Annie Kuo: Welcome to Discovery, a University of Washington podcast where we interview the law school’s faculty and distinguished guests from around the world. I'm your host Annie Kuo. Today we have a real treat. We're interviewing one of our own, sitting here in the Gallagher Law Library with Professor Sanne Knudsen. She is the Stimson Bullitt Endowed Professor of Environmental Law. And her expertise is in administrative and environmental law. She is an alumna of Northwestern and the University of Michigan. And she joined the UW Law faculty in 2011. Welcome Sanne to the podcast.
Sanne Knudsen: Thank you. Thank you for having me.
AK: So, Sanne brought a book down to the library, showed us a bright green cover. It's called The Genius of Earth Day and we thought, since we are posting this episode on the occasion of Earth Day here in April, that we could have Sanne share a fun fact about how Earth Day originated in Seattle. But that's not always well known around here.
SK: Well, no. And in fact, being an alumna of the University of Michigan, I'd always thought that Earth Day actually was credited as being a teach-in moment, in the early 1970s —’69 actually — in Ann Arbor, Michigan, on the Michigan campus. But this book I have in front of me is called the genius of Earth Day. And it's a book written by Adam Rome. And it talks about the genesis of Earth Day and, and kind of the prehistory in the early days. And I was really excited to learn that Earth Day actually, he tells us began modestly, and on September 20 1969 — in a speech that was made as part of a symposium by the Washington Environmental Council, which is one of our oldest and most well-known umbrella environmental organizations here in Washington — it started with a speech by Senator Nelson from Wisconsin. And so I think Seattle gets to take a little bit of credit to for planting the seed of Earth Day.
AK: I love what you did there with the environment. So, we're talking about environmental law and administrative law today. Thanks for sharing that tidbit about Earth Day. I probably could spot that cover from across the library. It's like a very bright green.
We're going to talk about two of your specialties in the context of a little paper that you wrote in the environmental forum called “Reclaiming Control”. It's about the power created, to quote the paper, the power created by ambiguity in some broad congressional mandates to protect the environment that have then been sidestepped by the courts, the least democratic branch. Could you tell us more about why you decided to write this, this piece “Reclaiming Control”?
SK: One of the reasons that I was really interested in writing this piece, and it kind of connects back to this genesis of Earth Day, was in thinking about the long history that we have in the United States in the conservation movement, and in our environmental protection. Not just movement and laws, but for how long it's been part of the roots of the United States, really, to think about environmental protection and conservation in our natural resource management laws, like the Wilderness Act, and in our pollution control laws, like the Clean Water Act and the Clean Air Act.
And it got me thinking about why despite all of these laws that we have, who are, frankly, if you go and read them, they're very bold, statements by Congress. They're comprehensive, they're deep, they have provided a lot of regulatory tools for agencies like the Environmental Protection Agency. And yet we continue to struggle sometimes in the implementation of these laws. And one of the places where we see that struggle is when we look at the courts, and especially what some of the modern courts have done in terms of interpreting these laws. And in particular, I'll call out the United States Supreme Court as being one of the institutions that sometimes approaches these laws with what other scholars have said is a bit of apathy or even hostility.
So, I was thinking about, what is something that Congress can do knowing that, you know, Congress gives its voice of the people through the language of the laws that it codifies? And if we want to appreciate the voice that Congress has given to environmental protection in the United States, it's a strong voice. It's a clear command.
Now, environmental laws are always a balance, right? They're never one thing, because we're trying to figure out how humans fit into the environment in which we live. But nonetheless, the laws are particularly strongly worded and comprehensive. And I thought about what we can do for Congress to reclaim part of the strength of that voice that originated in many of these statutes that were been passed nearly a half a century ago. So, that's really what I was thinking about when I was thinking about what Congress can do to double down on the strength of these laws without having to go back and tweak or amend or rewrite or reaffirm each individual statute.
AK: I like that there's this call for Congress to reclaim its voice. You mentioned in your paper that there are three precepts behind that call at the heart. I think you've just provided some examples of these purpose statements, these like vast and strong congressional mandates, where the argument is that the legislative text means what it says. Congress means what it says. Could you tell us more about the precepts at the heart of this call for Congress to strengthen its voice or to get the power back?
SK: Yeah, this call really sits at the at the intersection of what I call three precepts. One is that environmental law is indispensable to a well-ordered society. So, at step one, we need to recognize that environmentalism sometimes is infused with passion, right? And it's considered a movement, right? And even sometimes characterized as a movement by others, right? That it's somehow isolated.
Environmental Law, I claim is just a rational response to the fact that we live in a world that does not have an endless supply of resources, right? The Earth doesn't have an endless supply of timber, and our waterways don't have an endless capacity to receive waste. And so environmental law, kind of in its most boring form, is just a pragmatic response to the fact that we need rules around the use of resources. And so that's one of my preliminary precepts, because it leads into the second precept, which is like, well, if we need environmental law, then we would expect Congress to have adopted those kinds of foundational laws. And to that I observe, Congress has, in fact Congress has observed, or has over time, passed many strong laws having to do with water pollution control, air pollution control, mining, wilderness areas, grazing of cattle and timber, right? The full suite of the resources that we deal with and the full suite of industries, frankly, that helps shape the environment, Congress has responded. And on that point, that's where I say, you know, Congress has spoken, and it has spoken strongly. And part of the job here is to understand that Congress said what it meant, and it meant what it said. And so part of the call for Congress to reclaim its voice is for Congress to remind the courts especially — the courts, is really, who I have my eye on in this piece — that Congress did mean what it said that, frankly, the comprehensive nature of environmental laws, which sometimes get critiqued as overregulation or overreaching. The comprehensive nature of environmental laws is actually a feature, not a bug of environmental laws. And therefore, the courts actually need to step up and start respecting that. And they would if they understood the entire portfolio of the laws, and if they accepted the fact that time and time again, Congress through these legislatively backed commitments, has prioritized conservation and environmental protection in the United States.
AK: Could you give a few examples where you saw the court fail to enforce laws and that were aimed at protecting the environment?
SK: Yeah. And one of the more recent examples, and this is an example maybe not so much of the court failing to enforce, but where the court approaches environmental laws in a way that is not as engaged with the text of the laws with the purpose of the laws and with, kind of, the larger legal landscape of these environmental laws in mind. And the case that I have in mind is the case from last June that the US Supreme Court decided, West Virginia v. EPA, which is a case it's already infamous, it's already been getting a lot of airtime. Now, just a little bit of background, that case dealt with the Clean Air Act. And the court was reviewing an Obama-era EPA regulation that folks know as the Clean Power Plan. And the Clean Power Plan was adopted by the EPA under authority that it had through the Clean Air Act to address greenhouse gas emissions from existing coal-fired power plants.
So, coal fired power plants are a significant source of greenhouse gas emissions that the EPA was trying to get at through its authorities in the Clean Air Act. And what the court did in reviewing whether or not the EPA had this power, was, rather than go through the methodology that we have come to expect from the Supreme Court on issues of statutory interpretation, which would be to engage heavily with the text, the purpose, the structure, the legislative history, and ask whether or not there's any ambiguity in the statute. And if there is ambiguity, deferring to the expertise of the agency to make the policy calls. Instead of doing that, which is the pattern and the framework that the court had laid out, since the 1980s case of Chevron v. NRDC.
Instead of doing that, what the court did was developed a new doctrine called the Major Questions doctrine. Now, the majority would disagree with me that it is a new doctrine, but plenty of scholars have observed that this is the first time, the first case where the Court has announced this as a doctrine. Or what the court is saying is there are some questions that are of such vast economic and political significance that if Congress is going to give power to an agency, Congress has to speak, clearly. And that makes some sense. And it's an intuitive reaction to the size of the administrative state and the kinds of powers that are given to agencies through legislation.
But at the same time, what is troubling is that the court after announcing that for these major questions, a court should scrutinize more and look for clear congressional intent with a keener eye. The court spends most of its time defending this Major Questions doctrine, and not that much time actually engaging in the text and the history and the purpose of the Clean Air Act. And, in particular, the statute, the statutory section that was at issue, section 111 D., it's the statute that hasn't been used very much in the history of the act, though the court doesn't engage the depth of it, or the reason why Congress would have included this additional tool. The court doesn't appreciate the overlapping regulatory tools that Congress gave to the EPA to make sure that we have the regulatory capacity, that the EPA is supposed to pass regulations where they have found there's an endangerment of the public health and welfare, which they have with respect to greenhouse gases.
And so this is an example of a case where I think the court would have benefited from a greater lens, greater appreciation of the depth and the sophistication and the role of environmental law in the history of the United States. I also think it would have been a case where the court would have benefited from congressional direction, saying, hey, when you are interpreting environmental statutes, we meant for these statutes to be publicly minded. And we mean for you to approach them with the kind of deference towards those values that we've intentionally embedded into these laws.
So, that is the kind of case that concerns me at the United States Supreme Court, the sidestepping of the engagement of the text in the language and the purpose of the act, and where I think that Congress can reclaim part of its voice in doubling down and saying that these agencies are meant to have the full suite of regulatory tools that were written into the act.
AK: In your article you call upon Congress to pass what you call the Environmental Judicial Review Act. You've laid out the context for why there's a need for such an act. But what would that enactment look like?
SK: So, the Environmental and Judicial Review Act would be a cross-cutting statute. It wouldn't be an amendment or an addition to any one area of environmental pollution control. But it would rather speak to the courts. And it would speak to the courts in laying out basically a series of instructions for how we would like you to approach your statutory interpretation of these statutes, and also what level of deference we would like for you to give to agencies when you're reviewing what they have done under the statutes. And I'll give you an example.
Many times agencies are making decisions in environmental law in the face of scientific uncertainty. And other scholars have written about how scientific uncertainty is often used as a shield for inaction. We need to know more. We can't act even though many of the environmental laws are written with a precautionary approach. And they actually at their face permit regulation in the face of some uncertainty.
What Congress could do through something like an Environmental Judicial Review Act is remind the courts that if an agency is acting, taking action in the face of scientific uncertainty, that that is an acceptable position, or that's an acceptable path.
By contrast, if an agency is looking at scientific uncertainty, and using it as a shield, or reason not to act, Congress could tell the courts, we want you to be extra skeptical. We want you to scrutinize more if the agency is using scientific uncertainty as a reason for inaction. And the reason I use that example is because I think it's important to appreciate that in environmental law, inaction often translates to harm.
A more recent example, under the food Quality Protection Act for 14 years an environmental NGO petitioned for and fought for the EPA to ban a pesticide, a widely used pesticide, called chlorpyrifos. And it took 14-plus years to work its way through the courts, just to have the courts tell the EPA, yes, in fact, there is no safe level of pesticide residue. And you need to make a decision, you need to ban chlorpyrifos under the reading of the statutes. And that's a situation where I use that as an example of how delay in those 14 years, we had the pesticide on the market, right?
And so delay in environmental law often translates to harm, which is why when courts approach inaction in environmental law, perhaps they need to be operating under a different set of instructions than the ones they operate under when it comes to tax or SEC disclosures or anything else that the federal agencies do. So, part of what I'm doing here is I'm calling for a special set of rules for courts to adhere to in the area of environmental law because environmental law requires that and is a different beast.
AK: I'm wondering if you could clarify what power does Congress have and not have? Also, in your paper, you noted that some of the application of administrative doctrines rather than wrestling with the merits of a case aren't always intentional, like the sidelining of environmental values are not always intentional. But because they're so intertwined, this kind of happens. I wonder, in balancing out administrative and environmental law, what power does Congress have? And then what's not touchable?
SK: Yeah. And I'm glad that you raised directly the issue of administrative law, because you're right. Part of what I'm trying to do in this paper is to articulate how environmental law and administrative law should be fit together in a way that furthers both administrative law values of judicial review and transparency and keeping agencies in check with environmental law values of environmental protection and conservation management. And I argue in this paper that there are times when the courts have allowed administrative law to play an outsized role in shaping environmental policy. And so I'm glad that you raised administrative law directly.
Your question I recognize is in that space, in that space at the intersection of environmental and administrative law, what can Congress do and not do? And it's true, there are some administrative law doctrines that stem directly from the constitution. So, some of our doctrines of standing, which control what kind of plaintiffs can bring what kinds of suits, it makes sure that, frankly, courts are hearing actual cases and controversies, and the plaintiff is actually harmed by whatever it is that the agency or the defendant is doing. Those kinds of standing doctrines, because they come from constitutional roots and because they are the US Supreme Court interpreting constitutional limits, Congress obviously can't legislate around the Constitution. But there are places where Congress can legislate. Congress can tell a court how much it wants the courts to scrutinize different agency decisions. Congress can tell the courts what to do in the face of congressional inaction, that Congress wants to open up avenues to the courts, where there has been inaction. Those would be some things that would strengthen the implementation of environmental law across the board, dealing at the administrative law level, that wouldn't require Congress to go back and revisit individual statutes.
AK: Thanks for addressing that. What is maybe on the carrot side of things — other than saving the Earth — coming back to Earth Day. What’s the pie in the sky, for all things being well, or better?
SK: I think the ultimate goal here is to make sure that the text of the statutes, which are strong and comprehensive, and meant to be bold, that they're given their rightful place in our system of legal frameworks. And that sometimes we talk a lot about needing more or different laws, but the fact of the matter is, we have really good strong laws. The United States for a long time has been heralded as a leader in the space of environmental protection laws. Sometimes the rhetoric of environmental regulation is being burdensome, and it puts environmental laws on the backfoot having to defend themselves. And so I think that the pie in the sky here, the goal is really a reaffirming of these values, and a recommitment to the strength of the laws that we have. We have a lot of work to do in the environment. Climate change, obviously, is a big issue. It's something that we need to address. But it's climate change and. Climate change is a force that is going to exacerbate some of the existing environmental issues that we haven't yet taken care of. And so what we need is we need climate change advocacy and we need to make sure that we're not losing sight of maintaining the strength of the laws that we have, because those are resources that we're going to come to depend on even more in a climate changed world.
AK: Thank you so much for joining us.
SK: Thank you.
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