Anyone who’s paid attention to what’s happening in the Supreme Court in the last six months has probably caught on to the issue of nondelegation and the potential it has to upend decades of federal regulations. There’s a fear that it will weaken basic environmental laws like the Clean Air Act and strip the EPA of its authority to ensure public health and safety.
If nondelegation becomes the law of the land, will environmental contamination run wild from businesses no longer bound by strict EPA regulations? Will it completely alter the way businesses and developers operate? Or will it simply be business as usual?
What Is Nondelegation?
Ever since the 1930s, Congress has written laws and then delegated authority to other government agencies to define them and lay out specific details in how they will be followed. This legislative process has been challenged several times in the last century under the nondelegation doctrine, which says that Congress is vested with legislative power by the Constitution and may not transfer powers to another branch. For the past 84 years, the Supreme Court has upheld all but two cases of delegation.
But the Court’s opposing opinions on Gundy has brought the issue of nondelegation back into the headlines. While the majority ruling in Gundy upheld the delegation of power (in this case to the Attorney General), opinions written by Justices Alito and Kavanaugh indicate that a new majority of justices are willing to reinvigorate the nondelegation doctrine in the near future.
And this has many people wondering what it could mean for the future of environmental regulations.
While less regulation means that the government will have a diminished ability to drive policy regarding environmental contamination, I don’t believe that nondelegation will have a significant impact on how businesses currently operate. Nondelegation doesn’t remove the hammer of any business owner’s requirement to be responsible for their actions. Here’s why:
In the end, everyone wants a safe environment. Everyone is concerned about clean air and clean water. No matter what rulings come down from the Court, the public’s demand for a safe environment will ensure that businesses, owners and developers are adhering to commonsense day-to-day operations. Bad actors who will break with their environmental responsibilities because of changes in policy will do so even with all the regulations we have in place today.
The majority of owners will be socially and environmentally responsible and will conduct business in a way that’s in keeping with what’s happening in the environment.
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