It’s not clear what the U.S. Supreme Court had in mind recently when it ruled the Environmental Protection Authority (EPA) does not yet have the authority to regulate climate-altering greenhouse gas emissions. Was it protecting Congress’s authority from incursion by the executive branch? Or was its aim to throw the crackdown on power plant pollution back to the wolves?
Something else is unclear, too. What is the obligation of the federal government’s three branches to respect the precedents set by their predecessors? On the one hand, times change. Some rulings, laws and executive actions also must change to remain relevant.
On the other hand, insufficient respect for precedent causes instability in the economy, environmental stewardship, governance and society.
Regarding Congress, what weight must it give to the intent of previous congresses, not only as expressed in the text of “settled statutes” but also regarding what Congress had in mind when it passed them? To prevent uncertainty about its motives, Congress often includes explanations of its intentions in the laws it passes.
Sometimes its intentions, as well as its laws, are overtaken by circumstances as time passes. But other times, Congress intends to clarify its intentions for the ages, explaining obligations fundamental to America’s values and role in the world.
That’s the case in the central environmental law Congress passed, and a Republican president signed 53 years ago, the National Environmental Policy Act of 1969 (NEPA). I’ve quoted it many times:
“The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”
The “continuing policy of the Federal Government” is clear, timeless and even more relevant today as the nation deals with its growing impact on natural resources, ecosystems and biodiversity within and beyond its borders.
So, as they interpret existing laws, the separation of powers and other governance issues, the justices of the Supreme Court would serve us best by keeping NEPA’s opening words in mind. The same is true for the other two branches because modern civilization has created a future that will test us severely.
If the president of the United States, the justices of the Supreme Court or members of Congress have any question about what the lawmaking branch of government had in mind about our obligations to one another and the natural world on which we depend, they need only go back to the opening words of NEPA.
We huddled masses can refer to those words, too, to judge how well the government is helping us achieve the productive harmony Congress envisioned 26 sessions ago.
William S. Becker is a former U.S. Department of Energy central regional director who administered energy efficiency and renewable energy technologies programs, and he also served as special assistant to the department’s assistant secretary of energy efficiency and renewable energy. Becker is also executive director of the Presidential Climate Action Project, a nonpartisan initiative founded in 2007 that works with national thought leaders to develop recommendations for the White House as well as House and Senate committees on climate and energy policies. The project is not affiliated with the White House.