Seizing 1989 as a Window of Opportunity: An Environmental Challenge to the Next Administration

Thomas L. Adams Jr. and Kyle E. McSlarrow

Editors' Summary: Both George Bush and Michael Dukakis promise that if elected they will devote high-priority attention to environmental issues. Opinion polls consistently show that these candidates are articulating views on the environment that have now become an ingrained and durable part of the American public's values. A major challenge for environmental professionals in the coming year will be how to translate this sentiment into action, particularly during the "honeymoon period" of a newly elected president.

In this Dialogue, the authors propose several means to move the environmental agenda forward in 1989. They recommend a Presidential Commission on the Environment, and suggest specific consideration of merging the environmental mandates of diverse federal agencies, integration of media-specific environmental statutes, higher priority for waste minimization, a more insightful approach to pollution from federal facilities, and a wider sharing of objective scientific background for difficult policy decisions.

[18 ELR 10419]

The environmental movement has been a national force since its inception in the 1960s. One of its major achievements was the establishment of the Environmental Protection Agency (EPA) in 1970, which today represents a regulatory juggernaut in its management of complex environmental issues.

Yet despite EPA's institutional durability, or perhaps because of it, little serious comprehensive thought has been given by Congress and recent administrations as to whether the original vision of environmental protection has been given the best regulatory structure. We believe that it is now time to do so.

A change in administrations is accompanied by the usual honeymoon period allowed new presidents. This will be even more true in 1989 for EPA, because the previous EPA leadership, arriving in 1983 when EPA's credibility was at stake, found it difficult to play a commanding role in the formation of environmental policy. Nor have discussions between the Administration and Congress concerning the environment been especially noteworthy for their mutual trust. Partly as a result, no significant organizational changes at EPA were initiated after the fragile transition period; instead, the record numbers of successful enforcement cases at EPA and similar bright spots have been the product of the accomplishments of EPA employees despite tremendous organizational and institutional hurdles. We, therefore, challenge the new administration (and Congress) to take this opportunity to confront serious, often divisive, and unresolved issues in the environmental arena.

Needed: A Presidential Commission on the Environment

We propose as the first step the creation of a presidential commission that would review a wide variety of issues and place recommendations before the president and Congress. The new administration could, of course, attempt to resolve these issues through the existing policymaking apparatus at EPA. But a hard look at environmental policy, including its formation and execution, demands that some very fundamental issues be raised and analyzed by all pertinent parties, not by the bureaucracy alone. Similarly, the three-member Council on Environmental Quality does not seem quite right either. The Commission will need to reflect a broad array of diverging views, and three members simply seems too few.

A new commission, moreover, could be the catalyst for the presidential leadership and participation so needed in this vital area. While the environmental arena is marked by repeated battles among competing interests, the public itself has often watched from the sidelines. Even the filing of the large number of "citizen" suits does not necessarily mean that the public has, in fact, participated in the development of environmental policy. There is a broad nationwide consensus that protection of the environment is a good thing, but that is the extent of an articulated norm. Presidential leadership is needed here because the costs and benefits of environmental protection, like other public goods, are distributed among all Americans who individually have little incentive to address any particular issue. But all Americans have a legitimate role to play in the environmental arena. That they have not is not due to disinterest. We believe that these types of issues call for national, and particularly presidential, leadership. The Commission could be the first step in getting the American people into the ongoing environmental debate.

Recent presidential commissions have made great contributions in informing the public and achieving political consensus in other areas. It is time to try this trust-building approach on one of the most gridlocked of all areas, the environment. While the exact charter of the Commission should be specified by the new president, several key areas for attention follow.

One Organization for the Environment?

Environmental policymakers generally think first of the Environmental Protection Agency. If EPA did not exist, [18 ELR 10420] it would have to be created for the management of environmental policy. Nevertheless, one of the first issues that ought to be addressed is whether the federal government's environmental institutions as presently organized can realistically ever achieve the demands made on them by Congress.

Many environmental programs are scattered throughout other departments. Part of the pesticides programs are administered by the Department of Agriculture; hazardous waste transportation regulation falls under the purview of the Department of Transportation; issues involving wetlands and navigable rivers are largely controlled by the Army Corps of Engineers; occupational health conditions involving environmental infractions are administered by the Occupational Safety and Health Administration. EPA has enough power to make itself felt, but not enough cohesiveness to do its job effectively.

Statutory Reform

Environmental laws have not, for the most part, developed as an abstract analytical exercise. They are nearly devoid of conceptual coordination. Much like a vessel put out to sea with no known mission other than to stay afloat, environmental laws have been jerry-built to address one particular immediate legislative concern, typically reflecting a high-profile public concern. Over the long haul the accumulation of laws has left the vessel wallowing.

The statutory approach that addresses environmental problems media by media is anachronistic. The current organizational structure at EPA perpetuates this "media myopia." We propose instead a codification effort that would integrate the "release of pollutants into the environment" statutes.

EPA resources and organization are largely dependent in structure on the underlying statutes. Statutory reform would consolidate EPA functions that are now duplicated in different divisions. Enforcement is perhaps the easiest function to consolidate and make uniform. Cleanup is more difficult. Licensing (permitting) is still more difficult. The difficulty of consolidations, in fact, may dictate a different division of EPA resources than exists now. Nonetheless, there are obvious efficiencies in consolidation that accrue both to the regulator and to those regulated.

Statutory reform should also address the desirability of regulating environmentally harmful materials in ways that depend upon the "use" to which such materials are put by humans. The classic example is the Resource Conservation and Recovery Act, which regulates hazardous substances only when considered "waste." Regulating the manufacture, storage, transportation, handling, sale or exchange, recycling, or disposal of such substances whether or not such materials are labeled as "waste" is more likely to be effective and less costly, in terms both of the regulatory impact and of the organizational resources thrown at the problem.

Air, water, and hazardous waste statutes each address only portions of the same problem, yet they frequently apply different standards of risk and economic considerations. Statutory reform would ensure that EPA is positioned to address a host of concerns that transcend any one media program. The Emergency Planning and Community Right-to-Know Act (SARA Title III), with its toxics release inventory and greater public involvement, reflects a positive trend toward more integrated, local approaches that address the full range of toxic releases from individual facilities. Codification should seek to improve control over a broad range of toxics on an individual plant basis. That, in turn, should produce tradeoffs among media that embrace the entire environmental picture, and do so more efficiently than merely regulating chemical by chemical. The multi-media approach is as applicable to the selection of standards and enforcement as it is to permitting procedures.

An important complement to any codification effort that consolidates environmental laws is to rewrite legislative jurisdiction in the environmental arena. The natural consequence of any major codification effort would be to reduce the number of congressional committees involved in oversight on the environment, with perhaps one in each chamber. In the 100th Congress, 14 Senate committees and 21 Senate subcommittees exercise jurisdiction over environmental programs. Eighteen House committees and 42 House subcommittees exercise similar jurisdiction. From January through June 1988, Congress held over 50 individual hearings on EPA activities. Oversight is quite obviously a necessary and legitimate aspect of separation of powers, but it should not be overkill. Congress must show some self-restraint and discipline in managing its direction and overview. When everything becomes a priority, nothing is a priority. It is expecting too much that EPA bureaucracy would behave in any other fashion than to mirror the priorities of Congress.

Waste Minimization Laws

Environmental protection has traditionally emphasized setting standards that limit the level of the discharge of pollution. During the last few years, additional steps have been taken to treat wastes before the need to dispose of them arises. We now need to further consider the development of specific short- and long-term strategies for minimizing the creation of waste.

There are compelling reasons for industry and government to proceed at once with more waste minimization efforts. First, if disposal costs continue to increase, and liability continues to expand, industry will have every incentive to reduce its costs of operation, liability, and insurance. Government regulations cannot be 100 percent effective; no compliance monitoring and enforcement program — however effective and well managed — can identify and prosecute all illegal disposal. There will always exist a governmental interest to minimize the creation of waste, but perhaps few future instances where governmental policy coincides so closely with commercial prudence.

As with any new major effort, the method for achieving the goals must be confronted. It is perhaps enough to say that, along with our other recommendations, new goals should not necessarily dictate new federal regulations, inspections, and enforcement. We should explore market and fiscal incentives as well.

The private sector can do more. Large companies should routinely conduct waste audits to identify the best opportunities for waste minimization and make the "front end" investments needed to modify their production processes to minimize the generation of hazardous waste. Information [18 ELR 10421] on promising techniques should be disseminated through industry associations.

The federal government can better provide technical outreach, information, and assistance to small and medium-sized businesses that do not have the resources to learn about and implement simple minimization techniques on their own. EPA has already taken an excellent first step in this direction by setting up a cross-media Office of Pollution Prevention to work with states and industry to promote programs and to serve as an information clearinghouse. The Office will emphasize source reduction and focus on changes in designs, processes, materials, and consumer behavior that reduce the amounts of pollutants generated. It will also coordinate outreach to states and support the development of state programs, collect, analyze, and disseminate data, and develop general strategies and policies for source reduction.

"Minimization" does not mean "elimination." American society will continue to generate large amounts of hazardous wastes that will require disposal. However, the logic behind waste minimization is compelling and it would be shortsighted of government and industry not to recognize and enhance the incentives for expanding its use.

Environmental Policy and Federal Facilities

Issues that involve federal facilities are often the product of widespread misunderstanding of the costs involved, and of the proper roles of the states, EPA, and the federal agencies that own the facilities. It is often remarked that "Federal facilities are no different than other polluters," and indeed Congress has gone to great lengths to incorporate this sentiment into substantive legislation. But the attention and passion that attend debates over federal facilities make the opposite assertion more accurate: federal facilities are different, and before any solutions can be offered they require some appreciation of the fundamental problems inherent in federal facility enforcement.

Assertions either that federal facilities can solve their environmental problems alone, or that they entirely run amuck without any consideration for the environment, are both false and unhelpful. What is needed is to step back and ask what seems never to have been asked comprehensively: What are the substantive goals we want to reach at federal facilities, and how is this best accomplished?

Federal facilities are like polluters in that they, well, pollute. They are unlike them because they pursue national missions, financed by national revenues, and because they more often have an enormous potential to affect the environment. The proposed Presidential Commission on the Environment, therefore, should confront the issue of whether substantive statutes and their enforcement should rest with the states or the federal government and, if the federal government, whether enforcement is better placed with EPA or the individual agencies. The Commission should thus consider the problems inherent in enforcement. State enforcement of state laws raises issues of sovereign immunity that Congress has too frequently refused to address consistently. Aside from the legal niceties associated with the extent of any given waiver of sovereign immunity, the Commission should focus on whether national missions (and, with the Departments of Defense and Energy, often critical missions) can ever be properly subject to fifty different regulating sovereignties that apply their own parochial interests without regard to any funding concerns.

At the federal level, though uniformity and budget constraints are more easily attained than if the states were in charge, there are still other concerns. Some are practical: can EPA, or some other entity, successfully regulate federal agencies? Others are legal: whether EPA can pursue enforcement actions against other government agencies; and, if it were to do so, whether the Justice Department is institutionally capable of carrying out this role, given its responsibilities to represent the United States (presumably, this means both agencies).

The Appropriate Role for Scientific Judgment in a Political Process

More Americans ought to have a role in choosing between the costs and benefits of alternatives associated with any environmental decision. We all should pay close attention to how underlying data that supports a given alternative is presented to the public. The Presidential Commission could specifically review whether there is a professional consensus on how the costs and benefits of pollution and its prevention in remediation are presented, and then endorse that model. Thus, all who engage in the environmental arena would have a yardstick by which to judge with somewhat more confidence.

Americans need not memorize lists of hydrocarbons; they should not have to review experiments for accuracy. But they can appreciate the significance (or insignificance) of, for example, one death per ten million in relation to other risks we face. More important, not only can they appreciate the data, the American people collectively, through their representatives, are the only ones who should legitimately supply the norms for that type of evaluation. We ought to start now, and establish widely understood procedures that would allow a greater number of our citizens to participate in the debates.

Credible, independent science must, in short, be the basis for EPA's regulatory decisions. EPA has come under increasing scrutiny for its judgments as to the health and environmental risks associated with toxic chemicals, both in terms of the timeliness of that information and the basis for its decisions. Limited resources and the lack of complete data ensure that that which is styled scientific judgment is more often only regulatory judgment. The new administration needs to carefully examine EPA's internal organization, and its external relationships with the scientific community, with the goal that EPA can make scientific judgments that are shielded from the political process. To the extent that scientific judgments are not the entire story, we need to ensure that those decisions are understood for what they really are: political assessments of the costs and benefits involved.

Conclusion

A Presidential Commission is not a guarantee that everyone will sit up and take notice. Nonetheless, it is instructive that, considering the often controversial nature of the studies, commissions have generally been heard with respect. In short, the Presidential Commission on the Environment could be a catalyst for reform during the window of opportunity presented in 1989.

Mr. Adams is Assistant Administrator for Enforcement and Compliance Monitoring at the U.S. Environmental Protection Agency. Mr. McSlarrow is Assistant to the General Counsel, Department of the Army. The views expressed are their own and do not necessarily represent the views of any government agency.