Regulating for sustainability.

• Author: Wyeth, George B.

1. INTRODUCTION II. WHAT'S NEW ABOUT "SUSTAINABILITY"? III. REGULATING FOR SUSTAINABILITY A. Mandating Sustainability B. Enabling Sustainability IV. INTEGRATING REGULATION AND SUSTAINABILITY: THE EXPERIENCE SO FAR A. Environmental Standard 1. Pollution Control Standards a. Sustainability Tensions b. Resolving the Tensions with Sustainability 2. Environmental Quality Standards a. Water Quality Standards and Green Infrastructure b. State Implementation Plans Under the Clean Air Act B. Procedural Impediments to Sustainability C. Regulatory Barriers to Sustainable Practices D. Sustainability in Clean-up and Restoration Programs E. Compliance and Enforcement Programs V. NEW PARADIGMS A. Trading B. Information and Disclosure C. Holistic/Integrated Approaches D. Voluntary Programs E. Voluntary Standards F. "Reflexive" Regulation VI. SUSTAINABILITY PROGRAMS? VII. WHAT HAVE WE LEARNED VIII. HOW DO WE GET THERE? A. Embed Sustainability in Agency Planning B. Communicate Support and Key Information to Agency Staff C. Provide Guidance to Staff D. Provide Legal Guidance E. Get the Incentives Right F. Create a Governance Structure G. Future Research IX. CONCLUSION I. INTRODUCTION

   In 2011, the National Academy of Sciences (NAS) recommended that the United States Environmental Protection Agency (EPA) more explicitly incorporate principles of "sustainability" into its actions and decisions. (1) EPA Administrator Gina McCarthy has now made sustainability one of her core themes, (2) and as part of its strategic planning for 2014-2018, EPA has made "working toward a sustainable future" one of its key "cross-agency strategies." (3)

   This may all seem unremarkable: sustainability might appear to be almost interchangeable with EPA's traditional mission of environmental protection. In fact, however, adopting sustainability as a goal at EPA presents both a conceptual and a practical challenge, particularly for the regulatory programs that are its core line of work. Sustainability and environmental protection are not identical; furthermore, while voluntary programs promoting energy efficiency or pollution prevention fit comfortably with sustainability principles, (4) the relationship between sustainability and regulation is more complex and has not been well articulated. (5) If anything, experience suggests that there are tensions between them. Sustainability initiatives tend to be characterized by innovation, adaptability, continuous change, and systemic thinking, and these are not always easy to harmonize with a statutorily driven, top-down regulatory system addressing specific issues in a narrowly targeted way.

   As attorneys who have spent most of our careers at EPA, we believe that it is important to understand how environmental regulatory programs can promote sustainability. EPA is primarily a regulatory agency, and cannot be said to have fully embraced sustainability until it is embedded in those programs. Therefore, we offer this Essay as a first step in that direction. Part II clarifies the difference between sustainability and environmental protection, and offers principles for incorporating sustainability into environmental programs. Part III identifies two possible approaches: "mandating" sustainability and "enabling" sustainability, and compares then-strengths and weaknesses. Parts IV, V, and VI review the agency's experience to date, showing how regulatory programs have dealt with issues of sustainability in the past--sometimes successfully and sometimes less so. Part VII draws some key lessons learned from that experience, and Part VIII presents recommendations about some specific next steps for the agency and identifies areas where further research would be desirable.

   In brief, we do not suggest that sustainability should replace environmental protection as EPA's central mission. Indeed, we conclude that advancing sustainability is not always a natural role for environmental regulatory programs; "win-win" opportunities in a regulatory setting may be the exception rather than the rule. However, based on the agency's past history we also believe that opportunities can be found, and that EPA should look for ways to pursue them where it can. This can be done in part by establishing new expectations, but perhaps more often by enabling, facilitating, and incentivizing the initiatives undertaken by others. At a minimum these opportunities should not be overlooked, and should be affirmatively sought out by the agency and its stakeholders.

2. WHAT'S NEW ABOUT "SUSTAINABILITY"?

   To begin with, it is important to understand how "sustainability" differs from EPA's traditional mission of "environmental protection," and what EPA would have to do differently if sustainability were incorporated into the goals of its programs.

   The classic definition of sustainability is "development that meets the needs of the present without compromising the ability of future generations to meet their own needs." (6) Another common way of describing sustainability is that it means balancing three different priorities: economic, environmental, and social--often referred to as the "pillars" of sustainability. (7)

   "Environmental protection" and sustainability are closely related, but they are not the same. The aim of environmental protection is to minimize environmental harms resulting from economic and other activity, whereas sustainability puts a greater emphasis on finding ways of achieving both economic and environmental goals, or at least mitigating the tensions between them. (8) Former EPA Administrator Lisa Jackson likened sustainability to promoting wellness rather than simply preventing disease. (9)

   Organizations of all kinds--from businesses to governments to nonprofits--have found strategies that advance more than one goal; for example, finding business value in environmentally beneficial actions. (10) Pollution prevention techniques focused on avoiding the generation of waste and reducing raw material needs can also save money. (11) Energy efficiency measures do the same. (12) On a larger scale, shifting to renewable energy sources holds the prospect of easing the tension between economic growth and environmental quality. (13)

   EPA also contributes to these efforts through programs that encourage energy efficiency, promote water conservation, or encourage the use of products that contain fewer toxic chemicals. (14) However, these are primarily voluntary programs or educational and research efforts. (15) Its regulatory programs, on the other hand, tend to focus on limiting pollution and other environmental harms, not advancing other social or economic goals. (16) The question is whether they could do so.

   One answer may simply be that regulatory programs focused on preventing environmental harms do advance sustainability by strengthening the economy's environmental pillar. Even if they entail economic costs, those costs have not been so great as to stifle growth, and the net effect is a healthier, more balanced economy as a whole. This is how EPA's leadership sometimes invokes sustainability. (17) In this sense, framing EPA's mission in terms of sustainability would not mean doing things differently so much as explaining the agency's programs in a way that recognizes the value of both environmental and economic goals and emphasizes that the two are not mutually exclusive. (18)

   However, embracing sustainability can mean more than this. What the NAS Report most clearly suggests is that EPA's regulatory programs should look for ways of advancing all the elements of sustainability--including economic and social concerns--while better considering the full range of available policy and program tools. (19)

   What would this mean in practice? The abstract definitions of sustainability noted above do not provide much guidance to those operating environmental programs. We believe that truly embracing sustainability would mean doing the following in carrying out regulatory functions:

   1. Seeking benefits in two or all of the three dimensions: environment, economy, and society. Sustainability principles break the presumption that environmental benefits must come at a cost to social welfare or economic prosperity. (20)

   2. Considering the full range of environmental benefits and costs, not just those that are the focus of the particular program involved--e.g., considering potential energy and climate benefits in decisions made by the water program--and looking for strategies that do so in a more systemic, less stove-piped, media centric way, which is likely to be more effective and possibly more efficient.

   3. Giving greater attention to conservation and improvement of natural resources, both in the short and long term; this includes reducing resource consumption, minimizing waste generation, and maximizing reuse of waste when generated.

   4. Taking a more integrated approach: looking at the entire life cycle of an activity, process, or product, looking at problems with a multimedia perspective, preventing pollution at the source--or finding ways to turn wastes into usable resources--and considering connections across social and ecological systems.

   5. Enabling or leveraging the independent efforts of other parties, either within a regulatory setting or by providing information that leads others to take action without regulation.

   6. Finally, the holistic nature of sustainability involves engaging a broad range of stakeholders, both inside and outside the agency, as part of decision making, to ensure that all aspects of sustainability are considered. (21)

   These ideas are not entirely new; as will be seen later, EPA's regulatory programs have, over the years, adopted measures that advance sustainability in a variety of ways:

   * EPA's Brownfields program works with communities to encourage economically and socially beneficial development of contaminated property. (22)

   * When a power plant near Boston was required to reduce the temperature of the water it discharged...