Portage Strategies for Adapting Environmental Law and Policy During a Logjam Era

Abstract

Congressional legislators in both political parties have become locked into a "blood feud" in which they would rather have an environmental issue to use against each other than develop compromises that would result in legislation to solve environmental problems. This article explores the possibilities of "portage strategies" - that is, law-making techniques that go around the need for legislation - for adapting environmental policy to new problems and changing realities in an era of Congressional paralysis. The author argues that courts should give agencies increased leeway to adapt existing statutes to new challenges. Among other things, courts should construe the Chevron doctrine functionally, rather than literally, to give agencies increased authority to interpret their statutes creatively to deal with new problems, except when Congress has actually focused on the issue and precluded the agency initiative in question. The most promising "portage strategy," in the author's view, are "expert consensus proposal systems," because their incentive structure inherently promotes compromise as expert consensus panels can only expect to exercise influence if they actually come together to reach agreement, unlike political officials who can gain political advantage by disagreeing publicly.