The Future of the Environmental Protection Aaencv ~~
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By 2010, a unified environmental statute, greater state authority, and regulatory "flexibility" will have arrived. TERRY D
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1997 -Bureau of Environmenla1 StaliAics created, along with national environmental nmitoring network.
In the volatile world of environmental policy, a 15year predicuon calls for unusual prescience. An ivironmental futurist may prove to be clairvoya it it is just as likely that through no fault of the predictor, the prolecoon will miss the mark. But accuracy aside. a projection's greatest value may be in providing insights and interpretations of today's world, as well as m offering a timely blueprmt reach a better future. In that spirii Terry Davies fers an overview of what environmental protecmean in MID. -Ed.
h e year i s 2010 a n d m i d d l e age i s creeping up o n t h e E n v i r o n m e n t a l P r o t e c t i o n Agency. At 40 years old, t h e Agency h a s a t tained a certain status after finally b e i n g elevated to cabinet level. It now focuses on two main areas: e n v i r o n m e n t a l research and e n v i r o n m e n t a l management. T h e research comp o n e n t i n c l u d e s large p a r t s of t h e f o r m e r National Oceanic a n d A t m o s p h e r i c A d m i n i s t r a t i o n and two former D e p a r t m e n t of Energy laboratories. Managem e n t i s organized along functional lines and has und e r g o n e t h e m u s t substantial change. The turning point for EPA c a m e in t h e mid1990s w h e n t h e p o l i t i c s and perspectives that had d o m i n a t e d e n v i r o n m e n t a l policy fur 25 years c r u m b l e d u n d e r growing pressure from political forces trying to correct s h o r t c o m i n g s in t h e existing system.
1997 - Integration of pollu1998 - EPA elevated lo tion contml laws into sinCabinet level, Agency regle law called for by presi- search component now dent in State of Union includes National Oceanic Address, endorsed by busi- and Atmospheric Adminisnesses, National Governors' tration and several Energy Association, and several Department labs. national environmental groups.
0013-936xi95i0S29-511A$09.00i0 0 1995 American Chemical Society
2WO -The Environmental Protenion Acl passed, unifving environmental laws based on balancing of risk and cost4enefii analysis.
ZWO - National Environmental strategy introduced, establishing sector-based national environmental goals, implementation strategy. and biennial budget.
2010 -Stales' dependence on ladernl government grows after years of independence as states suffer fiscal crisis in face of federal budget surpluses, based in part on new carbon and congestionbased federal taxes.
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Highlights of first comprehensive U.S. pollution control law Enacted in ZWO, the Environmental Protection Act contains a host of innovations. Among them, it establishes 8 a single permitting system for each major polluting facility; 8 a unified system of control standards based on unreasonable risk and best available technologies; 8 new mechanisms to encourage pollution prevention, waste reduction, and use of economic incentives; and indoor air regulations, including for smoking. The act also combines EPA and NOAA into a cabinet-level Department of Environmental Protection.
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The shortcomings included patently inefficient pollution control programs, some of which were prevented by law from being cost efficient; Byzantine pollution control laws, which even the most knowledgeable law professors could not fully comprehend and the system’s inability to deal with nonpoint sources and cross-media transfers, which by the 1990s were the major pollution problems. Because of these and other failures, the political forces that had shaped and supported EPA unraveled. State and local governments, traditional supporters of strong pollution control measures, turned against the Agency because of its heavy-handed oversight and its statutory regime that required state and local expendims for environmental problems widely perceived as trivial or nonexistent. Even the press, the strongest political weapon in the environmentalists’ arsenal, became wary if not cynical about environmental claims. And the courts were increasingly dominated by conservative Republican appointees unsympathetic to the environmental cause. In addition, national environmental organizations suffered from internal problems, not least of which was fear that they had lost touch with grassroots citizens. Their main difliculty, however, was that their role had changed from that of antiestablishment, cutting-edge fighters to the stoutest defenders of the status quo. Most of the major groups continued to make the same basic arguments and proposals they had put forward in 1970. The world had significantly changed, but it appeared that their world view had not. For a while, it was believed that these changes were about to undermine environmental programs and that maybe the “enviros”were right: Nothing had changed since 1970, pollution policy was nothing
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more than a morality play featuring the bad guys versus the good guys, and the “bad guys” seemed to be winning some. A blunt assault on the provisions of the Clean Water Act passed both houses of Congress but was vetoed by the president. Amendments to the Safe Drinking Water Act and the Endangered Species Act were passed. Some of these changes were constructive and reflected a more realistic and balanced approach, but several statutes were modified in ways that reflected not a desire to deal constructively with problems but an opportunity to return to the days of laissez faire and robber barons. The reactionary victories, however, produced a predictable counterreaction. Unlike the reaction to the Reagan assault on EPA, the countermovement in 1996-97 was not led by environmental organizations. A significant number of business leaders, scientists, and state and local officials joined in the effort to preserve the basic thrust of environmental policy while forging a set of initiatives to make the policy more efficient and effective. The new initiatives shared several themes: 0 flexibility for regulated entities to meet requirements in ways they chose and for EPA to tailor standards and compliance to individual circumstances; recognition of state competence and a sharp reduction in EPA oversight; 8 rewards for pollution generators that go beyond required standards and emphasize pollution prevention; and 8 more reliance on an integrated and holistic approach to environmental policy. These themes commanded widespread support. Coupled with the catalytic effect of a big oil spill and several plant accidents, the proposals got the necessary political push to translate themes into law. By 2010 this wave of reform has evolved and become institutionalized. It now has two basic thrusts: an integrated approach to pollution control and EPKs new role as catalyst. Both of these are sharp departures from the policies that molded EPA!s first 25 years.
An integrated approach The theme of an integrated approach to pollution control has been present since the creation of EPA. President Nixon, in his 1970 message to Congress in which he submitted the reorganization plan establishing EPA, recognized the need and said, “Despite its complexity, for pollution control purposes the environment must be perceived as a single, interrelated system. Present assignments of departmental responsibilities do not reflect this interrelatedness.” With EPKs creation, the problem shifted from interdepartmental to interoffice,but the core dif& culty persisted. As long as pollution control statutes were fragmented, numerous, and unrelated to each other, an integrated approach to pollution control was impossible. Throughout the first three decades of the Agency’s existence, numerous Band-Aid a p proaches were tried the Integrated Environmental Management Program, the Common Sense Initiative, and various “reinvention”and total quality management initiatives.These attempts to deal with fragmentation were not able to bind together a dozen
major laws and innumerable minor ones, each with its own priorities, approaches, and requirements. By the late 1990s the pressing need for a single pollution control law was widely recognized. The president called for such a law in his 1997 State of the Union message, a number of industry groups lobbied for an integrated approach, and the National Governors' Association endorsed the idea. The single-law approach also won the endorsement of the Environmental Defense Fund and the Natural Resources Defense Council. The EnvironmentalProtection Act, as finally enacted in 2000, is based on risk and a balancing of costs and benefits. By combining clear guidance on how a balance is to be struck with an explicit recognition of the nonquantitative, judgmental character of the final decision-making process, the act avoids the extensive involvement of the courts that characterized previous risk-based statutes. The unified act replaces the legal StrUCNIe that had accreted for more than 30 years. Although it gives EPA more flexibility and discretion, it specifies the agency's authority-and its limits. It contains some 21 titles, organized largely by functions such as research and training, standards, permits, enforcement, and international cooperation.
Sectoral, place- and substance-based programs EPA programs under the act are sectoral, placebased, or substance-based. Sectoral programs are aimed at both point and nonpoint sources. Based on available technology, cost, seriousness of problems, and other relevant factors, EPA works with affected parties to set goals for economic sectors. The goals are incorporated into a National Environmental Strategy (NES) that lays out a scheme to resolve high-priority problems and is revised every two years. Enforcement of sectoral goals is left largely to states, which have adopted the same integrated approach employed at the federal level Indeed, the new federal approach borrowed heavily from the experience of pioneering states. Large point sources pmpose an integrated control plan to a state, which, when approved, becomes legally enforceable. Of course, states retain the authority to impose requirements on a major facility that does not submit an acceptableplan. To encourage pollution prevention, inspections and technical assistance are provided by inspectors organized on a sectoral basis. For example, a state pulp and paper inspector would work closely with major state pulp and paper mills to assist them in developing plans and meeting the sectoral goals. Place-&sed approaches, the second integrated technique, attempt to protect or enhance geographical areas of particular value to people. These may be large, like the Great Lakes or Yellowstone Park, or quite small, like an inner-city area with redevelopment potential. The place-based approach has become the major function of EPA regional offices, which long ago ceased to spend much time overseeing the details of state actions. EPA has two major functions in relation to such places: to ensure that the authorities and standards under the Environ-
mental Protection Act are adequate for the particular place and to coordinate other federal actions that affect the environment of the place. A different approach applies for global issues. The science of global environmental problems is still dominated by uncertainty and ignorance, and research over the past 15 years has shown that the global environment is more resilient than first thought and basic global systems are vulnerable in more ways than originally understood. In short, there are more potential problems and, probably, fewer actual problems. This has meant that global problems now occupy an increasing part of the EPA agenda. The third integrated approach is substancebased. Heavy metals, pesticides, and some organic chemicals are characterized byhigh toxicity and/or persistence, pervasiveIn 1997 the ness in the environment, and a multiplicity of president of the sources. For these substances, individual conUnited States call: trol approaches have been tailored to identify and adfor a single dress the worst problems pollution control and promote preventive measures to ensure that law to replace the problems do not become worse. For example, cadfragmented legal mium has been identified structure that had as a major source of human exposure through accreted for more crop uptake from soils. In response, EPA has identified and limited cadmium uses that result in soil deposition and is researching the possibility that microbes can be used to reduce existing cadmium levels in soil. Also under the Environmental Protection Act, EPA is in the early stages of implementing a revamped new-chemicals program to replace the Toxic Substances Control Act program, which was shown to have major problems. For instance, in the past the notifications required to be submitted for new chemicals contained almost no data, and the structureactivity analysis that EPA used instead of data proved incapable of detecting problems. The shortcomings, combined with pressure for international trade harmonization, resulted in a new program based on the European model. Under the new program, testing of a chemical is based on production volume. When a new chemical is manufactured, a minimal amount of test data must be submitted. When production goes above a certain level, which varies by use and chemical type, more test data are required. As production levels increase, progressively more stringent testing is required.
EPA as catalyst for stewardship Underlying the new Environmental Protection Act is the concept of EPA as a catalyst. By the mid-1990s the blunt command-and-control approaches, the mainstay of EPA programs, were losing their effectiveness and political viability. Now they are relegated to backup instruments, used only rarely to deal VOL. 29. NO. 11.1995 iENVIRONMENTAL SCIENCE 8 TECHNOLOGY
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with unusual situations or particularly recalcitrant sources. EPA now fulfills its role of catalyst by leveraging other federal agencies and state and local governments and by using market mechanisms. By the mid-l990s, it was clear that many of the most significant environmental problems were not being addressed by federal environmental statutes. The level of nonpoint air and water pollutants was determined by agricultural practices, land use patterns, and other factors beyond EPXs control. Carbon dioxide emissions were dependent on patterns of energy use and transportation. The worst hazardous waste risks were nuclear wastes belonging to the federa1 government's DepartBy 2010 the ment of Energy and regulated under the Atomic pendulum has Enerw Act. The first attempt to inbegun to swing corporate environmental back toward considerations into the policies of nonenvironmental greater federal agencies-and thereby into the actions of other ecopower. The federal nomic sectors-was the National Environmental Polgovernment has a icyAct of 1970 (NEPA). NEPA budget surplus had and continues to have an important and construclargely due to tive influence, but what was adequate in 1970 is not adrevenues from a equate for the problems and perspectives of the 21st cencarbon tax and a tury. The answer for the new congestion tax. centuw was the National Environiental Strategy (NESI. Like NEPA, NES is a novel mechanism. It is drafted every two years by an interagency group chaired by the special assistant to the president for the environment, and after extensive consultation with the private sector, NES is suhmitted by the president to Congress, where it is treated as ordinary legislation. NES does three things: It establishes specific environmental goals for each economic sector, it delineates the public and private actions necessary to achieve these goals, and it establishes budget amounts necessary for the government actions. NES provides a means for different government agencies, the private sector, and Congress to agree on environmental priorities and actions. It is not, at least for now, comprehensive hut focuses only on highpriority problems that require action by federal agencies other than EPA. An example of an NES goal is one set for the electric utility senor. The sector is expected to reduce sdfur dioxide emissions to one million tons by 2012. This goal is achievable because central electricitygenerating plants are being rapidly phased out as a result of new technology and the opening of wholesale and retail electricity markets to competition. Other examples are goals for the agriculture sector 1_
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to restore two million acres of wetlands over the next 10 years, to use no-till planting methods on 95% of farm acreage, and to apply integrated pest management techniques on 75% of fruit orchard acreage. State governments also inhence NES, hut in 2010 the pendulum of American federalism is swinging back t o w d greater federal power. Power tends to follow money. and many states are suffering fiscal crises, hut the federal government is running a budget surplus for the first time in decades. Despite the trend reversal, the states have much more autonomy than they had a decade earlier, having freed themselves from a good deal of federal oversight, especially with respect to environmental actions. In the new century, market mechanisms are used more widely than ever before and serve as another way of catalyzing environmental protection actions. The federal budget surplus is largely the result of revenues from the carbon tax and the congestion tax, and effluent charges are being levied by many states and localities. The carbon tax is assessed on fuels at the point of extraction or importation and is based on the carbon content of the fuel. The tax has become institutionalized to the extent that the Treasury Department is now concerned about a drop in carbon tax revenues because the switch to hydrogen as a fuel is occurring more rapidly than anticipated. The congestion tax is based on monitoring individual automobiles as they pass certain checkpoints in congested areas such as bridges leading to Manhattan. Drivers are hilled monthly, and the revenues are shared among the federal, state, and local governments. Through all these changes, EPA has learned that to influence the actions of others it needs adequate monitoring information.,Withstates and private companies, EPA has moved toward a results-oriented system. It allows flexibility as to how to improve environmental quality in exchange for measurable improvements. In the 1990s both Congress and EPA came to realize that the data to implement a resultsbased system were not available. A number of changes were made, including the creation of a national monitoring network and, in 1997, of the Bureau of Environmental Statistics. These innovations provided the necessary basis for the new EPA role as catalyst and for NES and many market mechanisms. The shifts and turns spelled out above make clear the plethora of challenges and opportunities that confronted environmental policy makers in the critical years of the mid-1990s. Decisions made in the years immediately following 1995 shaped the next 15years of environmental policy and law. New problems and discoveries undoubtedly will challenge current policies, hut there is good reason to believe that now, in 2010, environmental protection is on a sounder footing than it has been in many decades.
Teny Dauies is director of the Center for Risk MunugementatResources for theFuture (Washington,DC)and former EPA assistant administrator for policy
