Environmental legislation and the problem of collective action

Duke Environmental Law and Policy Forum

Volumn 9, Issue 1, 1998, Pages 9-26

  Percival, Robert V ^a  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

COLLECTIVE ACTION; ENVIRONMENTAL LEGISLATION; REGULATORY APPROACH;

UNITED STATES;

EID: 0032463408     PISSN: 10643958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (105)

1. Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968).
2. See, e.g., WILLIAM J. BAUMOL & WALLACE E. OATES, ECONOMICS, ENVIRONMENTAL POLICY AND THE QUALITY OF LIFE 71-79 (1979).
3. See, e.g., James E. Krier, The Tragedy of the Commons, Part Two, 15 HARV. J.L. & PUB. POL'Y 325 (1992). Krier questions the glib assumption that "a community plagued by noncooperation can improve its condition by cooperating," noting that the same problems of free-riders and factional influence that generate environmental problems may plague government intervention to correct them. Id. at 338.
4. See generally MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1965).
5. This is confirmed not only by the longevity of the principal federal environmental laws, but also by their ability to survive assault during the 104th Congress, which was remarkably hostile toward environmental concerns. See Robert V. Percival, Regulatory Evolution and the Future of Environmental Policy, 1997 U. CHI. LEGAL F. 159, 168-170.
6. See ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE & POLICY 106-112 (2d ed. 1996).
7. See National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321, 4331-4335, 4341-4347 (1994).
8. See id. at § 4332.
9. See Reorg. Plan No. 3 of 1970, 3 C.F.R. § 1072 (1970), reprinted in 84 Stat. 2086 (1970); see also ALFRED A. MARCUS, PROMISE AND PERFORMANCE 20-21 (1980).
10. During the 1970s alone, more than twenty major federal environmental laws were enacted or substantially strengthened as Congress placed an expanding platter of regulatory responsibilities on EPA and other federal agencies. See Robert V. Percival, Environmental Federalism: Historical Roots and Contemporary Models, 54 MD. L. REV. 1141, 1160 (1995).
11. In December, 1970, Congress adopted the modern-day version of the Clean Air Act (CAA), 42 U.S.C. §§ 7401-7642 (1994). This legislation directed EPA to identify air pollutants that threatened public health or welfare and to establish minimum, national ambient air quality standards to be attained by the states.
12. In October, 1972 Congress approved the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376 (1994), which has become known as the Clean Water Act. This statute transformed what had been a federal research and financial assistance program into a comprehensive, national regulatory program to control water pollution. The law banned all unpermitted discharges of pollutants into surface waters, and it imposed technology-based effluent limits to be implemented through a national permit program.
13. In 1974, Congress enacted the Safe Drinking Water Act (SDWA), which requires EPA to establish national regulations to control hazards to public health from contaminants in public water supplies. See 42 U.S.C. §§ 300f - 300j-26 (1994).
14. In 1976 Congress enacted the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 601-2629 (1994), which authorizes EPA to regulate virtually any chemical substance that may present an unreasonable risk to human health or the environment.
15. In 1976 Congress enacted the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6987 (1994), which requires EPA to establish minimum national standards for management of hazardous waste from "cradle to grave," including a permit program for facilities that treat, store or dispose of hazardous waste.
16. See Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675 (1994).
17. See Robert L. Rabin, Federal Regulation in Historical Perspective, 38 STAN. L. REV. 1189, 1281-82 (1986).
18. See, e.g., PHILIP SHABECOFF, A FIERCE GREEN FIRE (1993).
19. See SAMUEL P. HAYS, BEAUTY, HEALTH, AND PERMANENCE: ENVIRONMENTAL POLITICS IN THE UNITED STATES, 1955-1985, at 2-5 (1987).
20. Historian Theodore White writes that in 1970 the environment "had swollen into the favorite sacred issue of all politicians, all TV networks, all writers, all good-willed people of any party." THEODORE H. WHITE, THE MAKING OF THE PRESIDENT 1972 45 (1973).
21. EDF's early efforts to get a hearing for its case against DDT are chronicled in THOMAS R. DUNLAP, DDT: SCIENTISTS, CITIZENS, AND PUBLIC POLICY (1981).
22. The Storm King controversy and the formation of NRDC are described in JOHN CRONIN & ROBERT F. KENNEDY, JR., THE RIVERKEEPERS (1997).
23. See RODERICK NASH, WILDERNESS AND THE AMERICAN MIND (1982).
24. See generally HAYS, supra note 19.
25. See Ronald G. Shaiko, Voices and Echoes for the Enviornment: Public Interest Representations in the 1990s and Beyond 58 (1997) (unpublished manuscript, on file with author).
26. See id. at 58-59. See also, e.g., PETER BORRELLI, Environmentalism at a Crossroads, in CROSSROADS: ENVIRONMENTAL PRIORITIES FOR THE FUTURE 3 (Peter Borrelli ed., 1988).
27. See generally FORD FOUNDATION, THE PUBLIC INTEREST LAW FIRM: NEW VOICES FOR NEW CONSTITUENCIES (1973).
28. See David B. Spence, Paradox Lost: Logic, Morality, and the Foundations of Environmental Law in the 21st Century, 20 COLUM. J. ENVTL. L. 145, 169 (1995).
29. See Christopher H. Schroeder, Rational Choice Versus Republican Moment Explanations for Environmental Laws, 1969-73, 9 DUKE ENVTL. L. & POL'Y F. 29, 45-47 (1998).
30. See id. at 47-49. It has been observed that public opinion occasionally "cascades" by shifting dramatically in response to events that change public perceptions of what is possible or desirable. See Cass R. Sunstein, Endogenous Preferences, Environmental Law, 12 J. LEGAL STUD. 217, 240 (1993). A similar phenomenon appears to have occurred recently with respect to public opinion toward smoking as a result of revelations concerning the behavior of the tobacco industry. See James E. Davis, Face-Off: Smoking and Health, USA TODAY, Jan. 10, 1989, at 8A.
31. See id. at 47-49. It has been observed that public opinion occasionally "cascades" by shifting dramatically in response to events that change public perceptions of what is possible or desirable. See Cass R. Sunstein, Endogenous Preferences, Environmental Law, 12 J. LEGAL STUD. 217, 240 (1993). A similar phenomenon appears to have occurred recently with respect to public opinion toward smoking as a result of revelations concerning the behavior of the tobacco industry. See James E. Davis, Face-Off: Smoking and Health, USA TODAY, Jan. 10, 1989, at 8A.
32. See E. Donald Elliott et al., Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. ECON. & ORG. 313, 338 (1985).
33. See Daniel A. Farber, Politics and Procedure in Environmental Law, 8 J.L. ECON. & ORG. 59, 66-67 (1992).
34. Richard B. Stewart, Environmental Quality as a National Good in a Federal State, 1997 U. CHI. LEGAL F. 199, 202-203.
35. Id. at 210.
36. See id. at 213.
37. See William H. Rodgers, Jr., The Lesson of the Owl and the Crows: The Role of Deception in the Evolution of the Environmental Statutes, 4 J. LAND USE & ENVTL. L. 377, 378 (1989).
38. See id.
39. See, e.g., 42 U.S.C. § 7604 (1994) (Clean Air Act citizen suit provision).
40. These provided that all land disposal of hazardous waste would be banned by certain dates unless specific determinations were made that certain levels of treatment were sufficient to avoid future environmental problems. See 42 U.S.C. § 6924 (1994).
41. See generally WILLIAM TUCKER, PROGRESS AND PRIVILEGE: AMERICA IN THE AGE OF ENVIRONMENTALISM (1982); ENVIRONMENTAL POLITICS: PUBLIC COSTS, PRIVATE REWARDS (Michael S. Greve & Fred L. Smith, Jr. eds., 1992).
42. See generally WILLIAM TUCKER, PROGRESS AND PRIVILEGE: AMERICA IN THE AGE OF ENVIRONMENTALISM (1982); ENVIRONMENTAL POLITICS: PUBLIC COSTS, PRIVATE REWARDS (Michael S. Greve & Fred L. Smith, Jr. eds., 1992).
43. Indeed, many of the provisions most frequently criticized on these grounds may be explained on alternative grounds as well. See Sunstein, supra note 30, at 231-233.
44. See Stewart, supra note 33, at 202.
45. See Elliott et al., supra note 31, at 338.
46. I worked as a staff attorney for the Environmental Defense Fund from 1981-1987.
47. EDF Forced to Raise Dues, 11 EDF Letter 1 (Jan. 1980) (visited Nov. 30, 1998) 〈http://www.edf.org/pubs/EDF-Letter/1980/Jan/k_dues.html〉.
48. New York Public Service Commission, Case No. 28059, Proceeding to Inquire into the Financial and Economic Cost Implications of Constructing the Nine Mile Point Unit No. 2 Nuclear Station. See DAVID ROE, DYNAMOS AND VIRGINS 210-214 (1984) (recounting EDF's actions against the nuclear power industry).
49. One illustration of this was EDF's effort to persuade EPA to perform a cost-benefit analysis of eliminating lead additives from gasoline. When the agency ultimately conducted such an analysis, it demonstrated quite powerfully the net benefits of lead phaseout. See R. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE & POLICY 562-67 (2d ed. 1996).
50. See, e.g., Hazardous Waste Legislative Alert, 15 EDF Letter (visited Nov. 30, 1998), 〈http://www.edf.org/pubs/EDF-Letter/1984/Jun/K_hazwaste.html〉.
51. See, e.g., MICHAEL S. GREVE, THE DEMISE OF ENVIRONMENTALISM IN AMERICAN LAW 1-6 (1996) (describing "environmentalism" as a threat to property rights and freedom of contract).
52. See 42 U.S.C. § 6901 - 6992k (1994).
53. See, e.g., Illinois v. Costle, 9 Envtl. L. Rep. (Envtl. L. Inst.) 20,243 (D.D.C. 1979); Environmental Defense Fund, Inc.v. Gorsuch, 713 F.2d 802 (D.C. Cir. 1983).
54. See Congress Passes Improved RCRA Bill, 15 EDF Letter 1 (visited Nov. 30, 1998), 〈http://www.edf.org/pubs/EDF-Letter/1984/Dec/b_rcra.html〉.
55. In 1983 EPA Administrator Anne Gorsuch Burford resigned under fire and Assistant EPA Administrator Rita Lavelle was convicted of perjury and obstruction of justice as a result of an investigation of charges that EPA had manipulated remediation efforts at Superfund sites for political purposes. See JONATHAN LASH, A SEASON OF SPOILS: THE REAGAN ADMINISTRATION'S ATTACK ON THE ENVIRONMENT 66-67, 80-81 (1984).
56. See H.R. 2867, 98th Cong. (1983); S. 757, 98th Cong. (1983).
57. See Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, 98 Stat. 3224 (codified as amended in scattered sections of 42 U.S.C.).
58. See EDF, 1997 Annual Report (visited Nov. 30, 1998), 〈http://www.edf.org/ pubs/AnnualReport/1997/〉.
59. See PERCIVAL ET AL., supra note 6, at 113.
60. See Tom Wicker, A Political Conversion, 13 ENVTL. F., Mar.-Apr. 1996, at 26, 28.
61. See generally Bud Ward, Why Quick Scores are Unlikley In 105th, 14 ENVTL F., May-June 1997, at 6.
62. For example, in appropriations legislation that became law in 1995, Congress imposed a temporary freeze on the listing of new endangered species and required the U.S. Forest Service to increase timber harvests on federal lands. Emergency Supplemental Appropriations and Recissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995, Pub. L. No. 104-6, 109 Stat. 73.
63. As part of the extension of the federal debt limit in March 1996, Congress adopted the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), P.L. 104-121.
64. To be sure, there are exceptions to this "rule." For example, the initial RCRA legislation has been considered to be a bit of an orphan because it seemingly got lost in the frenzied debate over toxic chemicals that produced the Toxic Substances Control Act. See BRUCE A. WILLIAMS & ALBERT R. MATHENY, DEMOCRACY, DIALOGUE AND ENVIRONMENTAL DISPUTES 99 (1995).
65. As historian Theodore White describes the political climate in 1970, "the environment[al] cause had swollen into the favorite sacred issue of all politicians, all TV networks, all good-willed people of any party." THEODORE WHITE, THE MAKING OF THE PRESIDENT 45 (1973).
66. See Comment, Discharging New Wine into Old Wineskins: The Metamorphosis of the Rivers and Harbors Act of 1899, 33 U. PITT. L. REV. 483 (1972).
67. See Pub. L. No. 96-510, 94 Stat. 2767 (codified as amended in scattered sections of 42 U.S.C.).
68. The Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. §§ 11001-11050.
69. See Pub. L. No. 101-380, 104 Stat. 484 (Codified as amended in scattered sections of 33 U.S.C.).
70. See PERCIVAL ET AL., supra note 6, at 824-825.
71. See id. at 140.
72. See, e.g., Rena I. Steinzor, The Reauthorization of Superfund: Can the Deal of the Century Be Saved? 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,016 (1995).
73. Because it had such broad support from EPA, environmental and industry groups, the Food Quality Protection Act of 1996, Pub. L. No. 104-170, 110 Stat. 1489 passed unanimously in the House on July 23, 1996 and in the Senate on the following day. See 142 CONG. REC. H8148-01 (daily ed. July 23, 1996).
74. The Safe Drinking Water Act A mendments of 1996, Pub. L. No. 104-182, 110 Stat. 1613. This legislation was approved unanimously in the Senate and by a 392-30 margin in the House. See 142 CONG. REC. S9785-02 (daily ed. Aug. 2, 1996); 142 CONG. REC. H9865-01 (daily ed. Aug. 2, 1996). See also Robert M. Sussman, Formula for Success, ENVTL. F., Jan./Feb. 1997, at 22, 22-23.
75. See Wicker, supra note 58, at 26.
76. See John H. Cushman, Jr., G.O.P. Backing Off From Tough Stand Over Environment, N.Y. TIMES, Jan. 26, 1996, at A1; The Environmental Counterattack, N.Y. TIMES, Feb. 5, 1996, at A14.
77. See John H. Cushman, Jr., G.O.P. Backing Off From Tough Stand Over Environment, N.Y. TIMES, Jan. 26, 1996, at A1; The Environmental Counterattack, N.Y. TIMES, Feb. 5, 1996, at A14.
78. See Timothy Noah, Both Parties Paint Themselves Green, but Trend Of Looser Environmental Rules Is Seen Continuing, WALL ST. J., Sept. 9, 1996, at A18. See also Sharon Buccino et al., Gathering Storm: Coming Environmental Battles in the 105th Congress, in 1998 ALIABA COURSE OF STUDY ON ENVIRONMENTAL LAW 3.
79. See Timothy Noah, Both Parties Paint Themselves Green, but Trend Of Looser Environmental Rules Is Seen Continuing, WALL ST. J., Sept. 9, 1996, at A18. See also Sharon Buccino et al., Gathering Storm: Coming Environmental Battles in the 105th Congress, in 1998 ALIABA COURSE OF STUDY ON ENVIRONMENTAL LAW 3.
80. See, e.g., C. Boyden Gray, Obstacles to Regulatory Reform, 1997 U. CHI. LEGAL F. 1, 6.
81. See Zach Willey, Progress and Privilege, 11 ECOLOGY L. Q. 95, 95 (1983) (book review).
82. See Six Environmental Organizations Back NAFTA, Denounce Opponents, INSIDE U.S. TRADE (Sept. 17, 1993) 〈http://www.insidetrade.com/sec-cgi/〉.
83. R. Shep Melnick & Paul Portney, Addresses at the Third Annual Cummings Colloquium on Environmental Law - The Rents of Nature: Special Interests and the Puzzle of Environmental Legislation (Mar. 26-27, 1998) [hereinafter Cummings Colloquium].
84. See Rose Gutfeld, Big Mac Joins With Big Critic To Cut Trash, WALL ST. J., Aug. 2, 1990, at B1.
85. See, e.g., John Holusha, Packaging and Public Image: McDonalds Fills a Big Order, N.Y. TIMES, Nov. 2, 1990; Paul Leavitt, McDonalds Announces Environmental Plan That Could Eliminate 4/5 of its Trash, USA TODAY, April 17, 1991; McDonalds, EDF Launch Buy-Recycled and Save Campaign with Ad Council, RECYCLING TODAY, FEB. 1, 1995.
86. See, e.g., John Holusha, Packaging and Public Image: McDonalds Fills a Big Order, N.Y. TIMES, Nov. 2, 1990; Paul Leavitt, McDonalds Announces Environmental Plan That Could Eliminate 4/5 of its Trash, USA TODAY, April 17, 1991; McDonalds, EDF Launch Buy-Recycled and Save Campaign with Ad Council, RECYCLING TODAY, FEB. 1, 1995.
87. See, e.g., John Holusha, Packaging and Public Image: McDonalds Fills a Big Order, N.Y. TIMES, Nov. 2, 1990; Paul Leavitt, McDonalds Announces Environmental Plan That Could Eliminate 4/5 of its Trash, USA TODAY, April 17, 1991; McDonalds, EDF Launch Buy-Recycled and Save Campaign with Ad Council, RECYCLING TODAY, FEB. 1, 1995.
88. See Martha M. Hamilton, Shell Leaves Coalition That Opposes Global Warming Treaty, WASH. POST, April 22, 1998, at C13.
89. See PERCIVAL ET AL., supra note 6, at 1178-81.
90. See id.
91. See id.
92. See National Pollutant Discharge Elimination System, 33 U.S.C. § 1342 (1994).
93. See 42 U.S.C. § 7601 (1994).
94. See PERCIVAL ET AL., supra note 6, at 647.
95. See Robert V. Percival, Regulatory Evolution and the Future of Environmental Policy, 1997 U. CHI. LEGAL F. 159, 160 (exploring the theme in more detail).
96. Title IV of the 1990 Clean Air Act Amendments, 42 U.S.C. § 7651 (1994), creates marketable permits for companies who need to reduce their emissions of sulfur dioxide or nitrogen oxides. The law establishes an overall cap on levels of those emissions. To encourage emissions reductions to be made in the most efficient manner possible, companies are permitted to buy and sell emissions allowances.
97. Greg Wetstone, Remarks at the Cummings Colloquium, supra note 79.
98. See Ceci Connolly & John E. Yang, Like Senate, House Votes to Repeal $50 Billion Tax Break for Tobacco Firms, WASH. POST, Sept. 18, 1997, at A7.
99. See id.
100. See Al Kamen, Break Out the Champlain, WASH. POST, Mar. 25, 1998, at A19.
101. See A Case Study of Interference in Environmental Protection Agency Rulemaking by the Office of Management and Budget: Hearings Before the Subcomm. on Oversight and Investigations of the House Comm. Energy and Commerce, 99th Cong. 1 (1985).
102. Paul Portney, Address at the Cummings Colloquium, supra note 79.
103. See Cronin & Kennedy, supra note 22.
104. See Clouding the Issue: The Politics of Clean Air, THE NAT'L VOTER, Sept.-Oct. 1997, at 6.
105. See id.