Between Compliance and Defiance: Executive Branch Disposition of "Unwanted" Environmental Legislation

Abstract

In the trade and environment issue area, Congress has been relatively proactive and the Executive Branch relatively reactive. But through the implementation process the Executive retains great influence over the impact of U.S. policy, especially abroad. The Executive adopts different implementa tion styles when dealing with "wanted" (desired) and "unwanted" (undes ired) environmental legislation; while "wanted" legislation tends to elicit compliance, "unwanted" legislation tends to be subjected to administrative delay if not outright nonimplementation or "defiance." However, the Execu tive tends to favor less provocative strategies. One, which we call "shielded compliance," aims to shelter U.S. interests from the legislation's negative international ramifications. Another, "strategic compliance," entails imple mentation without any provisions to mitigate possible negative international consequences in the hope that intense negative foreign and/or domestic reaction to the legislation's impact will move Congress to modify or repeal the legislation. The suggestion that the U.S.-Mexico tuna-dolphin case of 1990- 1992 is an instance of strategic compliance is considered and rejected. Environmentalists are advised to be cognizant of the possibility of a voters' backlash against congressional as well as Executive misuse of the gray area between compliance and defiance.