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Federal Bureaucracy - Controversy over the Clean Air Act

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Controversy over the Clean Air Act

  • In 2008, George W. Bush changed bureaucratic rules about the enforcement of the Clean Air Act by the Environmental Protection Agency
  • Controversy over decision revealed power struggle between executive and legislative branches over control of environmental policy
  • Bureaucracy often becomes entangled in disputes between Congress and presidents

On 11 March 2008, the White House issued a brief statement announcing that the "public health" and "public welfare" air standards set by the Environmental Protection Agency would hereafter be the same. Immediately, there was an angry protest. EPA officials threatened to resign; members of Congress condemned the Bush administration vehemently; one environmental leader labeled the president's decision "unprecedented and unlawful."

In many ways, it appeared to be a typical bureaucratic tempest in a teapot: a statement wrapped in bureaucratic jargon, indecipherable to most of us, and followed by angry outbursts far out of proportion to the simple announcement.

But it was neither a meaningless statement nor an unimportant reaction. The combining of the two air quality standards spoke volumes about President Bush's environmental priorities—and the reaction from Congress, environmentalists, and within the EPA was representative of the sorts of complexities that surround the operations of America's federal bureaucracy.

For starters, the president's announcement signaled that he would not follow the recommendations of the Clean Air Scientific Advisory Committee. Instead, by linking the two standards, the president was actually setting a lower air quality benchmark than the scientists recommended. On a different level, the president was asserting his control over the EPA in its enforcement of the Clean Air Act; he was asserting his executive authority over Congress to interpret and flesh out the legislation that they passed to him for implementation.

Presidents and Congress have wrestled for control of the federal bureaucracy for a long time. On paper, the legislative roles of the two branches are relatively straightforward. When Congress passes a bill or creates an agency, the task of implementation is passed to the president. The president, as the chief executive, is responsible for working out the details necessary to make Congressional legislation a workable piece of law.

Simple enough. But in reality, things are far more complex. Often, the president and the Congress don't see eye-to-eye on the details of policy. One might want tougher regulations or different enforcement procedures. To a certain extent, the president has an advantage in this debate. Traditionally, the president has been awarded considerable latitude in fleshing out the details of Congressional legislation, but Congress has proven persistent and creative in contesting the president's implementation decisions. It has held public hearings to call attention to the perceived shortcomings of the president's execution of its bill and has attached clauses to the bill requiring that the president submit his implementation decisions to Congress for approval. One version of this strategy—labeled a legislative veto— was ruled unconstitutional by the Supreme Court in 1983, but Congress has nonetheless continued to attach variations of this device.

When Congress passed the Clean Air Act in 1970 and then amended it in 1977, it took a different step to ensure that the objectives of the measure—reducing pollution—would not diluted by uncooperative presidents. It created the Clean Air Scientific Advisory Committee, a group of scientists charged with advising the EPA administrator, responsible for enforcing the Clean Air Act, on air quality conditions and standards. The CASAC was only an advisory group; it had no enforcement authority, but Congress wrapped a sense of moral authority around the scientific group and insisted that its recommendations should be followed. Carol M. Browner, who served as EPA administrator under President Bill Clinton, argued that the original legislation conveyed "a moral and ethical commitment that we're going to let the science tell us what to do."

President Bush's announcement implicitly ignoring the recommendations of CASAC thus represented an assertion of executive power—a refusal to be bound by the recommendations of an advisory group and a claim of presidential power to interpret and implement legislation.

This was not the first time that President Bush had upset environmentalists in Congress and within the EPA itself by his management of the agency. A number of environmental organizations were outraged by the president's comparatively conciliatory approach to industrial polluters. (Between 2002 and 2006, the number of civil suits filed by the government against industrial polluters declined by 70%.) The administration argued that its less confrontational approach—more plea bargains and settlements—was just as effective as going to court in advancing EPA goals. But many EPA officials and members of Congress countered that polluters were not deterred from committing bad acts by the administration's conciliatory approach. Even worse, some of the biggest polluters were not punished at all for fouling the environment; instead, they were rewarded with tax subsidies to help them come into compliance.

In 2007, Stephen Johnson, the EPA administrator appointed by President Bush, further provoked environmentalists when he rejected California's request that the state be allowed to set car emission standards that were stricter than those required by the federal government. Agencies like the EPA develop their own institutional identities independent of administrations and Congress. Longtime agency officials develop their own sense of what works and what doesn't, and they are consequently often the first and loudest to complain when a president issues orders altering established practices. When it became apparent that Bush would approach industrial polluters in a very different way than his predecessors, Eric Schaeffer, the director of the EPA's Office of Civil Enforcement, resigned, complaining that the approach threatened to undo the achievements of the preceding years. Schaeffer subsequently signed on with the Environmental Integrity Project, a watchdog organization intent on ensuring that the EPA lives up to its public obligations regardless of what president is in power.

The bottom line is that America's federal bureaucracy is unavoidably filled with the sorts of conflicts triggered by the president's small announcement of March 2008. While the agencies and commissions that monitor our air, regulate our banks, and police our factories are created by Congress, they are implemented and administered by the executive branch. Congress has the authority to define the agencies' purposes, and they can continue to shape agency practices through public hearings, the allocation of funds, and various legislative devices such as legislative vetoes and the CASAC. But presidents have just as many tools to impose their imprint on these agencies. They appoint the heads of these agencies, and they issue executive orders guiding the priorities and operations of the agencies.

America's federal bureaucracy is thus inherently contentious, a largely unavoidable consequence of the separation of powers in the federal government.

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