Environmental Policy - official rules and regulations concerning the environment that are adopted, implemented, and enforced by a governmental agency as well as public opinion about environmental issues
Elements of Good Environmental Policy
Basic Concepts in Policy
Power in Politics
Politics is a struggle among competing interest groups as they strive to shape public policy to suit their own agendas.
Cost Benefit Analysis
In choosing between policy alternatives, preference should be given to those with the greatest cumulative welfare and the least negative impacts.
Arguments Against Rational Choice
Conflicting views are not comparable
Few agreed-upon broad social goals
Policymakers not motivated by societal goals
Large investments create path dependence
Uncertainty drives policy makers toward past
Costs and benefits difficult to calculate
Segmented nature of large bureaucracies makes it difficult to coordinate decision making
The Precautionary Principle
The Precautionary Principle –when an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not yet fully established scientifically.
4 Tenets of the Precautionary Principle:
If suspect that something bad is about to happen, try and stop it
Burden of proof rests with proponents, not the general public
Before using a new technology, examine all the alternatives.
Decision making should be open and include affected parties.
The European Union has adopted this approach.
Fundamental Rights To A Safe Environment
The 1987 World Commission on Environment and Development said all human beings have the fundamental right to an environment adequate for their health and well being.
Of the 191 nations in the world, 109 now have constitutional provisions for protection of the environment and natural resources.
The U.S. has constitution does not acknowledge environmental protection as a fundamental human right.
Steps In The Policy Cycle
Major Environmental Laws
A Review of Major Environmental Laws:
NEPA establishes public oversight –signed into law by President Nixon in 1970 it is the cornerstone of U.S. environmental policy.
Authorized Council on Environmental Quality
Directs federal agencies to take environmental consequences into account in decision making
Requires an Environmental Impact Statement on all major federal projects.
Major Environmental Laws
The Clean Air Act Regulates Air Emissions
Enacted in 1970
Provided the first nationally standardized rules in the U.S. to identify, monitor and reduce air contaminants
Identified and regulated 7 major “criteria pollutants”, most of which have declined from their 1970 levels.
Smog Over Los Angeles
Major Environmental Laws
The Clean Water Act Protects Surface Water
Enacted in 1972.
Initial goal was identifying and controlling point source pollutants, end-of-the-pipe discharges, municipal sewage treatments plants and other sources.
Later modified to address non-point source pollutants such as urban storm sewer run-off and to promote water shed-based planning.
Major Environmental Laws
The Endangered Species Act Protects Wildlife
Enacted in 1973, this act provides a structure for identifying and listing species that are vulnerable, threatened or in danger of extinction.
Provides rules for protecting species and their habitats to make species recovery possible.
Administered by the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration.
Endangered Gray Wolf With Pup
Major Environmental Laws
The Superfund Act Lists Hazardous Sites
Officially named the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Allows the EPA to establish liability so that polluters pay for the cleanup of contaminated sites.
The Superfund uses taxpayer dollars to fund cleanups.
How Policies Are Made
Environmental Law - body of rules, decisions, and actions concerning environmental quality, natural resources, and ecological sustainability
Statute Law - formal documents enacted by legislative branch declaring, commanding, or prohibiting something
Case Law - derived from court decisions in both civil and criminal cases
What is Administrative Law?
Administrative Law - rises from executive orders, administrative rules and regulations, and enforcement decisions in which statutes passed by the legislature are interpreted in specific applications and individual cases
Until the 1960s, everyone was free to do as he wished on his own property.
Environmental movement and oil spill in Santa Barbara, CA in 1969 mobilized public opinion allowing passage of 27 federal laws for environmental protection in the 1970s
Public Awareness Influences Policy
Early U.S. policy took a hands-off approach toward business and private property leaving people free to do whatever they wanted on their own property.
The modern environmental movement in the 1960’s and early 70’s the public was alerted to the dangers of pesticides, hazardous wastes and toxic effluents.
Television news coverage of environmental disasters and public protests demanding greater environmental protection became common place.
These events played an important role in mobilizing public opinion and were a major factor in the passage of the U.S. Clean Air Act in 1972.
Statutory Laws: The Legislative Branch
Federal laws (statutes) are enacted by Congress and must be signed by the President.
27 major federal environmental laws were enacted and signed into law in the 1970’s.
Public Comment Can Affect A Bill
How a bill becomes law
After introduction, each bill is referred to a committee or sub-committee with jurisdiction over the issue for hearings and debate
The public often has an opportunity to testify.
The bill’s language is modified, multiple bills may be combined, and then the overall bill is passed on to the full committee for a vote when the bill is considered widely acceptable to the full house or senate.
Citizens Line-up To Testify Before Congress
Committee Hearings and Compromise
A bill succeeding in full committee is reported to the full House or Senate for a floor debate.
Amendments may be proposed at each stage
The House and Senate generally have different versions of a bill and these must be sent to a conference committee to iron out differences
The final bill goes back to House and Senate for confirmation of the compromise bill.
Final Steps in Passing A Statute
Next, the bill is passed on to the President who may sign it or veto it. A 2/3 vote of House + Senate can override veto if necessary.
If President takes no action within 10 days of receiving a bill from Congress, it becomes law without his signature.
You can find out how your legislators voted on environmental issues by consulting the non-partisan Thomas Website maintained by congress or by checking the League of Conservation Voters website.
Two types of legislation: 1) authorizing bills become law 2) appropriations provide funds
Legislators who cannot gain enough votes to pass projects through regular channels, will often try to add authorizing amendments (riders) into un-related funding bills that they know will pass (e.g. money for veterans).
Industry groups may use this tactic to roll back environmental protections.
Lobbying Influences Government
Groups or individuals with an interest in pending legislation can often influence through lobbying.
Lobbying consists of visiting congressional offices and talking directly to representatives to persuade them to vote in their favor.
Sometimes average citizens lobby congress.
Not everyone can go to Washington to lobby their representatives, so many people join organizations that send professional lobbyists to carry their message.
The NRA, AARP, Sierra Club, Audubon Society and many other groups use this approach.
What can you do?
Get involved in local election campaigns
Write letters or e mails to representatives and senators
Get media attention
Get celebrity support
Organize protests or marches
Do public education campaigns
An Environmental Protest
Case Law: The Judicial Branch
The Judicial Branch establishes environmental law by ruling on the constitutionality of statutes and interpreting their meaning.
Often, congress passes vague environmental laws and lets the courts “fill-in the gaps”
The Court System
The U.S. is divided into 96 federal court districts
Over these are 12 circuit courts of appeals
The States also have courts which parallel the federal system.
The U.S. Supreme Court is the court of last resort for both the state and federal court systems.
The Supreme Court Decides Key Rules
The supreme court consists of a group of 9 Justices whose job is to determine if a law or policy is consistent with the U.S. constitution and laws passed by congress.
They make pivotal and far reaching decisions, many of which affect environmental policies.
A famous recent case was SWANCC vs. The Army Corps of Engineers (ACOE).
In this case a group of Chicago area towns sought to build a landfill on wetlands, but ACOE refused to issue the permit to allow the landfill.
The Supreme Court ruled in favor of SWANCC.
Before a trial can start, the litigants must establish that they have standing.
Standing -plaintiffs must show that they personally are materially affected by the situation they are petitioning the court to redress.
Must show that there is a present controversy for which a decision is needed.
The court may deny standing if these criteria are not met.
In a 1969 the Sierra Club was denied standing in a case against the U.S. Forest Service and Disney Corporation.
Criminal Law Prosecutes Lawbreakers
Violation of some environmental laws constitutes a criminal offense.
Deliberate, egregious pollution cases can lead to criminal prosecution.
Charges can be filed by the EPA’s Office For Criminal Investigation.
Even presidents of corporations can be found criminally liable for violating environmental laws if they were grossly negligent or they knowingly were violating the laws.
Civil Law - defined by a body of laws regulating relations between individuals or corporations
Common Law - customs and previous court decisions establish precedent
Tort Law - Civil action seeking damage compensation. Being found guilty cannot result in jail, only financial penalties.
Most people consider it more serious to be convicted of a criminal offense than to lose a civil case, but a civil judgment can be very expensive:
A group of Alaskan fisherman won 5 billion dollars from Exxon Corporation for the Valdez Oil Spill.
Injunctions Can Provide Relief
Sometimes the purpose of a civil suit is to seek an injunction.
Heard only by a judge, no jury
Orders the party involved to cease and desist from activities that are in violation
Environmental groups have been very successful in using injunctions to stop mining or logging operations or to force the government to uphold the Endangered Species Act or air or water pollution laws.
SLAPP Suits Can Intimidate
Strategic Lawsuits Against Political Participation - practice of suing citizens who criticize businesses or agencies over environmental issues
Form of harassment
Even though most of the suits are dismissed, the citizens or government agencies end up paying enormous legal costs
A Texas woman called a nearby landfill a dump and the couple was sued for $5 million.
Administrative Law: Executive Rules
More than 100 federal agencies and thousands of state and local boards and commissions have environmental oversight.
Federal agencies often delegate power to a matching state agency to decentralize authority.
Most executive agencies are under the jurisdiction of cabinet level departments such as Agriculture or Interior.
The Executive Branch
Agency rule making can be informal, in which case interested parties can submit comments, or formal in which case a public hearing is held with witnesses and testimony.
Executive orders can come from the President but change with politics.
Clinton ordered protection for 90 million acres of nature preserves. On Bush’s first day in office, he suspended 60 regulations of Clinton’s administration and soon ordered overhaul of environmental laws to ease restrictions and promote development.
EPA - primary agency with responsibility for protecting environmental quality
Greatly influenced by politics
Department of Interior
National Park Service
Bureau of Land Management
U.S. Fish and Wildlife Service
Department of Agriculture
U.S. Forest Service
Department of Labor
Occupational Health and Safety Agency (OSHA)
Independent agencies such as the Food and Drug Administration often play a role
Agencies tend to be “captured” by industry they are regulating as workers move back and forth between government and industry
International Treaties and Conventions
Over past 25 years, more than 170 environmental treaties and conventions have been negotiated
Unfortunately many of these are vague
Most nations unwilling to give up sovereignty so there is no body that can enforce the rules
International courts has no enforcement powers
New Approaches Make Treaties More Effective
Some treaties incorporate innovative voting mechanisms
When a consensus cannot be reached, they allow a qualified majority to add stronger amendments that do not need ratification. All are legally bound to whole agreement, unless they expressly object.
Example: Montreal Protocol on CFCs
World opinion can embarrass violators.
Trade sanctions can compel compliance.
International Governance Controversial
Citizens and non-governmental organizations are organizing to protest policies of World Bank, International Monetary Fund, and World Trade Organization.
50,000 people showed up at a rally in Seattle to protest WTP policies.
100,000 people demonstrated violently in Genoa, Italy at meeting of Group of Eight Industrialized Nations.
Will Globalization Help?
Environmental governance - how we make environmental decisions and who gets to make the decisions
How we decide and who gets to decide often determine what we decide
Aarhus Convention of 1988 ratified by 40 nations
Recognizes basic right of every person, present and future, to a healthy environment and specifies how decision making processes will occur
Dispute Resolution and Planning
Wicked Problems – Many environmental problems are called wicked because they have no simple right or wrong answers, but are intractable problems because they are nested within sets of interlocking issues
Often there is a poor match between bearers of costs and bearers of benefits
Adaptive Management - A solutions approach designed to test clearly formulated hypotheses about the actions being taken
“ Learning by Doing” - monitor results of initial decision and change if need be
Resilience in Ecosystems and Institutions
Most important characteristic of natural systems is their resilience, or ability to recover from disturbance.
Ability to reorganize in creative and constructive ways. Example: secondary succession
Researchers found trying to manage ecological variables one factor at a time leads to less resilient ecosystems.
Arbitration And Mediation Can Settle Disputes
Arbitration is a formal dispute resolution, based in a trial-like setting.
Arbitrator takes a more active role than a judge, and is not constrained by precedent
Arbitrator is interested in finding a resolution rather than in strict application of law
Mediation is a process in which disputants are encouraged to come up with a solution on their own under the guidance of a facilitator or mediator.
Useful in complex issues with multiple stakeholders with different interests
Working with local communities to gain traditional knowledge and gain local acceptance of management plans
Example: Bay of Fundy project in Nova Scotia
Some Nations Have Green Plans
Green plans are comprehensive, long range national environmental strategies
Country with best plan is Netherlands. It specifies 7 principles by which decision making will be guided.