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This is partly because it was drafted by environmentalists and quickly signed by Nixon, who sought to give the press a Christmastime distraction from the Watergate scandal. Because Congress delegated it to the EPA. The EPA can then formulate rules within the purview of that delegated power. Those EPA rules then carry the force of law—but they can still be overturned by a Congressional law, because Congress remains the higher power.
This kind of delegation is basically how all executive or independent agencies get power. Congress often took this approach in the 20th century. Lawmakers of both parties believed that subject-matter experts in technical agencies could make better, more consistently up-to-date regulations than professional legislators. Because the Constitution is very old, and the idea of the environment is very young. I talked to Jedediah Purdy, a professor of law at Duke University and the author of After Nature , an intellectual history of the environment in America.
The environment is a newer idea than the invisible hand, equal justice under law, and freedom of speech. An administrator at the Office of Air and Radiation takes charge of the rule. They also conduct economic modeling of how the new rule might affect the cost of doing business. This process takes months. Eventually, the consultants report back to the EPA.
After a draft rule is published, comments from citizens, activists, nonprofits, and businesses begin to pour into the agency. Legally, an EPA employee or contractor must read, categorize, and respond to each of these comments even if that response is mechanical.
After the Obama administration published a draft Clean Power Plan, its signature climate-focused rule for the power sector, the EPA received more than 4 million public comments. The EPA then modifies the rule again—in response to public comments, to changes in the economy, and to any significant new research on the topic. Because the agency knows it will get sued later. After the EPA publishes a new rule, industry groups often try to weaken the regulation and delay its enforcement in court.
Do the states get a say in regulating pollutants? Generally, the EPA establishes a floor for how strictly a pollutant may be regulated. But there is no ceiling: States can go further if they wish.
Were there any new environmental laws after Nixon left office? Yes, but they mostly tinkered around the edges. In , Congress authorized the EPA to regulate toxic chemicals. In , under President George H. Bush, Congress again amended the Clean Air Act to address new pollutants and the risks of acid rain.
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