Reform or Reaction: EPA at a Crossroads History has once again brought EPA to the brink of reform, but will the opportunity be lost? RICHARD N . L . ANDREWS
"VMY CARTER
he Environmental Protection Agency this year marks a quarter century of an unprecedented policy experiment. Its history shows the power and limitations of using federal leadershipchiefly through regulations coupled with subsidies and other policy tools-to clean up pollution. In some tasks EPA has succeeded dramatically: Air quality is much improved and wastes are far more safely managed. In other tasks it has been less impressive,and many important pollution sources and environmental problems remain uncorrected. Some EPA regulations, moreover, have imposed costly economic burdens, initially on large corporations hut more recently on small businesses and municipalities. However, blame for most of these problems must be shared with a Congress that has passed a patchwork of extraordinarily prescriptive statutes, deoying EPA authority to address some sources and to set priorities among mandates as well as denying it use of more effective and efficient policy tools. Today EPA stands at a turning point. Recently outside reviewers and EPA itself have proposed farreaching reforms to make environmental programs more effective and less burdensome. The public remains supportive of a clean environment, and the 1994 election of a new Congress uncommitted to past approaches has opened an unprecedented opportunity for statutory reform-for either good or ill. It remains an open question, however, whether the po-
77
I I 1974 -President Nixon resigns, Gerald Ford as sumes presidency.
1974 -Safe Drinking Water Acl enacted to set mandatory drinking water standards and control underground injection of wastes.
1976 -Toxic Substances Control Act ITSCA) passed to regulate use of chemicals in production. 1976 -Jimmy Carter elected president.
W13-93BX~5/0929-M5A$09.00/00 1995 American Chemical Society
1976 - Resource COnSeNalion and Recovery Act IRCRA) enacted; expands earlier laws controlling disposal of solid waste and calls for new hazardous waste regulations.
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1977- Douglas m. Castle named EPA administrator.
1977 -Clean Air Act Amendmenk passed, setting new air qualii standards and compliance reouiremena.
VOL. 29. NO. 11.19951 ENVIRONMENTAL SCIENCE &TECHNOLOGY rn 5 0 5 A
tential for beneficial reform can be realized or will be lost once again to the pendulum politics of antiregulatory opportunism. A look at EPXs 25-year history is necessary to understand how the Agency got to this juncture and what lies ahead.
The environment before EPA US.industry during World War II and the postwar era generated tremendous levels of material and energy as well as unprecedented amounts of pollution and waste. Throughout the country, cities continued to discharge raw sewage into rivers and estuaries; a growing number of factories, power plants, and motor vehicles severely polluted urban air. Waste disposal practices were cheap and casual: Coastal cities could simply dump garbage in the ocean, and others often hauled it to unlined dumps, frequently in wetlands, for open burning. The most conscientious municipalities built “sanitary landfills,” reducing air pollution and sanitation hazards but not preventing seepage into groundwater. Some industrial wastes were commonly mixed with ordinary trash and dumped at the same sites; the remainder were discarded on private lands, usually into unlined pits, lagoons, or open dumps without any public oversight or regulation (1.2). Control of these problems was seen as a state responsibility, but few states had effective environmental statutes or agencies, and fewer yet were willing to challenge powerful industries, confront their own municipalities,or raise taxes to pay for cleanup. Water and air pollutants flowed across municipal and state boundaries: polluting industries could usually intimidate state or local governments by tbreatening to relocate; and cities chronically underinvested in wastewater treatment facilities, which, after
all. benefit downstream communities. In response to public demand, President Richard Nixon created EPA in 1970, and Congress in effect nationalized pollution control The federal government would establish national minimum standards and program requirements for environmental protection. The goals were to protect all Americans’ health from environmentalhazards and to protect progressive states and industriesfrom recalcitrant neighbors and cornpetitom (3).Within a decade, Congress produced almost a dozen federal pollution control statutes: taken together, these statutes authorized an unprecedented federal responsibilityto lead in pollution control.
Regulating air and water emissions EPAIs first new mandates, the Clean Air Act of 1970 and Federal Water Pollution Control Act Amendments of 1972, were to abate unacceptable levels of air and water pollution: air pollution primarily from industries and motor vehicles, water pollution from industries and municipal wastewater discharges. The Clean Air Act of 1970 and the 1977 amendments achieved impressive results. Between 1970 and the 199Os, most air pollution emissions except nitrogen oxides dropped by one-third to one-half and lead emissions by 96%. even as economic production and growth continued to increase. From 1980 to 1991 the pollution standards index for major U S . urban areas also improved by 50%. However, to what extent reductions can be attributed solely to the Clean Air Act is unclear. Ambient particulate levels had d ready decreased by 22% in the 1960s and sulfur dioxide by 50%, primarily because of state and local controls on burning garbage, cod, and high-sulfur fuel oil. Weather, industrial activity, and fuel choices also played important roles. The extraordinary degree of improvement across nearly all pollutants during this period, however, provided strong evidence
r
RONALD REAGAN
1
1978 -Love Canal, NV, communitv found to be
contaminated by buried leaking chemical containers; President Carter de-
clares state-of-emergency.
508 A.
1978 -Chlorofluorocarbons
banned as propellants in aerosol spray cans under TSCA.
1979 -Three
Mile Island
nuclear power plant acci. dent in Pennsylvania.
1979 - Tellico dam begins operation following congressional action to exempt ir from Endangered Species Act restrictions triggered by its impact on snail darter.
VOL. 29. NO. 11. 1995iENVIRONMENTAL SCIENCE &TECHNOLOGY
1980 -Comprehensive Environmental Response.
1980 - Ronald Reagan elected president.
Compsnsation. and Liability Acl (CERCWSuperlundl enacted to provide $1.6
1981 - EPA operaring en1omemenl budget sharply
billion to clean up abandoned waste sites and set new cleanup standards.
reduced. 1981 -Anne M. Gorsuch (Burford) named EPA ad-
ministrator.
of the Clean Air Act's importance in improving US. air quality and preventing further degradation ( 4 ) . The law had serious limitations, however. It authorized rigorous control of new sources of air pollution but required only limited cleanup of existing ones. And its emphasis on control technologies created a costly disincentive for innovative and economical methods of pollution prevention. Its "endof-pipe" approach removed substantial quantities of pollutants from the air hut often shifted them to water or land. Moreover, because its standards were designed to protect human health around point sources, it created an implicit incentive to simply build higher stacks, increasing the long-range transport of air pollutants and consequent deposition of acid rain (4.5). Although the automobile emissions standards dramaticallv. imuroved the technical efficiencvof com. bustion, they did not ensure proper vehicle operation or maintenance, nor did they limit growing vehicle use. Like the Clean Air Act, the 1972 water quality law produced major reductions in urban and industrial discharges. By 1982, an estimated 96% of industrial sources were in compliance with technology-based effluent limits-that is, they had installed the required control technology These controls should have reduced estimated industrial water pollution hy 65% of oxygen-demanding organic materials, 80%of suspended solids, 52% of dissolved solids, and 21% of oil and grease discharges. Municipalities' compliance rates were lower, but still a marked improvement. However, cities and industries reDorted continuing nonmmpliance with their operating permits: 16% of industries and almost one-third of the cities reported "significant noncompliance," meaning periods during which their average discharges exceeded their permit restrictions by at least 50% for
four consecutive months. Actual changes in water quality included improvements in some heavily polluted areas, but no significant progress in many others. Some streams were even getting worse, primarily because "nonpoint sources" such as farms, construction sites, and urban storm water runoff were exempt from regulation ( 4 ) .
Pesticides and toxic chemical regulation Public concern about pesticides and toxic chemicals, meanwhile, produced a second series of statutes in the mid-1970s: the Federal Environmental Pesticide Control Act of 1972, Safe Drinking Water Act of 1974, and Toxic Substances Control Act of 1976. When coupled with mandates on hazardous air and toxic water pollutants, these statutes appeared to give EPA authoritv to rermlate virmallv anv chemical that might cause unreasonable risks to human health. In practice, however, they created an impossible task. Instead of regulating waste, EPA was called on to regulate economically useful chemicals. Consequently, instead of assessing air and water permit applications from hundreds of firms using known technologies, the Agency must now assess tens of thousands of individual substances, often with little scientific evidence. EPA therefore lived in constant threat of "chemical of the week" horror stories in the media and costly and time-consuming litigation, initiated either by chemical producers and users or by environmental groups. EPXs substance-by-substance, "risk-based programs, ironically, have been among its least effecY
I
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WILLIAM RUCKLESHAUS
1982 -limes Beach, MO. 1982 - Envimnmental jusresident buyout and evacu- tice movement horn as 5W ation begins alter discovery protesters arrested for opthat dioxin-tainted waste oil posing siting of PCB landfill sprayed on area roads. in Warren County. NC.
1983 - Scandal h i EPA as Administrator Burford, 20 top Agency officials resign; Rita Lavelle, assistant administrator of waste programs, sentenced to six months in jail for lying to Congress; Ruckalshaus returns to head Agency.
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1984 - Union Carbide plant
1984 RCRA Amendmanta
in Bhopal. India. releases methyl isocyanate in plant accident 25W residents
passed, introducing host of requirements for solid, hazardous wastes, and underground storage tanks; land disposal of untreated hazardous wastes banned and "hammer provisions" triggered if EPA fails to act.
killed.
1985 - Lw M. Thomas
named EPA administrator.
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tive (6).They placed EPA in a no-win situation in which the burden of proof was onerous and the agenda was dictated by ad hoc external challenges rather than by systematic priorities. Successive EPA administrators responded by introducing quantitative risk assessment procedures as a basis for justifymg regulations and setting priorities, but in practice these procedures were controversial, required heavy investments in research and analysis, and pmduced regulations for only a handful of substances.
Regulating waste By the late 1970s, public concern over “midnight dumping” and other waste disposal practices produced a third wave of statutes: the Resource Conservation and Recovery Act (RCRA],to regulate waste disposal facilities and hazardous industrial wastes, and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) or Superfund, to clean up contaminated sites. RCRA and CERCLA transformed U.S. waste management practices. Within half a decade, they closed down thousands of substandard disposal sites and virtually ended open-burning dumps, the commingling of industrial chemicals in municipal landfills, and the uncontrolled dumping of industrial chemicals. In place of these practices came safer sites, far more sophisticated monitoring and management, and increased recycling as well as outright waste reduction. Within a decade, EPA had used CERCLAs emergency actions to contain pollution at thousands of sites, leaving none that posed an immediate risk to public health (7).The threat of joint and several liability also created a powerful incentive for safe management of future wastes, or even substitution of nonhazardous materials, which stimulated industrial initiatives fur hazardous waste minimization.
CERCLAs positive effects, however, were overshadowed by arguments about its longer term cleanup program: questions of who should pay, “how clean is clean?” and whether the program was worth its cost.
Refonn or deregulation As early as the mid-l970s, leaders within EPA and in both political parties recognized problems in EPKs statutes and proposed regulatory innovations and reforms to correct them. EPKs “offset” and “bubble” policies, for instance, proposed more creative ways to attain air pollution standards than the Clean Air Act required (8);an Interagency Regulatory Liaison Group chaired by the EPA administrator sought to coordinate policies for carcinogens and other common chemicals across the several regulatory agencies (9);and proposals for regulatory consolidation and reform were considered for upcoming reauthorization of environmental statutes. The Reagan administration, however, chose to reject reform in favor of more radical initiatives: deregulation, defunding, and devolution. It pursued this agenda, moreover, through deliberatelyunilateral administrative initiatives. Ideological loyalists rather than experienced administrators were appointed to head the agency;the Office of Management and Budget was given oversight authority to control EPKs rulemaking process; a Regulatory Relief Task Force singled out more than 100 EPA rules for reconsideration and rewrote or rescinded more than 50 of them; budgets of EPKs primary operating programs were cut by 3MO%and its enforcement staff reduced by more than 25% and the output of its enforcement office dropped by more than 50%. Environmental grants to state and local governments were severely cut. Wastewater treatment grants were first reduced from
LLY
c6%6 1986 - Superfund Amendmen& and Reauthorization Act ISARAI enacted, increasing Superfund t o S . 5 billion, creating mechanisms to speed cleanups, and adding requirements
for community emergency plans and company toxic release inventory (TRI)
reports.
1986 - Sale Drinking Water 1981 - Clean Water Act Act Amendment enacted, passed over Reagan veto, puning EPA on fixed sched- setting state water quality uIe to issue drinking water standards and beginning standards for more than 80 phase-out of construction contaminants and giving grants.
EPA new enforcement authority over water suppliers. lg81 1986 - Chsrnobyl (USSR) nuclear power plant explo.
sion. 5 0 8 A . VOL. 29,
On
Substances that Deplete the Ozone Laver signed. leading to 93% cut in CFC use and production.
NO. 11. 1995 i ENVIRONMENTAL SCIENCE & TECHNOLOGY
1988 - Federal Insecticide. Fungicide. and Rodenticide Act IFIFRAI amendments passed, speeding up pesticide registration process and shifting costs of canceled pesticide from EPA to the manufacturer.
1988 -Ocean Oumping Ban Act signed, includes ban on sewage sludge and industrial waste.
1988 - George Bush elected
president. 1989- William K. Reilly named EPA administrator. March 1989 - Exxon Valdez runs aground in Alaska, 11 million gallons of crude oil released into prince William
sound,
75% to 55% and ultima[ely downgraded IO a loan program; the policy goal was their ellnllllallon 1101. Reagan's deregulation initiative sparked a sharp political backlash and the dismissal of EPA's senior political appointees, but even with the return of William Ruckelshaus, EPA's first administrator, the deregulation initiative caused severe damage. Within EPA, it sharply reduced the agency's competence and productivity. More broadly, it triggered an unstable swing of the pendulum from presidential to congressional micromanagement: Reagan's unilateral initiatives poisoned the atmosphere of cooperation that was needed for eood-faith reform and "~ eenerated instead an opportunistic partisan reaction from congressional Democrats. Through the rest of the 1980s, Congress wrote ever more prescriptive environmental statutes with short deadlines and "hammer" clauses imposing automatic consequences if the agency failed to meet them, including regulations for "small-quantity generators" of hazardous wastes, for underground storage tanks, for 25 additional drinking water contaminants every three years, for asbestos in schools, and for reregistration of 50,000 old pesticides. Unnoticed hy most observers, the burden of these new mandates fell far more heavily on smaller businesses and municipalities than on the big corporate targets of the 1970s. With a constantly growing list of mandates, no discretion to set priorities, and reduction or elimination of federal subsidies that had provided some offsetting local benefits, local governments shifted from EPA supporters to adversaries, joining the antigovernment campaign with demands to end "unfunded mandates." Y
1990 - Montreal Pmmcol
parties agree to a phaseout of CFCs by ZWO. 1990 - Clean Air Act Amendments enacted affecting stationary,mobile sources and acid rain generators; limiting hazardous air pollution. CFCs; and using economic incentives and technology-based standards.
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1990 - Reducing Rlsk repon released by EPA Science Advisory Board. following up other studies that concluded EPA should place greater reliance on
risk when setting priorities.
1991 - Envimnmental justice national summil of grassroots groups held in Washington, DC.
Administrative versus statutory refoms From [he beginning, EPA adminisira[ors pioneered many reform proposals (111.AS early asi973, EPA proposed economic incentives to reduce motor vehicle use in polluted cities, for example, which were immediately blocked by the Congress under pressure from the highway lobby in the name of "keedom to drive." In the mid-l970s, it used a creative reading of the Clean Air Act to allow trading of "offsets" between new and existing polluters in nonattainment areas, and its 1979 "bubble" policy encouraged firms to create excess emission reduction credits to trade to other firmsthat needed them. Rading schemes also provided economic savings to firms phasing out production of leaded gasoline and chlorofluorocarbons (CFCs) and even allowed some polluters to buy cheaper pollution reduction from unregulated sources, such as refineries buying up and destroying old cars ("cash for clunkers") and municipal water utilities subsidizing water pollution reduction by farmers ("point-nonpoint" trading). In 1986 Congress created the Toxics Release Inventory, requiring annual reporting of actual quantities of industrial pollutants released to the environment. EPA went further, challenging industries to voluntarily reduce these quantities by 33% in two years and 50% in four, and thus stimulated an estimated 25-3070 reduction within two years by some 800 firms that responded (12). Ruckelshaus and his successors actively promoted the principles that EPA should set clear priorities among its responsibilities based on their environmental risks and should use a wide range of "market-oriented policy incentives to reduce these risks ( 1 3 , 1 4 ) .These administrators fostered the development of systematic procedures for risk-based
1992 - Bill Clinton elected
president 1992 - Cam1 Browner named EPA administrator. 1992 -Montreal Protocol tightened to phase out CFCs by 1996 in developed world and freeze HCFCs by 1996 with a total phase-out by 2030.
1992 - U.N.'s "Earth Summil" held in Rio de Janeiro
and anended by more than 170 nations. 1994 - Envimnmenlaljustice Executive Order 12898 signed by Clinton, making federal departments and agencies consider environmental juStice implications in actions.
1994 - EPA Cabinet bill blocked on House floor due to suppon for risk-cost benefit analysis. federal "takings" of private propem, and unfunded mandates.
1995 - EPA g r o w to s7.2 billion Agency with some 18.000 employees, twothirds of which oparate in 10 regional offices.
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decision making and initiated “comparative risk assessment” processes for setting risk-based priorities among programs, among budget priorities, and even among enforcement actions. They used personal initiative, actively and publicly urging more efficient and effective solutions (15). Although it is popular to criticize EPA for regulatory rigidity, in short, the fundamental barrier to policy reform at EPA was a failure of Congress to revamp EPA’s fragmented and rigidly prescriptive statutes that it imposed on EPA in the first place. However logical it may be to argue that EPA should use the most efficient and effective policy “tools” to protect the environment, in practice, the Agency could use only those tools authorized by its statutes. Even innovations such as emissions trading had only limited effects because they operated on a narrow margin of discretion above end-of-pipecontrol technology regulations that remained unchanged. Without statutes allowing the Agency more discretion to set priorities among risks and to use a wider range of solutions, its innovations remained transitory personal initiatives of its administrators (16).
EPA at a turning point Today EPA’s statutes remain a patchwork of disparate mandates-most dictating specific commandand-control regulatory programs with rigid timetables and little discretion and promoting pollution prevention more by regulatory burden than by purposeful incentives. Yet important environmental problems remain unsolved. The 1994 elections removed many of the architects and protectors of EPA’s statutes, making serious statutory reform conceivable but also bringing to power far more radical opponents. EPA’s programs retain broad public support, but they are under more fire politically than ever before. Some programs are criticized for legitimate problems that need correction; others are attacked by special interests exploiting those issues for their own purposes. In effect, EPA is repeating the political battle of the early Reagan years, only this time its opponents are in Congress and its defenders in the White House. Three outcomes appear possible: serious reforms, fundamental damage to EPA, or stalemate reflecting the status quo with a smaller budget and more red tape. Serious reform proposals were laid out in a 1995 report of the National Academy of Public Administration (NAPA),commissioned by congressional appropriation committees. The NAPA report recommended that Congress give EPA a coherent statutory mission and the flexibility to carry it out; that EPA continue to set and enforce national standards but give more flexibility to state and local governments as to how to achieve them; that Congress pass legislation creating market-based incentives to encourage firms to move “beyond compliance”; that EPA improve its own management systems and expand its use of risk and cost-benefit analysis; and that the fragmented environmental statutes and programs be integrated into a single coherent framework ( 2 7). Fundamental damage could result from the spe-
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cial interest provisions of the House appropriations bill that would prohibit EPA from regulating a series of specific industries and from “takings” bills that would compensate polluters for any significant regulatory impact on property values. Stalemate would result from versions of the proposed “risk assessment” legislation that would require far more paperwork for each regulation with less funding to produce it, create additional opportunities for litigation, and provide no increase in the agency’s discretion to set priorities or achieve mandates. Still, on this 25th anniversary, forces have combined to bring about an examination of the federal government’s role in environmental protection. Yet to be seen is whether the outcomes will reform EPA or simply make it harder for the Agency to regulate by requiring additional documentation for each regulatory proposal and reducing the Agency’s budget, thus making it more difficult to fulfill its responsibilities effectively.However, unless a strong centrist reform coalition prevails, the opportunity for serious improvement of EPA’s performance may well be lost once again.
References (1) Tarr, J. A. Am. 1.Public Health 1985, 75(9), 1059-67. (2) Tarr, J. A. In Environmental History: Critical Issues in Comparative Perspective; Bailes, K., Ed.; University Press of America: New York, 1985; pp. 516-52. (3) Quarles, J. Cleaning Up America: An Insider’s View of the Environmental Protection Aaencv: Mifflin: Bos, Houghton . ton, MA, 1976. (4)Public Policies for Environmental Protection; Portnev, F?, Ed.; Resources“for the Future: Washington, DC, 1990. (5) de Nevers, N. H.; Neligan, R. ; Slater, H. In Air Pollution; Stern, A., Ed.; Academic Press; New York, 1977;Vol. 5, pp. 3-40.
(6) Hornstein, D. YaleJournalon Regululation 1993, I0(2),369446. (7) de Saillan, C. Environment 1993, 35(8), 42-44. (8) Liroff, R. ReformingAir Pollution Regulation: The Toil and Trouble of EPAs Bubble; Conservation Foundation: Washington, DC, 1986. (9) Landy, M.; Roberts, M.; Thomas, S. The Environmental Protection Agency:Asking the Wrong Questions, 2nd ed.; Oxford University Press: New York, 1994. (10) Environmental Policy in the 1980s: Reagan’s New Agenda;Vig, N.; Kraft, M., Eds.; Congressional Quarterly Press: Washington, DC, 1984. (11) Economic Incentives: Options for Environmental Protection; U.S. Environmental Protection Agency: Washington, DC, 1991; Report 21P-2001. (12) Reducing Toxics: A New Approach to Policy and Indusrial Decisionmaking Gottlieb, R., Ed.; Island Press: Washington, DC, 1995. (13) Unfinished Business: A Comparative Assessment of Environmental Problems; U.S. Environmental Protection Agency: Washington, DC, 1987. (14) Reducing Risk: Strategies for Environmental Protection; U.S. Environmental Protection Agency. Science Advisory Board: Washington, DC, 1990. (15) Reilly,W. Northern Kentucky Law Review 1990,18(2),15974.
(16) Andrews, R.N.L. Ecology Law Quarterly 1993, 20(3),515582. (17) National Academy of Public Administration. Setting Priorities, Getting Results: A New Direction for EPA; National Academy of Public Administration: Washington, DC, 1995.
Richard N.L. Andrews is a professor of environmental policy in the Department of Environmental Sciences and Engineering, University of North Carolina, Chapel Hill.
