Regulatory Impact Analysis (RIA) of all proposed and final major regulations (defined as actions with at least $100 million in costs). These cost-benefit analyses were to be submitted to the Office of Information and Regulatory Affairs (OIRA) within the OMB, which also established the standards for how RIAs were to be done, with the idea that only rules with social benefits that exceed their costs should move forward. At the time that President Reagan issued EO 12291, there were con- cerns that OMB would potentially usurp the EPA and other agencies’ discre- tion under statutes to promulgate regulations. In defense of the legality of the executive order, EPA’s Office of Legal Counsel issued an opinion noting that OMB would only supervise, not displace rulemaking.92

The degree to which OMB held to this standard became a hotly debated issue in subsequent years, as the Reagan administration put its regulatory review practices into effect. The concerns were at least fivefold. First, the review process had a “chilling effect,” resulting in a reduction of the number of rules submitted by the EPA for review, as well as a high number relative to other federal agencies in the both the number of rules withdrawn and returned by the OMB for reconsideration.93 Second, the regulatory review process created by EO 12291 impeded transparency, by allowing OIRA to delay publication of a notice of a proposed regulation until after the agency had responded to OIRA’s criticisms, thereby disguising the changes required by OIRA.94 Third, critics claimed that the OIRA review process provided a forum for industry to offer its views on pending regulatory actions.95 Fourth, the regulatory review process resulted in serious delays including National Ambient Air Quality Standards for NO2 (five months), standards for asbestos (six months), and standards for high-level radioactive waste disposal (one year).96 According to one estimate, during the first term of the Reagan admin- istration, of 169 EPA regulations with statutory or court-ordered deadlines submitted for review, the OMB extended its review time beyond the time periods outlined in EO 12291 on eighty-six occasions.97 And, last, and related to the delays, was that OMB changed the content of regulations and almost always to weaken them.

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The Reagan administration’s efforts to influence the regulatory process did not go unnoticed. For its part, Congress—particularly the Democratic- controlled House of Representatives—conducted oversight hearings to in- vestigate OIRA procedures. The courts also intervened. In a lawsuit brought by the Environmental Defense Fund against EPA Administrator Lee Thomas for failure to issue timely regulations under the 1984 amendments to the Re- source Conservation and Recovery Act, the US District Court for the District of Columbia held that the OMB does not have authority to use its regulatory review under EO 12291 to delay the issuance of regulations beyond the date of statutory deadlines.98

To those who seek to reduce the EPA’s scope of authority, regulatory re- view and cost-benefit analysis are powerful tools for presidential administra- tions to align agency goals with White House political priorities. Those who prefer a more powerful EPA tend to see OMB as a tool of political interfer- ence from the White House, as it historically has been active when the priori- ties of the White House diverge with those of the EPA. To be sure, there are plenty of occasions since the Reagan administration where OMB and other White House offices have been accused of interfering with EPA rulemaking.

President George H. W. Bush, for example, created the Council of Com- petitiveness with the objective of assuring that “regulations fulfill the statute with a minimal amount of economic impact.”99 The council, led by Vice President Dan Quayle, included high-ranking officials in the administra- tion, including the Director of the OMB Richard Darman, Chief of Staff John Sununu, economic advisor Michael Boskin, Secretary of Commerce Robert Mosbacher, and Secretary of Treasury Nicholas Brad. During the final two years of the administration, the Council of Competitiveness began to actively work to directly challenge EPA regulations. Largely acting in secret, the council solicited complaints from industry about what it believed to be excessive regulation, analyzed costs and benefits of proposed rules, and worked to delay or refashion any new regulations that it thought were overly burdensome.100 The Council was particularly active in seeking changes to CAA regulations, but also made revisions to a wetlands delineation manual to limit the reach of federal protections for about half of US wetlands, changed a regulation on mixed-waste incineration that would have required incinerator operators to do more recycling, among other regulations.101

The OMB continued to assert influence on EPA rulemaking during the George W. Bush administration. OIRA Administrator John Graham made several changes to OIRA’s review process, including the use of prompt letters to suggest regulatory actions to agencies, a technique that Graham indicates was intended as a “polite nudge” to an agency to give a matter needed at- tention.102 In addition, OIRA updated its standards for cost-benefit analysis, insisted on strict adherence to OIRA’s ninety-day limit for reviews, increased

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the size and technical skills of staff, and established new policies to improve transparency.103 On transparency, Graham issued a memorandum to staff that changed procedures to require that documents and communications with ex- ternal parties related to OIRA reviews were to be made available online, and moved to provide written comments, also made available to the public, on occasions when OIRA returned rules to agencies for reconsideration.104 These transparency reforms, however, only applied after rules had been entered into the record—that is, only when they were officially sent from an agency to OIRA for review. For critics, this was a problematic approach, especially when coupled with the fact that OIRA frequently insisted that agencies in- volve OIRA early on in rulemaking, because this informal intervention by OIRA was not covered by the transparency reforms.105

An analysis conducted by the GAO concluded that EPA regulations were often changed as part of regulatory review by OIRA. Specifically, the GAO found that OIRA returned twenty-one of the approximately four hundred agency rules it reviewed, which amounted to more than the previous seven years combined. Further, GAO determined that, of the eighty-five draft rules it analyzed carefully, OIRA’s review had a significant effect in twenty-five cases. And, in seventeen of twenty-five of these draft rules, OIRA “recom- mended the revision, elimination, or delay of certain provisions, the addition or revisions of regulatory alternative that provided more flexible and/or less costly compliance options, or the revision of agencies’ cost and/or benefits for the rules.”106 Fourteen of these cases were EPA rules, including the elimination of manganese from a list of hazardous wastes, made compliance requirements more flexible in a proposed rule on pollution discharge elimina- tion systems for large cooling water intake structures at existing power plants, and revised estimates of costs and benefits in a proposed rule on emissions from some marine vessels and highway motorcycles.107 In part because of these actions, the GAO concluded that OIRA had changed the view of its role in the rulemaking process from “counselor” to “gatekeeper.”108

Complaints about the role of OMB in EPA rulemaking are not limited to actions taken during Republican presidential administrations. During the Obama administration, for instance, EPA officials also were frustrated by what they viewed as interference and delay. Lisa Heinzerling, who served as associate administrator for policy from 2009 to 2010, after leaving this posi- tion commented on frequent delays created by the OMB, then run by Cass Sunstein. Specifically, she pointed to delays of three years for issuing EPA’s list of “chemicals of concern” under TSCA and of not accepting delivery of a notice of new data pertaining to an EPA proposal to regulate coal ash impoundments.109

The key point to emphasize here is that, regardless of the merits of any sin- gle intervention by OIRA, the EPA clearly must be responsive to its regula-

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tory oversight. The posture that the OIRA takes varies from administration to administration, coinciding with presidential priorities and views on the role of regulation. What is clear, however, is that over the course of EPA’s fifty-year history, OIRA has played a more assertive role in agency decision-making.

The Politics of Federalism

The design of the EPA and the laws it is designated to enforce create inevi- table tension between the agency and state and local governments. One rea- son is that states and localities are themselves subject to the EPA’s regulatory actions. Local governments in particular are overwhelmingly responsible for services such as wastewater treatment and drinking water provision that are core areas of EPA oversight. As Jim Barnes describes in the opening chapter of this book, the EPA’s first administrator, William Ruckelshaus, made cit- ies such as Atlanta, Cleveland, and Detroit the early targets of EPA action, pointing to the millions of gallons of untreated sewage that the cities were discharging into local waterways. To this day, local governments agencies are often laggards in environmental compliance, often due to constraints in resources and expertise.110

A second reason for tension is that federal environmental laws have pre- empted state authority in many areas and created new mandates, often with- out funding. In designing the framework for these laws, Congress intended for states to take on the day-to-day implementation of the programs, with the EPA providing technical and financial support, oversight, policy develop- ment, and leadership. From the beginning, managing relationships with states proved to be a challenge.111 The new laws created obligations for state and local governments without providing adequate funding to meet those obliga- tions. Over time, relationships became more conflictual as states expanded their capacity for implementing environmental programs but perceived con- tinued growth in unfunded mandates and inflexible demands from EPA.

States’ role in implementing federal environmental laws has expanded dramatically over the life of the EPA. Delegation occurs most formally when states assume primary authority, or “primacy,” over the implementation of particular programs. More and more states have obtained primacy autho- rization over time, with the result that ninety-six percent of programs that could be delegated to states now have been delegated, according to the most recent compilation of data from the Environmental Council of the States.112 Another important expansion of state responsibility came in the 1987 reau- thorization of the Clean Water Act, which ended direct EPA grants to local wastewater infrastructure projects, replacing them with a state-run revolving loan program. Nine years later, Congress created a similar state program for drinking water infrastructure. These revolving loan funds—in combination,

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accounting for more than twenty-five percent of the EPA’s budget in most years—place the fiduciary responsibility for maintaining support to local in- frastructure projects into the hands of states, which may not have the capacity to support it.113

For the EPA, a key challenge of the delegation model is ensuring some level of consistency in environmental outcomes. States vary in a number of important dimensions that shape their approach to implementation. Similar to the federal level, partisan control of government and the relative power of business and environmental interests can influence the stringency of a state’s environmental enforcement.114 Wealthier states have larger tax bases to support environmental programs.115 Political institutions such as legislative professionalism can influence the attention that environmental issues receive relative to other state priorities,116 and the design of environmental agencies helps orient agency personnel toward particular political actors and policy goals.117 Overall, states vary widely in their environmental effort, and those that have ambitious policies are not necessarily the same as those with high levels of environmental spending or enforcement activity.118 It is difficult even to assess states’ environmental performance, let alone provide effective oversight that can improve performance.

The EPA has struggled to provide adequate oversight of state programs. Primacy is granted not just to high-performing state programs, but to virtu- ally all states. Once delegated, it is rare for the EPA to take back that author- ity; the agency simply does not have the resources to assume enforcement responsibilities. In 1993 congressional testimony, then EPA Administrator Carol Browner stated, “[t]here are some States that have seriously considered returning primacy to the Federal government. I will be very honest with you, we don’t have the resources to manage even one major State if primacy were to be returned.”119 Even when the EPA has initiated primacy withdrawal pro- ceedings, as it did against eight states around this time for management of their drinking water programs, the agency typically has not followed through, instead continuing to work with states to improve performance. Because re- voking a state’s authority to implement environmental law is usually unten- able, the EPA directs considerable effort toward improving the performance of state programs. This effort is particularly necessary because of the rising costs of environmental implementation that have landed on states, in many cases putting a considerable stress on state budgets. The decline in the EPA’s budget has reduced federal funding support for state environmental programs as well as oversight and assistance from EPA personnel.120 Even when fed- eral and state policy priorities are aligned, scarcity of resources on both sides produces a relationship between EPA and state environmental agencies that is often strained.

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Polarization adds to these tensions by sharpening divides both between states and the EPA and among states themselves. Political leadership in many states has become more consistently partisan. From the 1970s through 1996, over twenty states were represented in the US Senate by a member from each political party; now only ten states have split delegations. The number of states with divided party control of state government also has fallen by half. Polarization is not the only explanation for this growing state-level consis- tency in political representation, but it is closely related and aggravates the effects. Rising partisanship at the state level has likely contributed to more conflictual relationships between the EPA and the states that vary over time depending on the party that sits in the White House. Divergence between parties also increasingly pits the states against one another on questions of environmental policy.

One measure of these conflicts is the rise of multistate lawsuits against the federal government, chronicled by political scientist Paul Nolette. As shown in Figure 12.5, the environment is an area in which this trend is pronounced. Two-thirds of all multistate lawsuits brought against a federal agency since 1980 have been directed at the EPA. State attorneys general are coordinat- ing with one another, nearly always along partisan lines, either to force or to block the agency’s enforcement efforts.121 Joining in these multistate lawsuits

Year

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15

10

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tis ta

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its

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1980 1990 2000 2010 2020

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Figure 12.5. Multistate Environmental Lawsuits, 1981–2018. Author-generated

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helps elected attorneys general advance their political goals, even sometimes counter to the preferences of sitting governors. Submission of multistate am- icus curiae briefs also has been increasing and becoming much more partisan in nature.

Two recent examples demonstrate the significance of these efforts. As Jody Freeman describes in her chapter, the Supreme Court’s decision in Mas- sachusetts v. EPA, 549 U.S. 497 (2007) serves as the legal foundation for greenhouse gases to be regulated under the Clean Air Act. That decision came about because of a lawsuit filed by Democratic attorneys general in twelve states, along with numerous cities and environmental organizations, and criti- cal to the decision was the Court’s determination that states are entitled to “special solicitude” in the determination of standing to bring suit. Additional groups of states filed briefs on both sides of the case. States also have played an important role in the long-running legal battle over the definition of the “waters of the United States” that are subject to protections under the Clean Water Act. In the Supreme Court case Rapanos v. United States 547 U.S. 715 (2006), more than thirty states filed a brief arguing for continued federal oversight of wetlands adjacent to tributaries. Ten years later, many of these same states—in several cases, with Democratic attorneys general replaced by Republicans—joined with the agriculture and business communities against the Obama administration’s Clean Water Rule (described in more detail in the chapter by Jon Cannon), designed to bring many of those waters under similar protection. State-led lawsuits against the rule stalled its implementation until the EPA under President Trump suspended it and proposed its own replace- ment—a replacement that is now under challenge in another multistate suit.

CONCLUSION

The EPA was born out of great optimism about the potential for the federal government to lead the charge in tackling the nation’s environmental prob- lems. In retrospect, that optimism seems well-placed; the first five decades of the EPA are in many ways a story of success. Air and water quality have improved, blood lead levels are a fraction of what they once had been, and many formerly toxic sites have been remediated and returned to beneficial reuse. During the same period, by many measures, the nation’s political conditions have worsened: public trust in government has plummeted, and partisan conflict now overwhelms and stifles nearly every effort to solve pub- lic problems. Whereas environmental protection had once been a goal with broad bipartisan support, polarization on the environment is now as severe as on any other public issue.

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Looking forward, the EPA will continue to operate within the contested, volatile politics brought on by partisan polarization. Polarization complicates relationships with states and other partners, stalls progress in confronting new environmental challenges, and makes it difficult to maintain continuity in policies and programs. All the while, the agency has lost the broad public endorsement it once had for the work of environmental protection.

These politics make all the more difficult two challenges that the EPA now confronts. First is the challenge of addressing new, less transparent problems. An estimated twenty million people participated in the first Earth Day in 1970, many demanding that government address the highly visible environ- mental problems of urban smog, polluted rivers, and poorly managed solid and hazardous waste. Many of these problems could be attributed to specific sources and/or were geographically concentrated, and much of the legislation enacted by Congress during the environmental decade targeted these sources. Examples are abundant: the CAA’s performance standards for industrial sources, the CWA’s wastewater permit limits for sewage treatment plants, and RCRA’s regulation on the disposal of hazardous waste.

Controlling pollution from smokestacks, tailpipes, discharge pipes, and at landfills is not necessarily simple or inexpensive, but the task is more straightforward than addressing pollution from sources such as agriculture and urban stormwater. Moreover, the politics in many respects was easy. Rightly or wrongly, in the years leading up to and during the environmental decade, industry was widely perceived to be the villain. For this reason, at the beginning, directly targeting power plants, oil refineries, chemical manu- facturers, and other industrial sources seemed to pose a safe political course for the EPA.

In part a victim of its own success, the EPA now often finds itself in a very different situation. Many of the problems on its agenda are no longer “easy,” with clearly identifiable sources or practical technological fixes. Among the environmental challenges that the agency now must confront include nonpoint source pollution, secondary particulate matter, and climate change. These problems are less transparent and often have diffuse sources. In many cases, the “villains” now are the American public—fertilizing our lawns, eat- ing our dinners, flying to see our families. The technical solutions are more elusive, and the politics are much more difficult since they often involve changing individual behavior. The leading question over the last decade has been about the EPA’s role in tackling the problem of climate change. Unlike the problems at the agency’s formation, public support for a strong federal role in addressing climate change is both divided and weakly held.122

The second major challenge is to become more inclusive and address ineq- uities in outcomes. Visible environmental problems have not been eradicated

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in the United States; they are just seen less often by the media and influential decision-makers because they are concentrated in areas populated by com- munities of color and people with low incomes. Particulate pollution still reaches dangerous levels, especially around coal plants and in agricultural areas, but communities nationwide also experience health effects from coal ash ponds, mining activity, confined animal feeding operations, failing septic systems, and a variety of other visible hazardous nuisances that often do not receive priority attention within the EPA. Some of these problems fit the old model of identifiable sources and practical technological solutions, but policy action has been slow to follow. Addressing these and other challenges disproportionately affecting some communities may require more targeted policies and programs.

Challenges thus still remain for the EPA as it hits its five-decade mark. Without question, the EPA has become one of the leading public health agen- cies in the world. Through the policies and programs the agency implements, it has delivered to the American people enormous benefits to public health and environmental quality. The future success of the EPA, however, will require the agency to effectively navigate the difficult political conditions in which it now operates. This is no easy task, especially in the current political environment where the White House and EPA leadership regularly question the agency’s purpose, the regulatory tools Congress has given it to carry out its mission, and the basic scientific underpinnings of the environmental prob- lems the agency is charged to manage. Over its fifty-year history, the EPA has endured similar challenges, and it is likely to do so again.

NOTES

1. Michael E. Kraft and Norman J. Vig, “Environmental Policy in the Reagan Presidency,” Political Science Quarterly 99, no. 3 (1984): 415-39; Robert Cameron Mitchell, Angela G. Mertig, and Riley E. Dunlap, “Twenty Years of Environmental Mobilization: Trends among National Environmental Organizations,” Society and Natural Resources 4, no. 3 (1991): 219–4.

2. J. Clarence Davies, III, The Politics of Pollution (New York: Pegasus, 1970). 3. Congress also enacted several additional laws during this period in the areas

of natural and biological resources whose jurisdiction fell to other federal agencies, including the Coastal Zone Management Act (1972), the Marine Mammal Protection Act (1972), the Endangered Species Act (1973), the Federal Land Policy and Man- agement Act (1976), the Fisheries Conservation and Management Act (1976), the National Forest Management Act (1976), and the Alaska Lands Act (1980).

4. Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress, 3rd ed. (Washington, DC: CQ Press, 2007).

5. “Clean Air Bill Cleared with Auto Emission Deadline,” CQ Almanac, 1970.

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6. Judith A. Layzer, Open for Business: Conservatives’ Opposition to Environ- mental Regulation (Cambridge, MA: MIT Press, 2012), 39.

7. Roll call votes from Congress.gov. 8. E. W. Kenworthy, “Senate, House Override Veto of Clean-Water Bill,” New

York Times, October 18, 1972. 9. Annie Snider, “Vetoes by Eisenhower, Nixon Presaged Today’s Partisan Di-

vide,” Greenwire, October 18, 2012. 10. Keith T. Poole and Howard Rosenthal, Congress: A Political-Economic His-

tory of Roll Call Voting (New York: Oxford University Press, 1997). 11. Marc J. Hetherington, “Putting Polarization in Perspective,” British Journal of

Political Science 39, no. 2 (2009): 413-48; Frances Lee, Beyond Ideology: Politics, Principles, and Partisanship in the U.S. Senate (Chicago: University of Chicago Press, 2009).

12. Nolan McCarty, Keith T. Poole, and Howard Rosenthal, Polarized America: The Dance of Ideology and Unequal Riches (Cambridge, MA: The MIT Press, 2006); Marcus Prior, Post-Broadcast Democracy: How Media Choice Increases Inequality in Political Involvement and Polarizes Elections (New York: Cambridge University Press, 2007).

13. Thomas M. Carsey and Geoffrey C. Layman, “Changing Sides or Changing Minds? Party Identification and Policy Preferences in the American Electorate,” American Journal of Political Science 50, no. 2 (2006): 464–77; Matthew C. Lev- endusky, “Clearer Cues, More Consistent Voters: A Benefit of Elite Polarization,” Political Behavior 32, no. 1 (2010): 111–31.

14. Yphtach Lelkes, “Mass Polarization: Manifestations and Measurements,” Pub- lic Opinion Quarterly 80 (2016): 392-410.

15. Seth Hill and Chris Tausanovitch, “Southern Realignment, Party Sorting, and the Polarization of American Primary Electorates, 1958–2012,” Public Choice 176, no. 1 (2018): 107–32.

16. Michael Barber and Nolan McCarty, “Causes and Consequences of Polariza- tion,” In Political Negotiation: A Handbook, eds. Jane Mansbridge and Cathie Jo Martin (Washington, DC: Brookings Institution Press, 2015).

17. League of Conservation Voters, 2017 National Environmental Scorecard: First Session of the 115th Congress (Washington, DC: LCV, February 27, 2018), http://scorecard.lcv.org/sites/scorecard.lcv.org/files/LCV_Scorecard-2017-Full.pdf.

18. Parrish Bergquist and Christopher Warshaw, “Elections and Parties in Envi- ronmental Politics,” In Handbook of U.S. Environmental Policy, forthcoming, ed. David M. Konisky (Cheltenham, UK: Edward Elgar Publishing, 2020).

19. Boris Shor and Nolan McCarty, “The Ideological Mapping of American Leg- islatures,” American Political Science Review 105, no. 3 (2011): 530–51.

20. Daniel J. Hopkins, The Increasingly United States: How and Why American Political Behavior Nationalized (Chicago: University of Chicago Press, 2018).

21. Robert Shepard, “Vice President George Bush, Taking a New Campaign Is- sue,” UPI, September 1, 1988.

22. “Bush vs. Clinton: What Is an Environmental President?” Los Angeles Times, September 27, 1992.

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23. Cited in Charles. O. Jones, “Speculative Augmentation in Federal Air Pollu- tion Policy‐Making,” Journal of Politics 36, no. 2 (1974): 438–64.

24. Gallup, “Most Important Problem,” https://news.gallup.com/poll/1675/Most- Important-Problem.aspx, accessed September 3, 2019.

25. Anthony Downs, “Up and Down With Ecology—The ‘Issue-Attention Cy- cle,’” Public Interest 28 (Summer 1972): 38.

26. Charles Shipan and Megan L. Shannon, “Delaying Justice(s): A Duration Analysis of Supreme Court Confirmations,” American Journal of Political Sci- ence 47, no. 4 (2003): 654–68; Nolan McCarty and Rose Razaghian, “Advice and Consent: Senate Responses to Executive Branch Nominations 1885–1996,” Ameri- can Journal of Political Science 43, no. 4 (October 1999): 1122–43.

27. Sarah A. Binder, “Consequences for the Courts: Polarized Politics and the Ju- dicial Branch,” In Red and Blue Nation? Consequences and Correction of America’s Polarized Parties, Volume Two, eds. Pietro S. Nivola and David W. Brady (Washing- ton, DC: Brookings Institution Press, 2008).

28. Charles M. Cameron, Jonathan P. Kastellec, and Jee-Kwang Park, “Voting for Justices: Change and Continuity in Confirmation Voting 1937–2010,” The Journal of Politics 75, no. 2 (2013): 283–99.

29. Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge University Press, 2002).

30. Richard L. Revesz, “Environmental Regulation, Ideology and the D.C. Cir- cuit,” Virginia Law Review 83, no. 8 (1997).

31. Brandice Canes-Wrone, “Bureaucratic Decisions and the Composition of the Lower Courts,” American Journal of Political Science 47, no. 2 (2003): 205–14.

32. Anthony J. Nownes, Interest Groups in American Politics: Pressure and Power (New York: Routledge, 2012).

33. Frank R. Baumgartner and Beth L. Leech, Basic Interests: The Importance of Groups in Politics and Political Science (Princeton, NY: Princeton University Press, 1998), 108.

34. Grant Jordan et al., “Tracking Interest Group Populations in the US and UK,” In The Scale of Interest Organization in Democratic Politics: Data and Research Methods, eds. Darren Halpin and Grant Jordan (London: Palgrave MacMillan, 2012), 150.

35. Christopher J. Bosso, Environment, Inc: From Grassroots to Beltway (Law- rence, KS: University of Kansas Press, 2005), 92.

36. Joseph G. Peschek, Policy-Planning Organizations: Elite Agendas and Ameri- ca’s Rightward Turn (Philadelphia: Temple University Press, 1987), 190–91.

37. Layzer, Open for Business, 50. 38. Nownes, Interest Groups in American Politics, 164. 39. Layzer, 48–58. 40. Ibid. 41. Robert J. Brulle, “Institutionalizing Delay: Foundation Funding and the

Creation of US Climate Change Counter-Movement Organizations,” Climatic Change 122, no. 4 (2014): 681–94; Justin Farrell, “Network Structure And Influence of the Climate Change Counter-Movement,” Nature Climate Change 6, no. 4 (2016):

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370; Naomi Oreskes and Erik M. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming (New York: Bloomsbury Publishing, 2011).

42. Prior, Post-Broadcast Democracy; Kevin Arceneaux and Martin Johnson, Changing Minds or Changing Channels? Partisan News in an Age of Choice (Chi- cago: University of Chicago Press, 2013).

43. David Tewksbury, “The Seeds of Audience Fragmentation: Specialization in the Use of Online News Sites,” Journal of Broadcasting & Electronic Media 49, no. 3 (2005): 332–48.

44. Charles Bethea, “Shrinking Newspapers and the Costs of Environmental Re- porting in Coal Country,” The New Yorker, March 26, 2019.

45. Joshua P. Darr, Matthew P. Hitt, and Johanna L. Dunaway, “Newspaper Closures Polarize Voting Behavior,” Journal of Communication 68, no. 6 (2018): 1007–28.

46. Data provided to authors from Society of Environmental Journalists on April 1, 2019.

47. Maxwell T. Boykoff, “We Speak for the Trees: Media Reporting on the Envi- ronment,” Annual Review of Environment and Resources 34 (2009): 431–57.

48. Maxwell T. Boykoff and Jules M. Boykoff, “Balance as Bias: Global Warming and the US Prestige Press,” Global Environmental Change 14, no. 2 (2004): 125–36.

49. Sarah A. Binder, Polarized We Govern? (Washington, DC: Center for Ef- fective Public Management, Brookings Institution, 2014), https://www.brookings. edu/wp-content/uploads/2016/06/BrookingsCEPM_Polarized_figReplacedTextRev- TableRev.pdf.

50. Patrick J. Egan, Partisan Priorities: How Issue Ownership Drives and Distorts American Politics (Cambridge: Cambridge University Press, 2013), 71.

51. Egan, Partisan Priorities. 52. Dale Russakoff, “EPA Chief is Assailed at Hearing,” Washington Post, Febru-

ary 16, 1983. 53. David M. Konisky and Neal D. Woods, “Environmental Federalism and the

Trump Presidency: A Preliminary Assessment,” Publius: The Journal of Federal- ism 48, no. 3 (2018).

54. During his election campaign, then candidate Bush pledged to include carbon dioxide as part of a four-pollutant bill, but once becoming President, he reversed course and excluded carbon dioxide from the Clear Skies initiative.

55. John D. Graham, Bush on the Home Front: Domestic Policy Triumphs and Setbacks (Bloomington, IN: Indiana University Press, 2010).

56. Richard L. Revesz and Jack Lienke, Struggling for Air: Power Plants and the “War on Coal” (New York: Oxford University Press, 2016).

57. US Government Accountability Office, Air Emissions and Electricity Genera- tion at U.S. Power Plants, GAO-12-545R (Washington, DC: GAO, April 18, 2012).

58. Graham, Bush on the Home Front. 59. Theda Skocpol, “Naming the Problem: What It Will Take to Counter Extrem-

ism and Engage Americans in the Fight against Global Warming,” paper presented at

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the Symposium on The Politics of America’s Fight Against Global Warming, Febru- ary 14, 2013, Harvard University.

60. Gregory L. Hassler and Karen O’Connor, “Woodsy Witchdoctors versus Judi- cial Guerrillas: The Role and Impact of Competing Interest Groups in Environmental Litigation,” Boston College Environmental Affairs Law Review 13 (1986): 487–520.

61. Andrew B. Whitford, “The Structures of Interest Coalitions: Evidence from Environmental Litigation,” Business and Politics 5, no. 1 (2003): 45–64.

62. Matthew Grossmann, “Environmental Advocacy in Washington: A Compari- son with Other Interest Groups,” Environmental Politics 15, no. 4 (2006): 628–38.

63. Robert Glicksman and Christopher H. Schroeder, “EPA and the Courts: Twenty Years of Law and Politics,” Law and Contemporary Problems 54, no. 4 (1991): 249–309.

64. US Environmental Protection Agency, FY 2019 EPA Budget in Brief, EPA- 190-R-18-002 (Washington, DC: EPA, February 2018), https://www.epa.gov/sites/ production/files/2018-02/documents/fy-2019-epa-bib.pdf, accessed September 3, 2018.

65. Katherine N. Probst and David M. Konisky, Superfund’s Future: What Will it Cost? (Washington, DC: Resources for the Future Press, 2001).

66. American Society of Civil Engineers, 2017 Infrastructure Report Card (Res- ton, VA: ASCE, 2017).

67. Christopher McGrory Klyza and David J. Sousa, American Environmental Policy: Beyond Gridlock (Cambridge, MA: MIT Press, 2013).

68. Richard P. Nathan, The Administrative Presidency (Hoboken, NJ: John Wiley & Sons, 1983); Robert F. Durant, The Administrative Presidency Revisited: Public Lands, the BLM, and the Reagan Administration (Albany, NY: State University of New York Press, 1992); William G. Resh, Rethinking the Administrative Presidency: Trust, Intellectual Capital and Appointee-Careerist Relations in the George W. Bush Administration (Baltimore, MD: Johns Hopkins University Press, 2015).

69. Konisky and Woods, “Environmental Federalism and the Trump Presidency”; David M. Konisky and Neal D. Woods, “Environmental Policy, Federalism, and the Obama Presidency,” Publius: The Journal of Federalism 46, no. 3 (2016).

70. Joshua D. Clinton et al., “Separated Powers in the United States: The Ideology of Agencies, Presidents, and Congress,” American Journal of Political Science 56, no. 2 (2012).

71. Evan J. Ringquist, “Assessing Evidence Of Environmental Inequities: A Meta‐ Analysis,” Journal of Policy Analysis and Management 24, no. 2 (2005).

72. US Environmental Protection Agency, Environmental Equity: Reducing Risks for All Communities, Volumes 1 & 2, EPA-230-R-92-008 (Washington, DC: EPA, 1992).

73. For a complete discussion, see David M. Konisky, Failed Promises: Evaluat- ing the Federal Government’s Response to Environmental Justice (Cambridge, MA: MIT Press, 2015).

74. “Executive Order 12898: Federal Actions to Address Environmental Justice in Minority and Low-Income Populations,” 59 Fed. Reg. 7629 (February 16, 1994).

75. Konisky, Failed Promises, 41.

20_0430_Barnes.indb 480 10/6/20 5:19 AM

Environmental Politics 481

76. US Environmental Protection Agency, The EPA’s Environmental Justice Strategy (Washington, DC: EPA, April 3, 1995).

77. US Environmental Protection Agency, 1996 Environmental Justice Implemen- tation Plan, EPA-300-R-96-004 (Washington, DC: EPA, 1996).

78. National Academy of Public Administration, Environmental Justice in EPA Permitting: Reducing Pollution in High-Risk Communities is Integral to the Agency’s Missions (Washington, DC: NAPA, December, 2001); US Environmental Protection Agency, Office of Inspector General, EPA Needs to Consistently Implement the Intent of the Executive Order on Environmental Justice, 2004-P-00007 (Washington, DC: EPA, March 1, 2004); US Government Accountability Office, EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules, GAO- 05-289 (Washington, DC: GAO, July 2005).

79. US EPA, EPA Needs to Consistently Implement, 10. 80. H. Spencer Banzhaf, “Regulatory Impact Analyses of Environmental Justice

Effects,” Journal of Land Use & Environmental Law 27, no. 1 (2011); Shalini P. Va- jjhala, Sarah Szambelan, and Amanda Van Epp, Integrating EJ into Federal Policies and Programs: Examining the Role of Regulatory Impact Analyses and Environmen- tal Impact Statements, RFF Discussion Paper 08–45 (Washington, DC: Resources for the Future Press, 2008); Konisky, Failed Promises, 41; Colin Provost and Brian J. Gerber, “Political Control and Policy-Making Uncertainty in Executive Orders: The Implementation of Environmental Justice Policy,” Journal of Public Policy 39, no. 2 (June 2019).

81. US Environmental Protection Agency, Plan EJ 2014 (Washington, DC: EPA, September 2011), 4.

82. David M. Konisky, “Environmental Justice Delayed: Failed Promises, But Some Hope for the Future,” Environment: Science and Policy for Sustainable Devel- opment 58, no. 2 (2016): 4–15.

83. US Commission on Civil Rights, Not in My Backyard: Executive Order 12,898 and Title VI as Tools for Achieving Environmental Justice (Washington, DC: US- CCR, October, 2003), https://www.usccr.gov/pubs/envjust/ej0104.pdf.

84. Mark K. Landy, Marc J. Roberts, and Stephen R. Thomas, The Environmental Protection Agency: Asking the Wrong Questions, revised edition (New York: Oxford University Press, 1994), 37.

85. Layzer, 39. 86. Layzer, 39–40. 87. Quoted in Layzer, 39. 88. Ronald Reagan, First Inaugural Address, January 20, 1981, https://www.

reaganfoundation.org/media/128614/inaguration.pdf, accessed September 3, 2019. 89. Durant, The Administrative Presidency Revisited, 49. 90. Robert A. Shanley, Presidential Influence and Environmental Policy (West-

port, CT: Greenwood Press, 1992), 113. See also Patricia McGee Crotty, “The New Federalism Game: Primacy Implementation of Environmental Policy,” Publius: The Journal of Federalism 17, no. 2 (1987): 53–67; Neal D. Woods, “Primacy Implemen- tation of Environmental Policy in the US States,” Publius: The Journal of Federal- ism 36, no. 2 (2005): 259–76.

20_0430_Barnes.indb 481 10/6/20 5:19 AM

482 Chapter Twelve

91. US Environmental Protection Agency, “Authorization Status of All Resource Conservation and Recovery Act (RCRA) and Hazardous and Solid Waste Amend- ments (HWSA) Rules,” epa.gov, last updated March 31, 2019, https://www.epa. gov/rcra/authorization-status-all-resource-conservation-and-recovery-act-rcra-and- hazardous-and-solid.

92. Proposed Executive Order, “Federal Regulation,” 5 Op. O.L.C. 59 (1981). 93. Shanley, Presidential Influence, 69. 94. Shanley, 63. 95. Lisa Heinzerling, “Inside EPA: A Former Insider’s Reflections on the Rela-

tionship Between the Obama EPA and the Obama White House,” Pace Environmen- tal Law Review 31, no. 1 (2014).

96. Shanley, 71. 97. Robert V. Percival et al., Environmental Regulation: Law, Science and Policy

(Boston: Little, Brown and Company, 1992), 709. 98. Percival et al., 710. 99. Dana Priest, “Competitiveness Council under Scrutiny,” Washington Post,

November 26, 1991. 100. Norman J. Vig, “Presidential Leadership and the Environment: From Reagan

and Bush to Clinton,” In Environmental Policy in the 1990s, eds. Norman J. Vig and Michael E. Kraft, 2nd ed. (Washington, DC: CQ Press, 1994).

101. Layzer, Open for Business, 159–61. 102. John D. Graham, “The Evolving Regulatory Role of the U.S. Office of

Management and Budget,” Review of Environmental Economics and Policy 1, no. 2 (2007).

103. US General Accounting Office, Rulemaking: OMB’s Role in Reviews of Agencies’ Draft Rules and the Transparency of Those Reviews, GAO-03-929 (Wash- ington, DC: GAO, 2003).

104. Graham, Bush on the Home Front, 257-8; Heinzerling, “Inside EPA,” 335. 105. Heinzerling, “Inside EPA.” 106. GAO, OMB’s Role, 9. 107. Ibid. 108. GAO, OMB’s Role, 5. 109. Lisa Heinzerling, “Who Will Run the EPA,” Yale Journal on Regulation 30

(2012): 39-43. 110. David M. Konisky and Manuel P. Teodoro, “When Governments Regulate

Governments,” American Journal of Political Science 60, no. 3 (2016): 559–74. 111. Denise Scheberle, “Environmental Federalism and the Role of State and

Local Governments,” In The Oxford Handbook of U.S. Environmental Policy, eds. Michael E. Kraft and Sheldon Kamieniecki (Oxford: Oxford University Press, 2012).

112. Environmental Council of the States, Cooperative Federalism 2.0: Achieving and Maintaining a Clean Environment and Protecting Public Health (Washington, DC: ECOS, 2017).

113. Dorothy M. Daley, Megan Mullin, and Meghan E. Rubado, “State Agency Discretion in a Delegated Federal Program: Evidence from Drinking Water Invest- ment,” Publius: The Journal of Federalism 44, no. 4 (2013): 564–86; John Morris,

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“Dirty Water, Clean Water: Infrastructure Funding and State Discretion in Southern States,” In Speaking Green with a Southern Accent: Environmental Management and Innovation in the South, eds. Gerald Andrews Emison and John C. Morris (Lanham, MD: Lexington Books, 2010), 45–64.

114. Evan J. Ringquist, “Policy Influence and Policy Responsiveness in State Pol- lution Control,” Policy Studies Journal 22, no. 1 (1994).

115. Dorothy M. Daley and James C. Garand, “Horizontal Diffusion, Vertical Diffusion, and Internal Pressure in State Environmental Policymaking 1989-1998,” American Politics Research 37 (2005).

116. Ringquist, “Policy Influence.” 117. Matthew Potoski, “Designing Bureaucratic Responsiveness: Administrative

Procedures and Agency Choice in State Environmental Policy,” State Policy and Politics Quarterly 2, no. 1 (2002): 1–23.

118. David M. Konisky and Neal D. Woods, “Measuring State Environmental Policy,” Review of Policy Research 29, no. 4 (2012): 544+.

119. Quoted in Rena I. Steinzor and William F. Piermattei, “Reinventing Envi- ronmental Regulation via the Government Performance and Results Act: Where’s the Money?” Environmental Law Reporter 28 (1998): 10563.

120. ECOS, “Cooperative Federalism 2.0.” 121. Paul Nolette, Federalism on Trial: State Attorneys General and National

Policymaking in Contemporary America (Lawrence, KS: University of Kansas Press, 2015). Updated data in the figure comes from http://attorneysgeneral.org, created and maintained by Nolette. Year indicates resolution date, except lawsuits initiated from 2014 to the time of writing are indicated by initiation date.

122. Patrick J. Egan and Megan Mullin, “Climate Change: U.S. Public Opinion,” Annual Review of Political Science 20 (2017): 209–27.

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