Historical Perspectives on Environmental Management

AuthorFrank B. Friedman
Chapter 2:
Historical Perspectives on
Environmental Management
It may appear to be the prejudice of a legally trained manager to begin a
book on environmental management with a discussion of the historical
development of the laws and regulations that drive the field. Regardless of
whether a manager’s training is technical or legal, however, basic environ-
mental management requires an understanding of the development of these
laws and regulations, together with a perspective on the phenomena driving
that development.1Indeed, I hope that this historical perspective will help re-
lieve the frustration of the technically trained manager who would like to be
free of some of the legal and regulatory constraints to developing technical
solutions to problems. These constraints grow out of yesterday’s legal and
technical compromises. I may be the bearer of bad tidings by focusing on the
legal basis for constraints on managers, but these constraints are reality.
Few corporate activities have been influenced by law as much as those in
the environmental, health, and safety area, although they should be driven
by management concerns as to productivity, quality, and integration. As
managers, we try to avoid legal issues by finding technical solutions to
problems. We focus on eliminating an effluent or hazardous waste, for ex-
ample, to avoid the requirement of obtaining a permit. Wecannot, however,
ignore that it is the legal issues that drive corporate programs in this area, al-
though they should be driven by management concerns as to productivity,
quality, and integration. And, as discussed below, environmental law is es-
sentially social legislation. Social issues as opposed to legal issues, exem-
plified by growing “environmental justice” and “sustainable development”
concerns, may increasingly influence corporate decisions.
The Development of Environmental Law
Until the early 1970s, there was virtually no significant role for lawyers in
environmental management. Most state and local laws imposed limited en-
vironmental, health, and safety requirements, such as mandatory air and
water sampling and permitting, which technicians could handle. For the
most part, these issues did not require senior management attention. They
were considered very limited parts of operating activities, and responsibil-
ity for them was usually lodged at lower management levels. Moreover,
confrontation between industry and regulatory agencies was not the rule.
Because laws and regulations frequently were not specific, differences
were settled primarily by technical negotiation. Although industry some-
times developed environmental protection mechanisms that went beyond
legal requirements, these steps, such as odor control, were largely influ-
enced by concern for local public relations.
While the period of the 1960s was a time of long, stable economic
growth, it was also a time of anger and frustration. College graduates saw a
questionable future, including the possibility of serving in a war in Vietnam
that did not seem understandable. The “system” was not responding to their
concerns, and, for many,the only answer was taking to the streets in protest.
Hopes for a decent future seemed equally bleak in the area of environmental
pollution, which slowly began to be recognized as a social problem.
Public awareness of pollution, along with general dissatisfaction with gov-
ernment and the quality of life, greatly increased social consciousness. Inter-
est in pollution control grew as the public recognized that pollution might en-
danger public health, as well as fish and wildlife. For years, conservationists
had cared about wildlife and natural preservation, but often seemed to care
more for trees than people. The activist of the 1960s—the new environmen-
talist—was in many respects of a different breed. Concern over visible indus-
trial pollution and the issues raised in Rachel Carson’s Silent Spring and John
Kenneth Galbraith’s The Affluent Society culminated in Earth Day in 1970
with a call for new initiatives to resolve environmental problems.
This concern also resulted in the federal environmental revolution of the
early 1970s, which produced a vast outpouring of federal legislation.2There
was a general belief that government could manage the economy and solve
the country’s social problems by concentrating on redistribution of wealth
and improving the quality of life. This belief increased what had once been
only a limited emphasis on the law as a tool for social change. Moreover, the
relative emphasis on the role of the federal government increased. The new
environmental laws were based on the assumption—which has not changed
much over the years—that the states needed federal prodding to ensure that
pollution would be controlled uniformly.3The theory was that there should
be no “pollution havens.” The preference for federal control was not limited
to environmental legislation; the expanded federal role in what President
Lyndon Johnson called the “Great Society” addressed a wide variety of so-
cial ills, including race discrimination and poverty.
10 Practical Guide to Environmental Management
Although there had previously been some limited federal presence in the
environmental area, federal enforcement powers had been weak.4For ex-
ample, before enactment of the Clean Air Act (CAA) Amendments of
1970,5the federal government’s air pollution enforcement activities con-
sisted of the monumental effort of cleaning up one chicken rendering plant
and one small phosphate rock defluorinating plant.6
Federal environmental legislation of the early 1970s presented new chal-
lenges for industry in that these statutes, like many of the new regulatory
laws in other fields, expanded the enforcement powers of both the federal
government and the public. Although there had been very little environ-
mental litigation before their passage, the new statutes generated consider-
able work for environmental lawyers by allowing private individuals and
citizen groups to enforce permit requirements and other regulatory stan-
dards. Some of these statutes, such as the air and water laws, not only en-
couraged citizen suits in both rulemaking and direct enforcement when the
federal government failed to act, but also specifically provided for
recoverability of attorneys fees from the federal government.7This was
“part of a broadly based effort to open up the regulatory process to others
than regulated industries.”8Even statutes that did not provide for attorneys
fees against the federal government were interpreted to allow such fees
against private parties when a citizen group won even a partial victory.9The
attorneys fees provisions thus encouraged lawsuits.
Offensive projects could also be blocked under the National Environ-
mental Policy Act (NEPA)with proof that possible (and, in some cases, im-
probable) impacts had not been adequately considered in environmental
impact statements (EISs), which NEPArequires for all “major Federal ac-
tions significantly affecting the quality of the human environment.”10
That private parties could influence governmental and corporate decisions
gained grudging acceptance as a fact of life. This recognition came only after
some initial efforts by government and industry to argue that some citizen
groups did not have “standing” to bring a case. The doctrine of standing re-
quires plaintiffs in lawsuits to prove they have suffered injury—or are threat-
ened with injury—to legally protected interests. In the context of environ-
mental litigation, however, courts define “injury” very broadly, and injuries
to only aesthetic or recreational interests generally suffice. Some environ-
mental groups discovered that the standing doctrine does have limits and lost
cases in which they failed to include as plaintiffs members of their organiza-
tions who might be injured by the actions challenged.11
The wave of federal environmental legislation built on the foundation
of social consciousness laid in the 1960s also helped dictate the employ-
ment choices of young graduates with broadly based social and environ-
mental concerns. Their options included the Department of Justice (DOJ),
Historical Perspectives on Environmental Management 11

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