Dan Esty’s Challenge to ACOEL: Let’s Do It

Posted on November 21, 2019 by Ridgway Hall

At ACOEL’s meeting in Williamsburg last month Dan Esty challenged us to undertake a multi-year project to transform the legal framework for environmental protection. He argued persuasively that our country has outgrown its tolerance for command and control regulation, and that advances in emissions modeling and risk assessment plus the ready availability of abundant and low cost data now make possible a shift to a market-driven system. This would allow a price to be put on pollution, or “harm”, and eliminate externalities: that is, everyone must either eliminate or pay for his or her pollution.

This system would be science-based, flexible, transparent, and more efficient than command and control. It would also be more politically appealing by allowing the market to determine our choices instead of regulatory hammers. Dan’s proposal is described at length in his thoughtful article Red Lights to Green Lights: From 20th Century Environmental Regulation to 21st Century Sustainability.

The need for such an overhaul is great because our current system is not working well. Unless we can develop a legal framework that is more efficient and politically acceptable, environmental protection faces an uncertain future at a time when the need for responsible stewardship has never been greater. The magnitude of the challenge is enormous. Yet who is better equipped to tackle this than ACOEL? No one. We should do it. My purpose in this article is not to debate that. Rather, as an initial step, it is to point out that about 25 years ago, when EPA was 25 years old and we had already seen the last major piece of federal environmental legislation, the Clean Air Act Amendments of 1990, there was a widespread recognition even then that we needed major reforms in our legal framework. The call was for greater flexibility, market incentives, and more holistic approaches. During the 2 year period 1996-98 at least six major reports were published based on thoughtful analyses by a wide range of stakeholders committed to finding better ways to protect our environment and human health. They provide a useful foundation for any new effort. They include: 

- The Aspen Institute, The Alternative Path: A Cleaner, Cheaper Way to Protect and Enhance the Environment (1996)

- Enterprise for the Environment, The Environmental Protection System in Transition: Toward a More Desirable Future (William Ruckelshaus, Chair; Center for Strategic and International Studies, National Academy of Public Administration and The Keystone Center, 1998)

- The President’s Council on Sustainable Development, Sustainable America: A New Consensus for Prosperity, Opportunity and a Healthy Environment for the Future (1996)

- National Environmental Policy Institute, Integrating Environmental Policy: A Blue- Print for 21st Century Environmentalism (1996)

- National Academy of Public Administration, Resolving the Paradox of Environmental Protection: An Agenda for Congress, EPA and the States (1997)

- Marian R. Chertow and Daniel C. Esty, eds., Thinking Ecologically: The Next Generation of Environmental Policy (a collection of papers produced by the “Next Generation Project” of the Yale Center for Environmental Law and Policy, 1997).

A consensus ran through all these reports that while command and control regulation focusing on end of pipe controls was right to deal with the serious environmental problems of the 1970s, something more flexible and cost-effective was needed for the future. The proposals included a focus on the multi-media footprint of an entire plant, consideration of regional and ecosystem-wide approaches, incentives for innovative management and market-driven solutions, and sector-based strategies. They also included greater use of corporate environmental, health and safety management systems coupled with robust compliance auditing; greater incentives for innovative technology; product life cycle management; “alternative tracks” under which a facility would be given broad performance or protection goals with flexibility on how to get there; and the use of tax incentives, marketable pollution rights, and other financial mechanisms.

While some considered replacing our media-specific statutes with a single holistic environmental statute, there was broad recognition that even by the mid-‘90s the mood in Congress was sufficiently divisive that that was not possible, and any effort to do that could produce something much worse. Robert Sussman proposed a more promising alternative, “An Integrating Statute” (Environmental Forum, March/April 1996) which would allow broad-gauge, multi-media strategies though integrated application of existing statutes.

What was the result of this extraordinary outpouring of creative thinking from the brightest, most experienced and diverse brainstormers available? No new legislation, some minor efforts to streamline regulations, a few more flexible policies at EPA, and little else. There is a lot in these reports that will provide helpful background for any effort that ACOEL or anyone else might launch to achieve the new legal framework that Dan envisions, but getting there will be a huge task.  It will almost certainly require new legislation that can attract bipartisan support.

Just this past April, in recognition of EPA’s 50th anniversary, the American University Center for Environmental Policy and the EPA Alumni Association hosted a 2 day conference on “EPA and the Future of Environmental Protection”, featuring a wide range of highly qualified speakers, including four past EPA Administrators. Many of the same issues were discussed, but some fresh perspectives and ideas seemed to emerge. A report is due to be released within the next few weeks, and I will discuss its principal recommendations in a future blog post.