Historical Perspectives on Environmental Management

• Author: Frank B. Friedman
• Pages: 9-59

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

9

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