The authors first
point out that the field of environmental law is recent. They also point out
that the lack of environmental laws in the pre-environmental law period led to many
negative environmental impacts that we are still cleaning up. An example I can
think of is acid mine drainage. A 1977 law first began to deal with the problem
in earnest.
Before environmental
laws protection relied on tort law. Obviously, this was not working and the need
for environmental laws became widely acknowledged.
As in another environmental
law book that I have, Garret Hardin’s story of the tragedy of the Commons is told.
The ‘commons’ refers to something that is shared by all like a river, the
atmosphere, or groundwater, and the ‘tragedy’ is polluting it. I am not a fan
of Hardin due mainly to his other pessimistic ideas like “lifeboat ethics”
where there is not enough for everyone so some should be allowed to perish for
the rest of us. This has been proven to be nonsense. We have the technology and
the wherewithal to help all and to limit our environmental impacts.
Next the problem
of the free rider is addressed where some benefit from the acknowledged public goods
of clean air and clean water while others of their own volition pay to keep it
that way. In that scenario there is no requirement to keep water and air clean,
it is strictly voluntary. We need requirements. However, I think in many cases
we also need voluntary actions, particularly among companies that pollute, and
especially among companies that emit carbon.
Pollution is
considered to be an externality to business, but it is decidedly a negative externality. Nowadays,
however, regulatory requirements and costs are built into business plans. Obviously,
we need rules to limit and mitigate pollution. Not only the government but
consumers as well demand it, even though in many cases that will result in a
higher cost for those products. The text points out that the marketplace itself
has no mechanism for ensuring low environmental impact so the government must
do it.
In discussing the
‘environmental ethic’ the authors note the importance of monitoring long-term
impacts such as effects on ecosystems. They note that some environmentalists
think we have a responsibility due to our knowledge:
“Because we have superior understanding, we have special
responsibilities to consider the long-term impacts of our behavior.”
Next, they return
to tort law and its inability to provide adequate environmental protection. Tort
law was applied mostly to nuisance cases where one party complained that
another polluted its land, air, or water. Previous cases have determined that the
harm created by the nuisance must be balanced against the harm, usually
economic, of ceasing the nuisance. It is a basic cost-benefit or harm-benefit consideration.
The main issue is that pollution abatement is often expensive. However, in most cases we still need it. Some of these cases
resulted in the pollution being produced unchecked and those affected being
awarded compensation for the damage incurred. There are other problems with
tort law including determining whether the nuisance is private or public and determining
which polluting company is responsible for the particular impact. Cases must be
proven and that takes environmental investigation which may be limited due to
lack of resources and personnel. The last problem they note about tort law is
that it is reactive in that the problem must be present and occurring before any
action is taken. Obviously, we need some kind of preventive action when we know
certain processes will pollute.
Economic means of
addressing pollution include subsidies, emissions charges, and marketable
emissions permits. Government subsidization of pollution control is sometimes warranted.
This may have additional positive effects such that when one company takes a
subsidy to help pay for pollution abatement, they may demand that other companies
in their industry do the same. Of course, if abatement is voluntary, requirements
to abate are not fairly distributed. Thus, we need environmental laws to fairly
distribute environmental liabilities. Emissions charges and so-called ‘green
taxes’ are a disincentive to pollute. If it costs to pollute, then pollution abatement
becomes more likely. Such charges can be difficult to assess, and the pollution
also must be measured and monitored. Fees must be such that most companies can
afford them. Marketable emissions permits allow companies to trade those
permits and allowances to best provide environmental protection for the industry
overall. These market mechanisms have worked for power plants but in other manifestations, the results have been mixed. They work better when all must comply. Otherwise,
companies in one country, region, or state may have economic advantages over
other companies simply because they are not held to the same pollution
standards.
Direct
regulation, also called command-and-control regulation or end-of-pipe
regulation, is the main means of enacting environmental law. The penalties of
being out of compliance also give companies incentives to find ways to reduce
pollution all along their supply and value chains. One interesting thing they
note is advances in detection technology. Before 1970 when environmental law
was essentially born in the U.S., we could only measure contaminants at levels
such as parts per thousand. We can now measure some pollutants in parts per
billion and in some cases parts per trillion.
The authors mention
three influential books from the 1960s and early 1970s: Rachel Carson’s ‘Silent
Spring’, Paul Ehrlich’s ‘Population Bomb’ and Barry Commoner’s ‘Closing Circle.’
Carson showed that unabated pollution was creating environmental harms not yet
acknowledged. Ehrlich’s work, though influential, turned out to be dead wrong,
and resulted in more harm than good as it led to sterilization campaigns. Other obvious
and visual signs of pollution such as big oil spills, the burning Cuyahoga
River, and smog-filled cities brought environmental impacts out for all to see
and experience. Some results were the creation of the U.S. EPA and the National
Environmental Policy Act (NEPA) which requires environmental impact analysis before
any major project is undertaken. They note that 27 laws and many administrative
laws were enacted during the 1970s.
The 1980s brought more concerns over the costs
of environmental regulations. Reagan promoted deregulation and a pullback from
previous regulation trends. Reagan cut staff and funding for the EPA and other
regulatory agencies and relaxed enforcement actions. Both Bushes, Clinton, and
Obama would later add to regulation while at the same time requiring analysis of
the costs of regulation. Trump would cut staff, funding, and regulations as
well. As in Reagan’s cuts, some were probably warranted and others not so much.
Staffing and funding especially, and regulations too, are debatable in their
details. I think Trump’s second EPA chief Andrew Wheeler did a better job than
his first, Scott Pruit. Many in Congress found Reagan’s cuts to be an unacceptable
lax attitude toward environmental impacts and moved to strengthen environmental
laws. By the late 80s, the burden of environmental protection was shifting to
the states. This was sensible and practical since most environmental impact is
local or regional.
During George H.W.
Bush’s term in the early 1990s Congress was back to strengthening environmental
laws and enforcement was up. Amendments to the Clean Air Act were enacted that required
further compliance. Concerns about the cost of regulation returned. After big
environmental gains in the 70s and 80s, progress became more incremental:
“Each incremental gain would also provide fewer visible
benefits. These factors helped to create a shift of environmental policy away from
the end-of-pipe regulation toward more pollution prevention and the use of more
cost-effective ways to reduce pollution.”
The shift in the 90s also brought more interest in utilizing
market forces so pollution charges and marketable emissions permits became more
common. The marketable permits enabled by the amended Clean Air Act of 1990 successful
in letting industry share the burden of costs were generally in a way that was
deemed fair by the participants. Voluntary compliance became more common and international
standards that addressed environmental concerns like ISO 14000 were becoming more
widely adopted.
The history
continues, describing Clinton and Gore’s work toward strengthening environmental
laws and their GOP House, clawing them back in favor of business interests. This
give and take has been happening since the time of Reagan, when Democrat
administrations have favored strong environmental laws and GOP administrations have
favored keeping laws from costing businesses (and consumers) too much. Often
the law tweaks are enacted via executive orders. We are about to go through
that cycle again as Biden moves to make large parts of offshore America free of
seismic and drilling for oil and Trump will rescind those orders and many
others as soon as he can. Realistically, all administrations will keep most
environmental laws but change how they are administered and enforced. Congressional
approval is required for most changes in the laws and statutes. In more recent
times, businesses have been spending and preparing for strengthened laws on pollution
and GHG emissions. Nobody really wants to go out and pollute for profit, they
just don’t want to be so burdened that it affects their bottom line too much.
In the 2000s
George W. Bush championed states’ rights, property rights, and the oil
industry. Bush’s EPA chief, Christine Todd Whitman was a moderate who was
trumped by her bosses on some policies, but she resigned in 2003, for personal reasons.
EPA resignations in disagreement with the Bush administration were common.
The next section
looks at the National Environmental Policy Act of 1970 and the Pollution Prevention
Act of 1990.
The National Environmental Policy Act (NEPA) of 1970
NEPA established
the Council on Environmental Quality (CEQ) as a federal watchdog. It requires federal
agencies to consider the environmental effects of decisions. It also requires that
an Environmental Impact Statement (EIS) be prepared for every major legislative
proposal or government action that could impact the environment. The CEQ consists
of three people who advise the president on environmental matters. They are responsible
for preparing the President’s Annual Report on Environmental Quality. The CEQ
also reviews NEPA EIS requirements and EIS draft statements. Reagan decimated
the CEQ's budget and staff. Clinton sought to elevate the EPA to cabinet level
and have another agency replace the CEQ, but the idea was shot down by Congress,
so he went back to the CEQ. From about 1983 to 2001 about 500 EISs were completed
and published by federal agencies per year. I don’t know the data since then. The
threshold for requiring an EIS has three criteria: 1) the action must be
federal, whether partly financed by the government or requiring federal signoffs.
2) the federal activity must be major, usually defined as requiring a significant
amount of financial and/or human resources. 3) the project must be deemed to
have a significant environmental impact. That last requirement is vague and has
been challenged many times. In 1979 the CEQ tried to make it easier to discern,
focusing on the possibility of both short-term and long-term impacts. The text states
that even with this clarification it is often difficult to determine if an EIS
is necessary according to law.
“Environmental impact statements remain controversial.
Newspapers frequently report conflicts between environmental groups and
businesses over the need for an EIS”
NEPA’s EISs remain controversial today and are one of the
major issues to be addressed in permit reform. The long-standing and
well-founded complaint is that environmental groups have too much power to sue
and delay projects due to EISs. Due to staffing shortages at federal agencies
and the time it takes for EISs, some projects are delayed by many years or even
a decade. The average in recent years is 4.2 years, and this is often just to
get approval to begin projects. Clearly, this hampers businesses and their
ability to advance important projects in a timely manner. In my and many others’
opinions, NEPA has been soundly abused by environmentalists to delay needed
projects to the detriment of our economy and technological advancement. Many on
the political left and most on the political right agree. Jurisdiction is often
a factor since judges in certain districts are more or less likely to side
with environmentalists. In cases where the need for an EIS is not established a
Finding of No Significant Impact (FONSI) may be filed by federal agencies to
prevent opposition. An EIS is prepared by government agencies with the help of
consultants. Then a draft statement is prepared and often debated among those involved.
EPA has a system to rate EISs as shown below.
The draft statement
may be rejected and a new draft statement drawn up after debate. After the EIS
is worked out it is published in the Federal Register and a public comment
period ensues. The text notes that routinely for an EIS, this procedure often takes
from six to nine months, and if challenged in court it could take a year or
longer. As noted, nowadays, to get there from the beginning of the process takes
an average of 4.2 years. If an EIS is deemed inadequate, a temporary injunction
may be filed until an approved EIS is produced. Outcomes include: 1) the
project is modified to address concerns in the EIS, 2) the delay leads to
cementing public opposition to the project, and 3) the delay may make the
project too costly, and the project may be dropped. As many have noted, the injunctions
are rare, usually less than 10% of projects, but still manage to delay them
considerably and cause economic harm. Citizens’ groups and environmental groups
are most often the plaintiffs in such cases.
An EIS consists of
1)
A statement of environmental impacts
(positive and negative) of the proposed action.
2)
Any unavoidable adverse environmental
impacts should the proposal be implemented.
3)
Alternatives to the proposal (including
taking no action).
4)
The relationship between short-term uses
of the environment and enhancement of long-term productivity.
5)
Any reversible commitments of resources.
An Environmental Assessment (EA)may be used in
place of an EIS if an EIS is deemed unnecessary. If challenged, the EA is often
used to show that an EIS is not necessary. EAs are faster and represent a
reasonable way to do environmental due diligence in most cases. By 1993 about
50,000 EAs were being prepared annually, and that number is surely much higher
today. Even 20 years ago when this edition of the text was published, it was
noted that EISs were too time-consuming and too expensive. Add to that the
litigation (often frivolous IMO) and the costs and time can go up considerably
more.
Pollution Prevention Act of 1990
The Pollution
Prevention Act departs from command-and-control end-of-pipe direct environmental
laws toward the prevention of pollution. Early implementation of environmental laws
was effective as the ‘low-hanging fruit’ of abatement was addressed, resulting
in great improvements at low costs. However, additional improvements, deemed necessary
for protecting human health and the environment, would be more expensive to
implement and would result in less impressive gains. This act focuses on source
reduction or prevention. Section 2 of the act notes:
1)
There are significant opportunities for
industry to reduce or prevent pollution at the source through cost-effective changes
in production, operation, and raw materials use. Such changes offer industry substantial
savings in reduced raw material, pollution control, and liability costs as well
as help protect the environment and reduce risks to worker health and safety.
2)
The opportunities for source reduction are
often not realized because existing regulations, and the industrial resources
they require for compliance, focus upon treatment and disposal, rather than
source reduction; existing regulations do not emphasize multimedia management
of pollution; and businesses need information and technical assistance to
overcome institutional barriers to the adoption of source reduction practices.
3)
Source reduction is fundamentally
different and more desirable than waste management and pollution control. The
Environmental Protection Agency needs to address the historical lack of attention
to source reduction.
Pollution should be prevented or reduced at the source
whenever feasible; pollution that cannot be prevented should be recycled in an
environmentally safe manner, whenever feasible; pollution that cannot be
prevented or recycled should be treated in an environmentally safe manner. whenever
feasible; and disposal or other release into the environment should be employed
only as a last resort and should be conducted in an environmentally safe
manner.
The program provides matching grants to states for source
reduction projects. In 1993 Clinton issued an executive order with three main
requirements as shown below.
1)
Each federal agency must develop a
pollution prevention strategy that is committed to source reduction.
2)
Each agency must reduce total releases of
toxic chemicals by percent by the end of 1999.
3)
Each agency must establish a plan to
eliminate the procurement of hazardous substances for agency use
The EPA suggests that companies develop a pollution
prevention program that also includes waste management and periodically assess
and monitor pollution and waste. They should also develop cost allocation systems
for pollution abatement and waste management and utilize the best available technology
(BAT) when possible. Pollution prevention should be a part of a company’s basic
strategy. Thus, the Pollution Prevention Act of 1990 encourages voluntary source
reduction of pollution and waste. Perhaps, this set the stage for more focus on
environmental compliance strategizing by businesses and industries.
