The Microbead-Free Waters Act of 2015: Model for Future Environmental Legislation, or Black Swan?

Abstract

Environmental law scholars have long lamented that it has become unthinkable — or at least exceedingly unlikely — for Congress to pass significant new environmental legislation. This is not uniformly the case, as shown by the recent enactment of Public Law 114-114, the Microbead-Free Waters Act of 2015 (“the Act”). Yet, more nuanced questions must be answered before the Act can be hailed as an important break in the legislative logjam. Was the Act insignificant, simply not worth the time and political currency necessary for opponents of environmental regulation to stop? Was it the fortuitous product of a unique confluence of circumstances, a “black swan”? Or could the circumstances surrounding its passage be instructive for future proponents of environmental legislation? This article asserts that the Act addressed a significant environmental issue, and that 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.

Keywords: environmental law, microbeads, environmental legislation

JEL Classification: K32