A New Era in Environmental Law
| Publication year | 1991 |
| Pages | 435 |
1991, March, Pg. 435. A New Era In Environmental Law
The basic changes needed to prevent wholesale destruction of our natural resources will occur only if businesses, governments and the public have powerful incentives to rethink and reform their behavior toward the environment.(fn1) Over the last decade, Congress enacted environmental laws to create such incentives. Only recently, however, have those outside the traditional "regulated community" of polluting industries begun to realize the pervasive impact these laws will have on economic behavior.
This article first describes the structure, and failings of, the "command and control" regulatory system that Congress and the U.S. Environmental Protection Agency ("EPA") created in the 1970s. The article then discusses the marketable permit system that some academicians have touted as a solution to regulatory failings. Next, the article describes the liability-based statutes of the 1980s, which supplement the regulatory system and provide new incentives for private antipollution efforts. Finally, the article addresses problems with the government's implementation of liability-based environmental laws and questions whether the laws can succeed without changes in enforcement practices.
Before 1980, Congress relied almost exclusively on command and control regulation to prevent harmful pollution. Under this system, government agencies prescribe in detail how the regulated community may manage dangerous chemicals. To determine regulatory needs and priorities, the government generally conducts chemical-by-chemical assessments of the risks posed by environmental pollutants. Regulators use this information to develop standards to protect the public and environment from harmful exposures. Finally, the government attempts to translate these standards into permit requirements governing specific facilities and to enforce compliance.
Assessing the danger that even a single chemical poses to public health and the environment is a formidable task, clouded by scientific uncertainty.(fn2) Scientists cannot ethically experiment on people to determine a chemical's toxicity, carcinogenicity, mutagenicity or teratogenicity. Thus, regulators must rely on relatively soft data in deciding which chemicals to regulate and how stringently to regulate them.
To assess the risks a chemical poses to the public, government agencies must answer three questions: (1) What types of risks does the chemical pose?; (2) At what dose is the chemical dangerous?; and (3) How many people are exposed, or risk exposure, to how much of the chemical? Answering these questions constitutes performance of the hazard identification, dose-response evaluation and exposure assessment steps in a risk assessment.(fn3)
The hazard identification and dose-response evaluation involve analyses of data from experiments on animals, epidemiological studies (generally of occupational exposures), if any, and other research.(fn4) The techniques scientists use to draw conclusions from these data are extremely controversial. For example, the effect of a chemical on laboratory animals does not necessarily establish the chemical's danger to people.(fn5) Also, chemicals that harm workers, who are often exposed to large doses over long periods, may have different effects on the population at large when diluted by the environment.(fn6)
To further complicate matters, dose-response relationships differ among population groups. Children, fetuses, the aged and smokers are especially vulnerable to some chemicals.(fn7) Some
Adam Babich, 1983, Yale Law School, operates a solo law practice in Denver emphasizing environmental law.
The exposure assessment step of the risk assessment depends on complicated, expensive data-gathering.(fn9) To determine the quantities, types and locations of chemicals present in the environment, regulators rely on data, if any, from the monitoring of pollutants at the source or in the environment, estimates of chemical releases made in lieu of monitoring, and controversial attempts to model the dispersion of chemicals in air, soil and water.(fn10) An exposure assessment also requires data, or assumptions, about the behavior of the exposed population. For example, exposures may vary with the amount of contaminated soil children ingest daily or the extent to which people use polluted groundwater to irrigate their gardens.(fn11)
Not surprisingly, scientists draw conclusions from risk assessments that conflict wildly in their implications for environmental policy. Some argue that the public faces an epidemic of cancer and other diseases caused by ubiquitous chemical contamination.(fn12) Others assert that environmentalists exaggerate chemical hazards and that the government overregulates industry in a misguided effort to create a risk-free society.(fn13) These arguments are presented to a public that lacks the scientific expertise to evaluate them.
Occasional chemical disasters and mounting evidence of global effects of pollution(fn14) are likely to result in continued public demand for extensive regulation. Because industry constantly adds new chemicals to the thousands already on the market, however, prompt identification and full regulation of all dangerous chemicals is not a realistic possibility. Thus, the government's chemical-by-chemical approach provides little assurance that regulators have analyzed all, or even most, significant hazards.
After assessing risks, regulators face the difficult job of deciding how much danger to the public and environment to tolerate. Setting an "acceptable" level of risk requires balancing, implicitly or explicitly, public health and welfare considerations against the cost of risk reduction. This balance necessarily depends on the value of the human life or environmental resource to be protected, a value that can be expressed, albeit controversially, in dollars.(fn15)
Regulators can estimate the amount of money each regulation will require society to devote to risk reduction and the number of injuries, including deaths, that the regulation will avoid. As the government tries to increase the number of lives saved, the cost of regulation also increases. Presumably, at some point, the marginal cost of saving more lives becomes too high to justify further regulation.
Government officials avoid direct calculation of the monetary value of human lives. Instead, EPA prefers to express risk management decisions as a range of "acceptable risks." EPA purports to justify this range without reference to the cost of further risk reduction.(fn16) Alternatively, EPA bases its regulations on capabilities of reasonably available technology, e.g., Best Available Control Technology ("BACT") and Lowest Achievable Emissions Rate ("LAER").(fn17) The government does not justify these limitations in terms of risk.
Congress often enacts environmental statutes that, on their face, call for virtual elimination of harmful pollution. EPA, however, promulgates regulations that are replete with explicit and implicit trade-offs. For example, EPA ignores the Clean Water Act's stated goal of pollution elimination(fn18) in favor of an approach designed to protect designated uses of surface waters and reduce further degradation.(fn19) Similarly, although Congress intended the Resource Conservation and Recovery Act ("RCRA")(fn20) to "minimize" hazardous-waste-related threats to human health and the environment,(fn21) EPA avoids extensive regulation of various waste management practices by defining "hazardous waste" to exclude them.(fn22)
Moreover, despite a requirement of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA")(fn23) that cleanups of hazardous substances provide "permanent solutions ... to the maximum extent practicable,"(fn24) EPA's regulations allow trade-offs between permanence, cost and other values.(fn25) Clearly, Congress's demands for a risk-free, pollution-free environment are largely symbolic.
To achieve standards, EPA and state agencies(fn26) must translate them into regulatory requirements. For example, the government uses National Ambient Air Quality Standards to calculate emission limits for specific sources of air pollution. These decisions often are controversial enough for the regulated community to delay implementation and enforcement during months or years of litigation. Similar delays result from efforts by the Office of Management and Budget to pressure EPA into reducing the economic impact of regulations and accepting greater risks.(fn27)
Even after regulations and permit requirements are final, some environmental laws are extremely cumbersome to enforce. For example, before the 1990 Clean Air Act amendments, EPA had to notify potential defendants of most Clean Air Act violations and could file suit only if violations persisted over thirty days after the notice.(fn28) The regulatory structure of RCRA has become so Byzantine that the prospect of explaining many of its provisions to a court can be quite daunting.(fn29) Moreover, EPA neither conducts nor requires enough monitoring of emissions or the environment to support a vigorous enforcement effort.(fn30) The vagaries of politics can also complicate enforcement, as amply demonstrated during the early years of the Reagan administration.(fn31)
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