The Fate of Environmental Law

During the Trump Administration

David M. Uhlmann
Jeffrey F. Liss Professor from Practice
Director, Environmental Law and Policy Program
University of Michigan Law School
 Overview of Remarks

Historical Perspective of Environmental Crisis and the

Trump Administration

Enduring Features of our Environmental Law System

and How it is Vulnerable

Environmental Criminal Enforcement Across Presidential

Administrations
A thing is right when it tends to preserve the integrity, stability, and
beauty of the biotic community. It is wrong when it tends otherwise.
Cuyahoga River Fire (1969)
Santa Barbara Oil Spill (1969)
Valley of the Drums (Kentucky)
Times Beach (Missouri)
Love Canal (New York)
 Major Environmental Statutes of the 1970s

National Environmental Policy Act (1970)

Clean Air Act (1970)
Clean Water Act (1972)
Coastal Zone Management Act (1972)
Federal Insecticide, Fungicide, and Rodenticide Act (1972)
Marine Mammal Protection Act (1972)
Endangered Species Act (1973)
Safe Drinking Water Act (1974)
Hazardous Materials Transportation Act (1975)
Federal Land Policy and Management Act (1976)
Fisheries Conservation and Management Act (1976)
Resource Conservation and Recovery Act (1976)
Toxic Substances Control Act (1976)
Surface Mining Control and Reclamation Act (1977)
 Major Environmental Statutes Enacted
During the 1980s

Comprehensive Environmental Response, Compensation and Liability

Act (1980)

Emergency Planning and Community Right-to-Know Act (1986)

Oil Pollution Act (1990)

Clean Air Act Amendments (1990)

Major Environmental Statutes
Enacted Since 1990
 Takeaways on Historical Perspective of
Environmental Law

United States had an environmental moment in the

1970s that proved fleeting

No major environmental lawmaking in a generation

leaves antiquated legal system

Reagan and Bush both sought major limits on

environmental law without success

Challenges predate Trump and central structure of

environmental laws is likely to survive him
 Key Features of Environmental Law System

Statutory scheme has remained largely unchanged since

the 1990s

Changing regulations is a slow process that may

required two terms to be most damaging

Citizen suit provisions of environmental laws provide an

essential backstop to protect public health and the
environment
 Takeaways on Environmental Law System

Law is inherently conservative and therefore slow to

change

Major statutory changes unlikely, although CRA allowed

repeal of Obama midnight regulations

Citizen suits and state governments will be key going

forward

Budgets and enforcement biggest concern

% of Charges
2005-2010 43.4% 35.5% 19.0% 13.5% 10.3%
% of Defendants
2005-2010 16.7% 63.1% 33.2% 78.6%
% of Defendants 4.2% 54.3% 22.0% 17.2% 2.3%
2005-2012
 Takeaways on Environmental Criminal
Enforcement

Trump may be different than prior Republicans and may

try to politicize enforcement

More likely outcome is that EC will continue to be

prosecuted on non-partisan basis

Biggest issue for criminal enforcement is budget and

potential for new regulations
 Concluding Remarks

Environmental crisis we face predates Trump

administration

Trump administration policies likely to halt environmental

progress even with no new laws and limited regulatory
change

Opportunity cost enormous coming at a time when we

need forward progress

Environment must be bi-partisan again to ensure a

sustainable future