Many laws in the United States are famously large. It’s not unusual for bills to run to hundreds, or even thousands, of pages as they attempt to deal with details and possibilities. And still, the regulations that result from a bill can be even longer—much longer. Because they have to be. No bill, no matter how well thought out, can anticipate every possibility, or how markets, technology, and new information will alter the intent and execution of a piece of legislation.
Other countries actually make a very different calculation. Canadian bills, for example, are famously short. Federal and regional authorities are allowed to expand on the core of bills through regulations that are easier to alter and adjust to changing positions. By baking so much of requirements directly into bills, the United States can make legislation both rigid and, perversely, create regulations that are even more complicated. Much of the text in many pieces of legislation does nothing more than describe the location of some tiny fragment of text in another piece of legislation that is being altered.
Regulations—often cited as if they represent the heavy boot of government directed in some uniform, uncaring way—actually represent a much more flexible, more responsive, and more readily addressed way of fleshing out how the words of legislation impact the real world. Or they can, when regulators are allowed to regulate.
Part of the right-wing push for judges who take a “conservative” view of the law and only “rule on balls and strikes” means that those judges often demean or discredit regulations. By insisting on an approach that if something isn’t explicitly written out in the original bill, it can’t be supported by regulations, right-wing judges accomplish two goals: They weaken existing legislation, and they make it much more difficult to construct new legislation.
That approach has a powerful impact on environmental law, which is entirely dependent on information collected through science. A “just the bill” approach limits environmental law so that it can address new studies showing that a class of pesticides is more dangerous than expected, or that the safe level of lead in drinking water is even lower than we thought, or that carbon in the atmosphere is having an effect on the climate that is damaging to the nation and the world.
And, as Inside Climate News points out, that’s exactly the approach being followed by Supreme Court nominee Brett Kavanaugh.
"Judge Kavanaugh isn't anti-environmental, but he tends to be anti-agency," said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. "He's often struck down regulation that he didn't think Congress had authorized explicitly enough. He reads statutory authority very narrowly and that is a major concern for things like the Clean Power Plan," President Barack Obama's signature climate initiative.
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