EVOLUTION OF U.S. ENVIRONMENTAL REGULATION

Attitudes and policies toward pollution have undergone a steady evolution in the United States. In the earliest stages of this evolutionary process, pollution was little more than one of many mechanisms by which an individual might impose harm or inconvenience on another individual or on the public health or welfare, and a harnied individual or the relevant public official could always go to court and seek redress under civil law. It was generally agreed, however, that a polluter had a right to use the air or water for waste disposal. so long as he was reasonable in use of it, and the courts would weigh the rights of polluter and polluted in reaching a decision.

Gradually it became clear that some general rules and guidelines were necessary to assist the courts in deciding whether the polluter had gone too far in his activities, and anti-pollution statutes began to appear. These laws attempted to define certain behavior or results of behavior as unacceptable or counter to the public interest, and relied on the courts to apply these rather vague definitions to those particular sources against which the authorities decided to take action. Eventually, the concept of pollution control as a problem in the management of social resources became accepted, and progressively more elaborate regulatory schemes were developed, culminating in the 1970 Clean Air Act and 1972 Federal Water Pollution Control Act. Throughout this evolution, however, U.S. policy has continued to treat environmental problems as purely regulatory problems, with no recognition of the possibility that market forces might be useful in managing valuable social resources.

PRE-1970 FEDERAL LEGISLATION

As long as pollution was regarded as a problem between identifiable polluters and victims of pollution, there was little reason for federal action, except where polluters and victims were located in different states. Thus, except for a law 10 regulating oil pollution in tidal waters, the federal government was quite slow in enacting legislation to control pollution. After a series of efforts in 1936, 1938 and 1940, the first federal pollution control law became effective in 1948.

1948-65 Efforts

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The Water Pollution Control Act of 1948 left control of intrastate waters to the states, and established an extremely cumbersome procedure for abating interstate pollution. In order to obtain abatement under the procedure " the U.S. Surgeon General was required to show that pollution originating in one state endangered the health and welfare of persons in another. He could then give formal notice to the alleged polluter and to the relevant state control agency, specifying an abatement action and setting a reasonable time for compliance. If compliance did not result, he could give a second notice, wait a reasonable time, and then establish a federal hearing board which could recommend "reasonable and equitable" abatement measures. If these recommendations were not complied with, the Federal Security Ad

10 The Oil Pollution Act of 1924.

11 As described in Irwin and Selig, op. cit, pp. 81-83.

ministrator could, with the state's permission, ask the U.S. Attorney General to bring a court action, during which all the issues, from the severity of the pollution to the feasibility of abatement, would be considered again. Over the years, a series of amendments attempted to expand and streamline this process a bit, by extending federal authority to all navigable waters and allowing federal enforcement in certain situations without state approval; and, in 1956, federal funds were made available for municipal sewage treatment plants, on a matching

basis.

In air pollution, the federal government was even slower to act. Despite the death of some twenty persons during an acute air pollution episode in Donora, Pennsylvania in 1948, and the demonstration by scientists in the early 1950s that Los Angeles smog was caused by auto emissions, it was not until 1955 that a federal air pollution control act was enacted, and then only established a small program of research, training and demonstrations.

The Clean Air Act of February, 1963 (P.L. 84-159), was the first air quality legislation giving the federal government enforcement powers, and was modeled after the earlier water pollution control law: the Secretary of HEW could call an abatement conference when interstate pollution was harming public health and welfare, or when invited to by a state; the conference could be followed by hearings and, finally, federal court action. In 1965 a second title (P.L. 89-272) was added to the Act, authorizing the Secretary of HEW to set emission standards for automobiles as soon as practicable, giving "appropriate consideration to technological feasibility and economic costs:" the federal standards adopted under this provision for application in 1968 were about the same as the state standards California had imposed for 1966.

1965-70 Strategy

By 1965, it was clear that these early federal ventures into pollution control were seriously defective. Thus, the 1965 Water Quality Act and the 1967 Air Quality Act 12 adopted a rather different approach. Under these Acts, the Secretary of HEW was to produce documents describing what was known about the effects of air and water pollution on people, other organisms, materials, etc. Each state was then to establish ambient (i.e., "surrounding") air and water quality standards for the several air quality control regions and water bodies within the state, based on the intended uses of the region and HEW's description of the characteristics of air and water which were consistent with these intended uses. These ambient standards would be stated in terms of measurable quantities, e.g., micrograms per cubic meter of sulfur dioxide in the air, temperature and oxygen content of the water, number of bacteria per milliliter, etc., and, once approved by HEW, would not have to be reconsidered every time an action was taken against a pollutor.

The next stage in the new strategy was the translation of these ambient standards into specific effluent and emission levels for individual

12 Public Law 89-234 and Public Law 90-148, respectively. Although the Acts were administered by different agencies and were different in details and terminology, they were quite similar in basic structure and logic, and are described here in a single, somewhat stylized form.

sources. Each state was required to develop implementation plans describing the effluent and emission limitations it would enforce and other steps it would take to accomplish the ambient standards in each region and basin. If any state failed to produce ambient standards or implementation plans which were acceptable to the Secretary of HEW, he could promulgate his own. Once a plan had been promulgated, the Secretary could take enforcement actions against individual polluters if any state failed to do so. The 1967 Air Quality Act also provided research funds for development of control technology, and required the Secretary of HEW to set emission standards for new automobiles, "giving appropriate consideration to technological feasibility and economic costs." 13 The 1965 Water Quality Act also continued the policy begun in 1956 of granting federal funds on a matching basis for the construction om municipal sewage treatment plants.

From a legal and regulatory perspective, the strategy adopted in the mid-1960s was quite a reasonable one. The general goal of "enhancing and maintaining" the quality of the nation's air and water resources would be translated into specific, physically-definable and measurable characteristics, which would become established parts of the law after the required public hearings, administrative processes, and judicial review. These would then be translated into requirements on individual pollutant dischargers, also stated in specific, measurable terms, and presumably defensible against challenge on the grounds that they were necessary to accomplish the ambient standards. Enforcement should be relatively easy. Unfortunately, it did not work out that way.

For air pollution, the process hardly worked at all.14 By 1970, the National Air Pollution Control Administration (NAPCA) had not defined the air quality control regions, and had published the "criteria" documents describing the effects of air pollutants for only two pollutants. Not a a single state had a complete set of ambient standards and implementation plans for a single pollutant, and the plans which did exist had not been and likely would never be reviewed for adequacy by NAPCA. No enforcement actions were ever taken under the procedures of the 1967 Act. And for mobile source emissions, the standardsetting process did not hold great promise of accomplishing the needed emission reductions.

For water pollution, the only part of the process which worked reasonably well was the establishment of water quality standards, i.e., the goals, in terms of physical and chemical characteristics of water bodies. Most states had set reasonable water quality standards by 1971.15 But the process began to break down at the level of translating these goals into enforceable regulations, as deciding what total discharge levels were consistent with the desired water quality and which dischargers should be allowed how much of this total proved too much for the states. Following "guidelines" put out by the Federal Water Pollution Control Administration (FWPCA), most of the states adopted, and the FWPCA accepted as adequate, general and often vague requirements for secondary treatment (or equivalent) and "non

18 Public Law 89-272, Section 202(a).

14 See discussions in: John Esposito, Vanishing Air, Center for the Study of Responsive Law, 1970, pp. 158-172; Alan Kneese and Charles Schultze. Pollution, Prices, and Public Policy, the Brookings Institution, 1975, pp. 48-50; GAO Report, "Assessment of Federal and State Enforcement Efforts," 1973, p. 35.

15 See N. W. Hines, "Public Regulation of Water Quality in the United States," report to the National Water Commission, 1971, pp. 254-255.

degradation" of existing high-quality waters, usually with no timetables or specific actions required. The enforcement process remained unworkable-even though it was no longer necessary to prove that a specific discharge endangered the public health and welfare, it was still necessary to prove that a specific discharge was the cause of a violation of the water quality limitation. With notable exceptions, the states did not vigorously enforce, and federal enforcement was limited to cases where interstate harm could be demonstrated and a state invited the federal government to take action. Thus, progress under the 1964 Water Quality Act was disappointing. Even the municipal construction grants program was having disappointing results, as the federal funds were allocated carelessly and inefficiently.16

;

As frustration with progress was growing in the last 1960s. the possibilities offered by the Refuse Act of 1899 were discovered.17 This old law, which had never been used to control pollution, forbids the discharge of virtually anything into navigable waters, except that the Secretary of War "may permit the deposit of any material... within limits to be defined and under conditions to be prescribed by him. and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful.” 18 Thus, under the Act, the Secretary of War (Defense), acting through the Army Corps of Engineers, could prohibit any industrial 19 discharge which had not been granted a permit, and could put whatever conditions he chose on any permit he chose to issue.

The Refuse Act seemed to grant to the federal government all the authority it needed to control water pollution. In December 1970, President Nixon, by Executive Order, directed the Army Corps of Engineers and EPA to issue guidelines for permits under the Act, and some court cases resulted in convictions of dischargers for failure to obtain the needed permits. Quickly, however, the courts ruled that the administrator of any permit program under the Act could not simply grant or withhold a permit as he saw fit and must, in fact, prepare an environmental impact statement 20 on every major action-the Refuse Act permit program died aborning. But, even in its brief lifetime, the advantages inherent in a permit system, in which operating without a permit is unlawful and the permit can be used to impose specific conditions, had been demonstrated.

ENVIRONMENTAL LEGISLATION OF THE EARLY 1970's

In 1969 and 1970, "the ecology" became an important issue on the American political scene. There was widespread dissatisfaction with the way environmental matters were being disregarded in important decisions and with the ineffectiveness of those programs of regulation which had been established. In 1969, the National Environmental Policy Act was enacted, establishing the Council on Environmental

16 See Report to Congress, "Examination into the Effectiveness of the Construction Grant Program," U.S. GAO, Nov. 3, 1969.

17 Primarily by Representative Henry Reuss and his staff on the Subcommittee on Conservation and Natural Resources, House Committee on Government Operations, See Irwin and Selig, op cit. p. 67. 18 Cited in R. Zener, "The Federal Law of Water Pollution Control," in Federal Environmental Law. Environmental Law Institute, 1974, p. 785.

19 The courts had held that municipal discharges were not covered.

20 The EIS is a procedural requirement of the National Environmental Policy Act. See text, p. 276 below.

Quality as an advisory body to the President and declaring it to be national policy that the government shall endeavor "to create and maintain conditions under which man and nature can exist in productive harmony." 21 NEPA's most important substantive requirement was that federal agencies must prepare a detailed statement describing the environmental impact of any proposed action which might have significant effect on environmental quality, and must study reasonable alternatives to the proposed action.22 The Clean Air Amendments (CAA) of 1970 and the Federal Water Pollution Control Amendments (FWPCA) of 1972 were enacted to expand the federal role in environmental regulatory policy and, in slightly amended form, provide the basis of the current programs.

These two pieces of legislation built on the earlier pollution control programs and, especially the CAA, kept many of the then-existing program features. But there are so many new provisions and regulatory innovations in these laws that they are best regarded as initiating a new era in environmental regulation. In this section the principal regulatory provisions of the 1970's legislation are described and then some general observations on the new policy directions are made. The 1970 Clean Air Act

The 1970 CAA kept the overall structure of the 1967 legislation, which set emission standards for new automobiles and required the states to develop implementation plans describing how ambient air quality standards would be accomplished. The changes introduced into this process by the 1970 Act were, however, profound: the Congress itself set the levels and deadlines for the automobile standards; EPA was directed to establish, on the basis of narrow considerations, national ambient standards within months; the states were required to develop and enforce plans to meet these ambient standards on strict timetables, or have EPA do so for them; and citizen groups were given standing in court to sue the Administrator if EPA failed to act as directed. The 1970 Act also introduced, for the first time, national emission standards for certain stationary sources and contained language which the courts interpreted to require a policy of "non-deterioration" of clean air areas.

Federal Mobile Source Emission Standards

The mobile source emission standards set by HEW under the earlier legislation had not produced much technological progress by the automobile industry and total auto emissions were projected to increase under proposed standards as the vehicle population grew in the 1980s. Despairing of the strategy 23 which allowed administrators discretion in setting standards, "giving appropriate consideration to technological feasibility and economic costs," Congress wrote into the 1970 CAA specific numerical standards, requiring a 90 percent reduction in vehicle emission levels within five years.2 The Administrator

Section 101(a) of NEPA, Public Law 91-190 (1970).

22 Since NEPA is not a regulatory program, it will not be dealt with here. For a good description of how NEPA was implemented in its early years, see FR. Anderson, Jr., "The National Environmental Policy Act," in Federal Environment Law, 1974.

23 See John F. Bonine, "The Evolution of Technology Forcing' in the Clean Air Act." Environment Reporter, Monograph No. 21, July 1975, for a good discussion of the evolu tion of Congressional attitudes.

24 Hydrocarbons (HC) and carbon monoxide (CO) were to be reduced to 10 percent of the 1970 standards by 1975, and nitrogen oxides (NOX, which were uncontrolled in 1970) to 10 percent of their average measured level in 1971 by 1976. 1970 CAA, Sec. 202.