Elevating the Environmental Protection Agency to a Department: Analysis of Major Issues

CRS Report for Congress
Received through the CRS W eb
Elevating t he Environmental Protection
Agency to a Department:
Analysis of Major Issues
Specialist i n Environmental Protection
Resources, Science, and Industry Division
There i s a history o f b ipartisan suppor t for proposals t hat w o u l d elevate the
Environmental P rotection A gency (EPA) from an i ndependent regu latory agency to a
federal d epartment. T he 101st , 102nd and 103 rd Congresses t ook action o n t he issue butth
reached no fi nal agreem ent . The 107 Congress held three hearings on two bills. In t he
108th Congress, H.R. 37 and H.R. 2138 propose s uch an elevation. The S ubcommittee
on Energy Policy, Natural R es ources , and Regulatory Affairs of t he House C ommittee
on Government Reform held hearings on these bills on J une 6 and September 9, 2003.
The Administration s upports a s imple elevation o f EPA. Among the current issues are
whet her access t o t he P r e s i d ent woul d b e enhanced and whet h er EP A woul d h ave
heighten ed effectiveness i n dealing with other federal departments and the states.
W h ether s uch an elevation would improve EP A’s s tatus i n environmental negotiations
with other n ations, m ost o f which place envir onmental offici al s at t he ministerial level,
i s an o t h er i ssue. Some Members argue for keeping t he bills focused on provisions
directly relating to elevation and oppose addressing perceived p roblems with EPA i n t his
legi slative v ehicle. Other Members contend t hat t his i s an opportunity to consider issues
such as the quality of science used i n t he agency’s regulatory deci sions, t he management
of information, the use of risk es timates/anal ys is, as wel l as EPA’s mission.
There i s b ipartisan support t o elevate the E nvironmental P rotection Agency (EPA),
current l y an i n d e pendent agency i n t h e ex ecut i v e b ranch, t o a federal depart m ent .
Ex ecutive R eorganiz ation P lan Number 3 of 1970 created EPA b y consolidating s everal
programs, chiefly ai r, water and radiation, carried out by other departments at t he time.
The Agency b egan operating December 2 , 1970, and t he first Administrator was s worn
in December 4 , 1970. W h ile independent of any other federal d epartment, E P A is subject
t o t h e s am e general m anagem ent l aws as ot her federal agenci es.

Congressional Research Service ˜ The Library of Congress

The early EPA i nitially had j urisdiction over a few air, wat er and pes ticide program s.
Congress ex panded t he Agency’s authority during t he 1970s with laws that continued t o
seek solutions to managi ng man y t r ad i t i onal pollutants.1 The s tatutes l ater broadened
EPA’s focus to address m ore complex tox i c t hreats t o t he environment and human health.
The Agency t oday conducts research on the envi ronment, promulgates regu l a t i o n s ,
enforces e n v i r onm ent al l aws, and assi st s s t at es i n carryi n g out t h ei r envi ronm ent al
responsibilities. EPA currently has a budget of $ 8 . 1 b illion and 18,000 employees. It
would become one of the s mallest federal departments.
W h i l e t h ere was some initial discussion in the 91st Congress about departmental
st at us for EPA, and consi d erat i o n o f com bi ni ng envi ronm ent al , nat u ral resource, or ocean
management functions in the 93rd-95th C ongresses, t h e i dea d id not resurface until
the100th Congress.2 During the 101st C o n gr e s s , the House passed a bill and t he Senate
Committee on Governmental Affairs reported another. 3 The S enat e p assed a bi l l duri n g
the 102nd Congress.4 In the 103rd Congress, the S ena t e p assed one and t he House
Committee on Government Operations reported another. 5 D u r i ng the 104 th, 105 th and

106th Congresses, no similar l egislation was in troduced. Interest reemerged i n t he 107th

Congress. In nominating C hristine W hitman as Administrat or of EPA, then P r es ident-
elect Bush stated in December 2000: “I told her how much I will value h er advice, to the
point at which I’m going t o nam e her position as a Cabinet officer.”6 Hearings were held
on three bills during t he 107 th Congress.7
In the 108th Congress, Representative S herwood L. Bo ehlert introduced H.R. 37 on
J anuary 7, 2003 and R epresentative Doug Ose i ntroduced H.R. 2138 on May 15, 2003.
The S ub committee o n Energy, Natural R es ources an d R egulat ory Affairs o f t he House

1 For a discussion of these l aws, see CRS Report RL30798, Environmental Laws: Summaries of
Statutes Administered by the Env ironmental Protection Agency . M ar. 3, 2003. Coordinated by
Martin R. Lee. 115 p.
2 100 th Congress bills included i dentical bills H.R. 4969, H.R. 5021, S. 2576, as well as title IV
3 101st Congress bills included H.R. 296, H.R. 534, S. 276, and S. 2006 reported April 2, 1990
by the Senate Committee on Governmental Affairs ( S.Re pt 101-262). T he House passed H.R.

3847 on March 28, 1990.

4 102 nd Congress bills included H.R. 67, H.R. 3121, and S.533 passed by t he Senate on Oc tober


5 T he Senate passed S. 171 on May 4, 1993. On May 19, 1994, the Senate passed S. 2019, Safe
Drinki ng Water Amendme n t s , which included a modified version of S. 171. In the House, the
Committee on Government Operations reported H.R. 3425 (H.Rept. 103-355)on Nove mber 10,
1993. On F e b r u a r y 2, 1994, the House defeated a r ule on H.R. 3425, and t he bill was not
considered on the f loor.
6 Remarks of President-Elect George W. Bush. Nomination of Gov. Christine T odd Whitman as
Admi nistrator of t he Envi ronmental Protection Age ncy. December 22, 2000. Source: the Federal
Docume nt Cl earing House.
7 T hese i ncluded Senate Committee on Governmental Affairs J uly 24, 2001 hearing on S. 159,
and House Committee o n G o ve r nmental Reform Subcommittee on Energy P olicy, Natural
Resources and R egulatory Affairs S eptember 21, 200 1 , M a r c h 2 1, 2002, and J uly 16,

2002 hearings on H.R. 2438, favored by t he Bush Admi nistration, and H.R. 2694.

Committee on Government Reform held hearings on thes e bills on J une 6 and Septem ber


H.R. 37 and H.R . 2138 could b e characterized as “simple elevation” bills as they
would elevate the current EPA t o a department without mandating any major change i n
responsibilities. They are m uch t he same in that they red e s i gn at e t he Agency as a
d e p a r t m e n t , e s t a b l i s h t he S ecret ary, t ransfer functi ons, and include savings p rovisions and
conforming a m e n d m ents. H.R. 2138 has additional p rovisions rewriting t he Agency’s
mission, establishing new undersecretaries and a Bureau of Environmental S tatistics.
In opening remarks at t he J une 2003 hearings , t he Subcommittee C hairman noted
the “new generational environm ental challenges ” and that the “United S tates i s one of the
few i ndustrial n ations that does not place e nviro n m e n t a l p rotection a cabinet-level
position.”8 He al so ci t ed E P A’s “st ovepi pe” o rgani z at i o n as a reason for o rgani z at i onal
change and t he need for b et t er s ci ence and d at a at t he Agency as reasons for est abl i s hi ng
the d e p a r t m e nt. At t he September 2003 hearings , t he Chairman of the W hite House
C ouncil on Environmental Quality outlined the reasons why t he Bush Administrat i o n
supports elevating EPA. They i nclude the fact that EPA carries the work o f, and advances
the mission of, a department, and that it plays a vi t al rol e i n hom el and s ecuri t y, p roduces
nationally significant i nitiatives , and ex erts international i nfluence.9
There are a few basic i ssues associated w ith these elevation proposals. Fi rst, is
whet her access t o t he P resi d ent woul d b e enhanced. S econd i s t h e quest i o n o f h ei gh t ened
influence with other federal departments and the s tates. Third i s t h e i s s u e of whether
such an el evation might upgrade EPA’s s tatu s among the environmental d epartments o f
other n ations, m ost o f which are at t he minis terial level. However, if a p roposal were to
go beyond a s imple el evation – t o addres s percei ved problem s with EPA’s administration
or management, o r ex i sting environmental l aws and regu lation – t he issues would b ecome
much more complex , the s takeholders greater in number, and elevation m ore problem atic.
Increased Access to the P resident
The Administrator of EPA, as head of an inde pendent agency, reports directly to the
P resi d ent . Unl i k e m ost i n d ependent agency heads, however, for which t his reporting
rel at i onshi p i s not equat ed wi t h access, t h e Adm i n i s t rat or of EP A h as general l y enj o yed
ge n u i n e a c cess. From the Agency’s b eginning, P residents h ave t ended t o p ay special
attention t o EPA because environmental i ssues have high political visibility and impact.
Recent P residents h ave acknowledged the importance t hey assign to EP A and its
Administrator by awarding this officer “Cabinet rank.”10 Thus, access and status are

8 Rema rks of t he Honorable Doug Ose, J une 6, 2003.
9 Re ma rks of t he Honorable J a me s L. Connaughton before the House Committee on Government
Reform, September 9, 2003.
10 President Dwi ght D. Eisenhowe r initiated t he practice of designating “Cabinet r ank.” T his
special status is not recognized in la w a n d i s p u r e l y a presidential distinction. T he l ast t hree
Presidents have accorded Ca binet r ank t o t he Admi nistrator of t he EPA. See: CRS Repo r t,

conferred b y attendance at regular Cabine t m e etings . This s tatus, however, i s not
permanent but dependent upon the will of each P resident. On this, former Administrator
Carol Browner in 2001 stated: “At every change o f Administration, EPA risks losing a
pl ace at t h e t abl e.”11 “Nothing now ensures t hat a future President will confer de facto
cabi n et st at ure upon t h e E P A Adm i n i s t rat or,” form er Adm i n i s t rator William Reill y s t a t e d
at the sam e time.12 In articulating t he Admin i s t r ation’s s upport for the concept, the
Chairman of the W hite Council on Environm ental Quality stressed how the Agency acts
like a cabinet in terms of its work and mission. 13
Many key federal offi ci al s are not form al Cabinet m embers but would s eem to enjoy
regu l ar access t o t he P resi d ent and t h e d evel opm ent o f federal pol i cy. The Di rect or of t h e
Office of Management and Budget , t he Direct or of the C entral Intelligence Agency and
the C hairman o f t he Council on Economic Advisors are not formal Cabinet m embers, but
presum abl y have di rect access t o t he P resi d ent .
Thus, o n t he one hand, creation o f an environmental d epartment would m ake t hat
depart m ent ’s head a form al m em ber o f t he cabi n et for t he fut u re wi t h secure access t o t he
President. Bu t, in recent times t h e A d m i n i s t r ator of EPA s eems t o h ave h ad this same
access as d o t he heads o f o t h er agenci es whose i ssues are p r o m i nent on t h e n at i onal
Intra- and I ntergovernm ental Rel ati onshi ps
H o w d epartmental status might enhance EPA’s interactions with other fed eral
departments and state governments i s anot h e r i ssue. Proponents h ave argued t hat t he
Administrat or is at a disadvantage i n dealing with many federal depart m ents, some of
whi ch are di rect l y regu l at ed b y E P A , b ecause t h e E P A Adm i n i s t rat or i s not a S ecret ary.
Then-Administrator Whitman remarked i n 2001 that “Already I have found my
participation at t he cabinet level hel pful in navigating t he many import a n t a reas of
overlap between the work o f E PA and o ther departments.” 14 Former Administrator Reilly
stressed t hat p arity was n ecessary, and indicat ed that the Administrator often h as “bones
to pick” with the S ecretaries b ecause EPA regulates some of their activities. “Now it falls

10 (...continued)
RL31497: Cr eation of Executive Departments: Highlights f rom t he Legisl a t i v e H i s tory of
Modern Precedents.
11 Remarks of t he Honorable Carol Browner at the Senate Committee on Governmental Affairs
hearing, J uly 24, 2001.
12 Remarks of t he Honorable William Reilly at the Senate Committee on Governmental Affairs
hearing, J uly 24, 2001.
13 Re ma rks of t he Honorable J a me s L. Connaughton before the House Committee on Government
Reform, September 9, 2003.
14 Remarks of t he Honorable Christine T odd Whitman at the Senate Committee on Governmental
Affairs hearing, J uly 24, 2001.

to the P resident,” he said, “to make clear that he supports his EPA Administrator in those
interagency battles by providing parity.”15
Administrator Whitman, a former Governor of New J ersey, then spoke of what the
el evat i o n m i ght m ean i n t erm s o f t he st at es. S he not ed t h at m o st st at es had p l aced t h ei r
o w n t op environmental offici al in the governor’s cabinet . “The time has come t o
es tablish EPA as full member of the cabinet , and doing so would be consistent with
observations of state governments,” s he declared.16
Enhanced I nter nati onal Rel ati ons
Enhancing t h e international presence of t he United S tates s eem s t o be t he prime
r eason mentioned i n arguing for a department. R eflecting t he gl obal n ature o f
environmental i ssues, EPA is i n c r e a s ingl y involved i n i nternational n egotiations over
environmental m atters that are i ncreasin gl y global i n n ature. Proponents argue that
because t h e h ead of EP A i s not at t h e S ecret ari al o r m i n i s t eri al l evel , U.S . i n t erest s are
not represented as well as t hey could b e.
Analys is in J une 2001 of the p lacement o f environmental o fficia l s w i t h in 198
governments i ndicat es that , with only nine ex ceptions, all the govern m e n t s place thei r
environmental responsibilities at t he ministerial level. 17 Of cours e , t he responsibilities
of the various ministries vary widel y, with many of these ministries h av i ng
responsibilities i n addition t o environmental ones. Some inclu d e agriculture, n atural
resource management, t ourism, or other r es p o nsibilities, reflecting t he priorities of t he
individual nations.
Argu ing i n favor of a d epartment, f o r m e r Administrat or Browner s tressed t he
importance of U.S. l eadership in the global community. “Im portant to that l ead ers hip
position i s t he recognition of t he internat i o n a l s t a ture that comes with permanent,
gu arant eed cabi n et m em b ershi p,” she em phasi z ed.18
A 107th Congress bill, S. 159, included a provision on EPA’s i nternational activities.
S. 159 formalizes EPA’s responsibilities i n i nter national relations and its role with the
Department of Stat e. On this matter, former Administrat or Reilly noted: “I am pleas ed

15 Remarks of t he Honorable William Reilly at the Senate Committee on Governmental Affairs
hearing, J uly 24, 2001.
16 Remarks of t he Honorable Christine T odd Whitman at the Senate Committee on Governmental
Affairs hearing, J uly 24, 2001.
17 T hese exceptions are: Libya’s Environmental General Authority; M onaco’s government
counsel; M yanmar’s National Commi ssion for Environmental Affairs; Panama’s Envi ronmental
Authority; Peru’s Nat ional Council; Uzbeki stan’s State Committee; Yemen’s Environmental
Protection Council; Qatar’s Supreme Council; and, the United States’ Envi ronmental Protection
Agency. A further point of interest is that Ir an and Qatar may place theirs at the highest levels.
T he Iranian Departme nt of the Environment i s headed by a V i c e President of the Islamic
Republic of Ir an. A crown prince c hairs Qatar’s Supreme Council for Environment a nd Natural
18 Rema rks of t he Honorable Carol Browner before the Senate Commi t t e e on Governmental
Affairs hearing, J uly 24, 2001.

to see t hat S enat or Box er’s bill has ex plicit recognition of t he role that the S ecret ary
would p lay, and t he Agency more broa dly, in international affairs.”19
A S i m pl e E l e vati on, or an Oppor tuni ty for Change
The m ost contentious issue associated with elevating t he EPA i s whether it should
b e a v e r y s imple elevation, or whether t his p resents an opportunity to consider
legi s l a t i v e l y a number of possible i ssues. Although both H.R. 37 and H.R. 2138 are
elevation bills, H.R. 2138 contains provisi ons which m ay widen t h e cu r rent d ebate.
Form er adm i n i s t rat ors h ave rai sed t hei r concerns abo u t j e opardi z i n g p assage by
incorporating provisions to add r es s any of the m aj or ancillary issues . During t he 107th
Congress, former Admin i s t r at o r Reilly called for addressing such issues after t he
department was formed. At the S eptember 200 3 h earings , Acting EPA Administrat or
Marianne Horinko stated: “W e support C abinet eleva t i o n l e gislation t hat i s free o f
provisions that would m ake s ignificant changes to the Agency and its programs.”20
Others see elevation l egislation as an oppor tunity to addres s k e y concerns. At t he
J une and S ep t e m b er 2003 hearings , t he Subcommittee C hairman s tressed t he need to
addres s organizational problem s, data n eeds, and s ci ence quality issues in such an
el evat i on. Many wi t n esses h ave b acked t h e creat i o n o f a Bureau of Envi ronm ent al
Statistics with the department proposed by H.R. 2138.
Several witnesses at t his year’s hearing s tated t heir support fo improved s cience at
EPA. H.R. 2138 would establish an Under S ecre t a r y f o r Science and In formation. A
prominent b ill proposing a science s tructure at EPA i s H.R.3096 which would s tructurally
establish a Deputy Administrator for S c i e n c e and Technology as well as an Associate
Administrator for R esearch and Development. In addition, it would also s pell out new
responsibilities for assuring the quality of science at t he Agency.
H.R. 2138 is the first elevation bill that would s tatutorily declare EPA’s mission.
Some key congressional s upporte r s , t he Administration, and o thers now support
elevating t he EP A t o a federal d epartment. M ost s uppor t t his concept b ecause they
advocate raising the s tature, and thus possibl y improving the p erformance, of the Agency
domestically and abroad. W h ile there i s b road support for this concept, there i s also s ome
interest in i n cl u d i n g in any elevation bill provisions intended t o addres s percei ved
probl em s rel at i n g t o s ci ence, and p erhaps i n form at i o n and ri sk anal ys i s . H owever, s om e
fear that disagreements about these p rovisi ons might impose obstacles to consideration
of the elevation p roposals.

19 Remarks of t he Honorable William Reilly before the Senate Committee o n Governmental
Affairs hearing, J uly 24, 2001.
20 Rema rks of t he Honorable Marianne Horinko before t he House Committee on Government
Reform, September 9, 2003.