by Lindsey Hall, NU student
Abstract
Why do certain bills pass into law while others do not? This paper attempts to determine the differences between those bills that pass and become a law like the Endangered Species Act (1973); and bills that do not make it out of court like the Energy Savings and Industrial Competitiveness Act (2014). It will also interpret these problems and provide solutions that could ultimately lead to greater environmental policy change in the future. This was accomplished via researching and studying the court cases, scientific articles pertaining to the topic, and relevant news around the time that each bill went to the Supreme Court. The paper comes to the conclusion that although great strides have been made in environmental law in the past 70 years, there are still problems in the system that require attention. The bills analyzed might not cover the same issues (endangered species vs. energy conservation), but comparisons can still be made between the processes that brought these bills to the courts. Using these comparisons, changes can be made based on what was successful in the policy of the bill that passed.
Key words: Law, Environment, Supreme Court
I’m Just a Bill
“It’s a long, long journey to the capitol city. It’s a long, long wait while I’m sitting in committee, but I know I'll be a law someday (at least I hope and pray that I will). But today I am still just a bill.”[1] Our friend Bill from Schoolhouse Rock helps us understand that many factors go into a bill’s becoming a law. The bill starts purely as an idea, then moves up through the levels of government until it reaches the President. However, with all of the different stages the bill has to go through, there are also a lot of places for a bill to die and not make it to becoming a law. Environmental bills seem to have even more problems making it through the court system than other legislation does. Because the bills face much more opposition. Many different factors go into why environmental laws do or do not pass. This paper will attempt to figure out the differences between bills that do not make it out of court—our example here is the Energy Savings and Industrial Competitiveness Act (2014)—and those that do pass become a law—like the Endangered Species Act (1973). This paper will also try to interpret the problems that laws face and provide solutions that could ultimately lead to greater environmental policy change in the future.
History
The Journey from Bill to Law
As stated in the previous section, many steps are involved in the transition from a bill to a law. Because of all of the factors involved in the lawmaking process, comparing the components of two different bills can be helpful in determining changes that should be made in environmental policy. The process of a bill’s becoming a law starts with an idea, which then gets sent to a committee.[2] The committee can pass, reject or take no action on the bill. If the bill passes, it will then move on to either the House or the Senate. In the House or the Senate, the bill will have to make it through another series of committees, in which the bill is subject to debate and amendment.[3] Once the bill passes in one house, it moves on to the other and repeats the process again. If any changes are made in the other house, the first house must approve the changes. Once both the House and the Senate approve and sign off on the bill, it is sent to the President. If the President approves of the legislation, he signs it into law. If the President does not take any action for 10 days while Congress is in session, the bill automatically becomes law.[4] If the President opposes the bill, he can veto it; however, if he takes no action after the Congress has adjourned its second session, it is a pocket veto and the legislation dies.[5]
With all of this protocol taken into account, one has to wonder what factors really effect a bill and what makes a bill successful in passing and becoming a law. This is where the Endangered Species Act of 1973 comes into play.
The Endangered Species Act (1973)
The Endangered Species Act has changed significantly since it was signed into law in 1973, but the ESA itself was not the start of endangered animal protection and preservation in American environmental policy. The protection of endangered animals in the U.S. started with the Endangered Species Preservation Act in 1966.[6] The act provided a means for listing native animal species as endangered while providing limited protection to these animals. The main way that the government went about protecting these species was through habitat preservation and acquiring the land that these endangered animals inhabited. Congress then amended the act to include worldwide endangered species; the name was changed to the Endangered Species Conservation Act.[7]
This change from national to worldwide protection required an international meeting. As a result a conference was held in Washington, DC, that brought 80 nations to sign the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).[8] CITES monitors and restricts international commerce of plant and animal species believed to be harmed by trade. This convention helped further U.S. environmental policy and aided by developing a new bill, improving upon the previous legislation that dealt with endangered species. This new bill was the Endangered Species Act (ESA).[9]
The Endangered Species Act
was signed on December 28, 1973, and provides for the conservation of species that are endangered or threatened throughout all or a significant
portion of their range, and the conservation of the ecosystems on which they depend. The ESA replaced the Endangered Species Conservation Act of 1969.[10]
The ESA provided a number of helpful changes to the previous act: It defined endangered and threatened; did not only apply animals eligible for protection, but all plants and invertebrates as well; made protection of the animals much more broad and allowed prohibitions to apply to threatened animal species; required federal agencies to conserve species on the list and regulate actions that may have an effect on populations; prohibited federal agencies from authorizing, funding, or carrying out any action that would jeopardize a listed species/ instead of destroy or modify its one true habitat; assisted states in carrying out this law by matching funds with cooperative agreements; provided authority and funding required for acquiring land for foreign species; and implemented CITES protection in the United States.[11] With all of the changes listed above made to the new bill, the main purpose of the act are as follows: “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth.”[12] Since the bill was passed in 1973, there have been 15 amendments sponsored, the most recent being in 2009 with the National Defense Authorization Act. The act established the authority of Defense facilities to participate in offsite mitigation banking for protected species.[13]
Energy Savings and Industrial Competitiveness Act (2014)
The 1970s were an interesting time in American politics. Many people consider it a continuation of the 1960s, as many of the ideas and beliefs were much the same: “Women, African Americans, Native Americans, gays and lesbians and other marginalized people continued their fight for equality, and many Americans joined the protest against the ongoing war in Vietnam.”[14] President Nixon came into office and began to smooth out many of the problems that were brought on during the Johnson Administration. Along with this new administration came a new look on environmental policy. The American people started to see the environment as something to be cared about because of problems like “toxic industrial waste in places like Love Canal, New York; dangerous meltdowns at nuclear power plants such as the one at Three Mile Island in Pennsylvania; [and] highways through city neighborhoods.”[15] Americans also celebrated their first Earth Day in 1970.
In contrast, the 2000s were a drastically different time when it came to politics. With George W. Bush’s election and the terrible event of 9/11 occurring, our nation’s focus was pointed directly toward security and very little else. Also, the Bush Administration brought with them many representatives from oil companies placed in leading positions in large environmental agencies such as the EPA. These appointments meant that the focus would mostly be on oil and the economy, which resulted in the environment’s being placed on the backburner. The 2008 election of President Obama brought along healthcare reform and a slow economic increase as the country tried to recover from the economic crash of 2008.[16] When looking back at all of the evidence, it seems as if the ESA passed because all of the parts were in the right place at the right time. The social implications, the support from the President, and the CITES all led up to the creation and implementation of the new law. This is the biggest difference between the two bills. Referred to as the bipartisan bill that would have strengthened U.S. energy efficiency, the Energy Savings and Industrial Competitiveness Act was introduced to the Senate on April 28, 2014. With the addition of an amendment that was to include the Keystone XL pipeline, just enough opposition rose up before the vote.[17] The pipeline would bring the U.S. its own source of fossil fuels, but ultimately the decision was that the amount of environmental harm that it would cause was not worth the money the U.S. would save.[18] It was discussed and ultimately the bill failed to become a law on May 12, 2014. The yea-nay vote came out to be 55-36, needing 60 votes to pass. Senator Jeanne Shaheen was quoted saying, “I’m disappointed the Senate failed to advance my bipartisan plan to create almost 200,000 jobs, reduce pollution and save taxpayers billions, but I will continue to fight for [the bill] because it’s a win-win-win for jobs, clean air and taxpayers.”[19] Many people were very hopeful that the ESICA would pass; consequently, it was surprising when it didn’t. However, the ESICA did not have nearly as much Presidential support as the ESA did; the public at the time had much bigger concerns besides conserving energy.
If the bill would have passed, it would have accomplished several different purposes. First of all, it would have developed and updated national building codes for residential and commercial buildings in order to reach energy-saving targets set by this act. Next, it would have encouraged and supported states and local governments to follow in the footsteps of the federal government by setting regulations on building energy codes. Finally, it would have supported full compliance with the state and local codes. All of these improvements would have been part of the amendment to the Energy Conservation and Production Act (ECPA).[20]
Problem
Both of these bills were amendments to already existing laws, so why did one pass and not the other? Many different factors go into the decisions; there are many opportunities for a bill to fail in court before it even comes close to being a law. The Endangered Species Act and the Energy Savings and Competitiveness Act were written and brought to court at very different times (politically), so could this have been a reason that the ESA was successful and the ESICA failed to pass?
How did the ESA become a law?
The 1960s and 1970s were a time when the environment was a huge political issue. Many Americans by this time owned cars and were contributing carbon dioxide into the atmosphere; consequently, the air quality became a larger concern.[21]
In 1962, Rachel Carson released her book Silent Spring, which is “acclaimed as the catalyst of the modern environmental movement,” condemning the overuse of pesticides in our farming.[22] In 1963, the Clean Air Act was passed, which provided $95 million to the study and clean up of air and water pollution. A couple of years later, the Water Quality Act and the Motor Vehicle Pollution Control Act both passed, which led to great changes in the areas of water quality and air quality.
Then in 1966 came the predecessor to the ESA, the Endangered Species Preservation Act. This legislation brought the first list of endangered species in 1967, which included the bald eagle. In 1968, further changes were made, and the idea of going back to the land became popular. This caused communes to become a fad, so they began popping up all over the country. Ultimately, the communes did not last but many of the ideals were instilled in people’s minds. The environmental lifestyle became popular in the culture of the time. Between 1968 and 1970, a few other acts were passed, and other notable events happened (NASA’s photo “Earthrise” became the iconic image for the environmental movement, for example).[23] The biggest influence to the movement was probably Nixon’s State of the Union Address in which he stressed the importance of environmental issues.
Soon after Nixon was inaugurated, he got to work on establishing the Environmental Protection Agency (EPA) and the National Oceanographic and Atmospheric Administration (NOAA). 1972 brought along the Clean Water Act and the Marine Mammal Protection Act. The MMPA especially helped in bringing up the issue of endangered animals because it “protects all marine mammals from importation, exportation, hunting, capture, or any form of harassment, thus encouraging natural resource management in the United States.”[24] In 1973 when the ESA was passed, Richard Nixon was President. He had a surprisingly environmentally-focused agenda while in office, which was a large motivator behind why the bill was successful. He declared that the current endangered species protection laws were inadequate and that it needed to change. Congress responded to Nixon’s call with a completely rewritten law transcribed by lawyers and scientists, which is another reason that it had so much support. It was very well written and supported by scientific evidence.
With all the presidential support, it was not a huge surprise that the ESA passed. Perhaps it was the lack of support from the Obama Administration that caused the ESICA to fail.
Why did the ESICA fail to become a law?
The Obama Administration has made some changes in the area of environmental policy, but with little to no success. President Obama has received quite a bit of opposition from Republican members in the government. He has struggled to find the middle ground of supporting environmental movements, while making everyone else happy in the process as well.
According to the New York Times, the bill was ultimately “derailed by the contentious debate over the Keystone XL pipeline and President Obama’s plans to issue new climate change regulations.”[25] The Keystone XL pipeline was highly controversial, as it would have boosted the economy and provided thousands of new jobs to Americans. As well, it would have been the cause of much environmental degradation and greenhouse gas emissions. The Obama Administration denied the permit to build the pipeline after the ultimate decision was made that the pipeline would have caused too much environmental damage to balance out the positives that it provided.[26] Up until a week before the bill died in the Senate, it had strong support from members of both parties in both chambers of Congress. It was strongly supported by many members until several amendments were made that people disagreed with (one of these was the keystone pipeline). Because of these new amendments, just enough supporters of the bill switched their vote to nay, causing the close loss of 55-36 votes (only needing 60 to pass). [27]
The votes on the bill were extremely close. If the amendments would not have been made, perhaps the bill would have become a law. Looking at the differences between the ESA and the ESICA may help lead to solutions to bills not being passed. Once we have the solutions needed, our nation can start making bigger changes when it comes to environmental policy and law.
Solution
What can we do to solve this problem?
Back in the 1970s, people cared about endangered animals; when a name is given to a problem like that, it makes people listen. Giving the problem a name helps them understand how important the issue is. The likelihood of a bill becoming a law greatly increases when the public is well informed and they care about the problem that the bill is trying to solve. In the case of the ESA, it was created during a time of great environmental enlightenment in the U.S., not only in politics but in all areas of life (think of the communes and the hippies). The amount of awareness led to the substantial environmental policy changes during the Nixon Administration. Transitioning into the 1980s was a different story in environmental policy, however. With the election of Ronald Reagan came a conservative, pro-business ideology.[28] Under his administration, environmentalists were portrayed as radicals: “Between 1980 and 1983, the EPA lost one-third of its budget and one-fifth of its staff.”[29] With all of the understaffing and underfunding, the EPA could not fulfill all of its functions. Even with all of Reagan’s anti-environmental policies, the American public still remained greatly concerned with environmental issues. Many activist groups started forming, eventually leading up to the formation of the idea of deep ecology, or a “movement or a body of concepts that considers humans no more important than other species and that advocates a corresponding radical readjustment of the relationships between humans and nature.”[30] The deep ecology movement made the American people care more about the environment again, it slowly began to move priorities back toward a positive environmental policy change.
In contrast to the ESA, the Energy Savings and Industrial Competitiveness Act was only created a few years ago when environmental policy was not as much in the forefront of the public’s mind. After the Reagan Administration, the EPA and other environmental agencies needed to recover. Slowly but surely, the U.S. has seen an increase in public concern for the environment (especially with the topic of global warming or climate change), but there has been much more opposition to environmental policy than there was during the time of the ESA. The Obama Administration was dealing with a large amount of opposition from big oil companies when it came to his policies on renewable energy, which made him stop pushing the issue by the time the bill made it to court. The main reason that the bill failed was because the Republican members of the Senate added amendments with which the Democratic members disagreed. It was a close loss, but just enough votes were swayed by the new amendments that caused it to fail. Ultimately, with the new Keystone XL amendment that was made, it was a good thing that the bill did not pass. However, the Republicans’ pushing for the pipeline to be created may have known that the Democrats would disagree with the amendment and perhaps used that to their advantage when trying to get the bill to fail. With all of that said, the main problem was that the amendment was made, which made the bill fail.
The problem of environmental bills’ not passing can be solved, or at least improved in several ways. First and most importantly, is the needed change in public awareness. The 1960s and 1970s were a great example of this awareness. With the release of Silent Spring, the communal living, and the addition of laws like the Clean Water Act and the Marine Mammal Protection Act, U.S. citizens were more interested and educated on environmental issues.[31] If the people of today’s society became more educated and aware of environmental policy issues today, they would elect people into the House and the Senate who would more likely be on the side of environmental change. This was shown immensely during the era when the EPA was passed. People felt incredibly passionate about the subject; therefore, more people rallied and supported the politicians in favor of the bill. Also, if people are aware of the issues, they can start petitions to make changes or even give ideas of new bills to politicians to take to committee. Much change can be made when a few people care passionately about an issue.
Second, people of the nation should start making changes on the state level. California has always been a leader when it comes to environmental policy change. Usually when an individual state makes a policy change, the federal government follows suit not too long after (e.g. California’s emission standards, for example). California has put millions of dollars into many projects and agencies such as the California Energy Commission and the Air Resources Board.[32] California also has extensive air quality laws put in place, many because of the health and safety concerns that come with air pollution.[33] California has set standards for certain pollutants, such as particulate matter and ozone, which are more protective of public health than respective federal standards. California has also set standards for some pollutants that are not addressed by federal standards.[34] When people know that something could affect them, whether through their health or the loss of an important animal species, people will be more interested and concerned with the issue. It has been shown in California that it is much more effective to enforce federal laws if taken down to the state level. They can make the laws more intensive, and it makes it easier for the laws to be enforced. Washington has similar successes with their environmental policy as California. With the addition of dams, Washington gets the majority of its electricity from hydroelectric power and also provides nearly 30% of all hydroelectric power produced in the United States.[35] Also in Washington, environmental policy is used to protect quality of life of its residents and ecosystems alike. The legislature and Washington’s governors have made it a priority of the state government to protect the environment and human health.[36]
Third, change in environmental policy can greatly depend on who is in office. This means that in the future the people of the U.S. need to elect Presidents who have environmental policy in mind, those who will make great strides in the issues that the people believe to be important. The President is also in charge of who leads different federal agencies, and the relationship between agencies and the courts is crucial in environmental law.[37] By comparing the Nixon Administration to the Obama Administration, great differences can be seen in the area of environmental policy. Surprisingly, Nixon was a very big promoter of environmental policy. If Nixon would not have supported and pushed for the ESA so much, it probably would not have passed. Whereas, if Obama would have pushed the energy conservation bill a bit more, then maybe it would have passed. Obama is also a supporter of environmental policy, but during his administration he has had to worry more about other issues like improving the economy and getting troops out of the Middle East. With the addition of the Keystone XL pipeline amendment to the bill, there was much more for the Obama Administration to take into consideration, especially because the pipeline would have been the cause of more environmental degradation.[38]
Conclusion
Great strides have been made in environmental policy in the last 70 years. Even with the big changes, problems in the system still need to be rectified. There are obvious differences in the policy of the ESA and the ESICA. They might not cover the same issues (i.e., endangered species vs. energy conservation), but comparisons can still be made between the processes that brought these bills to the courts. Comparing the two, changes can be made based on what was successful in the policy of the bill that passed.
The recent climate change conference in Paris is something that could be a start to a solution to our policy problems. With the rallying of all of the countries together, the signing of the treaty will hopefully inspire them to actually make these changes and stick to the goals that they have set for their own nation.[39] People saw how the Kyoto Protocol was not as successful as initially proposed, mostly because of the lack of Presidential support. With the support that the Paris treaty received, it seems that the treaty will be making a bigger difference than the Kyoto Protocol ever could.
The solutions for the problem may not be easy, but once our nation finds a way to move past all of the issues, people will realize that helping the environment is actually something to strive for. Then significant change can be made. The more people who are educated on the subject, the better decisions will be made regarding the laws and policies that have to do with the environment. Hopefully, the treaty that the countries decided upon in Paris will bring about great environmental change. If not, something needs to be done soon in order to enact the changes that are necessary to make our environmental policies more effective.
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[1] I'm Just a Bill [Motion picture]. Schoolhouse Rock (1973). American Broadcasting Companies.
[2] Lazarus, R. (2004). The Making of Environmental Law. Chicago: University of Chicago Press.
[3] Steps in Making a Bill a Law: The Federal Legislative Process | National Association for the Education of Young Children | NAEYC. (n.d.). Retrieved October 17, 2015, from http://www.naeyc.org/policy/federal/bill_law
[4]Neal, T. (1996). Lawmaking and the legislative process: Committees, connections, and compromises. Phoenix: Oryx Press.
[5] Steps in Making a Bill a Law: The Federal Legislative Process
[6] A History of the Endangered Species Act of 1973. (2011). U.S. Fish and Wildlife Service. Arlington, Virginia: Endangered Species Program.
[7] Ibid.
[8] The Endangered Species Act of 1973. (1973). Retrieved 2015, from http://www.epw.senate.gov/esa73.pdf.
[9] Ibid.
[10]The Endangered Species Act (ESA). (n.d.). Retrieved October 17, 2015, from http://www.nmfs.noaa.gov/pr/laws/esa/
[11] A History of the Endangered Species Act of 1973. (2011). U.S. Fish and Wildlife Service. Arlington, Virginia: Endangered Species Program.
[12] The Endangered Species Act of 1973. (1973). Retrieved 2015, from http://www.epw.senate.gov/esa73.pdf.
[13] The Endangered Species Act of 1973. (1973). Retrieved 2015, from http://www.epw.senate.gov/esa73.pdf.
[14] The 1970s. (n.d.). Retrieved 2015, from http://www.history.com/topics/1970s
[15] Ibid.
[16] America's Best History—U.S. History Timeline 2010-Present. (n.d.). Retrieved 2015, from http://americasbesthistory.com/abhtimeline2010.html
[17] Davenport, C. (2014, May 12). Amid Pipeline and Climate Debate, Energy-Efficiency Bill Is Derailed. The New York Times. Retrieved from http://www.nytimes.com/2014/05/13/us/politics/bill-to-encourage-energy-efficiency-fails-in-senate.html?_r=2
[18] Ibid.
[19] Valentine, K. (2014, May 13). Bipartisan Bill That Would Have Strengthened U.S. Energy Efficiency Dies in Senate. Retrieved October 17, 2015.
[20] Actions - S.2262 - 113th Congress (2013-2014): Energy Savings and Industrial Competitiveness Act of 2014. (n.d.). Retrieved October 17, 2015.
[21] Timeline: The Modern Environmental Movement. (n.d.). Retrieved October 17, 2015, from http://www.pbs.org/wgbh/americanexperience/features/timeline/earthdays/
[22] Timeline: The Modern Environmental Movement. (n.d.). Retrieved October 17, 2015, from http://www.pbs.org/wgbh/americanexperience/features/timeline/earthdays/
[23] Earthrise. (n.d.). Retrieved 2015, from http://www.nasa.gov/multimedia/imagegallery/image_feature_1249.html
[24] Timeline: The Modern Environmental Movement. (n.d.). Retrieved October 17, 2015, from http://www.pbs.org/wgbh/americanexperience/features/timeline/earthdays/
[25] Davenport, C. (2014, May 12). Amid Pipeline and Climate Debate, Energy-Efficiency Bill Is Derailed. The New York Times. Retrieved from http://www.nytimes.com/2014/05/13/us/politics/bill-to-encourage-energy-efficiency-fails-in-senate.html?_r=2
[26] Wachter, E. (2015, February 2). EPA Interagency Comments: New Keystone XL Pipeline Application. Retrieved 2015, from http://keystonepipeline-xl.state.gov/documents/organization/249462.pdf
[27] Actions - S.2262 - 113th Congress (2013-2014): Energy Savings and Industrial Competitiveness Act of 2014. (n.d.). Retrieved October 17, 2015.
[28] Geary, D., Whitney, C., & Goldstein, B. (2003). Environmental Movement. Retrieved 2015, from http://www.encyclopedia.com/topic/Environmental_Movement.aspx
[29] Geary, D., Whitney, C., & Goldstein, B. (2003). Environmental Movement. Retrieved 2015, from http://www.encyclopedia.com/topic/Environmental_Movement.aspx
[30] Deep Ecology definition. (n.d.). Retrieved 2015, from http://www.merriam-webster.com/dictionary/deep ecology
[31] Timeline: The Modern Environmental Movement. (n.d.). Retrieved October 17, 2015, from http://www.pbs.org/wgbh/americanexperience/features/timeline/earthdays/
[32] Auction Proceeds Funded Programs and Events . (n.d.). Retrieved 2015, from http://www.arb.ca.gov/cc/capandtrade/auctionproceeds/ggrfprogrampage.htm
[33] California air pollution control laws (1979 ed.). (2003). Sacramento: California Air Resources Board.
[34] California Ambient Air Quality Standards (CAAQS). (n.d.). Retrieved 2015, from http://www.arb.ca.gov/research/aaqs/caaqs/caaqs.htm
[35] U.S. Energy Information Administration - EIA - Independent Statistics and Analysis. (n.d.). Retrieved 2015, from http://www.eia.gov/state/?sid=WA
[36] Laws and Rules | Washington State Department of Ecology. (2008, March 25). Retrieved 2015, from http://www.ecy.wa.gov/laws-rules/
[37] Farber, D., & Findley, R. (2014). Environmental law in a nutshell (Eighth ed.). St. Paul, MN: West Publishing Corporation.
[38] Wachter, E. (2015, February 2). EPA Interagency Comments: New Keystone XL Pipeline Application. Retrieved 2015, from http://keystonepipeline-xl.state.gov/documents/organization/249462.pdf
[39] More details about the agreement. (n.d.). Retrieved 2015, from http://www.cop21.gouv.fr/en/more-details-about-the-agreement/