A Brief History of Environmental Regulation

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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 target product pollutant facility agency land use individual

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 regulation standards standards standards standards rules taxes

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– Eliminating the risk to toxic ELIMINATE chemicals toharm lower pollution risk Manage the risk to CONTROL the degree of harm Retain–– theModifyingStricter risk Management but a process MANAGE (e.g. to blockthe eliminating consequence the pathway dust by between using a the wet hazard scrubber and instead the receptor of a – Disperse air emission in a manner that reduces ground-level contamination – dryEmergency(e.g. one monitoring or burning management and gas collection instead plan willsystems)of coal minimize to reduce adverse emissions) effects of an event – Process monitoring –– PollutionReuse and control recirculation devices of(e.g. waste ESP, to Baghouses) 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 Rise of the Erecting the Extending and Pre-1945 Federal 1991- Present Common Law and Modern Federal Refining Regulatory Recoil Assistance for Conservation Era Environmental Regulatory Regulatory and Reinvention 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

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

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

11 1970-1980 Erecting the Federal Regulatory Infrastructure

• Significant Federal Environmental Legislation in this decade

1970 1972 1973 1974 1976 1980

Federal Water Endangered Safe Drinking Toxic Substances Comprehensive Clean Air Act Pollution Control Species Act Water Act Control Act Environmental (CAA) Act (CWA) (ESA) (SDWA) (TSCA) Response, Compensation and Liability Act Resource Federal (CERCLA) Conservation and Insecticide, Recovery Act Fungicide and (RCRA) Rodenticide Act (FIFRA)

Marine Protection, Research and Sanctuaries Act (Ocean Dumping Act)

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 Rise of the Erecting the Extending and Pre-1945 Federal 1991- Present Common Law and Modern Federal Refining Regulatory Recoil Assistance for Conservation Era Environmental Regulatory Regulatory and Reinvention State Programs Movement Infrastructure Strategies

13 1980-1990 Extending and Refining Regulatory Strategies

• 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) December 1982: The people of Times Beach, Missouri were forced • Toxic Releases Inventory (TRI) to leave their town because the EPA found high levels of dioxin in – 1986: Superfund Amendments and the soil, Reauthorization Act (SARA)

14 1991-Present Regulatory Recoil and Reinvention

http://theenergycollective.com/francesbeinecke/214071/three- • Environmental regulations began to years-later-act-lessons-bp-disaster 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 April 20, 2010: The Deepwater Horizon oil spill is considered the – 2008: New Orleans Oil Spill largest accidental marine oil spill in history. This explosion claimed 11 lives, displaced wildlife and discharged an estimated 4.9 million – 1990: Mega Borg Tanker Explosion barrels of oil. – 1989: Exxon Valdez – 1988: Ashland Oil Spill

15 Environmental Progress

• 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. http://www.eecuk.co.uk/energy-efficiency-climate-change-and-the-city-of-london/ • Further environmental progress will be increasingly difficult

16 Climate Change: Environmental Goals in the Next 25 Years • Driver of future clean water initiatives • GHG reductions especially from stationary sources

Air Quality:

• 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 http://www.zmescience.com/ecology/climate/climate-change-classroom-20022012/ • Implementing a carbon tax • Estimates vary widely, but generally $20 to $25/ton • “zero emissions” and “carbon zero”

Chemical Safety:

• Modernize TSCA • Improved health assessments regarding http://livinggreenmag.com/2013/08/05/climate-change/bringing-the-world-back-to-zero-carbon- contaminants output-infographic/

17 Cleaning Up Communities: Environmental Goals in the Next 25 Years • End of “environmental racism” • Focus on local environmental challenges • Restore Superfund Tax

Water:

• 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

Legislative:

• 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

18 Closing Remarks

“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

19 Work Cited

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. . Contact Pizer, William, and Raymond Kopp. Calculating the Costs of Environmental Regulations. Resources for the Future, 2003. Web. . Richard Myers Email: [email protected] Percival, Robert V. Environmental Regulation: Law, Science, and Policy. Phone: (281) 721-8470 x58470 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. .

World Resources Institute. "For EPA Regulations, Cost Predictions Are Overstated." WRI Fact Sheet. Nov. 2010. Web. .