Strategic Institutional Positioning: How We’ve Come to Generate Environmental Law Without Congress

6 Texas A&M Law Review 323 (2019)

23 Pages Posted: 4 Nov 2018 Last revised: 31 Mar 2019

See all articles by Donald J. Kochan

Donald J. Kochan

Antonin Scalia Law School at George Mason University

Date Written: October 14, 2018


When examining legislation authorizing administrative agencies to promulgate rules, we are often left asking whether Congress “delegates” away its lawmaking authority by giving agencies too much power and discretion to decide what rules should be promulgated and to determine how rich to make their content. If the agencies get broad authority, it is not too hard to understand why they would fulsomely embrace the grant to its fullest. Once agencies are let loose by broad grants of rulemaking authority and they are off to the races, we are also often left scratching our heads wondering why Congress fails to intervene ex post to alter the law, to check administrative agency overreach, or to clarify its intent and preferences. This Essay explains why none of the institutional dynamics we observe in administrative law should be surprising, with particular emphasis on environmental laws and rules. It will explain why both Congress and agencies have strategic interests at stake that cause them to position their activities in manners that make each complicit in expansion of the regulatory state and the collapse of the containment walls designed to keep lawmaking inside Congress.

The essay introduces fundamental ideas of separation of powers and the Framers’ design for adherence to that separation. It identifies motivations for Congress to legislate broadly and to disengage from a supervisory role over agencies, despite contrary intentions in the Framers design. It discusses agencies as self-interested actors that will accept legislative-like authority if it is offered to them. And, it uses case studies on National Monuments and the Waters of the United States (WOTUS) Rule as demonstrative of the strategic positioning phenomenon. In particular, the essay explains why environmental law is an area where we can predict a high frequency of these problems of congressional abdication that enables administrative overreach.

Adapted from a speech on a panel about “Environmental Law without Congress: Are Alternatives to Legislation Eclipsing the Congressional Role in Setting Policy Priorities for Environmental Protection?”, the goal of this Essay is to explore the threat these institutional interests pose to preservation of the separation of powers and to begin identifying the areas to target in order to bring the current allocation of authority for generating the core requirements of environmental law into better alignment with the original constitutional design.

Keywords: separation of powers, administrative law, Article I, regulations, legislation, Congress, Administrative Procedure Act, nondelegation doctrine, bureaucracy, strategic behavior, national monuments, waters of the united states, WOTUS, clean water act, environmental law, natural resources

Suggested Citation

Kochan, Donald J., Strategic Institutional Positioning: How We’ve Come to Generate Environmental Law Without Congress (October 14, 2018). 6 Texas A&M Law Review 323 (2019), Available at SSRN:

Donald J. Kochan (Contact Author)

Antonin Scalia Law School at George Mason University ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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