Power to the People: Restoring the Public Voice in Environmental Law

Abstract

Although the last forty years of environmental law have witnessed some successes, they have also increasingly revealed the limitations of existing laws and regulatory structures. Congress has been unable to pass substantial environmental legislation in recent years, notwithstanding widespread recognition of the need for better tools for responding to climate change, toxic chemicals, non-point source water pollution, and other problems. In addition, the Environmental Protection Agency (EPA) has struggled in the wake of limited resources and politicization to effectively use the tools it has, and its rulemaking processes are often dominated by industry and other repeat players. To deal with the environmental challenges we face, we must better account for the interests of the general public and harness the insights and goodwill of those outside the conventional regulatory state. This article proposes two mechanisms for doing so: (1) establishment of regulatory contrarians within EPA to serve as a voice for underrepresented interests and future generations in agency proceedings; and (2) government sanction of environmental certification systems to facilitate more sustainable purchasing decisions.

Keywords: environment, environmental law, regulation, rulemaking, ombudsman, regulatory contrarian, environmental certification