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William P. CunninghamUniversity of Minnesota

Mary Ann CunninghamVassar College

Copyright © The McGraw-Hill Companies, Inc. Permission required for reproduction or display.

Chapter 24

Lecture Outline

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Environmental Policy, Law, and Planning

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Outline

• Environmental Policy

• Major Environmental Laws

• Shaping Environmental Policy

Executive

Judicial

Legislative

• 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 as well as public opinion that helps shape environmental policy.

• Basic Principles of Environmental Policy

Human needs

Ecosystem health

Sustainability

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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 195 independent 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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Cost-Benefit Analysis

• In choosing between policy alternatives, preference should be given to those with the greatest cumulative welfare and the least negative impacts. Difficult to implement because:

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 without information

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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.

• The European Union has adopted this approach.

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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.

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Money Influences Policy

• Those with the most money can advertise to

promote their point of view and draw voters

to their side

• Large donations are essential for success in

today’s political campaigns

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Public Awareness Influences Policy

• Many consider public citizenship the most

important force in a democratic government.

• Civic action has led to many of our strongest

environmental protections.

• Policy changes often start with protests over

environmental insult.

• Media attention helps publicize protests.

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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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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 to make US waters “fishable

and swimmable”.

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 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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Steps In The Policy Cycle

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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.

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Statutory Laws: The Legislative Branch

• Federal laws (statutes) are enacted by Congress

and must be signed by the President.

• How a bill becomes law

After introduction, each bill is referred to a committee or sub-committee for discussion 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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Bills Move Slowly Through 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.

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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 (http://thomas.gov)

maintained by Congress or by checking the League

of Conservation Voters website.

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Legislative Riders

• There are two types of legislation:

authorizing bills become law; and

appropriations provide funding.

• 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 or disaster relief).

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 have influence through

lobbying.

• Lobbying consists of visiting congressional offices

and talking directly to representatives to persuade

them to vote in one’s 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 that carry their

message.

• The NRA, AARP, Sierra Club, Audubon Society

and many other groups use this approach.

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Case Law is Decided by Judges

• Case law is the body of legal opinions built up by many court cases.

• Judges or juries decide cases brought up due to damage to health or property, or failure to enforce current environmental law.

• The Judicial Branch establishes environmental law by ruling on the constitutionality of statutes and interpreting their meaning.

• Often, congress passes vague environmental laws and leaves it to the courts to “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 regional courts of appeals

Each state also has a court system which parallels 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 Major Cases

• The Supreme Court consists of a group of 9

justices whose job it 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 recent case relevant to environmental issues was

Citizens United vs. FEC. (2010)

Majority argued that U.S. constitution gives corporations

the same rights and protections as individuals.

Fossil fuel corporations would now increase campaign

contributions for subsequent elections.

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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 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 pollution can lead to criminal

prosecution.

• Charges can be filed by the EPA’s Office For

Criminal Investigation.

Corporations officers can be found criminally

liable for violating environmental laws if they

were grossly negligent or they knowingly violated

the law.

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Civil Law

• Civil Law - defined as laws regulating relations between individuals or corporations

Common Law - customs and previous court decisions establish precedent for individual rights and responsibilities.

• 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 from Exxon Corporation for the Valdez Oil Spill.

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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 or retaliation

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 husband was sued for $5 million for failing to “control his wife”.

Can halt progress on an issue

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Executive Agencies Make Rules and

Enforce Laws

• More than 100 federal agencies and thousands of

state and local boards and commissions have

environmental oversight.

Most executive agencies are under the

jurisdiction of cabinet level departments such as

Agriculture, Interior or Justice.

The public can comment on agency rule-making.

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The Executive Branch

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Administrative Law

• Executive orders can be powerful agents for change.

• Executive orders from the President change with politics.

• They can be quickly undone

Clinton ordered protection for 90 million acres of nature preserves. On G.W. 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 as funding and

rule-making reflect the views of President and

advisors.

• Department of Interior

National Park Service

Bureau of Land Management

U.S. Fish and Wildlife Service

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Regulatory Agencies (cont.)

• 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 (called the “revolving door”)

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International 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 court has no enforcement

powers

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Major International Agreements

• CITES (1973)

Values wildlife, lists endangered/threatened

species

Limits trade of these organisms.

• Montreal Protocol (1987)

Protects stratospheric ozone

Bans CFCs

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Major International Agreements (cont.)

• Basel (1992)

Restricts shipment of hazardous wastes across

borders

• UNFCC (1994)

Nations to share data on climate change

Reduce production of greenhouse gases

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Enforcement of International Agreements

• Some treaties incorporate innovative voting mechanisms

When a consensus cannot be reached, a qualified majority can add stronger amendments that do not need ratification. All are legally bound to whole agreement, unless objected to expressly.

• World opinion can embarrass violators.

• Trade sanctions can compel compliance.

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Arbitration And Mediation Can Settle

Disputes

• Arbitration is a formal dispute resolution,

based in a trial-like setting.

• 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.

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New Approaches to Policy

• Adaptive Management - A solutions approach

designed for management to be experimental for

the actions being taken

“Learning by Doing” - monitor results of initial decision and change if

need be

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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 of the system to reorganize in creative and

constructive ways.

Researchers found that trying to manage

ecological variables one factor at a time leads to

less resilient ecosystems.

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Resilience

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Community-Based Planning

• Working with local communities to gain traditional

knowledge and gain local acceptance of

management plans

• Involve all stakeholders and interested parties

• Participation is an important management tool

• For example, the Bay of Fundy project in Nova

Scotia plans for ecological, economic and social

sustainability.

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Green Plans and Sustainability

• 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