Congress created the primary framework for air and water pollution control in the 1970 Clean Air Act and 1972 Clean Water Act. RCRA and TSCA were enacted in 1976 and CERCLA in 1980. Thus, we have almost 40 years worth of experience with the major federal environmental laws. What lessons can we learn and how should we use our knowledge in the future?
I began the practice of environmental law in 1973. At that time, the regulated community was very concerned that requiring the best treatment systems technologically available for air and water discharges would cause serious economic problems for U.S. industry and local governments. History has shown that this concern was not justified. The technology forcing aspects of the Clean Water Act and Clean Air Act have worked effectively to limit emissions into water and air from stationary sources. Compliance with the standards created pursuant to the Clean Water Act and Clean Air Act resulted in innovations, including recycling, innovative technology, new jobs and changes in the use of materials, all practices which were beneficial to the economy.
Technology forcing, regulation and uniform enforcement produced substantial results. Why not use the same concepts today where they are applicable to discharges which cause problems? Economic considerations are still important, technology forcing can only go so far, but improvements can be made without adversely affecting the economy. Many of the improvements made to comply with water and air laws would now fit within the rubric of “sustainability”.
American environmental laws set models for other countries. This status is changing. The European Union has created new laws that, in some cases, are better than the United States’ laws while still taking into account cost and economic considerations.
Concerns about Competitiveness
It is valid to be concerned about the competitiveness of U.S. industry if new environmental laws and regulations are passed. However, 40 years of history teaches us that carefully drawn legislation can produce new practices, new technologies and new jobs which will be beneficial to the economy and to the environment.
Coordination with Other Countries
There is serious concern that reducing emissions further will create conditions in which U.S. industry cannot compete with foreign industries. There is a need to seek commitments from other countries; however, this need should not be used as an excuse to avoid new environmental laws or regulations. China is ahead of the United States in creating new jobs through new technologies related to energy and improvement of the environment. The economic benefit of using the laws and regulations that worked best in the 1970s and 1980s should not be discounted or used as an excuse for the failure to legislate or regulate.
Federal environmental laws were created in response to crisis. A river catching fire, the loss of visibility in cities due to air pollution, contaminated groundwater and soil from historic disposal. Many factors have created what most people view as an environmental crisis in numerous areas. Politics has played a significant role in preventing an effective response to our current problems. However, we again need to consider what history teaches us. The Clean Water Act is often rated as the most successful environmental law. It was enacted while a Republican was President. Long time EPA employees now in private practice tell me the agency worked the best under George Bush, Sr., another Republican President. Thus, politics should not be used as a basis for opposition to changes and improvements in environmental laws and regulations.
When the history of the past 40 years is accurately written, I predict we will question why so much money has been spent on cleanup to stringent levels that were not necessary to protect human health or the environment at superfund sites, and so little attention has been given to the need to improve air quality. Studies from numerous reputable sources have shown that exposure to particulates in cities has a long term effect on the health of all residents. Potential exposure to hazardous substances in soil and groundwater creates significant emotion while poor air quality in major metropolitan areas is generally accepted as inevitable. A comprehensive and holistic review of the piecemeal environmental laws may result in new priorities and the opportunity for creative solutions to the major issues.
Many significant environmental problems are created by pollution from non-stationary sources. Thus, solutions will be more difficult than the technology forcing provisions that work so well in the Clean Water Act and Clean Air Act. Nevertheless, we as environmental lawyers should use our experience and knowledge to educate others and seek legal, regulatory and voluntary changes to address the environmental issues that present the most serious problems to public health and the environment. We have the experience and the knowledge. I submit that it is our duty to the public and to future generations and our ideas can result in changes that improve the economy. Sustainability is the first significant environmental movement to come from the bottom up rather than the top down. We have a responsibility to further that movement in the development of new laws and regulations.