Person:

Freeman, Jody

In Massachusetts v. Environmental Protection Agency (2007), the Supreme Court held, among other things, that the EPA has statutory authority to regulate greenhouse gases under the Clean Air Act, and that the agency cannot decline to do so on political grounds. We analyze the logic of MA v. EPA and its broader implications for administrative law and regulatory policy. We locate MA v. EPA in the context of the Justices' increasing worries about the politicization of administrative expertise, particularly under the Bush administration. The majority's solution for this worry, we suggest, is a kind of expertise-forcing: the Court attempts to ensure that agencies actually do exercise expert judgment, and that they do so free from outside political pressures, even or especially political pressures emanating from the White House or political appointees in the agencies. Whereas a line of caselaw and commentary stemming from Chevron USA Inc. v. Natural Resources Defense Council sees presidential politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which presidential politics and expertise are fundamentally antagonistic. Because the Court subjects the denial of a rulemaking petition to hard look review, we suggest that MA v. EPA is State Farm for a new generation.

This Article proposes a "modular" conception of environmental regulation and natural resource management as an alternative to traditional approaches. Under traditional approaches, agencies tend to operate independently, and often at cross-purposes, using relatively inflexible regulatory tools, without significant stakeholder input, and without institutional mechanisms capable of adapting to changing conditions over time. Modularity, by contrast, is characterized by a high degree of flexible coordination across government agencies as well as between public agencies and private actors; governance structures in which form follows function; a problem-solving orientation that requires flexibility; and reliance on a mix of formal and informal tools of implementation, including both traditional regulation and contract-like agreements. The Article frames the enterprise of environmental regulation and resource management as an exercise in designing governance institutions capable of managing multiple and seemingly incompatible demands over the long term. This approach departs from the traditional legal framing of such environmental conflicts as shorter-term and zero-sum questions of jurisdiction, authority, entitlement, and prohibition. To illustrate modularity, the Article presents a detailed case study of the CalFed Bay-Delta Program, a multiagency effort to address competing demands on the water resources in the San Francisco Bay Delta. The story of CalFed illustrates many features of the modular ideal identified in the Article, and shows concretely how such an approach can achieve both procedural and substantive policy innovation while also producing measurable environmental improvements on the ground. The case study anchors the elaboration of the modular conception and its constituent elements presented in the latter part of the Article. Finally, the Article analyzes why the modular ideal is so hard to achieve in practice, yet it concludes that there is no alternative to moving toward modularity given the complex nature of the environmental and natural resource problems that we face.