ENVIRONMENTAL POLICY, LAW AND PLANNING

Chapter 10

Policy, in general, is a plan or statement of intentions intended to accomplish some end.

  • It may be written or stated.
  • It may refer to a course of action or inaction.

Some political scientists limit the term public policy to the principles, laws, executive orders, codes, or goals established by some government body or institution.

Environmental policy refers to those official rules and regulations concerning the environment that are adopted, implemented and enforced by some governmental agency.

FORMS OF POLITICAL DECISION MAKING.

POLITICS

Politics is the struggle among competing interest groups as they strive to shape public policy to suit their own agendas.

The political system...

  1. Establishes rules to ensure civil competition.
  2. Encourages compromises and balances different interests to the extent possible.
  3. Codifies compromises as public policy.
  4. Enforces laws and rules based on that policy.

Criticism: This system could result in a tyranny of a powerful elite over impotent masses.

RATIONAL CHOICE

Another model is based on rational choice and science-based management.

Professional administrators would weigh various options and make an objective, methodical decision that would bring maximum social gain.

This is a utilitarian approach in which no policy should have greater total costs than benefits.

Criticisms:

  • Many conflicting values and needs cannot be compared because they are not comparable or we do not have enough information.
  • There are very few broad societal goals that everyone agrees with. Most benefit specific groups and individuals, many which are in conflict.
  • Policy makers look after their own interest in general, rather the good of society.
  • Large investments in existing programs prevent from considering new alternatives.
  • Uncertainty about consequences of new options compels decision makers to stick closely to previous policies to reduce the likelihood of adverse consequences.
  • Lack of enough data or models to calculate accurate the cost and benefit of new policies.
  • Segmented and large bureaucracy makes it very difficult to coordinate decision making.

THE POLICY CYCLE

How do policy issues make their way onto the stage of public debate?

  1. Identify the problem.
  • The government could do this for the public.
  • The public could identify the problem.
  1. Set the agenda.
  • This includes the definition of terms, identification of stakeholders, choose tactics, include related issues, etc.
  1. Develop proposals in the form of administrative rules or legislation.
  1. Building of support through media campaigns, public education, lobbying, etc.
  1. Proposals get enacted into laws or administrative rules.
  1. Government agencies organize bureaucracies, provide services, enforce rules and regulations, monitor impact, etc.
  1. Evaluation of impact on target or non-target populations shows whether the intended goals have been achieved.
  1. Suggestion of changes to improve the law or rule to make it more effective or fair.

NATIONAL ENVIRONMENTAL POLICY ACT (NEP)

It is an Act of Congress passed in 1969 and signed into law by President Nixon in 1970.

It deals with environmental law and environmental policy.

This Act...

  1. Authorizes the Council on Environmental Quality (CEQ). This is the oversight board for general environmental conditions.
  1. It directs federal agencies to take environmental consequences into account in decision making.
  1. It requires an Environmental Impact Statement (EIS) be prepared for every major federal project having a significant impact on the quality of the human environment.

The Environmental Impact Statement has proven to be a powerful tool for environmental conservation.

  • It is required by federal projects and in a scale that will have a significant impact on the human environment.
  • It requires a more open and environmentally sensitive planning in both the agencies themselves and in private corporations seeking to do business with the government.
  • It can bring to light adverse aspects of a project that might otherwise remain hidden.
  • An EIS doesn't forbid environmentally destructive activities if they comply otherwise with the law, but it demands that we admit what we are really doing.
  • EIS are costly, take 6-9 months to complete, and are several hundred pages long.
  • Agencies that don't agree to prepare an EIS can be prevented from action by the court.

An EIS should contain...

  1. Purpose and need for the project.
  2. Alternatives to the proposed action, including taking no action.
  3. A statement f positive and negative environmental impacts of the proposed activity

ENVIRONMENTAL LAW

Laws are rules set up by authority, society or custom that are backed up by some enforcement power.

Environmental law constitutes a special body of official rules, decisions, and actions concerning environmental quality, natural resources, and ecological sustainability.

In the U. S., each of the three branches of government contributes to establishing rules of law.

  1. Statue law is produced by the legislative branch of government declaring, prohibiting or commanding something.
  1. Case law is derived from court decisions in both civil and criminal cases.
  1. Administrative law rises from executive orders, administrative rules, and enforcement decisions in which statues passed by the legislature are interpreted in specific applications and individual cases.

ENVIRONMENTAL HISTORY.

U.S. environmental policy, until very recently, had a laissez-faire (hands off) attitude towards environmental degradation.

Rachel Carson wrote Silent Spring (1962) and Barry Commoner published Closing Circle (1971). They alerted the public about ecological and health risks of toxic materials in the environment.

Emergence of the media allowed access to environmental news very quickly.

In the 1970s, more than 27 major environmental laws were established.

Some of the most important Environmental Laws:

  • National Environmental Policy Act, 1969. Created the Council on Environmental Quality.
  • Clean Air Act, 1970. Air quality standards.
  • Clean Water Act, 1972. Water quality goals and created pollutant discharge permits.
  • Endangered species Act, 1973. Protects threatened and endangered species.
  • Safe Drinking Water Act, 1974. Set standards for drinking water supplies.
  • Resource Conservation and Recovery Act, 1976. Regulates hazardous waste storage, treatment, transportation, and disposal. Major amendments were made in 1984.

Many environmental groups try to influence the legislative process.

  1. STATUTORY LAW - Legislative Branch

Federal laws are enacted by congress and must be signed by the President.

Path of a bill from beginning to law:

  1. Idea is turned into a bill
  2. Legislator agrees to sponsor it.
  3. Bill introduced in House and Senate.
  4. Referred to Committee.
  5. Referred to subcommittee..
  6. Hearings.
  7. Bill rewritten.
  8. Full committee.
  9. Bill mark up by full committee.
  10. Debate in House and Senate.
  11. Conference committee to reconcile differences between both versions of the bill.
  12. Back to house and Senate for confirmation.
  13. To President for signing.
  14. Becomes law.

There are two types of legislation:

  1. Authorizing bills become laws.
  2. Appropriation bills provide funds for federal agencies and programs.

Appropriation bills are not suppose to make policy but to provide funds for an already existing program or plans.

Riders are amendments that are added to unrelated funding bills.

When the conference report goes back to the House and Senate, the vote is to accept or reject the bill with the amendment without further debate or modification.

The 104th Congress and 105th Congress have been attaching anti-environmental riders to legislation. E.g., relief bills to Kosovo and hurricane victims in Honduras.

Lobbying is the use of personal contacts, public pressure, and political action to persuade legislators to vote or act in their favor.

2. CASE LAW - Judiciary Branch

Appeals to the judicial system have often been the most effective way for seeking redress for environmental damage and forcing changes in how things are done.

Activist judges and sympathetic juries in both federal and state court systems have been willing to take a stand where legislators have not.

Lawsuits can shape environmental policy.

The environmental Defense Fund operates in the courts.

The judicial branch of government establishes environmental law by ruling on the constitutionality of statutes and interpreting their meaning.

Legislators often pass vague law and leave it to the court to handle the details.

The Court system

U.S. is divided into...

96 federal court districts, each of which has at least one trial court.

  • Federal courts have jurisdiction over federal criminal prosecution, claims against the federal government, claims arising under federal statutes or treaties, when defendants or plaintiffs come from two or more states.
  • The residence of the defendant usually determines the venue.

Circuit court of appeals are above the federal court.

12 geographic regions for the appeal courts.

Each State has its own courts that parallel the federal court system.

  • These courts have jurisdiction over cases arising from State laws.

U.S. Supreme Court is the last resort for appeals for both federal and state court systems.

Judges have a tremendous power over the outcome of the trial.

Some courts earn a reputation of being pro- or antienvironmental.

The first judge to hear a case arising from a particular statute or situation has the greatest latitude and can set a precedent.

Precedents are binding only on lower courts in the same system.

Standing: the litigants should have the right to stand before the court and be heard.

  • The main criterion to have standing is to have a valid interest in the case.

Live legal dispute: there should be a controversy that needs a decision. No hypothetical situations are acceptable.

Criminal law prohibits wrongs against individuals, society or state. E. g. murder, robbery.

  • A government prosecutor always initiates it.
  • A jury of peers determines guilt or innocence.
  • Judge keeps order and determines points of law.
  • Violations of many environmental laws constitute criminal offenses.

Civil laws regulate relations between individuals or between individuals and corporations.

  • In cases where there is no law, previous court decisions and custom, called common law, establish precedents to determine rights and responsibilities.
  • In tort law, the plaintiff seeks compensation for an injury.

Strategic Lawsuits Against Political Participation (SLAPP).

  • Citizens are sued when they criticize businesses that pollute the environment.
  • The threat of a lawsuit is enough to deter the citizen from criticizing.

3. ADMINISTATIVE LAW - Executive Branch

There are more than 100 federal agencies and thousands of state and local boards that have environmental oversight.

Most executive agencies come under the jurisdiction of cabinet-level departments such Agriculture or Interior.

The Environmental Protection Agency (EPA) is the primary agency with responsibility for protecting environmental quality.

EPA is concerned mostly with pollution of the environment.

The Departments of Agriculture and Interior are concerned among other things with conservation.

The Department of Interior includes:

  • National Park Service, which is responsible for more than 376 national parks, monuments, historic sites and recreational areas.
  • Bureau of Land Management (BLM) administers some 140 million hectares (350 million acres) of land, mostly in the western United States.
  • Fish and Wildlife Service operates more than 500 national wildlife refuges and administers endangered species protection.

The Department of Agriculture is the home of...

  • U.S. Forest Service, which manages about 175 national forests and grasslands, totaling 78 million hectares (193 million acres).

The Department of Labor houses ...

  • The Occupational Health and Safety Agency (OSHA), which oversees safety in the workplace.
  • The Institute for Occupational Safety and Health (NIOSH) conducts the research used by OSHA to set standards of safety.

There are independent agencies that are not associated to any federal department.

  • Consumer Products Safety Commission passes and enforces regulations to protect consumers.
  • The Food and Drug Administration is responsible for the purity and wholesomeness of food and drugs.

Administrative courts hear challenges to agency rules and regulations.

INTERNATIONAL TREATIES AND CONVENTIONS.

More and more nations have entered into treaties that protect the environment.

More than 170 international treaties have been negotiated and signed in the last 25 years.

Convention for the International Trade in Endangered Species (CITES) protects wildlife against over-exploitation and to prevent international trade from threatening species with extinction.

  • The treaty entered into force on 1 July 1975 and has a membership of 152 countries.
  • These countries act by banning commercial international trade in an agreed list of endangered species and by regulating and monitoring trade in others that might become endangered

Many treaties are vague.

International agreements must be by unanimous consent. One disagreeing nation can in fact veto the treaty.

Trade agreements can be used against environmental protection and be used against environmental laws.

DISPUTE RESOLUTION AND ADAPTIVE MANAGEMENT.

The complexity of many environmental problems arises from the fact that they are a combination of ecological, economic and social issues.

Wicked problems.

  • These are environmental problems that do not have simple right or wrong answers.
  • The problem is an evolving set of interlocking issues and constraints. There is no definitive statement of the problem.
  • They are important and have serious consequences.
  • They are multi-value problems. It often have strong moral, political or professional dimensions."
  • There are many stakeholders involved.
  • Who bears the cost and who enjoys the benefits are usually different parties.
  • No right or wrong answers, only better or worse solution.
  • A solution to one aspect of the problem may reveal other problems.

Here are some examples of wicked problems:

Should we route the new highway through the city or around it?

Formulate our mission statement.

Should the U.S. send armed forces to defend ______(fill in the current hot-spot country)?

Determine the features of our next product.

"Some of the most controversial and politicized environmental debates in the United States today concern the appropriate management of natural resources. This is the case on public forests in the Pacific Northwest where, historically, resource extraction has been the end result of most natural resource policy and management decisions, regardless of multiple-use objectives. Concern for other values (e.g. wildlife, fish, wilderness, and recreation), however, re-emerged during the 1960s and has served to broaden the scope of current forest management. The renewed emphasis on multiple use priorities has resulted in a variety of economic, ecological, and political debates over what constitutes sustainable forest practices. At the heart of these debates are differing value orientations (and priorities) for the environment and about human relationships to natural systems (Dunlap 1992). Conflicts that result from these value clashes are among the most intractable problems facing natural resource decision-makers."

Taken from Shifting Public Values for Forest Management: Making Sense of Wicked Problems. ByBruce Shindler, Department of Forest Resources and Lori A. Cramer, Department of Sociology, Oregon State University, Corvallis, OR 97331

Adaptive Management

Adaptive management is learning by doing.

"Natural resource managers and citizens alike are constantly evaluating decisions about their environment, "but they do not decide simply on some objective basis of right and wrong, safe and unsafe. Instead, decisions on environmental use are reached in a social context: they are influenced by such factors as cultural values and attitudes toward the environment, social class, and our relationship to others" (Cable and Cable 1995, p.5)." Op. Cit.

If a hypothesis fails, an adaptive design permits learning from the failure so future decision can proceed from a basis of better understanding.

It yields understanding as well as it produces answers.

Resilience or the ability to reorganize and recover for disturbance is the most important characteristic of both natural and human systems.

Elements in the ecosystem change gradually as a result of our management in ways that we did not anticipate.

  • E.g. Success in controlling fires resulted in an accumulation of debris that have resulted in major and more devastating conflagrations.

Ecological and social systems are evolutionary and are not amenable to simple solutions based on knowledge of small parts of the whole or on assumptions of stability.

We need adaptive management policies that focus on building resilience and the capacity of renewal in both ecosystems and human conditions.

Precautionary Principle.

We should take precautionary measures to prevent harm to human health and the environment even if some cause and effect relationships are not fully understood.

The decision to leave a margin of safety for unexpected developments.

The burden of proof of carelessness of a new technology, process, chemical, etc. lies with the proponent and not with the general public.

Arbitration is a formal process of dispute resolution something like a trail.

There are rules of evidence, cross-examination of witnesses and the process results in a legally binding decision.

The arbitrator is mainly concerned with resolving the dispute rather than the interpretation of the law.

Arbitration does not create a legally binding precedent.

Arbitrators must have formal training and must be certified by the Federal Mediation and Conciliation Service or the American Arbitration Association.

Mediation is a process in which disputants are encouraged to sit down and talk to see if they can come up with a solution by themselves.

The mediator does not make the final decision but is simply a facilitator.

Collaborative Approaches and community-Based Planning.

Working with local communities usually gains acceptance for management plans that finally result in policy.

Involving all stakeholders and interest groups early in the planning process help to avoid entrenched non-negotiable positions.

People have more commitment to plans they have helped develop.