Environmental Policy and Law
ENVIRONMENTAL POLICY AND LAW•••
Among the many purposes of environmental law, two stand out: the protection of personal and property rights and the preservation of places. Laws controlling pollution serve primarily the first goal; they constrain the risks people can impose on others. Statutes that pursue the second purpose seek to preserve national forests, landscapes, and landmarks; to protect historical districts; to maintain biodiversity; and to defend the integrity of ecological systems, such as rivers and wetlands.
These two sorts of statutes emerge from two foundational traditions in the political culture of the United States, the first of which draws on the values of property and autonomy; the second, on those of community and diversity. The first tradition, which is associated with libertarianism and individualism, would protect each person from involuntary risks and harms. The second tradition, which is associated with Madisonian republicanism, suggests that Americans may use the representative and participatory processes of democracy to ask and answer moral questions about the goals of a good society. Americans, most of whom are immigrants or descended from immigrants, find in the natural environment a common heritage—a res publica— that unites them as a nation. Environmental laws, then, may regard shared nature as having a cultural shape, form, or value we are responsible to maintain for its own sake and for future generations.
Pollution-control law may be understood in ethical rather than economic terms insofar as it protects the separateness and inviolability of persons rather than satisfies their interests or preferences. Land-use law preserves the ecological and historical character but not necessarily the economic product of landscapes. Environmental law thus responds to intrinsic values, namely, the autonomy of persons and the integrity of places.
This entry provides a brief account of the three stages— aspiration, recrimination, and collaboration—that characterize the historical development of environmental law in the United States since the passage of the National Environmental Policy Act of 1969. It then describes some of the normative and conceptual problems that are most likely to affect the future of environmental policy.
During the 1970s, when politicians discovered that being in favor of the environment won votes, Congress enacted, among other statutes, the Clean Air Act of 1970, the Occupational Safety and Health Act of 1970 (OSHA), the Endangered Species Act (CAA) of 1972, the Safe Drinking Water Act of 1974, the Toxic Substances Control Act of 1976, and the Resource Conservation and Recovery Act of 1976. These laws were aspirational—one might say, demagogic—because they set lofty but often vague and unrealistic goals, calling, for example, for safe thresholds for pollutants for which no such thresholds exist. The Ocean Dumping Act of 1972 prohibited ocean dumping—but did not say where the wastes should go instead. The Clean Water Act of 1972 required the restoration and maintenance of the "chemical, physical, and biological integrity of the Nation's waters." There is still no agreement on what these words mean.
The rhetorical objectives of laws enacted during the 1970s, which are strong enough to warm the heart of the most ardent environmentalist, soon became fictions as deadlines passed, violations were not monitored or prosecuted, and the agencies fought uphill political and legal battles to make whatever gains they could, given their limited resources. On those rare occasions when the regulatory agencies threatened to enforce a statute to its full extent, Congress could be counted on to weaken it. In 1973, when a court ordered the Environmental Protection Agency (EPA) to bring California into compliance with the Clean Air Act, for example, administrator William Ruckelshaus responded with gasoline rationing, since nothing less draconian would do the job. Congress intervened by extending deadline after deadline; they, too, passed unmet.
Some might regard the aspirational and draconian goals of environmental statutes as cynical: By promising environmentalists the moon, these statutes provided scant direction about how to solve conflicts on earth. OSHA requires the workplace to be as safe from hazards as feasible, but the government has regulated only about one hazardous substance per year. The Fish and Wildlife Service avoided drastic effects in applying the Endangered Species Act by failing to list species and by approving inadequate plans to protect those that were listed. This was often as much as was politically possible given the opposition of those who would rather "shoot, shovel, and shut up" than to dedicate their property to zoological ideals. The draconian wording of the statutes at least gave agencies a strong legal foothold when they could muster the political will to act.
The late and unlamented Delaney Clause of the Food, Drug and Cosmetic Act prohibited in prepared food any trace of a pesticide that can be shown to induce cancer when administered in massive doses to laboratory animals. It was rarely enforced. New methods of detection showed that every box, bottle, or can of food contains a trace of some carcinogen, so defined. Rather than close down the food industry, officials used dodges, such as a de minimis risk exemption, to skirt the law. Political factors—a congressional or presidential election, for example—did wonders in softening regulations in key districts; industry and other interest groups, moreover, knew how to use campaign contributions and their friends in Congress to chasten agency zeal in applying the law.
Retrospective Liability and Criminalization: 1980–1989
By 1981 environmental regulation had reached an impasse. Congress had announced the good news that the environment would be pollution-free and that the nation would preserve its scenic wonders and biological resources. Regulatory agencies then had to announce the bad news: what it would cost and who would have to pay for it. Many who bore the costs blamed the messenger; EPA and other agencies came under fire for policies that required great outlays to achieve sometimes minor improvements. When President Ronald Reagan announced a program of regulatory rescission and appointed Anne Gorsuch at EPA and James Watt at the Department of the Interior, it seemed that the goals of the 1970s would be abandoned, in view of the ideological commitments and managerial styles of these appointees.
By 1981 however, the constituency of the environmental movement had changed. At first enlisting primarily upper-middle class, well-educated suburbanites, environmentalism had become a populism, including lower-middle-class Americans in the heartland who resented the effects of global markets on their communities. Social-science surveys showed overwhelming support among all economic and social groups for the strictest regulation, regardless of cost. Because of the strength of environmentalism among his own supporters, President Reagan found himself obliged to replace the head of the EPA and the secretary of the interior, and to accept a new barrage of environmental statutes that appealed to a populist not to a technocratic constituency.
During the 1980s, Congress intensified top-down command-and-control regulation by enacting, for example, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, which makes the buyer of a contaminated property liable for the entire cleanup even though it did not contribute to the contamination. Other statutes—such as the Resource Conservation and Recovery Act Amendments of 1984, the Superfund Amendments and Reauthorization Act of 1986, and the Oil Pollution Act of 1990—likewise addressed not just present hazards but also the remediation of past ones. Some of these statutes included criminal penalties or made polluters jointly and severally liable for the entire cost of a cleanup, regardless of fault. Thus, any company whose name appeared on a manifest at a poorly operated waste dump might find itself legally liable to pay the entire cost of a gold-plated remediation.
Laws of this kind take a moralistic or retributivist approach, associated with populist crusades, in regulating pollution. In response, industries backed away from investments entirely, for example, where they were most needed in inner city neighborhoods, or they hired lawyers to avoid or spread liability rather than engineers to clean up or prevent pollution. It took about a dozen years for industry to deal with Superfund in some way other than litigation; eventually, public officials and industry lawyers learned to paper transactions needed to get some decontamination. EPA and state agencies began to allow industries to develop polluted properties—so-called brownfields—without incurring openended liabilities for perfect cleanups. EPA began to experiment with case-by-case negotiation to turn confrontation into compromise. Half way measures—often enshrined in consent decrees, supplemental environmental provisions, prospective purchaser agreements, habitat conservation plans, negotiated rulemakings, and many other instruments—kept the perfect environment the laws envisioned from becoming an implacable enemy of the good environment that patient case-by-case conflict-resolution could achieve.
The Contractual State
With the Clinton administration, the ethos of environment policy changed again. Large-scale polluters, such as smelters and refineries, had largely been controlled, but small sources, such as automobiles, trucks, lawn mowers, bakeries, cleaners, gas stations, and other modest businesses cumulatively added massively to pollution problems. Global threats, such as climate change, habitat loss, and fisheries depletion, implicated the average consumer, for example, those who drive gas-guzzling cars. Programs to reinvent regulation proposed to bring into the public sector innovations—such as information sharing, technology benchmarking, incentives, systems-thinking, and collaborative engagement— that had been introduced successfully in private enterprise.
EPA established several banking, offset, and pollution trading regimes that allowed firms to avail themselves of the cheapest ways to reduce pollution and gave them incentives to develop more efficient control technologies. Markets for trading pollution allowances, which capped total emissions at reduced levels, lowered lead and, especially, sulfur dioxide emissions, which were halved in a decade. Environmentalists could purchase and thus retire emission allowances, which sold at surprisingly low prices. EPA through Project XL engaged corporations in collaborative and negotiated rulemaking. Federal and state agencies also inspired decentralized community and individual action by providing information; for example, EPA's Green Lights program encouraged a transition from energy-intensive incandescent bulbs to far more efficient compact fluorescent ones. Similarly, toxic release inventories, eco-labeling, right-to-know regulations, and environmental certification programs illustrate other ways information can initiate local, decentralized improvements.
With the greater and easier availability of information, individuals and firms have begun to internalize environmental norms. Frustration with agency inaction, moreover, has led citizen and industry groups to try to collaborate to resolve their conflicts. Successful habitat conservation plans— the most famous concerns the desert tortoise—emerged from civil society, that is, from negotiation among concerned groups. Environmentalists and ranchers, usually at each other's throats, joined to petition the government to establish a market in tradable grazing rights that environmentalists can retire by buying them from ranchers. Officials have initiated successful stakeholder negotiations as well, for example, to protect visibility in the Grand Canyon, although agency intransigence and turf-mindedness—the Forest Service has opposed stakeholder governance of national forests, as in Quincy, California—can also undermine collaborative agreements.
In trying to decentralize decision making through collaboration, negotiation, information, incentive-formation, and so on, regulatory agencies have gotten ahead of legislation. Since 1990, Congress has enacted no major new environmental regulatory statutes nor significantly amended old ones. Since 1970, only two environmental statutes—the Right-to-Know Act of 1986 and the SO2 trading program in 1990 CAA Amendments—depart from the standard topdown, command-and-control, one-size-fits-all approach. The trend toward more reflexive, adaptive, and collaborative approaches to conflict-resolution remains tenuous and vulnerable, since it lacks a statutory basis.
Economic Theory and the Environment
In the 1970s, economists described pollution and other environmental concerns as economic problems—external costs of production—that arise because markets fail to internalize in the prices of goods the costs of all the resources they consume. It soon became obvious, however, that public officials were no better able than private actors to gather and process the information needed to set optimal levels of pollution. Since the government confronts the same or greater information and bargaining costs as private parties, it is no more able than they to determine what people are willing to pay (or to accept) to gain or allow various outcomes. The government has confronted prohibitive costs when it has sought to measure the environmental losses caused by an episode of pollution—and defend those measurements.
In the early 1990s, for example, the government spent $30 million to commission experts to assess the damages associated with the discharge of DDT and PCBs into the Los Angeles Harbor. Tens of millions of dollars have funded Contingent Valuation (CV) studies of the non-use value of various environmental goods, such as the losses associated with the EXXON Valdez oil spill. EXXON commissioned Nobel laureates and other economists to debunk that study. Economists, like lawyers, take sides; economic estimates and valuations themselves become goods people are willing to pay for. No CV study, however expensive, has ever stood up as credible evidence in litigation.
Chastened by the transaction and information costs that bedevil official efforts to "get the prices right" or second-guess market outcomes, economists have turned to recommending ways that the government can create voluntary arrangements, such as markets in tradable rights and allowances, stakeholder negotiations, and governance committees, as ways to get to consensual and in that sense optimal outcomes. The question "what is the efficient allocation?" has given way to the question "what is the appropriate institution?" for governing resources such as watersheds and forests. When the government agency itself tries to govern, it becomes the object of rent-seeking, for example, zero-sum jockeying by opposing interest groups, which hire their own lawyers, economists, toxicologists, ecologists, and other experts. When these interest groups deal directly with each other by trading rights or by collaborating on decisions, they immensely reduce the transaction and information costs that tend otherwise to stymie environmental progress.
A Look Ahead
For thirty years, Congress and the executive branch have engaged in what psychologists call enabling behavior. Like an alcoholic and his or her spouse, Congress and the executive agencies may quarrel, but at a deeper level they have been in league with each other. By letting deadlines pass, accepting reasonable progress in lieu of compliance, substituting reduced risk for statutory zero risk standards, and otherwise failing to enforce legislation, agencies such as EPA spared Congress the unpleasantness of making hard choices and allowed it to parade itself as the defender of nature, personal rights, purity, and so on. Congress in turn gave the agencies autonomy—the ability to work the law as they liked—within the tolerance of the courts.
In the spirit of the civil rights movement, environmentalists enforced landmark legislation by confrontation and litigation, primarily by suing EPA and other agencies for evading draconian statutes, such as the Delaney Clause. In 1992, the Ninth Circuit Court held that the EPA exceeded its statutory authority by allowing a de minimis risk standard in conflict with the language of the Delaney Clause. (Les v. Riley, 1992). The decision implied that food must be absolutely free of chemical additives, including pesticide residues, as the law requires, even if as a result no food could be produced or sold in the United States.
Congress responded by repealing the Delaney Clause and enacting a more flexible policy, the Food Quality Protection Act of 1996, in its place. This result whet the appetite of industry groups who hoped that if environmentalists prevailed in other suits, Congress might be forced to repeal other aspirational statutes. Industry lawyers began to argue that the CAA, for example, taken literally, prohibited all air pollution—and thus nearly all economic activity—or, if, taken in any other way, delegated the entire burden of lawmaking to executive agencies and derivatively to the courts. This would involve an unconstitutional delegation of legislative authority to other branches of government.
When in 1997, EPA tightened the air quality standards for particulate matter and ozone, the D.C. Circuit Court, in American Trucking Association v. Whitman (1999), in response to an industry legal challenge, remanded the regulation to EPA on the grounds that neither the statute nor EPA's interpretation of it provided an intelligible principle necessary to channel the authority Congress delegated to the executive agencies. In reviewing this decision in 2001, the Supreme Court refused to declare the CAA unconstitutional on the grounds that it delegated the tough tradeoffs—and thus legislative authority—to the agencies. The Court and others recognized, however, that EPA has yet to determine a stopping point for regulation, that is, a point at which emissions are safe enough.
Some commentators argue that EPA should regulate emissions to the knee of the curve, referring to a graph in which the x-axis represents pollution reduction and the y-axis represents cost. The idea is that the government should require firms to reduce pollution to the point at which the costs of controlling the next unit increase exponentially or go asymptotic. In addition, agencies can encourage new technologies that may push the knee of the curve ever farther out along the pollution-control or the x-axis.
Other commentators argue that the most efficient controls on big sources of pollution are mostly in place, and it is small polluters, indeed, individual households, that hold the key to reducing pollution by becoming more energy-efficient. The reluctance of Americans to replace incandescent with fluorescent bulbs, to drive cars with greater fuel economy, to install better thermostats, windows, insulation, and so on, indicates the extent of the problem. Throughout the 1970s and 1980s, Americans blamed others—particularly large corporations—for their environmental woes, but it is apparent that the behavior of individuals has to change. The motto of the environmental movement has become more and more pertinent since cartoonist Walt Kelly's Pogo coined it: "We have met the enemy, and he is us."
The International Perspective
The other motto, "Think globally; act locally," recognizes that environmental problems have important global dimensions, particularly because carbon dioxide and other greenhouse gasses threaten to cause climate change. To some extent the international community has dealt successfully with environmental threats; for example, the Montreal Protocol, an international accord signed in 1987, initiated controls on the production of chemicals that damage stratospheric ozone. And conventions aimed at preserving endangered species and controlling the harvest of common resources—whales, for example—have long exerted influence on the international community.
To an even greater extent, however, international environmental conventions and the institutions—called regimes— set up to implement them meet many of the same problems of enforcement that are familiar in domestic contexts. Many of the conventions—such as those that ban pollution in the North Sea—are hortatory or idealistic. Politicians enact these protocols under pressure from the green movement, but because of the very great costs involved, they make slow progress in enforcing them. Nongovernmental organizations take the lead in litigating, harassing, and otherwise reminding officials of their responsibilities under the protocols they signed.
In 1997, industrialized nations, including Japan, the United States, and members of the European Union, promised at Kyoto that by 2012 they would cut to significantly less than 1990 levels, and permanently limit their production of, CO2and other greenhouse gases. Developing countries such as China, India, Indonesia, and Malaysia, believing that the welfare of their people depends more on the growth of their economies than on the stability of the atmosphere, refused to join the effort to lower emissions. These countries, because of rapid economic and population growth, are likely to surpass the industrialized nations in their greenhouse emissions within about fifteen years, and will by themselves emit more than enough greenhouse gases to destabilize the atmosphere. Partly for this reason, but also because of the costs involved, the U.S. Senate said that it would never ratify the climate treaty unless developing nations commit to substantial participation. President George W. Bush later brushed off the Kyoto Treaty entirely.
Environmental organizations have begun to turn their attention to international problems, particularly global climate change. Little has been said, however, about exactly how the United States should lower its emissions—whether by converting from coal-fired to nuclear energy, for example. Ethical debate has centered on a U.S. proposal to allow nations to sell credits for their excess reductions to other nations, who would then count them toward meeting their own targets. The United States, for example, might assist Russia to convert inefficient coal-burning electric utilities to cleaner and more efficient gas-fired power plants. The Russians would receive the new technology at little or no cost, and the United States would be able to take credit for the reduction in emissions from the Russian plants. It costs a lot less to achieve a 50 percent reduction from the dirtiest industries in Russia or India than a 10 percent reduction in industries that are already technologically advanced.
Critics have condemned pollution-trading because it "turns pollution into a commodity to be bought and sold," and thereby "removes the moral stigma that is properly associated with it" (Sandel). Yet CO2, unlike toxic agents or carcinogens, should not be stigmatized. Under a safe global cap—let us say, the levels accepted at Kyoto—CO2 emissions are not harmful or objectionable. If wealthy countries buy allowances by providing poorer countries with more efficient technologies, moreover, this does not necessarily indicate disrespect or arrogance, but might be looked at as partnership, if wealthy countries do not use less efficient technology at home than they subsidize abroad.
Some commentators have proposed a general requirement that ties CO2 emissions to economic product, with the idea that wealthy countries can get credit for helping others reach the carbon-efficiency per dollar economic output achieved by the most efficient economies. The ethical impasse that stymies carbon trading strategies lies in finding a fair principle on which to distribute initial allowances— namely, whether to grandfather present levels or establish per-capita quotas. A global cap on greenhouse gases, in other words, must be translated into an initial set of permits nations can use or trade. This problem has proven intractable. As economist Tom Schelling has said, "Global emissions trading is an elegant idea, but I cannot seriously envision national representatives sitting down to divide up rights in perpetuity worth a trillion dollars" (Passell).
The greatest threat to the global environment remains war—especially in view of the proliferation of nuclear weapons. Environmental protocols, regimes, and conventions, when successful, bring nations closer together and teach them to cooperate with and to trust each other. Insofar as environmental protection encourages a sustainable peace, it will lay the surest foundation for environmental protection and sustainable development.
mark sagoff (1995)
revised by author
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