Major structural changes in government since national security became a dominant priority threaten to undermine regulatory protections of the nation's environment. One troubling environmental threat is the introduction of invasive species, especially those introduced by ballast water discharged from ships arriving in U.S. ports. In 2003, the Environmental Protection Agency (EPA) denied a petition-four years after receiving it-that sought to repeal an EPA rule exempting ballast water from regulation under the Clean Water Act (CWA). Despite having authority to regulate ballast water under the CWA, the EPA decided that the Coast Guard should regulate ballast water. Yet the Coast Guard is no longer able to tackle the problem due to its focus on national security in the wake of the terrorist attacks of September 11, 2001.
As the ballast water issue suggests, courts should not defer to an agency decision about its role relative to other agencies. Instead, courts should consider the legislative concept underlying the agency's authorizing statute and determine whether the agency's rationale is reasonable. Without this review by the judiciary, an agency might simply defer unpleasant or undesired regulatory tasks to a sister agency with no real power, leading to under-regulation.
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