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Congressional Descent: The Demise of Deliberative Democracy in Environmental Law

63 Pages Posted: 15 Nov 2005 Last revised: 25 Nov 2008

Richard James Lazarus

Georgetown University Law Center

Abstract

In recent years, the formal environmental lawmaking dimension of Congress has become effectively moribund. Earlier Congresses were, by contrast, celebrated for enacting sweeping, demanding environmental laws and for passing significant and increasingly detailed amendments in response to subsequent developments in executive branch agencies, federal courts, and the states. Now, Congress passes almost no coherent, comprehensive environmental legislation and displays no ability to deliberate openly and systematically in response to changing circumstances and new information. Instead, when Congress does now exercise its lawmaking authorities to influence environmental protection policy, it does so primarily through the appropriations process: the sphere of its responsibility that, ironically, has proven to be the least conducive to the kind of deliberative democracy that justifies legislative supremacy in environmental lawmaking. This article describes the ascent and descent of Congress in environmental law, discusses the troublesome implications for environmental law of the increasing dominance of the appropriations process in congressional lawmaking, identifies the major causes of these developments, and concludes by offering some possibilities for congressional reform.

Keywords: Congress, constitutional law, administrative law, environmental law, natural resources law, legislation, politics, environmental history

JEL Classification: K32, K20, K23

Suggested Citation

Lazarus, Richard James, Congressional Descent: The Demise of Deliberative Democracy in Environmental Law. Georgetown Law Journal, Vol. 94, pp. 619-681, Winter 2006. Available at SSRN: https://ssrn.com/abstract=847648

Richard James Lazarus (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9129 (Phone)
202-662-9408 (Fax)

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