Environmental law: what it is,what it should be This f i r m l y entrenched body of laws, which rivals the Internal Revenue Code in complexity, is now being reexamined t o ensure that benefits exceed costs, especially when the seemingly conflicting goals of energy production are in the ascendancy
Anthony Dan Tarlock Indiana University, Bloomington Bloomington, Ind. 47401
In a republican form of government, fundamental changes in economic and social policy are usually preceded by a long period of public debate. The New Deal, for example, was a logical culmination of several decades of debate about the proper role of government in the allocation and distribution of the nation’s resources. What is striking about the stunning success of the environmental movenient’s impact on federal legislation during the past decade is that the movement, like Venus from the spume 1344
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of the sea. m a n e full blown from the American’ b u b l i with hardly any warning. Historians of the movement like to trace the development of an environmental conscience from George Perkins Marsh’s 1865 masterpiece Man in Nature, to Aldo Leopold’s A Sand County Almanac, and finally to Rachel Carson‘s Silent Spring. However, prior to 1969, the concept of ecology as an organizing principle for the regulation of much of our productive activity, from the extraction of minerals to the marketing of chemicals, had almost no place in American public policy debates. Owing to a combination of circumstances-the Santa Barbara, Calif., oil spill, and the redirection of energies from protesting the Vietnam
war to sumortinec domestic “priorities”-a sudden demand for government action to “protect” the environment was created. Since 1969, Congress has enacted a string of environmental protection statutes which now rival the Internal Revenue Code in complexity. And, so firmly entrenched in American political thinking is the idea that the “environment” should be protected, that the issue is no longer whether environmental values should be recognjzed but to what extent, if at all, they can be I
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Feature articles in ES&T h u e bj,-lines. rep.w.sent the ~ . i r w os f t h e authors, and are edited b j , the Washington sta,fJ If y o u are interested in contributing an arricle, contact the managing rditor.
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1979 American Chemical Society
traded-off for developmental values. Still, for the first time, there is a serious debate about the weight that should be given to environmental values as compared to other values. This debate has been spurred on by the growing realization that the production of energy and other necessary goals, and the promotion of a highquality environment are to some extent inconsistent; therefore, we must examine more carefully what we gain by protecting the environment compared to what it costs to do so. However, in the sudden wave of politicians and administrators riding the popular environmental crest, the hard questions of what we want, and the most efficient means of getting it were rarely asked. The growing unease about the place of environmental quality in our society has its roots in the questions glossed over during the more innocent “Earth Days”. For example, DDT was banned not because of proof that its incorporation in the food chain and subsequent ingestion by man caused cancer, but because the EPA administrator was convinced that public intolerance of the risk allowed him to transcend the shaky evidentiary case against the chemical. Therefore, as we begin to ask the hard questions about environmental protection that were ignored when laws were put in place, it seems useful to review these laws, and some current areas of debate, to highlight the future choices Me must make. It would take an issue of this journal just to list all the federal environmental laws and a page or less describing their purpose and operation. Therefore, this brief article has a more modest goal: to examine the objectives that a few selected laws sought to accomplish, to explore alternative solutions to the problems which were rejected when the laws were adopted, and to suggest an agenda for change that the growing cncrgy versus environment debate should consider. What is environmental protection? The term “environment” is now so overused that it has become devoid of almost any meaning as a public policy concept. Nevertheless, it still serves to distinguish the purpose of preenvironmental-decade laws from current oncs. Throughout history persons have “insulted” the natural resources which others rely on for life, livelihood and cnjoynient. If an individual could prove that another person’s activity caused harm to a legally-protected right to enjoy an unimpaired resource, the common law of nuisance would grant a remedy. The idea that injury to a n
abstraction such as an ecosystem without an attendant damage to human uses of the ecosystem was alien to the common law. Thus, one had a right to use air, water and land as sinks so long as there was no damage to the human uses of these resources. The combination of the courts’ refusal to recognize that damage to ecosystems per se was actionable, and its constant balancing of the interests of industrial development and enjoyment of one’s property free from “insult” in setting the nuisance standard led to a limited and ad hoc control of the discharge of residuals. Starting in the 196O’s, however, it was argued by many that common law did not curtail enough pollution. The movement to protect the environment broadened the scope of common law to include the protection of ecosystems from a much broader range of “insults”. But we have never resolved the issue of whether ecosystem stability per se is a valid objective of the law, or whether ecosystem stability should only be protected to safeguard human needs. The meteoric rise of “environmental protection” as a societal goal had the unfortunate consequence of creating the illusion that “environmental protection” is a unifying policy objective when in fact it is not. The illusion is unfortunate for three reasons. First, we decided to protect the environment before we knew from what, how, and at what cost. Second, protection of the environment encompasses many objectives, some of which are more important than others. But, the illusion that this protection is a unifying objective has lead to the theory that the environment must’be uniformlj protected from injury, no niatter what the cost. Third, protection of the environment was adopted as an immediate societal objective, and known, but often costly and ineffective methods of protection, were chosen to achieve quick results. We decided to protect the environment because scientists told us that we were destroying it, and that this was bad. Ecologists such as Aldo Leopold and Barry Commoner were influential in selling the idea that society should pursue ecosystem stability as a goal. Ecology is a science, not a philosophy; it carries with it no moral imperatives, but we tended to ignore this point. As a result, the only common thread running through the concept of environmental protection is that anything which disturbs the status yuo is presumed to be bad. Beyond the presumption against change--which in many cases provides
a necessary counterpoint to the unthinking application of technologyenvironmental protection embraces several diverse ideas of varying importance. The most important objectives are these: curtailing the exploitation of natural resources on which no value has been placed historically preserving the status quo with respect to high-quality resources protecting human health from three types of injuries. The first two types of injuries, caused by nuisance-like conditions and the discharge of disease-causing substances, are relatively noncontroversial as objectives, although the desirability of achieving them for all resources at any cost is open to serious debate. However, the concept of a toxic substance is no longer limited to chemicals which cause acute injuries; we are now concerned with discharges that subject society to long-term, low-probability risks of chronic harm. At the present time we are attempting to identify potential carcinogens as proxies for all public health risks. Our current laws generally attempt to achieve environmental protection through one of three approaches. The first distinguishes between maximum prohibited and permissible discharge levels by setting pollutant concentration standards for broad classes of industrial and municipal activities. Discharge limitation standards are enforced by preactivity licensing and enforcement actions should the permit conditions be violated. A second technique mandates a comprehensive environmental evaluation of an activity before it is undertaken to ensure that all options, including not doing anything, are thoroughly considered; an environmental impact statement (ElS) is, of course, the prime example of this approach. A third approach screens substances in advance of their use on an ad hoc basis to determine if they are safc or not: pesticide and toxic substances control legislation use this technique. Air, water pollution Prior to the two major pieces of air and water pollution legislation, the Clean Air and Clean Water Acts, it was assumed that airsheds and watcrcourses should be used as sinks for waste disposal up to the point where a specific human use of the resource was foreclosed. For example, an industry which polluted a stream used by dairy cattle is liable to the dairyman for d a mag es . The first round of federal and air pollution legislation did not question Volume 13, Number 11, November 1979
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this premise, only the effectiveness of common law nuisance actions to prevent enough waste disposal to ensure the use of the resource for other, valuable human purposes. It was thought sufficient to make broad allocations between waste disposers and other users by the adoption of standards which set the level of permissible waste or pollution. To this end, the federal government and states, from 1965- 1972, set receiving water standards for watercourses and, from 1967- 1970, air quality standards for airsheds. The ambient -q u a 1it y -s t a nd a r d a pproach was found to be unworkable because. as a practical matter, one could not work backward from a standard to the imposition enforcement of the standard against a specific discharger. Economists suggested that the desired reduction levels, set through political processes, could be most efficiently achieved by taxing or charging dischargers for the use of sinks. Charge schemes were rejected by most regulators and by Congress in part because it was too difficult to measure the damage caused by individual discharges. Thus, the Clean Air Act of 1970 switched from ambient to emission standards, and i n 1972 Congress applied the air remedy to water pollution. The Federal Water Pollution Control
Act Amendments of 1972 supplemented and, in effect, substituted receiving water standards with effluent limitations, which set end-of-the-pipe quality standards. The switch to effluent and emission limitations for ease of enforcement was linked with the idea that difficulty in quantifying environmental damage meant that one should not do so. Instead, one should adopt purity as a nearly absolute goal. These statements are a slight exaggeration of the purposes of our air and water pollution legislation. The statutes do provide some flexibility by attempting to balance the costs and benefits of discharge reduction on a case-by-case basis. Nevertheless, the dominant thrust remains purity a t a high price. Purity a t a high price is implemented through technology-forcing standards. T o meet the applicable standards. dischargers must adopt progressively higher levels of technology. thus forcing investment in new and more sophisticated reduction techniques. A prime example of this approach is the standards set for automobile exhaust discharges, and the concept has even been applied to surface mine reclamation. Air and water pollution statutes pursue purity through three distinct subgoals, although the methodtechnology-forcing standards-re-
Total control costs as a function of effluent control costs Index of controi costs
100
100
99
Percent reduction of pollution Source: EPA
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mains the same. T h e oldest goal is the reduction of the amount of nuisancelike discharges that impair visibility, or make a stream unfit for fishing or swimming. Future discharges are restricted, and existing ones are rolled back. These objectives are accomplished by uniform emission or effluent discharge standards, which apply to all dischargers within broad classes. Enforcement is facilitated by the requirement that the discharger obtain a permit specifying what cannot come out of the end of his pipe. Measurement of discharge levels is thus possible, and penalties can be imposed on those who fail to comply with permit conditions. A second goal is the preservation of existing high-quality resources. Both the Clean Air and Clean Water Acts have nondegradation provisions which set pollution increments for discharges in clean areas. The third and most recent goal is the minimization of long-term health risks. Risk is used loosely to describe future injuries which have a low probability of occurrence, but which would have substantial consequences to a given individual should they occur. Cancer is the major public health risk with which we are concerned, and potentially toxic pollutants of all kinds are now being subjected to intensive scrutiny to determine what risks they pose and what should be done to mininii7e the risks. Chemical safety screening One of the most important yet troubling innovations in environmental law has been the recognition that proof of risk, as opposed to present harm, is ;I legitimate basis for banning or limiting the use of a chemical. Prior to the DDT controversy, it was assumed that the government could not ban the use of a chemical without a showing of some relatively immediate and quantifiable harm to humans, or the flora and fauna upon which they depend. T h e D D T controversy led to reexaniination of our narrow concept of harm. Evidence produced in the DDT hearing showed only that the chemical caused genetic defects in some bird species, and that the compound entered humans through the food chain. I t was thus clear that DDT was persistent, but it was not clear what this persistence meant to human health. Those advocating the banning of D D T were never able to prove how many people were subject to an i n creased risk of cancer, nor were they able to show a causal relationship bet w c n ingesting DDT and incurring cancer. Based on this evidence, an ad-
ministrative law judge recommended that DDT not be banned because of insufficient proof of harm, but the EPA administrator refused to follow the recommendation and banned DDT. The EPA administrator reasoned that he was entitled to go beyond the narrow issues of scientific concepts of causal relationships and make a policy judgment about the risk levels to which society should be subject. The courts agreed. I n fact, subsequent precedents involving asbestos-containing taconite tailings, and lead additives in gasoline firmly established the principle that so long as there was a respectable scientific opinion that a substance caused a low-level human health risk, the federal government has the discretion to ban the chemical to protect society from exposure to the risk. Risk is a troublesome basis for limiting the use of a chemical because modern testing protocols are much more accurate than they once were; it is now possible to measure low concentrations that remained undetected in the past. The accuracy of modern measurement techniques makes it easy for the government to demonstrate risk. Under most statutes, risk can be established by proof that a chemical causes cancer in laboratory animals. This showing is, in theory, the first stage of a decision-making process. As an example, toxic substances are regulated both by technology-forcing standards and ad hoc screening procedures. However, in both approaches, the costs potentially imposed by the risk must be balanced against the benefits of continued use of the chemical. Because cancer is the issue, decision-makers have been encouraged to be conservative in estimating risk, no matter what the procedure used. Conservative does not mean limiting the decision to the narrowest inference of cause and effect permitted by scientific logic. Rather, being conservative means picking the worst case risk scenario, and basing a final use decision on that scenario. This approach, however, puts decision-makers in a bind. Given the accuracy of modern testing protocols, many chemicals are found to produce some risk. Because it is very difficult, if not impossible, to compare the costs of a risk with the benefits of continued use of the chemical, especially since decisionmakers and many scientists resist putting dollar values on human life, the urge to be conservative causes decision-makers to err on the side of risk minimization. Technology-forcing standards and
National park. How reasonable is visibility as a national goal?
risk-screening procedures have been criticized because they promote the inefficient allocation of resources. I n the interest of administration ease, air and water pollution standards make little attempt to relate discharge limitations to the damage caused to society by the discharge, and they give dischargers little flexibility in selecting the methods of compliance. The chief virtue of standards is certainty. Risk-screening procedures have also developed a form of certainty: the presence of tumors in laboratory animals seems increasingly accepted as a proxy for all damage to human health. But risk screening, too, may lead to inefficient allocation of resources because the risk deemed the basis for prohibiting a chemical may bear little resemblance to the actual risk to which society is subjected, and the emphasis on risk causes benefits to be slighted. Environmental impact analysis is also a potentially costly way of promoting environmental protection, but not for the same reason technologyforcing standards and risk-screening procedures are costly. Environmental impact analysis is costly because the object of the process is more form than substance. Environmental impact analysis In the 1960’s, Congress moved cautiously in limited instances to pass legislation which raised environmental values to equal dignity with developmental ones; for example, the Fish and Wildlife Coordination Act of 1958. But, prior to 1970 most federal and state agencies denied that they had the authority to consider environmental values in such activities as licensing and public works construction and, thus, that a decision could not be based
on environmental values alone. The agencies argued that consideration of environmental values was inconsistent with their primary missions, as defined by Congress, or that Congress had prohibited the consideration of environmen tal values. Equal dignity legislation not only mandates a federal agency to consider environmental values, but it has been held by the courts to empower the agency to prefer environmental protection to development on a case-bycase basis. Important early “environmental law” decisions held that the Fish and Wildlife Coordination Act allowed the U.S. Army Corps of Engineers to deny a dredge-and-fill permit application in Florida to protect the ecology of a bay. At the same time that Congress was moving to accord equal dignity to environmental values, litigation was underway challenging the failure of such agencies as the Federal Power Commission, and the Atomic Energy Commission to consider environmental values. I n 1969, Congress decided not to review enabling legislation on a statute-by-statute basis, but to force all agencies to accord environmental values equal dignity and to try to remove statutory impediments to this objective with a general statute. These two rather modest purposes were the principal motivation for the most frequently used and most misunderstood piece of environmental legislation which we have, the National Environmental Policy Act ( N E P A ) of 1969. A misunderstood act NEPA was designed to short-circuit the fragmentation problems inherent in the congressional committee system,
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and to give all federal agencies the authority to consider environmental values unless they could make a strong showing that their organic legislation was inconsistent with the promotion of environmental protection. It was assumed that inconsistency would be a narrow exception to the sweep of N EPA’s mandate. NEPA, however, came to be much more because lawyers transformed it into a loose environmental planning charter. In his dissenting opinion in Kleppe c. Sierra Club, Justice Thurmond Marshall characterized NEPA as “no more than a catalyst for the development of a ‘common law’ . . .” of environmental impact analysis. The statute has almost no substantive content so its main bite is procedural. A “detailed” cnvironmental impact statement is required for all “major federal actions” which have a substantial environmental impact. Protecting the environment through the environmental impact process has become a largely directionless process which has reduced the consideration of environmental values to a formalistic if not ritualistic procedure. NEPA would have remained largely an act with duties but no rights, enforced solely by executive discretion had it not been for a series of judicial developments that opened the courts to public interest groups seeking judicial review of administrative actions. Traditionally it was assumed that the courts existed to enforce common law rights among individuals or between the government and a citizen. In order to obtain judicial review of an administrative action one had to prove injury to a right-an entitlement of freedom from certain action-which was unique to the party bringing the lawsuit. The issue of “standing” Federal programs designed to benefit the public generally-as are all environmental programs-were largely immune from judicial review for lack of a proper plaintiff. N o one was “injured” as the term was understood. All this changed dramatically in the early 197O’s, however, when the Supreme Court began to grant “standing” to persons who could prove no specific injury to themselves, but who wished to represent the public interest in the proper implementation and enforcement of a statute. Liberal rules of standing were complemented by decisions drastically narrowing the range of exercises of discretion that were immune from judicial review. The theory of these lawsuits was that worthy citizen groups could claim 1348
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the benefits of public programs, and sue to enforce these benefits or new rights in the name of the public generally. The Supreme Court has never completely adopted this theory and, in fact, requires a plaintiff to plead and prove some traditional “injury”. However, the pleading and proof of injury has been reduced to such a formal level that almost any person or environmental group has standing to challenge the adequacy of an environmental impact statement on the ground that the activity forcloses environmentally-related “uses” of some resource, and thus there is injury.
Since 1975, the Supreme Court has returned to a more traditional view of standing, but its decisions are so confused and poorly articulated that no consistent theory of standing has emerged to limit environmental lawsuits. Standing is a confused doctrine because of the court’s unease over the ultimate object of public interest lawsuits. Such suits ask the courts to create new substantive rights on behalf of the public, but environmental controversies do not lend themselves easily to the creation of new rights. A right implies a prejudgment about the resolution of a controversy so that the costs and benefits of competing choices do not have to be balanced each time a similar conflict arises. The point about most environmental controversies is that an ad hoc balancing of costs and benefits is necessary and prior resolutions of similar conflicts may not be relevant. Thus, courts have moved cautiously to decide which plaintiffs can bring suit in the name of the public because allowing suit to be brought presumes that the court will, at some point, create new rights. Thus, the law of standing will have to be developed on a case-by-case basis without a legislative resolution of
consistent weight to be accorded environmental values in a given situation. I n the coming decade the value of a uniform and largely unarticulated concept of environmental protection will be closely scrutinized as the achievement of this goal collides with other, more basic objectives-food, fuel and shelter, for example. It is hoped that no one will suggest that we return to an era when the use of air, water and land resources were exploited without considering the social costs, and the benefits of preserving resources in their original condition received little recognition in publicworks planning. However, this examination of the basis of our environmental strategies reveals that our current approach to environmental protection rests on a number of weak premises about the need for restriction of productive activity. I n many cases, environmental regulation has produced real benefits, but in many others the question of whether the costs exceed the benefits I S a n open one. In the future, it seems likely that those pursuing environmental protection will bear a greater burden of justifying the benefits to be gained from restricting certain activities, and of justifying the efficiency of the regulatory method proposed. The fate of environmental impact analysis is also unclear, ana it is possible that the prcsent open-ended procedures will be replaced by a method of environmental assessment more in keeping with the spirit of NEPA. More attention to the environmental consequences of legislative and other programs should be paid at the time a major program is formulated. This would allow the major trade-offs to be made at a high level of visibility, and the evaluation of specific activities could be left to the day-to-day regulatory activities of the agency.
Anthony Dan Tarlock is professor o f l a w crt Indinnu Unicersitj. Bloornington, Ind., M ’ i i w e he has taught a course on enrirorii > i e t i t dlaw. Mr. Tarlock is also the author or c,oriitthor of sewral books and articles 011 rric.irontiirntal law. Coordinated by L R E
