Reforming Environmental Law

Phillip D. Reed

It is time we started to think seriously about environmental law reform. Environmental law has been with us for over 15 years and, although it is still a growing teenager,¹ 1985 is not too soon to plan for its maturity.Its intense energy and compulsion to accomplish everything at once without concern for the long-term consequences were understandable, probably essential, in its youth. It had to carve a place for itself in a world that, but for a relatively small number of idealists, was largely indifferent. Now, environmental law is strong and able to control much within its broad reach. It has achieved some of its idealistic goals and begun to see how hard it is to achieve them all. Without abandoning its goals, it must learn to function with minimal friction in an adult world of competing interests and compromise. Even though there are serious new problems to address, it is time to pay attention to reforming environmental law.

This does not mean it is time to prepare environmental law for the dotage of old age. Unlike some categories of federal regulatory initiatives, for example certain economic regulation, environmental law does not serve a need that can be mooted by changes in the economy. It serves a more enduring purpose by protecting the environment that sustains our very existence. Absent government intervention, the economic incentives to pollute are virtually irresistible. The damage a modern industrial economy can inflict on the environment can be fatal. In this context, deregulation is not, and probably never will be, constructive reform. But there is nothing sacred about our initial schemes for protecting the environment. They have flaws and could be reformed. Because it must last, environmental law must have the capacity to evolve continuously.

The need is clear, but the response has been muddled. Policymakers seeking to free the market of outdated regulatory tethers failed to see the fundamental difference between environmental protection and, for example, airline regulation, and used the banner of reform to launch legislative and administrative efforts to deregulate the environment. Congress, the executive agencies, and the public interest advocacy community have become locked in battle in which one side sometimes seems to believe it is saving the economy, the other, saving the environment. A more constructive enterprise would be to seek ways of reforming environmental law, which clearly is overly complex, ineffective in some ways, and inefficient in others.

ELI has launched two new undertakings to begin to address this need. A new Manual of Environmental Law will compile and explain the diverse pieces of the current puzzle, a critical first step for meaningful overall reform. On a smaller scale, to recognize its 15th Anniversary, ELR is soliciting and, from time to time in the coming months, will publish articles assessing the need and prospects for reform of critical components of environmental law. This essay outlines my views on the proper focus of environmental law reform.

What Is Environmental Law?

The starting point for the inquiry is the question: what is environmental law? An easy answer is that it is an identifiable legal speciality, if only because 7500 or so attorneys use the term to identify much or all of their practice. But few, if any, of these lawyers know more than a fraction of the field. As a law school subject, some professors see environmental law as a branch of property law, the codification of nuisance law, a subset of administrative law, or an outgrowth of public land law. But, in fact, federal environmental law defies classification as a separate legal discipline; it is really nothing more than a collection of legal tools from many fields, each employed by Congress for its expected ability to ameliorate some part of the harm we inflict on nature or, by polluting nature, on ourselves.

Nevertheless, the general term is not without significance. These disparate pieces of law are similar in their interdependence with the science and technology of predicting and preventing harm to nature and human health that might result from human activities. They also have a more profound [15 ELR 10063] connection. Uniting the entire field is the conviction that humankind must moderate its interactions with the environment, whether for the spiritual or aesthetic benefit to be gained from harmony with nature, or for the utilitarian purpose of maintaining the "life support systems" of spaceship Earth.

The Development of Environmental Law

In pursuit of this vital mission, we have frantically constructed an enormous and powerful new body of law over 15 short years. Federal environmental law began to be recognized as a separate field in 1969 and expanded explosively from humble beginnings.² From a handful of public land protection statutes, it grew through intensely adversarial processes to include dozens of laws requiring environmental impact review in government decisionmaking, imposing several layers of pollution control regulation on industry, indirectly controlling land use, financing public works to abate pollution, and imposing heavy liability on polluters through a federal common law of nuisance.

Much of the new law placed great weight on achievement of environmental objectives, though competing objectives were not ignored. Congress mandated that some pollution control standards protect the public health whatever the cost, and that habitat of trivial species of wildlife be protected even if it meant scrapping hundred million dollar investment in a partially completed dam. On the other hand, courts concluded that mandatory environmental impact review was procedural only, and Congress directed that costs and economic impacts be considered in setting many pollution control standards.

The expansion of substantive environmental law was accompanied by changes in decisionmaking procedures. The prospect of developing general law governing such scientifically and technically complex subjects as air pollution from coal-fired power plants, or protection of migratory grey whales from offshore oil lease development, overwhelmed Congress. With one hand, it gave much of the job to expert administrative agencies to implement through a new kind of informal rulemaking. With the other hand, Congress balanced the enormous power thus vested in administrators, who now combined the roles of legislator, policeman, and judge, by allowing extensive public participation in the regulatory processes and strengthening judicial review of agency action. Public interest litigators and federal judges became powerful forces in the development of the law.

How Well Has Environmental Law Worked?

Environmental law has become very broad and powerful. It affects virtually every commercial and industrial activity in the nation, from farming to construction, from manufacturing steel to tanning leather. Environmental law can determine the ability to sell land, securities, or insurance. It governs the private use of automobiles, municipal disposal of sewage, and U.S. Army weapons development.

Thanks to a combination of factors, environmental law has been very successful in this country. It has made pollution-chocked rivers "fishable and swimmable," removed millions of acres of wilderness from the reach of developers, and made thousands of government and private decisionmakers take account of, and avoid the harmful environmental consequences of, many of their actions. These accomplishments are due to the energy and zeal of a handful of early pioneers of environmental law, the rapid emergence of strong, bipartisan public commitment to environmental protection, the toughness of the new statutory law, the willingness of much of regulated industry to comply voluntarily, and the rapid development of a trained army of environmental professionals working in all sectors.

The success stories of the first fifteen years of environmental law can be countered by failure stories, however. Some serious environmental problems are regulated, but unresolved. For example, toxic chemical wastes were recognized as a serious pollution problem nine years ago, but despite passage of tough legislation in 1976, 1980, and 1984, little has been done to abate the risk. Other apparent problems, like acid rain, have no response on the books. The key institutions of environmental law implementation — federal and state agencies — grew strong, but recently have been threatened with budgetary debilitation. If environmental law is powerful enough to redirect many activities into environmentally acceptable paths, it also can be so complicated as to lock activities in intractable legal and administrative tangles. Construction of a single new factory can require scores of separate local, state, and federal environmental permits and approvals, and as a result, take years to get started. Variation and complexity in the law often is in response to the complexity of the problems, but fine distinctions written into the U.S. Code or Federal Register may never be reflected in the crude processes of real world implementation. And the cost of environmental protection, while apparently less than the benefits to date, has been staggering and promises to increase exponentially.Before such problems discredit environmental protection, they should be remedied. Environmental law reform can resolve some, though not all of them.

Toward a Productive Agenda for Environmental Law Reform

The failings and costs of environmental protection have fueled various demands for reform, which fall into several categories. Expansionist reforms would extend the law to problems now fully or partially outside its reach, such as atmospheric heating from carbon dioxide buildup or [15 ELR 10064] comprehensive groundwater protection. Rachetting-down reforms would tighten control requirements for persistent problems like nonattainment of air quality standards in many of the nation's urban areas or unsafe disposal of toxic chemical wastes. Discretion-restricting reforms would narrow administrative agencies' ability to fashion implementation programs. Goal-balancing reforms would scrap statutory objectives that put environmental values ahead of competing public interests, such as "elimination of all pollutant discharges to the nation's waters." They would be replaced with schemes allowing the marketplace (through a pollution tax) or cost-benefit balancing ministers to adjust environmental programs to give society an optimal level of all goods and services, among them environmental amenities. Economic-decisionmaking reforms would leave the goals of environmental law intact, but would use cost-effectiveness analysis, marketable pollution permits, or emission trading to make implementation as efficient as possible. Targetting reforms would trim away programs that do not focus on the real problems, for example, by eliminating "best available treatment" requirements for nontoxic water pollutants. Statutory-simplification reforms would eliminate unnecessary variation among similar programs. Simplified-decisionmaking reforms would reduce the number of players in the complex process, for example, by requiring one-stop permitting, narrowing the scope of judicial review, limiting OMB involvement in rulemaking, delegating federal implementation authority to the states, or creating private systems, such as licensed pollution auditors, that reduce the need for government oversight. Cooperative-decisionmaking reforms would reduce opportunities for adversarial conflict, for example, by negotiating rules instead of litigating them. Many of the ideas are constructive, but the complexity of existing law and its considerable momentum mean that it often is easier to establish a new environmental program than to meaningfully reform an existing one.

Despite the need and promise, environmental law reform has floundered. At present the statutory development of environmental law is proceeding at a truly evolutionary pace, though without evidence of constructive adaptation to changing conditions. Congress has tended to favor expansionist, rachetting-down, and discretion-restricting reforms, as the 1984 RCRA Amendments demonstrate. Indeed, despite its intensely adversarial origins, federal environmental law has come to have such broad public support that it has expanded steadily under four Presidents, representing both parties, all of whom said they wanted to deregulate the economy and cut the size of the federal government. In the past, Congress has enacted some targetting reforms, but in recent years the debate over environmental law has become so polarized that the chances for legislative reform have been greatly reduced.

With Congress for the moment out of the picture, implementation and reform of environmental law have been left to the agencies and the courts. The results have been mixed. Attempts to use administrative discretion as a vehicle for quick deregulation, for example by indefinitely postponing action on proposed rules, ran afoul of the courts and the Administrative Procedure Act. EPA has had some success with economic decisionmaking reforms like emission trading and cooperative decisionmaking reforms like negotiated rulemaking. EPA also has launched studies into opportunities for statutory simplification, and has identified some promise in its diverse enforcement authorities. But it is difficult for the agencies to pursue a reform agenda, in part because demands for immediate regulatory action exceed limited resources, and in part because the polarized political climate renders such initiatives suspect to environmentalists and Congress. Greater indirect "reforms" probably have been effected by creative administrative compromises necessary to resolve implementation crises created by, but not anticipated in, statutory provisions adopted years ago and now overdue for congressional revision. Such administrative reforms may be expedient, but in the current polarized political climate, the growing discrepancy between the law as written and as implemented may trigger an environmental backlash and further expansion, rachetting down, or discretion reduction when Congress finally does respond.

All of this suggests several guidelines for environmental law reform. Environmental law as it presently exists represents a tremendous, productive investment of time and resources. Fundamentally different approaches like emission fees are theoretically attractive, but for all practical purposes we are locked into the regulatory approach. Reform initiatives should concentrate on making that approach as effective and efficient as possible. Statutory simplification and economic-, simplified-, and cooperative-decisionmaking reforms should all receive careful attention. Care must be taken to ensure that reforms do not simply become loopholes or indirect vehicles for deregulation, for with a vigilant and concerned public and a suspicious Congress, the result will be counterproductive.

Despite 15 years of work, the job of environmental protection is not nearly complete. Indeed, it is unlikely that the job ever will be complete. Environmental law will never reach the middle- or old-age status that might be ascribed to economic regulatory schemes instituted by earlier generations. While the market conditions that gave rise to the need to control interstate railroad rates may change, humankind's physical dependence on and spiritual resonance with the environment probably will not. Environmental law will endure and thus will need to adapt repeatedly. It will continue to be rejuvenated by each generation's efforts to protect its most vital interests in nature and the environment and to reconcile those interests with its most important developmental needs. Environmental law must mature. Even the pressing need to add to the existing body of law should not forestall a dispassionate assessment of what is working and what is not; whether it is achieving its goals, and what must be done to make it effective in the long run. Environmental law reform should begin today. Indeed, thought should be given to institutionalizing a process of environmental law reform so it will stay young and flexible enough to handle the new challenges it will face in the coming decades.

1. The analogy is borrowed from ELI President Bill Futrell, who has two teenagers.

2. Some measure the beginning of environmental law from enactment of NEPA, others from a conference on law and the environment at Airlie House. At the same conference the decision was made to establish the Environmental Law Institute. Both took place in the fall of 1969. The first issue of the Environmental Law Reporter, published in January, 1971, included an ambitious Primer for the Practice of Federal Environmental Law, which had initially been presented at the Airlie House conference by James Moorman. The Primer covered the field in 31 pages, the largest block of which was devoted to the problem of getting into federal court with an environmental claim. On its second page was the observation that this humble beginning portended something significant: "more and more lawyers are being drawn into environmental litigation, and environmental law as a separate speciality has begun to evolve. Scenic Hudson, a landmark in the law of standing to sue, appears in retrospect to have introduced a new field of law."

The rapid growth in federal environmental law is illustrated by the fact that ELI's 1974 volume, Federal Environmental Law, which also covered the field, took 1600 pages to do so. If that volume were updated today, it would have to add coverage of RCRA and its 1980 and 1984 amendments, the 1977 amendments to the Clean Air and Water Acts, TSCA, the 1978 amendments to FIFRA, CERCLA, the 1978 amendments to the OCSLA, FLPMA, and other major legislative initiatives. In its 14 years, ELR has published some 11,000 pages of environmental law decisions, another measure of the prodigious level of legal activity in the field.