Chapter 1 – How U.S. Environmental Law is Really Made


U.S. environmental law developed in parallel with innovations in administrative law leading to the rise of the administrative state—in which the fundamental legal framework emerges from regulations made by agencies interpreting statutes rather than court decisions. Through a shared structure of authority called cooperative federalism, the national government often sets mandatory minimum standards but leaves implementation up to the states. As a result of the partisan logjam in Congress, new environmental legislation has been limited over the past 30 years, forcing administrative agencies to use their power to interpret existing legislation creatively. Under the Chevron deference doctrine, courts have given EPA and other agencies considerable leeway to address environmental problems that Congress did not address with sufficient specificity.