Beyond the New Deal: Coal and the Clean Air Act

Abstract

Earth Day has passed, but its passions have marked our law in deep and abiding ways. Statutes passed in the early 1970s did more than commit hundreds of billions of dollars to the cause of environmental protection in the decades ahead. They also represent part of a complex effort by which the present generation is revising the system of administrative law inherited from the New Deal. The rise of environmental consciousness in the late 1960s coincided with the decline of an older dream-the image of an independent and expert administrative agency creatively regulating a complex social problem in the public interest. When Congress reacted to Earth Day, it set about to do more than clean the water and purify the air; it also sought a new shape for the administrative process-one that would avoid the use of expertise as an excuse for inaction and that would protect agencies from capture by special interests. It is a decade now since Congress began to articulate this new vision of administrative law-long enough for us to begin to test its aspirations against concrete results. In this spirit, we propose to sift a decade\u27s experience generated by one of the countless experiments in administrative lawmaking written into the Clean Air Amendments of 1970. We seek to understand how decisionmakers perceived, defined, and solved problems in the evolving framework of environmental regulation, so that we may begin to distinguish experiments in administrative design that have succeeded from those that have failed