Environmental Issues and the Law RAGNA HENRICHS Johnson & Gibbs, P.C., 1001 Fannin Street, 1200 First City Tower, Houston, TX 77002-6778

Proc. Nati. Acad. Sci. USA Vol. 89, pp. 856-859, February 1992 Colloquium Paper This paper was presented at a colloquium entitled "IIndustrial Ecology," organized by C. Kumar N. Patel, held May 20 and 21, 1991, at the National Academy of Sciences, Washington, DC. Environmental issues and the law RAGNA HENRICHS Johnson & Gibbs, P.C., 1001 Fannin Street, 1200 First City Tower, Houston, TX 77002-6778 ABSTRACT This report first briefly reviews the history viduals or properties. As such, it wasn't particularly respon- and lessons learned from our legislation regarding protection of sive to the problem of externalities. Some legislation, such as our environment. Then, these lessons are combined with the Rivers and Harbors Act of 1899 (1), had been enacted, but principles of general jurisprudence to suggest avenues for this legislation was generally insufficient for addressing the regulation of industrial ecology. Even though the law has enormous problems that attended the rapid development of important limitations, it can be used as a tool to identify our industrial society. Public alarm finally led to a spate of national goals and to promote their achievement by means of responsive legislation at the federal level. incentives or sanctions. Beginning in 1969, the legal framework governing the environment experienced a revolution. In that year, Con- Modern societies depend upon effective legal systems to gress passed the National Environmental Policy Act (NEPA) satisfy numerous social needs. The American legal system, (2), which for the first time required formal consideration of for example, attempts, among other things, to define property the environmental consequences of certain major actions, rights, to enable its citizens to redress their wrongs, to uphold such as building nuclear power plants and granting federal contracts made in the marketplace, and to protect its citizens offshore leases for oil production. An important feature of from harm. In addition, the American legal system, coexist- NEPA is that the required environmental review must take ing as it does with a free-market economy, spends a signif- place before the action (e.g., the construction of the nuclear icant portion of its resources addressing the problem of power plant or the grant of the offshore lease) is taken. Thus, economic externalities. NEPA pioneered a system of advance planning to address Externalities are those costs and benefits, generated by environmental consequences of major actions undertaken individual decision makers in our society, that primarily directly (offshore leases) or licensed (nuclear power plants) affect third persons. Environmental pollution is the classic by the federal government. The concept of such advance example of a negative externality or external cost. Whenever planning for environmental consequences has been extended waste products of production processes are discharged into through enactment of numerous "little NEPAs" in various the public environment, their treatment (or lack thereof) is states. As a result of NEPA and the state little NEPAs, transformed from a cost to the producer to a cost to society.* development in environmentally sensitive habitats is less Much of our environmental legislation, therefore, has been likely, project proposals often include mitigation measures to directed toward redistributing these costs back to producers, minimize adverse environmental impacts, and environmental so that they, rather than society, take responsibility for the consequences are now joined with engineering and economic consequences of their actions. considerations for purposes of determining whether, where, Because the problem of externalities spans the fields of and how certain projects are to be developed. and Environmental planning has also been encouraged by the both industrial ecology and environmental management series ofenvironmental permit programs enacted by Congress because the regulation of our environment represents one of the revolution our first (and grandest) attempts to solve this type ofproblem, in swift succession as the next phase of legal in the field ofindustrial would affecting the environment. The Clean Air Act (CAA) (3) was prospective legislators ecology enacted in 1970, the Clean Water Act (CWA) (4) was enacted do well to review the history of environmental law. In this Act way, past mistakes can be avoided and past successes can be in 1972, and the Resource Conservation and Recovery repeated. (RCRA) (5) was enacted in 1976, to regulate pollution of the Floating sewage, fiery rivers, and disintegrating buildings air, water, and land, respectively. Each one of these statutes on our environ- addresses a particular environmental problem by defining the were the public images of industry's impact scope of the statute's applicability and then by determining ment. In an effort to encourage more environment-friendly Each in the 1960s to our who shall be responsible for addressing the problem. industry, regulators late began develop statute also develops a solution to the problem. environmental law. That development reflects our primary The chief mechanism contained in these statutes experience in using the law as a tool to promote newly defined regulatory how the law be is the permit program. Permit programs prohibit any emission goals in this area and illustrates may brought or discharge of a pollutant or any treatment, storage, or to bear on the topic of industrial ecology. disposal of a hazardous waste, except in compliance with a Some 20 years ago, there was little law that directly the addressed the environment. Rather, the law governing envi- permit.t By means ofstandards developed under statutes, that permits place limits on the amount of pollutants that can be ronmental concerns was largely the same common law the environment. The standards used to deter- governs other types of injury and damage. It focused on released into recovery of damages for specific instances of intentional or negligent wrongdoing that resulted in harm to specific indi- *Positive externalities, or external benefits, exist as well. For example, whenever a producer employs processes that are cleaner than necessary to efficiently produce the product, all of society The publication costs of this article were defrayed in part by page charge benefits, even though the public at large didn't pay for the benefit. payment. This article must therefore be hereby marked "advertisement" The producer alone absorbed the cost. in accordance with 18 U.S.C. §1734 solely to indicate this fact. tEach act authorizes some exemptions from the general prohibition. 856 Downloaded by guest on October 2, 2021 Colloquium Paper: Henrichs Proc. Natl. Acad. Sci. USA 89 (1992) 857 mine permit limits are developed in rule-making proceedings greater understanding and consensus regarding the elimination conducted according to directives of each act and are either of the obvious environmental problems than exists today on technology-based or health-based. Generally, permits re- the subject of toxics, perhaps because those earlier problems quire permittees to monitor their compliance with the permit were so obvious (recall, e.g., the fiery rivers and floating limits and to report monitoring results to the regulatory sewage). agency. Failure to have a required permit and noncompliance In contemporary attempts to define what, if any, level of with permit limits are statutory violations that are enforce- toxicity is acceptable, there is also a serious problem of able by the regulatory agencies and, in some instances, by communication with the public. The questions of "what is citizens. harmful?" and "how should harmful substances, or poten- These statutes, and other similar statutes, regulate opera- tially harmful substances, be regulated?" are very emotional tions. Since pollution-generating operations cannot be con- issues in permit proceedings and other environmental adju- ducted except with, and in compliance with, a permit, permit dications. Today, an unfamiliar chemical name, or such a programs have resulted in significant advance planning to name attached to a measurable detection of the substance, address environmental concerns. creates fear in the public. It is not necessarily a logical The introduction ofadvance planning was but one element fear-not a fear resulting from an understanding of what the of the revolution in the legal framework governing the material is and how it will affect either the individual or the environment. The series of new laws also assigned clear environment-but afear that results from the aforementioned responsibility for compliance and established sanctions for lack of understanding. On a scientific basis, perhaps such a failure to comply. The obligation to have a permit and to meet fear could be dismissed because it is not supported by facts. its requirements established responsibility in the permittee. Under these circumstances, a scientist would probably con- To apply a sanction for unacceptable conduct, the enforcer clude that such afear is illogical and ignorant and has no place no longer needed to establish that pollution resulted in a in a rational system. However, politically, such a position is specific harm or damage, nor was he required to find the wrong. specific "cause" of a harm or damage. Under this new The problems of understanding and communication are system, a system wherein the permit constituted a public vividly demonstrated during regulatory determinations, determination of both responsibility

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