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William P. CunninghamUniversity of Minnesota

Mary Ann CunninghamVassar College

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Chapter 24Chapter 24

Lecture OutlineLecture Outline**

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Environmental Policy, Law, and Planning

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Outline

• Environmental Policy• Major Environmental Laws• How Environmental Laws Are Made

Statutory Law Case Law Administrative Law

• Regulatory Agencies• International Treaties and Conventions• Dispute Resolution and Planning

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Basic Concepts In Policy

• 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

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Elements of Good Environmental Policy

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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.

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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

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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.

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Precautionary Principle

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.

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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.

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Steps In The Policy Cycle

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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.

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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.

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Smog Over Los Angeles

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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.

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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.

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Endangered Gray Wolf With Pup

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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.

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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

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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

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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.

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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.

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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.

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Citizens Line-up To Testify Before Congress

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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.

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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.

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Legislative Riders

• 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.

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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.

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Public Activism

• 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

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An Environmental Protest

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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”

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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.

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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.

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Legal Standing

• 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.

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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.

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Civil Law

• 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.

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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.

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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.

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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.

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The Executive Branch

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Administrative Law

• 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.

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Regulatory Agencies

• EPA - primary agency with responsibility for protecting environmental quality Cabinet-level department

- Greatly influenced by politics

• Department of Interior National Park Service Bureau of Land Management U.S. Fish and Wildlife Service

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Regulatory Agencies

• 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

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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

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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.

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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.

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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

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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

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Adaptive Management

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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.

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Resilience

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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

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Community-Based Planning

• Working with local communities to gain traditional knowledge and gain local acceptance of management plans Example: Bay of Fundy project in Nova Scotia

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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.

• Has been successful in improving environment