THE EPA AS A CATALYST FOR THE DEVELOPMENT OF GLOBAL ENVIRONMENTAL LAW.

• Author: Percival, Robert V.
• Position: The EPA at Fifty Symposium

CONTENTS INTRODUCTION I. THE EPA AND THE GLOBAL ENVIRONMENT: A HISTORY A. Establishment of the EPA B. The 1972 Stockholm Conference C. Environmental Cooperation with Other Countries D. The Ford and Carter Administrations E. The Reagan Administration, Lead Phasedown, and the Montreal Protocol F. The George H. W. Bush Administration, Exxon Valdez Oil Spill, and the 1992 Rio Earth Summit G. The Clinton Administration, NAFTA, Lead Phaseout, and the Kyoto Protocol H. The George W. Bush Administration Repudiates Climate Action I. The Obama Administration, Minimata, Copenhagen, and the Paris Agreement J. The Trump EPA and the Paris Agreement II. THE ROLE OF THE EPA IN THE DEVELOPMENT OF GLOBAL ENVIRONMENTAL LAW CONCLUSION INTRODUCTION

The EPA's global influence has been one of the Agency's most important, and least appreciated, roles. Throughout most of the Agency's nearly half-century history the EPA has served as a role model for countries seeking to upgrade their environmental laws and policies. The Agency's creation in 1970 inspired the establishment of national environmental agencies throughout the world. (1) The EPA has played a significant role in the negotiation of international environmental treaties, (2) the response to global environmental disasters, (3) and as a source of shared scientific and technical expertise. (4) The EPA is a major reason why the United States has long been considered to be, at least until recently, a global environmental leader. (5) This article reviews the history of how the EPA has served as a catalyst for the development of global environmental law. (6)

1. THE EPA AND THE GLOBAL ENVIRONMENT: A HISTORY

   1. Establishment of the EPA

      The EPA was not the first federal environmental agency created in the United States. The National Environmental Policy Act (NEPA), (7) signed into law on national television by President Richard Nixon on New Year's Day 1970, created the Council on Environmental Quality (CEQ) in the Executive Office of the President. (8) Although the NEPA had not been a White House initiative, President Richard Nixon gave it "strong budgetary support" and "a very visible role in formulating environmental policy." (9) Russell E. Train, who previously had served as Undersecretary of the Department of Interior, became the first chairman of the CEQ. (10) With the encouragement of President Nixon, the CEQ quickly took the lead on international environmental issues. In its first annual report in 1970, the CEQ presciently devoted a chapter to climate change at a time when there was scant public mention of the topic, stating that "world-wide recognition should be given to the long-term significance of manmade atmospheric alterations." (11)

      The EPA was established on December 2, 1970, when, after extensive congressional hearings, President Nixon's July 1970 reorganization plan took effect. (12) The Agency acquired responsibility for environmental issues previously divided between several cabinet agencies (air pollution and waste management from the Department of Health Education & Welfare, water pollution from the Department of Interior, pesticide registration from the Department of Agriculture, and radiation monitoring and regulation from the Atomic Energy Commission). (13) William Ruckelshaus became the first EPA Administrator on December 4, 1970. (14) Later that month, Congress gave the EPA broad, new national regulatory responsibilities when it enacted the Clean Air Act Amendments of 1970. (15) From the start, the EPA had an Office of International Affairs, which was headed by Fitzhugh Green from 1970-1976. (16)

      The EPA was created at a time of unprecedented concern over the environment. The first Earth Day had been held in the United States on April 22, 1970. (17) The establishment of the EPA helped encourage other countries to create national environmental agencies. Virtually every country in the world now has a national environmental agency. By 2019, the United Nations Environment Programme (UNEP) found that a total of 164 countries had created national environmental ministries, while twenty-two others had set up environmental entities as independent agencies. (18)

      In his report to Congress on United States Foreign Policy for the 1970s, President Nixon noted that global environmental concerns had added "a new dimension" to U.S. foreign policy. (19) He declared that "our shared and transcendent interest in the livability of our common home, the earth" required global cooperation that "has now become a prime task of American leadership." (20) Russell Train noted that U.S. credibility on international environmental issues was enhanced because "the CEQ and [the] EPA, rather than the State Department, took the lead in the international environmental field." (21) He concluded that "the active engagement of the responsible environmental officials in international matters gave tremendous stimulus worldwide to the establishment of high-level agencies responsible for environmental policy and management." (22)

      One of the EPA's first regulatory initiatives with global repercussions was a decision by Administrator William Ruckelshaus to ban use of the pesticide dichlorodiphenyltrichloroethane, also known as DDT. (23) This pesticide was a persistent and bioaccumulative chemical that built up in the food chain, (24) resulting in the death of birds that inspired Rachel Carson's Silent Spring. (25) A major national environmental non-governmental organization (NGO), the Environmental Defense Fund, was founded by scientists in 1967 with the explicit goal of getting DDT banned. (26) On June 14, 1972, Ruckelshaus issued an order banning most uses of DDT. (27) The ban took effect at the end of 1972. (28)

   2. The 1972 Stockholm Conference

      Rising global concern for the environment spawned the very first global environmental summit in June 1972, the Stockholm Conference on Environment and Development, sponsored by the United Nations. (29) The United States sent a sixty-three-member delegation to the conference that included twenty-eight technical advisers and twelve members of Congress. (30) The delegation was led by CEQ Chair Russell Train with Christian A. Herter, Jr., Special Assistant for Environmental Affairs, serving as the vice chairman. (31) EPA Administrator William Ruckelshaus and Secretary of Interior Rogers Morton also were members of the delegation. (32)

      Train was elected to serve as a vice chair of the conference, which was attended by representatives of 113 countries, 19 intergovernmental agencies, and more than 400 NGOs. (33) The People's Republic of China sent a large delegation to the conference. China's representatives and those of other developing countries were initially skeptical of environmental concerns and had threatened to boycott the conference. (34) Indian Prime Minister Indira Gandhi observed that smoke coming out of a factory signified jobs to her and famously asked, "Are not poverty and need the greatest polluters?" (35)

      The conference resulted in the issuance of the Stockholm Declaration, a statement of global environmental principles endorsed by representatives of all the countries who attended. (36) Prior to the conference, the United States had pushed for it to endorse the negotiation of global treaties to control ocean dumping and to limit trade in endangered species. (37) This proved successful as the conference endorsed the negotiation of what became the London Dumping Convention and the Convention on International Trade in Endangered Species of Fauna and Flora (CITES). (38) The conference also led to creation of UNEP. (39) Overall, the Stockholm Conference confirmed a strong global consensus on the importance of environmental protection and the possibilities of progress through global cooperation. Upon returning to the United States, Train declared the conference a "very definite success" and stated that the United States had "gained really all of its important objectives at the conference." (40)

   3. Environmental Cooperation with Other Countries

      Even before the Stockholm conference, the United States had launched bilateral initiatives to promote environmental cooperation. When President Nixon met with Japanese Prime Minister Eisaku Sato during the summer of 1970, the two leaders pledged to work cooperatively to help each country solve its massive urban air-pollution problems. (41) This meeting launched several environmental exchanges between the two countries that ultimately spawned bilateral environmental agreements. (42)

      The most significant bilateral environmental agreement launched during the 1970s was the U.S.-U.S.S.R. Agreement on Cooperation in the Field of Environmental Protection. (43) Signed by President Nixon and Soviet President Nikolai Podgorny on May 23, 1972, the agreement promised cooperation "aimed at solving the most important aspects of the problems of the environment." (44) The agreement identified eleven subject areas for study, including air, water and marine pollution, nature reserves, the "influence of the environmental changes on climate," and "legal and administrative measures for protecting environmental quality." (45) Nearly a quarter of a century later, Russell Train described it as "the most comprehensive, bilateral, environmental agreement ever attempted." (46)

      While he was CEQ Chairman, Train served as co-chair with a Soviet official of a Joint Committee to implement the agreement, which met annually in either Moscow or Washington, D.C. (47) After Train was named EPA Administrator in 1973, he continued to serve as co-chair of the Joint Committee and the EPA became the secretariat for U.S. implementation of the agreement. (48) At times as many as 700 scientists and other environmental professionals participated in exchanges under the auspices of the agreement, (49) which in 1976 resulted in the adoption of a migratory-bird treaty between the two countries. (50) Coordination of climate research became an important area...