By Johanna R. Thibault, Esq.
April 30, 2012
Environmental laws and regulations that were put into place in the U.S. in the 1970's have done wonders for the environment. Over the last 40 years, both Congress and regulatory agencies have created exemptions within the structure of those laws to help streamline processes. Are these exemptions helping or hurting the environment?
I came across an article by Eric Biber from Legal Plant where he suggests key principles for reasons why what is "good" for the environment is difficult to ascertain. He purports that "what is 'good for the environment' is often eminently contestable." Beauty is in the eye of the beholder, right? The two most contrary views being one, that the environment need be protected for human consumption, and two, that natural resources be protected for non-consumptive or intrinsic reasons. Environmental laws are written from both of these perspectives, and they can often come into conflict.
Also, environmental quality is difficult to quantify. Such measures involve extrapolation and inference, which generally translates into educated people forming intellectual debates over what is or is not "good" for the environment. "In other words, there is a tremendous amount of ambiguity as to what is environmentally beneficial." It is that ambiguity (coupled with numerous other political factors) that drive the public process for implementation of environmental laws. Input from the public is needed to keep legislatures from skewing an environmental issue a certain way.
Back to the original inquiry of whether exemptions then hurt or help the environment. These exemptions were born out of industry. Take the Clean Water Act, for example, and the U.S. Army Corps of Engineers review of projects that result in dredge or fill material in wetlands. The process can be cumbersome and arduous (see prior post on the Mingo Logan Coal Company case), and also painfully time-consuming. In many instances that process is exceptionally important to ensure that environmental protections are in place before a project can move forward. Sometimes, however, the permitting process can be seemingly excessive.
Regulations were therefore adopted by the Corps to streamline this process to avoid the necessity of going through a long and detailed review under the Individual Permit Program. The Nationwide Permit Program provides over 50 instances where a more streamlined permitting process is permissible for a project. Are all of these "exemptions," if you will, beneficial for the environment? Perhaps not, but what they do allow is motivation from the development sector to design projects in a more environmentally friendly way. For example, as a consultant I often spent much of my time working with clients to design projects in a manner to avoid the environmental impacts triggering extensive permitting requirements. The end results would be a project with potentially significant reductions in environmental impacts to wetlands, endangered species, or air quality, etc.
Contrast this type of "exemption" with one that might not have a resulting benefit, but could instead cause the potential breakdown of critical environmental review legislation. For example, the State of California has often been known for its difficult environmental processes. Development in the state can take years, if not a decade, to progress through the regulatory requirements. One of the biggest culprits of this developmental challenge is the California Environmental Quality Act (CEQA). Similar to the National Environmental Policy Act (NEPA), CEQA was put in place to assist regulators and government decision-makers take all factors into account prior to approving a project. CEQA is farther reaching than NEPA, however, because unlike NEPA, which only comes into affect when a major federal action is initiated, CEQA is triggered when any local, regional, or state action is required. This could mean requiring a descretionary permit for building a structure in a county, for example.
CEQA is often a roadblock for many projects. The California legislature therefore adopted CEQA exemptions as a current attempt to boost the economy by creating jobs and encouraging the development of "good for the environment" projects within the state. Things like renewable energy facilities would fall under this "good for the environment" category. Being a huge advocate for these types of projects, I would be in full support of this exemption.
The exemption makes me wary, however, because the legislation does not define "good." As such I find myself falling into the same minority view expressed by Eric Biber in that without providing a regulatory definition, "good" can be made into whatever the decision-maker wants it to be. As Biber points out, California is a state with strong lobbying by special interests groups. Being that "good" is in the eye of the beholder, interest groups with a goal of weakening CEQA regulations could create relatively strong arguments to debate that a project is "good," and thereby substantially reduce the effectiveness of the legal oversight. It is more often that those subject to the regulation lobby for a position and not those that are benefiting from the environmental protection.
Overall, exemptions can be a vasty effective means to keep industry in check and the environment relatively protected. The truth of the matter is, development is going to occur regardless, so finding a means to work with both sides so that the development happens in the least impacting manner might be the most effective approach to sustaining the intrinsic value of our environment for use by future generations. At the very least, these processes require a look by government officials and agencies so that all impacts are hopefully considered. What we can hope for is a public interest strong enough to guide such development along a greener path.
How do you feel about exemptions in environmental laws? Do you think they weaken the protections provided by that legislation or do you think they are a necessary ill to ensure that the processes work effectively?
April 30, 2012
Environmental laws and regulations that were put into place in the U.S. in the 1970's have done wonders for the environment. Over the last 40 years, both Congress and regulatory agencies have created exemptions within the structure of those laws to help streamline processes. Are these exemptions helping or hurting the environment?
I came across an article by Eric Biber from Legal Plant where he suggests key principles for reasons why what is "good" for the environment is difficult to ascertain. He purports that "what is 'good for the environment' is often eminently contestable." Beauty is in the eye of the beholder, right? The two most contrary views being one, that the environment need be protected for human consumption, and two, that natural resources be protected for non-consumptive or intrinsic reasons. Environmental laws are written from both of these perspectives, and they can often come into conflict.
Also, environmental quality is difficult to quantify. Such measures involve extrapolation and inference, which generally translates into educated people forming intellectual debates over what is or is not "good" for the environment. "In other words, there is a tremendous amount of ambiguity as to what is environmentally beneficial." It is that ambiguity (coupled with numerous other political factors) that drive the public process for implementation of environmental laws. Input from the public is needed to keep legislatures from skewing an environmental issue a certain way.
Back to the original inquiry of whether exemptions then hurt or help the environment. These exemptions were born out of industry. Take the Clean Water Act, for example, and the U.S. Army Corps of Engineers review of projects that result in dredge or fill material in wetlands. The process can be cumbersome and arduous (see prior post on the Mingo Logan Coal Company case), and also painfully time-consuming. In many instances that process is exceptionally important to ensure that environmental protections are in place before a project can move forward. Sometimes, however, the permitting process can be seemingly excessive.
Regulations were therefore adopted by the Corps to streamline this process to avoid the necessity of going through a long and detailed review under the Individual Permit Program. The Nationwide Permit Program provides over 50 instances where a more streamlined permitting process is permissible for a project. Are all of these "exemptions," if you will, beneficial for the environment? Perhaps not, but what they do allow is motivation from the development sector to design projects in a more environmentally friendly way. For example, as a consultant I often spent much of my time working with clients to design projects in a manner to avoid the environmental impacts triggering extensive permitting requirements. The end results would be a project with potentially significant reductions in environmental impacts to wetlands, endangered species, or air quality, etc.
Contrast this type of "exemption" with one that might not have a resulting benefit, but could instead cause the potential breakdown of critical environmental review legislation. For example, the State of California has often been known for its difficult environmental processes. Development in the state can take years, if not a decade, to progress through the regulatory requirements. One of the biggest culprits of this developmental challenge is the California Environmental Quality Act (CEQA). Similar to the National Environmental Policy Act (NEPA), CEQA was put in place to assist regulators and government decision-makers take all factors into account prior to approving a project. CEQA is farther reaching than NEPA, however, because unlike NEPA, which only comes into affect when a major federal action is initiated, CEQA is triggered when any local, regional, or state action is required. This could mean requiring a descretionary permit for building a structure in a county, for example.
CEQA is often a roadblock for many projects. The California legislature therefore adopted CEQA exemptions as a current attempt to boost the economy by creating jobs and encouraging the development of "good for the environment" projects within the state. Things like renewable energy facilities would fall under this "good for the environment" category. Being a huge advocate for these types of projects, I would be in full support of this exemption.
The exemption makes me wary, however, because the legislation does not define "good." As such I find myself falling into the same minority view expressed by Eric Biber in that without providing a regulatory definition, "good" can be made into whatever the decision-maker wants it to be. As Biber points out, California is a state with strong lobbying by special interests groups. Being that "good" is in the eye of the beholder, interest groups with a goal of weakening CEQA regulations could create relatively strong arguments to debate that a project is "good," and thereby substantially reduce the effectiveness of the legal oversight. It is more often that those subject to the regulation lobby for a position and not those that are benefiting from the environmental protection.
Overall, exemptions can be a vasty effective means to keep industry in check and the environment relatively protected. The truth of the matter is, development is going to occur regardless, so finding a means to work with both sides so that the development happens in the least impacting manner might be the most effective approach to sustaining the intrinsic value of our environment for use by future generations. At the very least, these processes require a look by government officials and agencies so that all impacts are hopefully considered. What we can hope for is a public interest strong enough to guide such development along a greener path.
How do you feel about exemptions in environmental laws? Do you think they weaken the protections provided by that legislation or do you think they are a necessary ill to ensure that the processes work effectively?
The issue is not the concept of the exemption per se, but the to what the exemption is applied. For example, many localities fail to achieve the requirements for discharging treated wastewater to a local body of water. Those standards were developed to insure that the receiving body either maintains the biota that prevail or should have prevailed if the violators had not already destroyed the environment already. Providing the locality an exemption, because it lacks the funds to treat the water to that level, or failed to design the system to either separate out stormwater for a different treatment process or to accommodate rainfall, is NOT in the public interest- with the sole exception that at least part of the public does not wish to pay its fair share for using the resource.
ReplyDeleteProviding an exemption to a community of homeowners who were hit by a hurricane and had their treatment plant destroyed- for a finite time period- may not be in the absolute proper environmental considerations, but it certainly would fit a temporary public interest.
That is an excellent point. It really does depend on what the legal exemption is and how effectively it is applied. There is always a balance between what is good for the environment and what is good for the public interest. But again, the definition of "good" is very much in the eye of the beholder. Thank you for your comment (I apologize for the late response.)
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