Chapter 5 Environmental Regulatory Statutes in Perspective

 

"…job of imposing civic values and policies on marketplace behavior…today draws on techniques of regulatory public law even more than on common law." (p. 301)

 

Early efforts to regulate

· prior to 1880, limited to municipalities

· limited system failed

-industries grew in size and political influence

-little scientific evidence to tie pollution to health effects

-ordinance and judicial decrees ineffectual (transboundary problem, multiple polluters, intransigent problem)

 

Great Depression to Earth Day

· forum shifted from municipal to state level

· state regulation failed ("review and permit" authority)

-lack of sufficient manpower and resources to enforce law

-lack of sufficient legal authority? (authors question this claim)

-statutes often vague

-politics "race of laxity"

 

Modern Result—Media Specific Regulation

· more than a dozen major environmental statutes passed between 1968 and 1974

· dramatic shift in power from states to national government

· federal/state partnership or "cooperative federalism"

-federal carrots--state program grants and technical assistance

-federal sticks--withholding grants, EPA authority to veto state permits, back EPA monitoring and enforcement, and EPA cancellation of "primacy"

· some argue for more "devolution" of authority to states (do you agree?)

 

Typology of Regulatory Approaches

· Proactive "preventative"—regulate the introduction of new chemicals

Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)

Toxic Substances Control Act (TSCA)

· Reactive "cleanup"—back end of waste disposal process

Comprehensive Environmental Response, Cleanup, and Liability Act (CERCLA)

Resource Conservation and Recovery Act (RCRA)

· Process or regulatory—provides for regulation of new and existing waste streams

Clean Air Act

Clean Water Act

 

Common Elements of Regulatory Systems

· planning

· standard-setting

· permitting

· monitoring and surveillance

· enforcement

· feedback from implementation

 

Regulatory Strategies

 

· Command and control (prescribe specific effluent limitations) (e.g., BACT)

 

· Market incentives (use market mechanism to encourage appropriate behavior) (e.g., taxes, subsidies, emission rights)

 

· Prohibiting actions—"roadblocks" (e.g., ESA)

 

· Assessment and consideration as a precondition to action

 

· Controlling access to consumer markets

 

· Requiring costs to environmental damage to be internalized by remedial expenditures

 

· Requiring identification and disclosure of environmental liabilities and risks (e.g., NEPA)