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Environmental Policy, Law, and Planning

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Outline

• Environmental Policy Cycle NEPA

• Environmental Law Statutory Case Administrative

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

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ENVIRONMENTAL POLICY

• Environmental Policy - Official rules and regulations concerning the environment that are adopted, implemented, and enforced by a governmental agency. Also encompasses public opinion.

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Environmental Policy

• Politics as Power Politics is a struggle among competing

interest groups as they strive to shape public policy to suit their own agendas.

- All interest groups share a desire to affect government policy to benefit themselves or their cause .

- Exist at all levels of government (local, state, national) as well as internationally

- Name can “hide” true agenda of group

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Examples of “Environmental” Interest Groups

• Sierra Club (M)• People for the Ethical Treatment of Animals

(LW)• Heritage Foundation (RW)• Accuracy in Media (RW)• Pacific Legal Foundation (RW)• Earth Liberation Front (LW)• We Can Lead (broad-based, with LW ties)

LW – left wing M – moderate RW – right wing

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Environmental Policy

• Rational Choice 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.

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Policy Cycle

• Can be influenced by special interest groups, media focus, talking heads

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Environmental Rights? NIMBY US!

• 1982 World Charter for Nature – assertion that environmental protection necessary for human survival

• 1987 World Commission on Environmental Development – fundamental right of humans to healthy environment

• 1988 American Convention on Human Rights – all have right to healthy environment

• However – U.S.A. does not have a constitutional provision for environmental protection

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Environmental Rights

• National Environmental Policy Act (1970) Authorizes Council on Environmental

Quality as the oversight board. Directs federal agencies to take

environmental consequences into account during decision making.

Requires an Environmental Impact Statement (EIS) for every federal project having significant environmental impact.

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EIS

• Large document that must include Project Overview Project Description Laws and regulations pertaining to the project Environmental Setting for Air, Water,

hydrogeology, wildlife, animal welfare, etc. (will depend on the project)

Environmental Impacts Mitigation Measures and Alternatives Alternative Analyses Example for a pork processing plant EIS

http://www.eqb.state.mn.us/pdf/FileRegister/hancock_drafteis.pdf

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ENVIRONMENTAL LAW

• 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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Examples of Environmental Statutes and Case Laws

• Environmental Statutes NEPA Clean Air Act Clean Water Act Etc.

http://research.lawyers.com/Federal-Environmental-Statutes.html

• Case Laws

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Environmental 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 Law: The Legislative Branch

• Federal laws (statutes) are enacted by Congress and must be signed by the President. After introduction, each bill is referred to a

committee or sub-committee with jurisdiction over the issue for hearings and debate.

Language is modified, multiple bills may be combined, and then the overall bill is passed on to the full committee.

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Legal Manuvering in the Muck

• U.S. government usually had a laissez-faire approach; cost of doing business

• First U.S. law was Rivers and Harbors Act of 1899 to prevent excessive dumping that blocked navigation on waterways

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Environmental Activism

• 1960’s and 1970’s – increased activism based on environmental degradation

• Rachel Carson and Silent Spring (1962) – overuse of pesticides caused disruption of natural ecosystems/deaths of birds/effects on humans

• Barry Commoner Closed Circle (1971) - capitalist technologies were chiefly responsible for environmental degradation, as opposed to population pressure

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Environmental Activism

• 1969 – Santa Barbara oil well blowout televised nightly

• Cuyahoga River fire, June 22, 1969 http://www.pbs.org/thereturnofthecuyahoga/

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Environmental Activism

• First Earth Day, April 22, 1970 – initiated by Senator Gaylord Nelson (D – Wisconsin)

• National Day of observance of environmental problems and an environmental “teach-in”

• 20 million demonstrators and 1000’s of schools and communities participate

• When confronted with info that April 22 was 100th anniversary of Vladmir Lenin’s birthday, Nelson retorted ““On any given day, a lot of both good and bad people were born,” he said. "A person many consider the world’s first environmentalist, Saint Francis of Assisi, was born on April 22.“ (Wikipedia)

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Environmental Activism = Statutes

• Further activism led to the first environmental statutes

• NEPA of 1970• Clean Air Act of 1970

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Legislative Branch

A bill succeeding in full committee is reported to full House or Senate for a floor debate.

- Amendments proposed at each stage. House and Senate versions are often

different, and must be sent to conference committee to meld differences.

Bill goes back to House and Senate for confirmation.

Passed on to President for signature.

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Legislative Riders

• 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. Ideally, riders are added onto strongly-

supported legislation.- Lobbyists can persuade legislators to

add riders to bills President now has line-item veto.

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Case law: The Judicial Branch

• Establishes environmental law by ruling on constitutionality of statutes and interpreting their meaning.

• Court System U.S. divided into 96 federal court districts.

- Over these are circuit court of appeals. U.S. Supreme Court.

• First judge to hear a case arising from a particular situation has the greatest latitude to interpret the law and set a precedent.

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The Judicial Branch

• Criminal Law - Derives from federal and state statutes that prohibit wrongs against the state or society.

• Proof lies with prosecution http://www.epa.gov/compliance/resources/

cases/criminal/highlights/2010/zaninovich-louie-02-09-10.pdf

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EPA Most Wanted!

• And you think the FBI is tough…• http://www.epa.gov/fugitives/

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Criminal Law

• Violations of statutes can be determined by the political climate in Washington D.C., although truly heinous cases are prosecuted regardless.

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The Judicial Branch

• Civil Law - Defined by a body of laws regulating relations between individuals or corporations.

• Decided on by “preponderance of evidence”, culpability, “good faith effort”, etc. Common Law - Customs and previous court

decisions establish precedent. Tort Law - Civil action seeking damage

compensation. Purpose of civil suit may be an injunction from the

actions of an individual or corporation.

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Examples

• Tort Law case examples http://www.butlerwooten.com/CM/VerdictsandSettlements/VerdictsandSettlements32.asp

• http://www.accessmylibrary.com/article-1G1-120719868/toms-river-n-j.html

• Also Exxon Valdez oil spill, Woburn case• These give you an idea of what is involved!

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Judicial Law

• Citizens and environmental groups can bring cases to court against polluters

• First judge to hear a case arising from a statute or situation sets the precedent: are normally binding in one state but not another!

• If a judge distinguishes a case, they do not have to adhere to a precedent

• Judges can also overturn a precedent if prior decision is outdated by technology or community values

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Example

• Sierra Club vs. Morton 1972 – Sierra Club challenges Dept of Interior’s right to lease land to Disney for a Ski resort

• Went to Supreme Court

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SLAPP

• Strategic Lawsuits Against Political Participation - Practice of suing citizens/environmental groups who criticize businesses or government agencies over environmental issues. Legal defense costs can be exorbitant. Are usually groundless actions on part of

polluter Intimidation

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Administrative Law: The Executive Branch

• More than 100 federal agencies have environmental oversight. Federal agencies often delegate power to

a matching state agency to decentralize authority.

Presidential Executive Orders permit expansion or constriction of environmental statutes

Changeable, based on political party of president!

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The Executive Branch

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Regulatory Agencies

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

• Department of Interior (Natural Resources) 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)• Revolving door with workers moving back

and forth between industry and government.

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Administrative Courts

• Hear challenges to agency rules and regulations. Administrative judge can consider both the

validity and the rule, and its application to a specific case.

- Parties can appeal to district court. Also hear enforcement cases. Rules for evidence less strict; penalties enacted

by judge to encourage settlement Some folks don’t take the hint, go to court and

are hit with a higher fine!

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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.

International court has no enforcement powers.

Accords and sanctions World opinion

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International Agreements

• 1992 Rio de Janiero UN Conference on Environment and Development – 100 countries agree to restrictions on greenhouse gas emissions; U.S. asked for wording change to “urged”, not required

• 1987 Montreal Protocol – despite an initial 50% reduction, further research lead to outright ban of CFCs

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NGOs

• Sanctions based on findings by NGOs can force countries to ‘behave’

• Ex. Dumping of coal fly ash into North Sea by Great Britain discovered by Greenpeace; although not forbidden by Oslo Convention on ocean dumping, made Great Britain look bad

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Trade Sanctions

• Compels countries to not act in a way that violates an international situation

• Sanctions against purchasing CFCs effective after Montreal Protocol

• World Trade Organization established to make trade fair and encourage development; however, has been used to subvert national environmental laws

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Catch 22

• WTO - 1998 forbids US to restrict imports of net caught shrimp from Asian countries (nets catch and kill sea turtles)

• NAFTA – Methanex of Canada files claim against California for banning MTBE (methyl-tert-butyl-ether), a suspected carcinogen in gasoline; Methanex claimed their sale of methanol will be harmed by the ban

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Private Citizen Outrage

• Use of protests, whether violent or Gandhiesque, in opposition of WTO, IMF and the World Bank regarding effects of international politics

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Globalization and Environmental Governance

• Globalization requires cooperation by all parties when environment is at stake

• Focus on the social dimensions of natural resource use and ecosystem management

• Involves cultural and economic considerations• Aarhus Convention of 1988 – European countires,

and later Asian countries, gives citizens, organizations and countries rights to investigate pollution from other countries that affect them Could the U.S.A be involved in this? What

problems do you forsee?

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Trade “Winds”

• Pollution from Asia travels across the Pacific to effect U.S. and Canada

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DISPUTE RESOLUTION AND PLANNING

• Wicked Problems - Environmental problems tend to be intractable because they are nested within sets of interlocking issues. Often poor match between bearers of costs and

bearers of benefits. Serious consequences Best solution is community based

• Adaptive Management - A solutions approach designed to test clearly formulated hypotheses about the actions being taken. “Learning by Doing”

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Environmental Decision Making

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Local Example of “Wicked Problem”

• http://no2rezone.com/

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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.- Researchers found trying to manage

ecological variables one factor at a time leads to less resilient ecosystems.

Focused on solving single problem. Initial success leads to eventual

collapse

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Example

• Forest fire suppression Not cleaning up dead tree debris increases

likelihood of forest fires By putting out fires early, debris builds up Huge conflagrations result, leading to

private citizen property and sometimes life damage

Now more reason to fight fires, but debris builds up

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Precautionary Principle

• When an activity raises threats of harm to human health of the environment, precautionary measures should be taken. Even if some cause and effect

relationships are not fully established.

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Precautionary Steps

• You are obligated to stop something if it helps prevent harm

• Burden of proof for harm from technology, process, activity or chemical lies with the proponent, not the public

• Public has the right to examine a range of alternatives, including nonuse, for new technologies, processes or chemicals or starting a new activity

• Decisions must be open, informed and democratic, and include affected parties

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Examples

• www.no2rezone.com• http://www.friendsofmd.org/across-maryland/

incinerator-project-hits-snag

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Arbitration

• 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.- Useful when winning an entire case might

be difficult.- Does not create legally-binding

precedent.- Less opportunity to appeal.

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Mediation

• Mediation is a process in which disputants are encouraged to come up with a solution on their own. Useful in complex issues with multiple

stakeholders with different interests.

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Collaborative Approaches to Planning

Collaborative Approaches - Working with local communities to gain traditional knowledge and gain local acceptance of management plans.

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Summary

• Environmental Policy Cycle NEPA

• Environmental Law Statutory Case Administrative

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

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