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Introduction to Environmental Regulation
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.”
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.”
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