A Brief History of Environmental Regulation Why You Need to Understand the Past to Influence the Future Richard Myers Principal Consultant EHS Business Solutions
Overview Environmental Law Environmental Regulations Environmental Law and Regulations Economic Considerations Cost-Benefit Analysis of Federal and Environmental Regulations Environmental Risk Six Stages in the History of Environmental Law Environmental Progress and Goals 2
Environmental Law • Combination of: – Common Law • Primary source of dealing with environmental problems before 1970’s – Constitutional Law – Legislation – International Agreements – Regulations • Legal Architecture – Environmental Statues and Common Law overlap (“patch-work”) – Environmental Law resembles a shack on Tobacco Road rather than a Gothic Cathedral 3
Environmental Regulations • Regulations formulated by agencies (e.g. US EPA) • Regulators need to design regulations to “fit” a diverse variety of targets • Industrial targets are the easiest form of regulation – Fewer facilities than individuals • Consist of four components: Society senses a problem risk to damage to the that it believes requires health environment some regulatory response It identifies a regulatory industrial government product pollutant land use individual target facility agency It selects some basis for technology risk-benefit health-based establishing controls to -based balancing regulations combat the problem It chooses a type of design performance information ambient liability taxes regulation standards standards standards standards rules 4
Economic Considerations • Economic Drivers for Reducing Emissions in Industries – The protection and cost of public health – To prevent compliance penalties from surpassing permit requirements • Control Mechanisms – No “one-size-fits-all” economic approach for environmental problems • Command-and-Control Approach – Successful in controlling large point sources of pollution (e.g. industries) – e.g. Industry XYZ needs to reduce their x emission to y ppm • Performance Base – e.g. Industry XYZ needs to reduce their x emission by y% • Economic Incentives • Environmental spending creates jobs that offset losses • Regulated facilities can actually increase energy efficiency through technological changes, such as cogeneration • Implementation of environmental regulations to prevent adverse effects cost the private sector about $200 billion per year • About 2% of the GDP is spent on environmental protection 5
Environmental Risk in Industries EPA’s Environmental Risk Hierarchy AVOID ELIMINATE CONTROL MANAGE Where reasonable and practicable, AVOID the risk Manage the risk to ELIMINATE harm – Eliminating toxic chemicals to lower pollution risk Manage the risk to CONTROL the degree of harm Retain the risk but MANAGE the consequence – Modifying a process (e.g. eliminating dust by using a wet scrubber instead of a – Stricter Management to block the pathway between the hazard and the receptor – Disperse air emission in a manner that reduces ground-level contamination – Emergency management plan will minimize adverse effects of an event dry one or burning gas instead of coal to reduce emissions) (e.g. monitoring and collection systems) – Process monitoring – Pollution control devices (e.g. ESP, Baghouses) – Reuse and recirculation of waste to eliminate emissions and discharge – Infrastructure changes 6
Six-Stages in the History of U.S. Environmental Law 1980-1990 Pre-1945 1962-1970 Extending Common Law Rise of the and and Modern Refining Conservation Environmental Regulatory Era Movement Strategies 1945-1962 1979-1980 1991- Present Federal Erecting the Regulatory Assistance Federal Recoil and for State Regulatory Reinvention Programs Infrastructure 7
Pre-1945 The Common Law and Conservation Era http://www.historicvehicle.org/News/Articles/All-Articles/2012/02/23/Automotive-History • Legislation initially focused on resource conservation • Important Dates: – 1872: Congress passed the Yellowstone Act – 1899: Rivers and Harbors Act – 1906: Pure Food and Drug Act – 1901: Missouri v. Illinois and the Sanitary District of Chicago (180 U.S. 208) – 1907: Georgia v. Tennessee Early 1900’s the production of Tetraethyl lead (TEL) found in Copper Company and Ducktown gasoline caused widespread outbreaks of lead poisoning Sulphur (206 U.S. 230 ) throughout the nation. In 1971, with the addition of lead paints and mining the Lead-Based Paint Poisoning Prevention Act – 1927: Great Mississippi Flood passed to phase-out lead in gasoline, paint and other exposure routes. 1962-1970 1979-1980 1980-1990 1945-1962 Pre-1945 Rise of the Erecting the Extending and 1991- Present Federal Common Law and Regulatory Recoil Modern Federal Refining Assistance for Conservation Era and Reinvention Environmental Regulatory Regulatory State Programs Movement Infrastructure Strategies 8
1945-1962 Federal Assistance for State Problems http://nypost.com/2013/04/18/reflecting-on-the-1947-texas-city-disaster/ • Federal government encouraged states to adopt their own control measures – State and local government held responsibility for environmental problems • Important Dates: – 1948: Water Quality Act – 1955: Department of Health, Education and Welfare conducts a 5-year program of air pollution research – 1955: Air Pollution Control Act 1962-1970 1979-1980 1980-1990 1945-1962 Pre-1945 Rise of the Erecting the Extending and 1991- Present Federal Common Law and Regulatory Recoil Modern Federal Refining Assistance for Conservation Era and Reinvention Environmental Regulatory Regulatory State Programs Movement Infrastructure Strategies 9
1962-1970 The Rise of the Modern Environmental Movement http://oceanservice.noaa.gov/education/kits/pollution/media/supp_pol02d.html • Era produced landmark legislation from increased concern over the environmental impacts of public works – Traced to the publication of Rachel Carson’s, Silent Spring • Pre-1970, most regulations were aimed at government rather than industry • Important Dates: – 1963: Clean Air Act of 1963 – 1964: Wilderness Act – 1970: NEPA (National Environmental Policy Act) Cuyahoga River 1969 • Landmark legislation-changed the way environmental decisions were made 1962-1970 1979-1980 1980-1990 1945-1962 Pre-1945 Rise of the Erecting the Extending and 1991- Present Federal Common Law and Regulatory Recoil Modern Federal Refining Assistance for Conservation Era and Reinvention Environmental Regulatory Regulatory State Programs Movement Infrastructure Strategies 10
1970-1980 Erecting the Federal Regulatory Infrastructure http://ashleydawson.info/tag/love-canal/ • Considered the “environmental decade” • Most environmental laws began in this era • Important Aspects: – Mandated agencies to consider the environment and prohibited actions that may threaten endangered species – Initiated controls on air and water pollution, hazardous waste and toxic substances • State assistance programs were replaced with the CAA and CWA – CAA: health-based standards – CWA: technology-based effluent standards • First Earth Day on April 22, 1970 1978: Love Canal chemical waste dump • EPA formed on December 2, 1970 – Brings together 15 federal programs 1962-1970 1979-1980 1980-1990 1945-1962 Pre-1945 Rise of the Erecting the Extending and 1991- Present Federal Common Law and Regulatory Recoil Modern Federal Refining Assistance for Conservation Era and Reinvention Environmental Regulatory Regulatory State Programs Movement Infrastructure Strategies 11
1970-1980 Erecting the Federal Regulatory Infrastructure • Significant Federal Environmental Legislation in this decade 1970 1972 1973 1974 1976 1980 Endangered Safe Drinking Comprehensive Federal Water Toxic Substances Clean Air Act Species Act Water Act Environmental Pollution Control Control Act (CAA) Response, Act (CWA) (TSCA) (ESA) (SDWA) Compensation and Liability Act Resource (CERCLA) Federal Conservation and Insecticide, Recovery Act Fungicide and (RCRA) Rodenticide Act (FIFRA) Marine Protection, Research and Sanctuaries Act (Ocean Dumping Act) 1962-1970 1979-1980 1980-1990 1945-1962 Pre-1945 Rise of the Erecting the Extending and 1991- Present Federal Common Law and Regulatory Recoil Modern Federal Refining Assistance for Conservation Era and Reinvention Environmental Regulatory Regulatory State Programs Movement Infrastructure Strategies 12
1970-1980 Erecting the Federal Regulatory Infrastructure Industry Example Percival, Robert V. Environmental Regulation: Law, Science, and Policy . Austin: Wolters Kluwer Law & Business, 2009. 1962-1970 1979-1980 1980-1990 1945-1962 Pre-1945 Rise of the Erecting the Extending and 1991- Present Federal Common Law and Regulatory Recoil Modern Federal Refining Assistance for Conservation Era and Reinvention Environmental Regulatory Regulatory State Programs Movement Infrastructure Strategies 13
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