Milestones of Development of US Environmental Policy

Europeans bring European religion, methods, disease and national jealousies and prejudices to a resource-rich continent

• 18th and 19th Century: exploration, war and land acquisition

  • Land Ordinance of 1785: mapping, sale and settlement of the Ohio Valley

  • Louisiana Purchase (1803): US purchases 827,000 sq. mi. (529,280,000 acres) west of Mississippi from France for $15,000,000 (about 3¢ per acre)

  • Mexican War

• 19th Century:  settlement and management of public lands and natural resource commerce

  • Homestead Act of 1862

  • First national park

  • Rivers and Harbors Act of 1890 focuses on Navigation rather than pollution

• 20th Century:  Growth of regulation and bureaucracy

  • 1930s Dust Bowl prompts policy on soil conservation

  • Administrative Procedures Act 1947 follows explosion of government regulations from New Deal and World War II

  • 1950s:  first “environmental” statutes

  • 1970s-80s:  modern environmental regulation regime

• 21st Century:  Rise in global temperatures

Definitions

• Environment

  • “The totality of physical, economic, cultural, aesthetic, and social circumstances and factors which surround and affect the desirability and value of property and which also affect the quality of people’s lives”

    • Source: Black’s Law Dictionary, 5th ed.

• Environmental Regulation

  • “The imposition of limitations or responsibilities on individuals, corporations, and other entities for the purpose of preventing environmental damage or improving degraded environments”

    • Source: P. McManus, in International Encyclopedia of Human Geography, 2009

• Environmentalism

  • “Advocacy of the preservation, restoration, or improvement of the natural environment; the movement to control pollution”

    • Source: Miriam-Webster Dictionary (online)

• Environmental Justice

  • “The fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”

    • Source: US Environmental Protection Agency (link)

Damage to the Environment: Environmental Externality

Environmental Externality:

• “The economic concept of uncompensated environmental effects of production and consumption that affect consumer utility and enterprise cost outside the market mechanism.”

• “As a consequence of negative externalities, private costs of production tend to be lower than its “social” cost.”

• “It is the aim of the “polluter/user-pays” principle to prompt households and enterprises to internalize externalities in their plans and budgets.”

  • Source: Glossary of Environment Statistics, Studies in Methods, Series F, No. 67, United Nations, New York, 1997)

Economic Policy Approaches to Environmental Regulation

Force: Environmental regulation is designed to force individuals or firms to "internalize the externality”

• Internalizing external costs of production

  • Reduction in profit

    • Increased cost of compliance technology (must purchase and install to receive permit to operate)

    • Cost of compliance reporting imposed by regulations

    • Corporate Boards are bound by fiduciary duty to resist decrease in “shareholder value”

  • “Loss of jobs” often cited as defense against regulation

• Forced adoption of new technology to reduce externality

• Incentivize:  Provide incentives to individuals and firms to voluntarily reduce environmental externalities

  • Example: pay landowner to alter land to produce ecosystem services

    • Installation of riparian buffers, strips of undisturbed land on either bank of a stream to prevent soil and other pollution runoff

  • Consider this approach the “carrot”

The Big Bang (1970)

• Often environmental law is taught as a spontaneous awakening with major legislation passed in the “environmental decade” (1970s)

• The origins of federal environmental law are somewhat move organic

  • early 1900s: municipal response to incompatible land uses (zoning)

  • post WWII: state responses to degradation in water quality

    • led in part by hunters and fishers opposition to dams

    • introduction of ecological science to illustrate consequences of unregulated commercial activity

  • rise of the national economy requires federal intervention

Establishment and Implementation of Environmental Statutes

Federal Environmental Statutes are not Self-Executing

• Someone must implement and enforce

• Three Basic Steps

  • Establishment:  Passed by Congress (U.S. Const. art I)

    • Establish goals of environmental quality

    • Declare policy/purpose of law

  • Administration: Environmental Protection Agency (EPA)

    • Responsible for rule-making (under Administrative Procedures Act)

    • Science-based regulation, impact of various substances on human health and welfare

  • Implementation/Enforcement:  Delegation to the states

    • Federal statutes specifically direct delegation

    • States pass legislation and promulgate rules to enforce

    • E.g. Clean Air Act, Clean Water Act, CERCLA, etc. all have enforcement corollaries under North Carolina statute

Our federal regulators: the EPA, US Army Corp of Engineers, US Department of the Interior, US Department of the Interior Bureau of Land Management

The First “Modern” Environmental Law: National Environmental Policy Act of 1969

Signed by President Richard M. Nixon on January 1, 1970

• First federal statute mandating consideration of environmental impact as national policy

• Requires Environmental Impact Statements for any action which may in some way change the Environment

• A requirement for any “major federal action that significantly impacts the human environment”

Courts have upheld challenges to projects and regulations for failing to follow NEPA

Environmental Protection Agency

• Not Cabinet level, but agency head appointed by President

• Administers nine statutes (including)

  • Clean Air Act

  • Federal Water Pollution Control Act (Clean Water Act)

  • Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or “Superfund”)

  • Resource Conservation and Recovery Act (RCRA, solid waste management)

  • Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)

  • Toxic Substances Control Act (TSCA)

• EPA generally has “discretion” to identify pollutants and establish framework to achieve goals in statute

EPA Sets Standards

Develop appropriate standards

• Sets numerical standards of environmental quality

  • E.g. parts per million (ppm), how much can be released?

  • Based on science, impact on human health

• Sets standards of required technology to meet standards

• Designs programs to achieve the standards

  • E.g. permitting of certain polluters who adopt control technology

• Establish thresholds that when exceeded trigger a response (enforcement) action

  • E.g. “tolerance level” for pesticides on food

  • E.g.  pollutant in tested soil exceeds standard ppm established by rules, threatens groundwater, triggers requirement of cleanup

  • “Imminent and Substantial Hazard”

Standards for Pollutants: EPA Risk Assessment to Individual Humans

• Hazard identification (what is statute designed to alleviate?)

• Dose response

  • the process of determining how humans respond to various doses of a pollutant or toxin

  • Animal testing (questions of ethics and human response predictability)

  • Epidemiological (study cases of exposure)

    • Then employ statistical analysis and modeling (common traits of patients)

    • Problem:  what about chemicals with no epidemiological history?

    • Example:  GenX in Cape Fear River (and airborne distribution)

• Exposure assessment (how many will this affect?)

  • Single source (factory):  limited

  • Consumer product:  widespread

Incidence of disease or damage (statistical estimate)

Emergency Response Standard: “Imminent and Substantial Hazard”

• EPA’s emergency response authority

• Conferred to EPA by all federal environmental statutes

• Concerns local discharges to more general threats to public health

• Concerns toxic pollutants that pose “significant and unreasonable risk to health and welfare”

  • Weigh against social burden of regulation

  • If no safe amount:  ban manufacture and use

Risk Assessment Process

Results in quantifiable standards, which…

• …Allows comparison of risk of pollutant to costs of containment, reduction and remediation of pollutant, resulting in…

• … a Cost-benefit analysis

• Objective:  not to eliminate risk, but determine what level (if any) of risk is acceptable and set standards accordingly

• Every single regulated substance has its own determination and listing through federal administrative rulemaking process

Implementing Standards: The States’ Role

• Concurrent powers (states can legislate)

  • EPA sets standards, states enforce through sanctioned legislation

  • EPA enforces where states do not pass enabling legislation for enforcement of standards

  • EPA can veto state action

  • Congress cannot force states to pass enforcement legislation under 10th Amendment

• Federal Preemption (states cannot legislate)

  • Ocean dumping (consistent with maritime purview under US Constitution)

  • Pesticides (manufacture and use)

  • Manufacture of toxic substances

  • Manufacture of automobiles (emissions standards)

Supreme Court’s Role in Review

• Nine Justices (6 appointed by GOP; 3 by Dem)

• Historically SCOTUS has limited its role to review of procedural matters

  • Little interest in substantive nature of the environmental and land use regulation laws:  these are political questions

  • this has changed somewhat (e.g. Rapanos**)**

• Example:

  • was WOTUS jurisdiction expansion a result of proper rule-making under Administrative Procedures Act?

  • Did FERC approve a pipeline project without a proper EIS under the National Environmental Policy Act

Environmental Justice

• Concept that permitting decisions regarding geography of polluting site are made in disregard of neighboring racial minorities

  • Example:  agency decision to permit siting of toxic waste incinerator next to racial minority neighborhood

• Theory tested under equal protection claim

• Theory tested as violation of Civil Rights Act of 1964

  • Held:  no standing

• Pres. Clinton EO 12,898 required EPA to evaluate distributional impacts and demographic outcomes