By Quality Environmental Management Subcommittee, President's Commission on Environmental Quality. Washington, D.C. 1993. Pp. x, 104.
"To govern simply by statute, and to reduce all to order by means of
pains and penalties, is to render the people evasive, and devoid of any
sense of shame.
"To govern upon principles of virtue, and to reduce them to order by
the Rules of Propriety, would not only create in them the sense of
shame, but would moreover reach them in all their errors."(1)
--Confucius, c. 500 B.C.
"When law succeeds, it puts itself out of business."
That statement is not always true, of course. The term law is broad and imprecise. It certainly is true, however, for activist regulatory forms of law, such as environmental law. The purpose of law in the activist mode is to change the norms and behavior of a community or subcommunity. Complete success would eliminate the need for additional legal acts to reinforce the message and would undermine the law's continued reason for being. Conversely, the more obvious and intrusive legal machinery is at any given time or place, the less successful the law has been in achieving its ultimate goal of "voluntary"(2) compliance.
Breathe easy, environmental lawyers of the world: we're not quite there yet. Environmental law was the single largest growth area for lawyers in the last decade.(3) Beginning slowly in about 1970, environmental law -- and the demand for environmental lawyers -- mushroomed in importance in the 1980s.(4) This dramatic growth was fed in large part by the enormous appetite of the Superfund program for "transaction costs," principally in the form of lawyers.(5) But as environmental law gradually succeeds at changing the prevailing norms of society, particularly in the business world,(6) the transition from environmental law to environmental management has already begun.
A window has recently opened into the new world, in which implementing environmental norms in practice is more important than establishing them in theory. It is a remarkable document: Total Quality Management: A Framework for Pollution Prevention, by the Quality Environmental Management Subcommittee of the President's Commission on Environmental Quality.(7) The PCEQ-TQM Report is a document with profound implications and should be required reading for anyone who is serious about the environment. The report emanates from an unlikely source for innovation -- a subcommittee of a now-disbanded presidential commission.
On July 23, 1991, President Bush appointed the President's Commission on
Environmental Quality (PCEQ), chaired by Michael R. Deland, who was then chairman of the Council on Environmental Quality.(8) The twenty-five-member commission consisted primarily of CEOs of major U.S. corporations, joined by three environmentalists and two university presidents. At the same time the PCEQ-TQM Report appeared, the PCEQ itself produced a report describing its own work and conclusions, which was released on January 13, 1993, one week before the Clinton administration took office. This report, Partnerships to Progress,(9) describes what President Bush had called a "|new environmentalism' -- a more productive, less adversarial mode of environmental action that |harnesses the power of the marketplace in service of the environment.'"(10) Had President Bush been reelected, those seeking clues to environmental policy in a second Bush term might have eagerly devoured this report. Coming out as it did, a week before the inauguration of his successor, it received somewhat less attention, to put it mildly.(11)
Unlike most presidential commissions, which merely issue advisory reports and recommendations, the Bush PCEQ was tasked actually to "develop and test practical, innovative ideas"(12) through a series of ten demonstration projects. Of these, the most interesting and significant was the project to apply to pollution prevention projects the principles of Total Quality Management (TQM), an approach to managing organizations developed by the late W. Edwards Deming and widely applied in Japan.(13) The PCEQ assembled a Quality Environmental Management Subcommittee intending to "demonstrate the viability of Total Quality Management (TQM) as a method for achieving pollution prevention" (p. vii). The subcommittee's PCEQ-TQM Report concludes that "Total Quality Management (TQM) and Pollution Prevention are complementary concepts" (p. ix) and that "TQM offers an approach that all companies can use to achieve environmental improvements" (p. x).
The report looks like a typical, slick corporate annual report, complete with glossy, four- color photos, charts, and graphics. The aura of corporate boosterism, however, should not obscure the extraordinary significance of the report's contents. The PCEQ-TQM Report on the use of Total Quality Management in preventing pollution is an important document that signifies a basic transformation in the history of environmental regulation in the United States. It should not pass unnoticed into the oblivion of federal depository library shelves. Page after page of the PCEQ-TQM Report relates stunning success stories of rapid and dramatic reductions in pollution that are uncommon, if not unprecedented, in the history of U.S. environmental law.(14) The results reportedly(15) achieved at the twelve sites participating in the demonstration projects were nothing less than dramatic:
Dow Chemical achieved a 29 percent reduction in ethylene oxide fugitive
emissions and preliminary results on their waste management project
indicate a 67 percent reduction in the amount of material sent to
waste treatment facilities.
GE estimates that 1, 1, 1 trichloroethane use will be decreased by 9 5
percent by year-end.
DuPont's generation of ammonium sulfate was reduced from more
than 100 million pounds per year to less than 40 million pounds per year.
International Paper's Androscoggin Mill reduced fiber lost to the paper
machine sewers from 60 tons to less than 25 tons per day through a
rigorous self-audit and the development of an innovative mobile recovery
pump. In addition ... loading to the wastewater treatment system was
reduced which improved effluent quality by more than 50 percent.
Ford is replacing, on a business plan cycle basis, its trichloroethyline
(TCE) vapor degreasers with an aqueous degreasing system that demonstrated
superior processing quality and improved environmental conditions
for employees and the community.
At the 3M plant, generation of waste was reduced by 10 percent.
Procter & Gamble's Mehoopany, Pennsylvania, paper and pulp manufacturing
plant eliminated the use of chlorine for converting broke
bleaching and improved pulp washing which decreased sulfur dioxide,
ammonia and chloroform releases. [pp. 41-42]
The report summarizes the results of the project by stating:
[S]ignificant pollution prevention and economic savings . . . resulted
from a dozen diverse demonstration projects and ... [i]n the aggregate,
these projects accomplished the following:
Eliminated millions of pounds of pollutants from manufacturing
Saved substantial sums of money.
Increased the efficiency or effectiveness of the production process.
Improved the quality of products and services.
Enhanced public perception of the company or its products.
Improved employee morale. [p. vii]
The PCEQ-TQM Report concludes: "If these projects are any indication of the power of TQM to reduce or prevent pollution, then the QEM [Quality Environmental Management] Subcommittee is confident in stating that, with the proper incentives and flexibility to innovate, private-sector voluntary programs are a cost-effective and expeditious route to improving the quality of the environment" (p. x).
To the sophisticated postmodern lawyer, grown jaded on zero-sum games and the prisoner's dilemma, it all sounds too good to be true. But if TQM really does work in practice, perhaps eventually it can also work in theory.(16) Besides, it is not as if our existing technologies for implementing pollution controls are so successful that we have nothing to learn.
The success stories related in the PCEQ-TQM Report contrast sharply with the disappointing record of traditional strategies used in U.S. environmental law to achieve its stated goals.(17) The staple approach used by environmental law in the United States to regulate pollution during the modem era from about 1970 to the present has been government standard setting through legalistic bureaucracy.(18) This approach to pollution control involves an elaborate, time-consuming legal-political process(19) to develop legally enforceable pollution limits. The government can set these limits in various ways, based on technology or on scientific predictions of the effects of pollution on public health and the environment. The limits can allow varying degrees of weight to be given to economics and other countervailing considerations. Pollution limits can be site specific, applicable to an industry or industry segment, or even nationwide in application. Whatever their basis and scope, however, the basic standard-setting approach predominantly used to regulate pollution in the United States requires, as an essential first step to pollution reductions, that government officials determine what an acceptable amount of pollution would be.
The government standard-setting approach has many advantages. First and foremost, government standard setting is symbolically and politically satisfying to those who engage in these activities.(20) Government standard setting allows politicians and bureaucrats to tell themselves and others...