Shared Sovereignty: The Role of Expert Agencies in Environmental Law

Abstract

Environmental law usually features statutory interpretation or administrative interpretation by a single agency. Less frequent is a close look at the mechanics of implementing environmental policy across agency lines. In this article, we offer such a look: a comparative analysis of five statutes and their approaches to sharing decision-making authority among more than one federal agency. We call this pluralistic approach to administrative decisionmaking “shared sovereignty.” In this analysis, we compare implementation of the National Environmental Policy, the National Historic Preservation Act, the Endangered Species Act, the Clean Water Act, and the Federal Power Act. All of these statutes incorporate the “shared sovereignty” paradigm, although they vary in their interpretation. The first two statutes allow commenting and consulting agencies (we call both “expert” agencies) some authority, often significant, over the decisions of so-called “action agencies.” More decisive authority for expert agencies exists under the Endangered Species Act. And the latter two statutes give expert agencies conclusive decision-making authority. We think that drafters of future environmental legislation may profit from this comparative analysis of pluralistic agency decisionmaking, and we claim that the environment has benefited from the last several decades of implementing the shared sovereignty paradigm. Our view is that shared sovereignty is — and has been — an integral part of modern environmental law and should continue to be a foundation element in its future.