E. Donald Elliot is the Florence Rogatz visiting Professor of Law at Yale Law School. His latest book with Dan Estee is “Advanced Introduction to US Environmental Law.”
Federal Newswire:
How did the 1990’s influence regulatory reform?
Donald Elliot:
On a lot of these issues the first Bush administration, in which I served, and their successors in the Clinton administration were really not that far apart. They both were pretty centrist. When I was on panels with the Clinton people, I would always kid them afterwards and say, "Well, we were to the left of you on environmental issues." They would kind of laugh and say, "Yeah, that's true."
As a result, we were able to make some sort of centrist reforms. I think really the leader on that was C. Boyden Gray, who recently died, after whom the administrative state center at Scalia is named.
Boyden was really a wonderful mover on these kinds of issues. But I thought for a long time that the lesson to be learned from that, which is something that Mike Levitt, a former administrator of EPA had said, is that you can only really make permanent reforms in a moderate way because one of the underappreciated aspects of our separation of powers is the alternation of parties. What you do in one administration can be undone in the next administration.
We've seen a lot of that in the Biden administration, coming in and revoking a lot of–I thought–very good things that the Trump administration had done. Candidate Trump has now promised to revoke what Biden has done if he gets back in.
What we were doing in the nineties was basically quantitative risk assessment, trying to make regulatory decisions more reasonable by putting them on a common scale. The slogan is often “the worst first,” you try to focus on the big issues first. But I think we've unfortunately lost a lot of that and have gone back to a system in which EPA and other agencies are really reactive to scare stories in the press.
If somebody calls something a forever chemical, everybody gets scared and they don't really look at what the scientific evidence really is. We're spending billions of dollars today, that I think really are unnecessary and wasteful, and tracing or chasing phantom risks that probably don't really exist.
Federal Newswire:
Explain quantitative and comparative risk assessment?
Donald Elliot:
This is one of the subjects that I teach. I have a lot of interest in toxicology and epidemiology and risk assessment, in part because I'm married to a PhD risk assessor and toxicologist, Gail Charley. That's what she's known as professionally, and she's known as Gail Charley Elliot in her personal life.
But one of the things I think people don't realize is that animal models of carcinogenesis are not good. A lot of our concern is based on getting data that suggests that high doses can actually cause cancer in animals, and there's only about a 50% correlation between those animal models and outcomes in humans. In fact, a few years ago when there were really only eight known proven human carcinogens, not a single one of them was positive in animal bioassays.
Now, we've progressed a lot since then with what are called mechanistic data, which means really understanding how the chemicals interfere with the pathways and the biological processes within the body. But we still do quantitative risk assessment, primarily through the Office of Information and Regulatory Affairs at OMB, at OIRA.
But I think the agencies have gotten very good at gaming the system and coming out with really huge estimates of the benefits. I've come around in my old age to the cynical view that most reforms wear out after 30 or 40 years. That is because there really aren't any perfect mechanisms, and people always figure out a way to game the system.
Federal Newswire:
Did you know that we’re coming up on the 30th anniversaries of the Regulatory Flexibility Act and the Small Business Regulatory Enforcement Fairness Act?
Donald Elliot:
Can I just build on that? One of my favorite quotes is by Kohler Ridge who wrote that reforms in every generation will be carried to extremes by weak minds. I always take out the weak minds part and they become the occasion for reform in the next generation. I think that captures a lot of it.
Not to get too academic, but it's also something that's been demonstrated in terms of game theory. In the seventies, we thought that certain approaches, particularly cooperative approaches, were really dominant and would lead to better results for everyone. That was by Axel Rod.
Bourne Lomborg, who's famous because of his climate work as a young game theorist, showed that that really wasn't true. It was only an artifact if you only had two players. If they build up a surplus, that becomes attractive for a third party invader or pirate. Game theorists sort of say this by saying all equilibrium is local. Playing off of the line by Tip O'Neill about all politics are local. If you have a local equilibrium, it tends to be vulnerable to some counter strategy.
I actually said that to one of the smartest guys at EPA named Rob Brenner, who had a degree in economics from Princeton. Rob smiled and said, "Yeah, that's how we think too."
Federal Newswire:
Do you think we’ve come to a regulatory state where costs are no longer considered and we just have an all-benefits approach to problems now??
Donald Elliot:
Well, I don't agree with everything that you've said, but I agree with most of it.
I don't think that costs are irrelevant. I do think they're taken into account. I think it's a question of how much weight they are given.
Part of the problem is that we've created a lot of single mission agencies like EPA. I think EPA is actually one of the best agencies that we have, but the people there are primarily concerned about protecting the environment.
One of the things that is a feature of law is that it usually doesn't involve maximizing one value, but striking a compromise between multiple competing values.
I wrote in the American Spectator recently about some of the objections to recent Supreme Court cases. One of which was on Waters of the United States.
One of those cases, the Sackett case, where we've been struggling for over 30 years to define what a federally regulated wetland is. I remember back in the early nineties, Dan Quail said, "Well, I think a wetland ought to have to be wet." Everybody made fun of him. But that's ultimately what a majority of the Supreme Court decided in this recent case.
I think that what's going on in a lot of these cases–or a lot of the criticism of the Supreme Court–is that the critics are not distinguishing between law and policy. Oftentimes they criticize a Supreme Court decision because it doesn't adopt the policy that they would like. There's been a lot of criticism, for example, in the Wetlands case on that ground or the major questions doctrine in the West Virginia versus EPA case.
One of my mentors, Bruce Ackerman at Yale, taught me that if an article is worth writing, it's worth writing more than once. Because I find that when you write it the first time, you see how people misunderstand or don't understand some of the points and some of the things that you should have said.
What was going on when Congress enacted the Clean Water Act in 1972, the federal government was basically taking over the regulation of Waters of the United States from the states, and so there was a compromise.
If one looked solely at the question of regulating wetlands, you'd probably want to make sure that all wetlands, including upland wetlands that might drain into waters of the United States, are regulated. But Congress chose not to do that, in part because they were acknowledging that there was a substantial state role. They limited the federal role to Waters of the United States, which are defined in terms of navigable waters, which is a traditional federal domain as opposed to a state domain.
If you look at it from the language of the statute, I think it's pretty clear that Congress did not authorize EPA to regulate wetlands that are not connected to waters of the United States. That's sort of the wording of the statute. But does that make sense from a policy standpoint, if your only goal were to regulate wetlands effectively? No.
In a lot of these instances, a lot of the press criticism that I was criticizing in my article is based on not adopting policies that people would like, or not recognizing that the language of the statute or the legal principle often involves more than a single value and the need to kind of reach an accommodation between them.
I wrote an article in 2008 in the NYU Law Review saying it was remarkable that we hadn't been able to define what were federally regulated wetlands. Finally in the Obama administration, EPA came out with a rule that said, "Well, ask us, and we'll give you ..." They got like 185,000 requests for interpretations. I saw the numbers recently, it was over 90% of them. They would say, "Yeah, that's a federal wetland."
I think what people don't realize is, if a wetland is not regulated by the feds, it's regulated by the state.
What's underlying is a balance between federal authority and state authority, and a lot of the criticism of this decision and other decisions is just misinformed because people don't like the result, but they also misunderstand it. They think that there's going to be no regulation of upstream wetlands.
Federal Newswire:
Do you think they don’t understand the constitutional principles that are involved and that the federal government just doesn't have the power to regulate everything?
Donald Elliot:
Yeah. I think that under the current law, the federal government would have power to regulate these wetlands because of the potential effect on interstate commerce and the expansion of federal authority under the commerce clause.
Federal Newswire:
Has the Supreme Court returned to federalism?
Donald Elliot:
Congress does not always utilize the full extent of [its] federal power. There is a body of law which is quite controversial, particularly by my law school classmate, Clarence Thomas, who was outraged about this even when he was a law student. Individual activities that quote, have an effect on commerce, can be regulated by the federal government.
He was particularly concerned about a case called Wickard versus Filburn, which was recently reiterated by the Supreme Court, that said a guy growing wheat for his own personal use and his family could nonetheless be regulated by the Feds. Because by growing the stuff himself, he was having an effect on commerce. That doesn't mean that whenever Congress regulates, it's giving the agencies that maximum extent of power.
Going to the larger point about the current Supreme Court, I do believe that this is a unique historic opportunity with what I see as a 3/3/3 Supreme Court to reconsider some of the more extreme rulings by the court that have been on the books for a while. I think what it illustrates is that one of the underappreciated aspects of our separation of powers is the changes in leadership.
Now, I am not in favor of the current system in which we allow presidents to appoint Supreme Court appointees when somebody retires or dies. I've written something in the conversation proposing that every president ought to get an equal number of Supreme Court justices. For example, you had the anomaly that Obama got one and Trump got three, even though Obama was in office for eight years and Trump for only four.
There is no constitutional principle that you have to have nine justices on the Supreme Court. In fact, there's a really excellent article by Jonathan Turley, who everybody knows from Fox News, arguing that the Supreme Court is too small. That's what results in a lot of 5/4 decisions. Now, in fact, 50% of Supreme Court decisions are unanimous, and 90% of Supreme Court decisions get at least one so-called liberal member of the court to join the majority.
I think the problem of so-called Supreme Court cases that are out of step with the will of the public, I think that's really greatly overstated. But it isn't the role of the Supreme Court to do what the public wants. It's the role of the Supreme Court to follow the law. If the public has a different view of policy, then that's something that should be corrected by the political branches rather than by the Supreme Court.
I think that's the point that a lot of the liberal critics are missing. Most of the pieces, including the article from the Washington Post that I cited in my article, don't even mention the legal principles that are involved, or even the text of the law that's involved. They just say, "I don't like the result."
Federal Newswire:
Is this a result of less civics education?
Donald Elliot:
Yes. I mentioned the fact that I am aware that some of the students, even at supposedly advanced universities like the one I teach at, are not familiar with how laws get passed. [How] there are two houses of Congress, that the president can veto bills and then they can be passed over the president's veto. This is because we no longer teach those basic things that, by the way, all new citizens are required to know to pass the citizenship exam.
I do think there's great effort going on. I recently learned that Doug Ginsburg, a senior judge of the DC Circuit, has been behind a big program to try to start teaching high school civics again. I think that's important.
The other factor that I think is really important is that most of the journalists who are writing about this stuff don't know the basic principles.
When I first went up to Yale and started teaching in the early 1980s, the Ford Foundation had a program that would bring journalists to Yale for one year of legal education and they'd get some kind of master's degree. That was very useful, and for some reason they stopped doing that. But I think the level of legal journalism in the United States, not in specialized publications, but in general publications, is really rather low.
I do think that it is a unique opportunity to revisit some of the issues, delegation and other issues that the Supreme Court I think will be revisiting over the next few years.
I was recently invited to lecture to 30 federal judges and state Supreme Court judges. I spoke about the unique developing opportunity to reconsider some of the principles relating to the administrative state.
If I can put in a plug for a book that I didn't write, there's an excellent book by Peter Wallison, who was formerly at the American Enterprise Institute, called Judicial Fortitude. He does an excellent job of setting out the history and arguing it ...
This was published in 2018, and it suggests that it's an opportunity for the courts to revisit some of these things. That said, I am not an abolitionist with regard to the administrative state. Many people are. I'm an ameliorist, and actually, I believe in correcting some of the abuses of the administrative state.
I think the increasing role of experts in making law is a worldwide phenomenon. I don't think, and this is a point that Peter Wallison makes in his book, I think the American people expect a much broader and more active federal government than the one that the framers originally [intended]...I don't think we're going back to what is sometimes deprecatingly called the Night Watchman State. I think that the problem is how to make these administrative agencies more respectful of the basic constitutional design.
I've got a lot of ideas about how we do that. I think that this goes back to an early error by Chief Justice Marshall in a very famous case called McCulloch versus Maryland, which held that the federal government could create a bank, even though that had traditionally been done by the states. The argument by Maryland was that this wasn't really necessary. Most of the opinion is about that, and the word “proper” got kind of lost in the shuffle.
For a long time, the Supreme Court just said there's no independent meaning to “proper.” It's just necessary, and “proper” is one compound noun.
In fact, John Roberts, much to his credit, tried to correct that historical error in the Obamacare case by saying, "Well, no. ‘Proper’ has an independent meaning." It means fit or suitable, and what it really means is that, although Congress can create new institutions, their design, in my view, has to be consistent with what Marshall calls the spirit of the Constitution.
Just to take a particular example, James Madison says it's the height of tyranny to have one element of government exercise all three powers, legislative, judicial, and executive.
Yet, many administrative agencies do that. They make the rules, they make the prosecutorial decisions, and they have their own little judicial system within the agency.
Federal Newswire:
Is this why the FTC has never lost a case in the FTC's administrative courts?
Donald Elliot:
Yeah, that's right.
I recently heard somebody who had been on the FTC talk about that, and they apparently have one administrative law judge who rules against them 50% of the time, but then is subject to appeal to the full commission which goes back and reinstates the initial verdict.
One of the reasons we haven't really been able to change this is it's so expensive to litigate against the federal government. The Sacketts are a perfect example.
They were a poor couple that bought a piece of property, and the EPA decided that it was a wetland, although it's not wet. They've been trying for 20 years to build something on their property where, for all the other properties in the neighborhood, no problem. Luckily, they were represented by an NGO.
But a very important case was recently decided, which is typically called Axon versus FTC, which holds that parties can challenge the structure of an administrative agency without going through the whole process of exhausting administrative remedies.
The New Civil Liberties Alliance, which was founded by Philip Hamburger and where I'm on their advisory board, brought the companion case. That will make it much easier for parties to raise these issues in the courts.
Federal Newswire:
Congress isn’t necessarily made up of issue experts. Does this leave the opportunity for agencies to interpret broad language to their own benefit?
Donald Elliot:
Well, I think that's right.
David Schoenbrod, who teaches at New York Law School, wrote an excellent book in 2009 about congress and delegation. I think what David saw in that book is that Congress wants to avoid making the hard policy decisions. Because the hard policy decisions offend somebody.
In order to get something passed, you have to be vague. Because if you specify the outcome one way or the other, you couldn't get it passed.
This is one of the things I don't think the court appreciates. There's an excellent concurrence about the “major questions” doctrine in the recent decisions invalidating Biden's attempt to forgive all these student loan payments, by Justice Barrett.
It's really an excellent opinion and very thoughtful. She does make one mistake though, and that is she assumes that Congress is going to want to make all the big decisions. Unfortunately, part of the problem is you're going to have to force Congress to make these decisions.
One of my fondest moments when I was at EPA…I was testifying in front of Senator John Glenn (D-OH). He was upset about something I'd said in my confirmation hearing about how I thought it was crazy that the leachate from a superfund site had to be cleaner than the municipal drinking water in a major city.
And he said, "Now, Mr. Elliott, what damn fool at the EPA made that decision?" It was quiet for a moment, and I let the suspense build. And I said, "Well, you did, Senator. It's written into the statute."
The statute is written in a way that no member of Congress would really have understood what it meant because it says the Maximum Contaminant Level Goal, which is often zero, has to be applied to superfund sites. In the actual drinking water system, you have a maximum contaminant level, which takes economics and costs into account and is often a lot higher. It's a basically structural problem, and I wouldn't blame it all on the agencies.
But my experience is that people in agencies tend to be very highly motivated by a single goal. If you're in the Department of Transportation, it's about building highways and improving the transportation system. Similarly, at EPA.
That's why the Office of Information and Regulatory Affairs at OMB was created–to try to harmonize these values.
I have great hopes for the new administrator there, Ricky Revesz. Ricky is a former student of mine and friend, and I helped him set up his institute at NYU. He's an economist, and I have great hopes for him.
Federal Newswire:
Is this where comparative and quantified risk assessment comes in handy because if the agencies are looking at issues in terms of risk trade-offs you can get policy that serves people better?
Donald Elliot:
I agree with all that. It's not just risk assessment or quantitative risk assessment. My friend Cass Sunstein, who teaches at Harvard, and was head of the Office of Information and Regulatory Affairs under the Obama Administration, said that the biggest shock to him when he went to OIRA is that it wasn't all about benefit cost analysis, it was about inter-agency review.
It was about when one agency wants to put up a rule, the other agencies get to comment within the executive branch before it goes public. That was also my experience in government, and in the 30 years I've been practicing law since.
In fact, this was the original purpose for creating OIRA. It was originally proposed in an article in the Yale Law Journal in 1969, if I remember correctly. It was an article written by Lloyd Cutler who subsequently became counsel to the President in the Clinton administration. They were concerned about the single mission nature of agencies, and they needed to harmonize competing values.
I think that is very much the case. The case for expertise is that all of us have limited cognitive capacity, and so you develop expertise by focusing a lot of your attention on a certain set of issues.
But that comes at the cost. I actually figured this out pretty early. I was influenced by a wonderful academic named Herbert Simon who talked about limited cognitive capacities, so I consciously decided there's certain things that I don't pay any attention to. I try to free up cognitive capacity.
Brain science now confirms that for each person during their lifetime, you can't erase anything in your brain like you can a computer, because when you have an experience or you remember something, it makes physical changes in the brain. Your brain can record about 4 trillion data bits, and in your lifetime, you get to pick which 4 trillion, but you can't really expand beyond 4 trillion. There are things where you miss the opportunity.
For example, I know nothing about macroeconomics or pop stars. When there's a crossword puzzle that has the name of somebody who sang this hit in the 1990s, I always get stumped by that. But I think we all know some things, and this is actually something that Will Rogers said. He said, "We're all ignorant, just about different things."
I wrote an article called “The Smarts Fallacy,” which is the other side of that–also in the American Spectator. It is about how the fact that somebody is smart on one thing doesn't mean they're smart about everything. Nuclear physicists are the worst in this. They think that because they understand particle physics, that that makes them experts on international relations.
Federal Newswire:
Is that a problem in DC, that people can't admit when they don't know something?
Donald Elliot:
Yeah, but I don't think it's a problem that's limited to DC.
I think the biggest problems in DC have to do with the decline of the role of Congress. I recently learned that has fed back into the hollowing out of congressional staff.
You don't really have the kinds of career experts at the committee level, or much less the individual Congress level, that you used to have. That's because there's very little for them to do. Most people don't know this, but individual members of Congress can write bills and introduce them, but they can't get anything passed.
I mean, all this legislation today, or most of it, is in these huge bills that are thousands of pages long. They give people in Congress, including the committees with jurisdiction, 24 hours before they have to vote on them. It's not possible in most cases, particularly in the Senate, to amend them. I think that's really the biggest problem.
What's happened is that because Congress is not making a lot of these policy decisions, it defaults. Somebody has to make the decision.
It either gets made in the agencies in the first instance, or it gets made and reviewed in the courts. Both of those are essentially non-democratic institutions. There is this sort of legal fiction that the administrative state is responsible to the President who was elected.
In my experience, and we could talk about some specific examples, the President has relatively little control over the agencies. It's pretty hard to control the agencies.
I remember one time at EPA, one of the career staffers objected to me about what he called political interference and told me it was my job to keep the White House off his back. One of my students at Yale who went on to be Assistant Solicitor General for the state of Indiana, a guy named Kayan Hudson, pointed out to me that what this guy was calling political interference was what we might call democratic political control.
