After I left the bright lights of the Senate Subcommittee room, a United States senator from a large northeastern state spotted me by an elevator. He gave me hearty pat on the back and in language unsuited for a child’s ears expressed amusement at a few of his colleagues’ and some witnesses’ comments: “They’re [beepin’] unbelievable.” My Senate committee appearance was one of three rounds of congressional testimony regarding responses to two recent United States Supreme Court cases. The nation’s homebuilders and anti-regulatory groups applauded how these decisions reduced the protective scope of the Clean Water Act, while environmental groups and most states saw these decisions as a potential disaster. One side claimed regulators wanted to shut down America’s real estate industry over inconsequential threats, while environmentalists saw vast swaths of America’s waters as imperiled. And a few professors, including me, and federal regulators took a more measured position. But every witness was there because some legislator anticipated the witness would advance their preferred outcome.
When I’m not trying to keep my students alert in class, I spend most of my days parked in front of my computer, researching and writing obscure law review articles and book contributions. In recent years, however, I’ve increasingly been called to testify and participate in legislative, regulatory, and judicial battles. Balancing my roles as scholar, teacher, and now player in the policy realm has been rewarding but challenging.
I am far from alone in the role of legal public scholar. In policy arenas like environmental law, constitutional law, and administrative law, elected and appointed officials regularly seek input from legal scholars who can offer knowledgeable and measured legal judgments. Once policy makers and their staff get to know a professor and find him or her reliable rather than the product of rigid viewpoints or ideological blinders, one brainstorming session can lead to others, then to work on major cases, and then to assistance in legislative battles. Journalists note such participation and start calling as well.
My immersion in the world of politics and policy has influenced my scholarship, and my scholarship has been crucial to my contributions in these realms of politics and high stakes regulatory litigation. This juggling act has enriched my knowledge, scholarship, and teaching. Simply to avoid embarrassment, I’ve had to remain current in ever-changing areas.
The Clean Water Act legislative work followed assistance on a Supreme Court brief for a bi-partisan group of former United States Environmental Protection Agency (EPA) administrators. That brief, in turn, followed law review publications and conference presentations where I, in two instances with my Emory law colleague and co-author, Robert Schapiro, had delved deeply into issues of regulatory federalism and advanced an interpretation of the reach of the federal government’s power under the Constitution’s Commerce Clause. That work, if correct in its analysis, had the potential to be central to a Supreme Court Clean Water Act ruling.
After participating in brainstorming sessions involving scholars, regulatory experts, and state and federal officials about where the law stood and how the Supreme Court might receive various arguments, I was asked to co-author a Supreme Court “friend of court” (amicus) brief. That brief, prepared on a pro bono basis, required me to dig deeply into the Clean Water Act and constitutional history and law. Conference calls with clients such as Carol Browner, President Clinton’s administrator of U.S. EPA and President Obama’s initial climate and energy czar, and early Republican EPA administrator Russell Train, further educated me.
My teaching and writing have long focused on issues of federalism and legislative and regulatory process, often with an environmental wrinkle emphasizing how the law is actually implemented and enforced. Despite my immersion in these issues as a scholar, I had not been on the inside of a major legislative battle before the Clean Water Act hearings. Many scholars and several members of the United States Supreme Court tend to denigrate the legislative process, presenting it as a setting of mostly cheap talk, rational ignorance, manipulative staff, and backroom deals. The discourse I have repeatedly encountered, however, is a far cry from this frequent caricature. Dozens of experts and groups parse every word of major legislation. Dividing lines and critical language are highlighted. Congressional staff and their elected legislators ask about the language choices and different legislative strategies. And during hearings at which I’ve testified, legislators on both sides of the aisle, with a few exceptions, were well prepared and showed deep familiarity with the law. Only a few legislators seemed to rely on scripted statements and questions. And the audiences crammed into the hearing rooms were major agency policy makers and stakeholder groups that legislators had to address and possibly appease.
A major gap exists between prevalent scholarly mockery of congressional process and what I have encountered. Knowledge is hierarchical and institutional, with close sequential vetting of choices the norm. Will legislators understand every word of bills before them? Of course not. But legislative and regulatory institutions will miss little. I continue today to rethink and write and teach differently when analyzing the legislative process.
Unexpectedly, two major issues that kept arising in the Clean Water Act battles have continued to be an area of scholarly interest and have prompted my involvement in yet more legislative battles, most recently over climate and health legislation. First, what are the policy implications and constitutional contours of separate and mutually exclusive federal and state policy making? What are the benefits and risks of the political norm of overlapping and concurrent state, federal, and local policy making turf?
Second, how should policy makers establish the empirical foundations for their enactments, especially where the Supreme Court has made or may seek to assert contrary assertions about historical and scientific facts? Can congressional findings and policy statements shape and perhaps protect new laws from judicial invalidation? As I write this essay, legislators are pushing bills that would block US EPA from regulating greenhouse gases under the Clean Air Act and limit or even preclude state climate change-related actions. Federal judges are assessing constitutional challenges to new federal health care legislation, with the critical question, once again, about the limits of federal regulatory power.
A book and four law review articles later, I’m wondering if I should move on from analysis of regulatory federalism and preemption. But on the left side of my desk sits a stack of research regarding federalism and climate regulatory efforts, with notes for several related upcoming lectures. On the right side sit two draft Supreme Court amicus briefs for which the authors seek comments or my participation. Jammed against the back of the desk are critiques of Georgia laws that have left this state trailing others in developing clean energy projects. Another stack concerns climate regulation and challenges to agreement when countries like China are large polluters but lack both federalism structures and citizen enforcement to make political and legal commitments real.
Perhaps the time is not yet here for me to move on from these issues.
If related questions continue to roil the waters in Congress, before agencies, in courts, and in other countries like China, maybe I still can add an insight or two. Balancing the worlds of scholarship and public policy is difficult and the time demands considerable, but the rewards are great.