Pathways to Future Environmental Legislation

Posted on Categories Environmental Law, Public, Water Law

Over the past quarter century, repeated congressional failures to enact any significant piece of environmental legislation led observers to describe such efforts as “gridlocked,” “deadlock[ed],” “dysfunction[al],” “broken,” the subject of “considerable, self-imposed inertia,” and the surrounding atmosphere as “highly inhospitable to the enactment of major environmental legislation.”[1] Things weren’t always this way, as I discuss in more detail below; in the 1970s, a remarkable burst of legislative activity largely shaped the field we know today as federal environmental law.

In a paper soon forthcoming in the Journal of Land Use and Environmental Law, I argue that a perhaps minor and certainly uncontroversial piece of environmental legislation known as the Microbead-Free Waters Act of 2015 (“the Act”) reveals potential pathways through or around this modern gridlock. The Act prohibits the manufacture or introduction into interstate commerce of useful – but environmentally harmful – microscopic plastic particles known as “microbeads” that are commonly used in cosmetic products. Its provisions are direct and uncomplicated.

Yet the strategic building blocks underlying the Act—including an emphasis on public health issues and broad stakeholder support driven by industry concerns about unfair competition and opposition to local legislation—may provide innovative and useful foundations for future efforts to pass environmental legislation.

Microbeads present complex commercial and ecological issues. They are cost-effective cleansers and exfoliants intended to be rinsed down the drain as part of the normal cosmetics product life cycle, but they typically cannot be removed in wastewater treatment facilities due to their lightness and exceedingly small size. Once in open waters, microplastics (like all plastics) tend to concentrate toxins, and they are attractive to aquatic life as a food source because they appear to be fish eggs based on their size and shape. (The photo at left shows microbeads ingested by a larval stage perch). After initial ingestion, the accumulated toxins bioconcentrate up the food chain and thereby pose a threat to human health. Once present in open waters, microbeads cannot be effectively removed because any attempt to do so would necessarily also capture plankton and other essential parts of the food chain. New research shows that this threat is particularly immediate in the Great Lakes, where microbead concentrations equal or exceed those found in oceans.

The Act banning microbeads sailed through Congress with no real opposition, passing in the House by voice vote and in the Senate by unanimous consent. One longtime environmental law scholar labeled this a “minor miracle.”

Although the easy passage can partly be explained by the absence of any determined opposition, a closer examination reveals several positive traits, the emphasis of which may provide a useful foundation for future efforts to pass environmental legislation. First, the Act was tightly focused and of modest scope. Plastics are the leading cause of anthropogenic pollution in our rivers and lakes, but the Act makes no effort to address that problem in its entirety; instead, it contains simple and direct language closely focused on one clearly delineated aspect of the problem.

Second, the Act attracted a broad coalition of stakeholder support. In one sense, this was not surprising; environmental and community groups have long campaigned for a microbead ban. Support from industry was more unexpected, but not unprecedented; in fact, some public choice theorists believe that almost all public regulation is really private-interest rent-seeking in disguise. By that way of thinking, environmental regulations can be reduced to tools of regulated industry intending to burden rivals. And the national ban imposed by the Act eliminated the risk of a patchwork of substantively different bans enacted by individual states.

Third, the Act focused on public health risks in addition to environmental concerns, perhaps blunting the ordinary partisan blockade to new environmental legislation. Crafting future environmental legislation to fit these constraints will significantly increase the chances of success.

Past experience shows that environmental gridlock doesn’t have to be the norm. During the environmental law revolution of the 1970s, overwhelming majorities of a divided Congress enacted more than a dozen major federal environmental laws, including the National Environmental Policy Act (1970), the Clean Air Act (1970), the Federal Water Pollution Control Act (now commonly known as the Clean Water Act), (1972), the Federal Environmental Pesticide Control Act (1972), the Endangered Species Act (1973), the Safe Drinking Water Act (1974), the Resource Conservation and Recovery Act (1976), the Toxic Substances Control Act (1976), and the Comprehensive Environmental Response, Compensation, and Liability Act (1980). Few, if any, subject matter areas have ever seen such a concentrated outpouring.

Shortly after I wrote the microbeads article, Congress passed a bill reforming the Toxic Substances Control Act (“TSCA”), the cornerstone of chemical regulation in the United States. In several respects, the effort to pass the TSCA reform bill mirrored and confirmed the strategies that led to the Act. First, the TSCA package emphasized the public health benefits of the legislation in addition to the environmental benefits. Second, supporters of the TSCA compromise legislation attempted to build broad stakeholder consensus to eliminate a patchwork approach.

In terms of sheer scope, I don’t contend that the Act is on the level of the Clean Water Act or the other landmark laws passed in the 1970s. But the Act and the TSCA reform package reveal that Congress can indeed pass smart, targeted environmental legislation. Proponents of future environmental legislation can benefit from the Act’s example by setting a reasonable scope and focus; by building a broad stakeholder coalition that includes, rather than demonizes, industry; by eliminating “patchwork” regulation to the extent possible; and by emphasizing the public health aspects of proposed legislation.

[1] See David W. Case, The Lost Generation: Environmental Regulatory Reform in the Era of Congressional Abdication, 25 Duke Envtl. L. & Pol’Y F. 49, 60-61 (2014) (collecting citations).

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