The Clean Air Act (CAA) is one of the country's premiere pollution control statutes. Originally enacted in 1970, the law has not had a major overhaul since 1990 -more than 25 years ago.
This is a problem because our environmental challenges have evolved over time. While some of the priorities of the 1970s and 1980s have faded in importance, a major new environmental issue - climate change - has emerged. Yet, congressional gridlock has paralyzed Congress and prevented updates to the CAA.
The agencies are stuck. They are trying to address today's challenges with yesterday's legislation. The result is that regulations are overlaid on a law that is out of date. Given the lack of clarity, the new rules are being challenged in court. Ultimately, judges decide whether the imperfect fit is legal or not and the courts dictate policy instead of Congress.
The Clean Power Plan (CPP) arguments happening this week in the DC Circuit Court are a perfect example of this playing out in real time. Because congressional attempts to legislate a program to limit greenhouse gases have failed, the CPP is a classic example of an agency trying to address a problem based on a statute that is obsolete.
While the CAA is the clearest example of this mismatch, the same can be said for other environmental laws, like the Clean Water Act and the Endangered Species Act. Most dispassionate observers would argue that these laws all need to be updated to acknowledge the progress that has already been made, to reflect new science, and to address new problems.
Until Congress can find a grand compromise, we will continue to see agencies struggling to find solutions under statutes that still reflect the world from decades ago.