a brief history of environmental regulationenvirofdok.org/wp-content/uploads/2013/03/myers... ·...

A Brief History of Environmental Regulation Why You Need to Understand the Past to Influence the Future

Richard Myers Principal Consultant EHS Business Solutions

2

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

3

•  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

Environmental Law

4

•  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:

Environmental Regulations

Society senses a problem that it believes requires

some regulatory response risk to health

damage to the environment

It identifies a regulatory target product pollutant industrial

facility government

agency land use individual

It selects some basis for establishing controls to

combat the problem technology

-based risk-benefit balancing

health-based regulations

It chooses a type of regulation

design standards

performance standards

information standards

ambient standards

liability rules taxes

5

•  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

Economic Considerations

6

Where reasonable and practicable, AVOID the risk –  Eliminating toxic chemicals to lower pollution risk –  Modifying a process (e.g. eliminating dust by using a wet scrubber instead of a

dry one or burning gas instead of coal to reduce emissions) –  Pollution control devices (e.g. ESP, Baghouses) –  Infrastructure changes

Environmental Risk in Industries EPA’s Environmental Risk Hierarchy

AVOID ELIMINATE CONTROL MANAGE

Manage the risk to ELIMINATE harm –  Stricter Management to block the pathway between the hazard and the receptor

(e.g. monitoring and collection systems) –  Reuse and recirculation of waste to eliminate emissions and discharge

Manage the risk to CONTROL the degree of harm –  Disperse air emission in a manner that reduces ground-level contamination –  Process monitoring

Retain the risk but MANAGE the consequence –  Emergency management plan will minimize adverse effects of an event

7

Pre-1945 Common Law

and Conservation

Era

1945-1962 Federal

Assistance for State Programs

1962-1970 Rise of the

Modern Environmental

Movement

1979-1980 Erecting the

Federal Regulatory

Infrastructure

1980-1990 Extending

and Refining

Regulatory Strategies

1991- Present Regulatory Recoil and

Reinvention

Six-Stages in the History of U.S. Environmental Law

Pre-1945 The Common Law and Conservation Era

8

•  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 Copper Company and Ducktown Sulphur (206 U.S. 230 )

–  1927: Great Mississippi Flood

Pre-1945 Common Law and Conservation Era

1945-1962 Federal




Movement


Federal Regulatory

Infrastructure

1980-1990 Extending and

Refining Regulatory Strategies

1991- Present Regulatory Recoil and Reinvention

Early 1900’s the production of Tetraethyl lead (TEL) found in gasoline caused widespread outbreaks of lead poisoning throughout the nation. In 1971, with the addition of lead paints and mining the Lead-Based Paint Poisoning Prevention Act passed to phase-out lead in gasoline, paint and other exposure routes.

http://www.historicvehicle.org/News/Articles/All-Articles/2012/02/23/Automotive-History

1945-1962 Federal Assistance for State Problems

9

•  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


1945-1962 Federal




Movement


Federal Regulatory

Infrastructure




http://nypost.com/2013/04/18/reflecting-on-the-1947-texas-city-disaster/

1962-1970 The Rise of the Modern Environmental Movement

10

•  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) •  Landmark legislation-changed the way

environmental decisions were made


1945-1962 Federal




Movement


Federal Regulatory

Infrastructure




Cuyahoga River 1969

http://oceanservice.noaa.gov/education/kits/pollution/media/supp_pol02d.html

1970-1980 Erecting the Federal Regulatory Infrastructure

11

•  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 •  EPA formed on December 2, 1970

–  Brings together 15 federal programs


1945-1962 Federal




Movement


Federal Regulatory

Infrastructure




1978: Love Canal chemical waste dump

http://ashleydawson.info/tag/love-canal/

12

•  Significant Federal Environmental Legislation in this decade



1945-1962 Federal




Movement


Federal Regulatory

Infrastructure




1970

Clean Air Act (CAA)

1972

Federal Water Pollution Control

Act (CWA)

Federal Insecticide,

Fungicide and Rodenticide Act

(FIFRA)

Marine Protection, Research and

Sanctuaries Act (Ocean Dumping

Act)

1973

Endangered Species Act

(ESA)

1974

Safe Drinking Water Act (SDWA)

1976

Toxic Substances Control Act

(TSCA)

Resource Conservation and

Recovery Act (RCRA)

1980

Comprehensive Environmental

Response, Compensation and

Liability Act (CERCLA)

13



1945-1962 Federal




Movement


Federal Regulatory

Infrastructure




Percival, Robert V. Environmental Regulation: Law, Science, and Policy. Austin: Wolters Kluwer Law & Business, 2009.

Industry Example

1980-1990 Extending and Refining Regulatory Strategies

14

•  Original laws were updated and amendments were added to the following laws:

–  RCRA updated 1984 –  CERCLA updated 1986 –  SDWA updated 1986 –  CWA updated 1987 –  CAA updated 1990

•  “Hammer” Provisions –  Set strict deadlines and increased penalties

for agencies to adopt regulations –  Found in many regulations, such as

RCRA,TSCA, and HSWA •  Important Dates

–  1986: Emergency Planning and Right-to-Know Act (EPCRA)

•  Toxic Releases Inventory (TRI) –  1986: Superfund Amendments and

Reauthorization Act (SARA)


1945-1962 Federal




Movement


Federal Regulatory

Infrastructure




December 1982: The people of Times Beach, Missouri were forced to leave their town because the EPA found high levels of dioxin in the soil,

1991-Present Regulatory Recoil and Reinvention

15

•  Environmental regulations began to weaken from 1992-2000

•  Important Dates –  1995: Unfunded Mandates Reform Act –  1995: Project XL (Excellence and

Leadership) •  Made agencies more efficient by

removing unnecessary regulations –  1996: Small Business Regulatory

Enforcement Fairness Act •  Recent Major Oil Spills

–  2010: Deepwater Horizon –  2010: Kalamazoo River oil spill –  2008: New Orleans Oil Spill –  1990: Mega Borg Tanker Explosion –  1989: Exxon Valdez –  1988: Ashland Oil Spill


1945-1962 Federal




Movement


Federal Regulatory

Infrastructure




April 20, 2010: The Deepwater Horizon oil spill is considered the largest accidental marine oil spill in history. This explosion claimed 11 lives, displaced wildlife and discharged an estimated 4.9 million barrels of oil.

http://theenergycollective.com/francesbeinecke/214071/three-years-later-act-lessons-bp-disaster

Environmental Progress

16

•  From the Council on Environmental Quality 25th Anniversary Report:

–  Since the start of environmental laws and regulations:

•  Significantly reduced conventional air and water pollution as well as lead levels

•  Globally phased out of CFC’s •  Total emissions of six critical air

pollutants declined 24% since 1970

•  Due to environmental laws and regulations, emissions have reduced and the global average life expectancy increased by 8 years.

•  Further environmental progress will be increasingly difficult

http://www.eecuk.co.uk/energy-efficiency-climate-change-and-the-city-of-london/

17

Environmental Goals in the Next 25 Years

http://www.zmescience.com/ecology/climate/climate-change-classroom-20022012/

http://livinggreenmag.com/2013/08/05/climate-change/bringing-the-world-back-to-zero-carbon-output-infographic/

•  Driver of future clean water initiatives •  GHG reductions especially from stationary sources

Climate Change:

• Stricter ambient air quality standards for ozone layers by enforcing more command-and-control approaches •  Tighter regulations for criteria air pollutants, HAPs, and GHGs

• Cleaner and more efficient power sector to reduce emissions

•  Implementing a carbon tax •  Estimates vary widely, but generally $20 to $25/ton

•  “zero emissions” and “carbon zero”

Air Quality:

•  Modernize TSCA •  Improved health assessments regarding

contaminants

Chemical Safety:

18

• End of “environmental racism” • Focus on local environmental challenges • Restore Superfund Tax

Cleaning Up Communities:

• Address challenges regarding nutrient overloads in water sources •  Development of Nutrient Trading

• Recovery Act that focuses on funding water infrastructure •  “zero discharge” by adding stricter regulations on water

reclamation and recycling

Water:

• Bipartisanship within the government • Developing an effective environmental compliance program

•  Programs that are thorough and can quickly adapt to new changes in environmental laws

• Shift in environmental policy agenda to address more challenging, diffused set of environmental problems

Legislative:

Environmental Goals in the Next 25 Years

19

“Nobody did a greater mistake than he who did nothing because he could only do a little.”

-Edmund Burke Irish Philosopher, Author, Orator, and Political Theorist

Closing Remarks

20

Australia. EPA. Environmental Regulation Using a Risk-based Approach. By EPA. 2007. Robert, Hahn. "Counting Regulatory Benefits and Cost: Lessons for the U.S. and Europe." Brookings. Joint Center, Oct. 2004. Web. <http://www.brookings.edu/~/media/research/files/articles/2004/10/regulatory%20litan/10_regulatory_litan.pdf>. Pizer, William, and Raymond Kopp. Calculating the Costs of Environmental

Regulations. Resources for the Future, 2003. Web. <http://www.rff.org/Documents/RFF-DP-03-06.pdf>.

Percival, Robert V. Environmental Regulation: Law, Science, and Policy. Austin: Wolters Kluwer Law & Business, 2009. The Brattle Group. "Emerging Environmental Regulations and Impacts on

the U.S. Coal Fleets." Lecture. 24 Jan. 2011. Web. <http://www.brattle.com/_documents/UploadLibrary/Upload983.pdf>.

World Resources Institute. "For EPA Regulations, Cost Predictions Are

Overstated." WRI Fact Sheet. Nov. 2010. Web. <http://pdf.wri.org/factsheets/factsheet_for_epa_regulations_cost_predictions_are_overstated.pdf>.

Work Cited

Richard Myers Email: [email protected] Phone: (281) 721-8470 x58470

Contact