For almost three decades, the federal government
and state governments have addressed environmental problems primarily through
"command and control" regulation. Under the traditional approach, the federal
government establishes uniform national pollution limits ("command") that
the federal or state governments impose on individual polluters through
a system of permits or other controls.(1)
However, as the command and control approach has eliminated many of the
most prolific sources of pollution, the incremental cost of cleaning up
the remaining pollution has risen dramatically,(2)
and command and control regulation has become politically less attractive.
In addition, command and control regulation may be too rigid to address
many of the remaining major environmental problems, such as non-point source
Academics have criticized command and control
regulation on several grounds for over a decade.(4)
Critics argue that command and control regulation is not cost-effective,
because it normally requires all polluters to comply with the same pollution
limits, even though one polluter may be able to reduce its pollution more
cheaply than another polluter,(5) and even
though it may not be necessary for all polluters to reduce their pollution
to the levels required by the uniform limits in order to achieve pollution
reductions that protect human health or the environment.(6)
Critics also argue that command and control regulation (i) imposes unreasonable
and exorbitant information-gathering burdens and costs on government(7);
(ii) often imposes disproportionate burdens on new pollution sources;(8)
and (iii) does not provide any incentives to polluters to develop new strategies
to reduce their pollution beyond the levels required by law.(9)
In light of those criticisms and limitations,
the federal government and state governments are increasingly implementing
market-based approaches to address environmental problems.(10)
The Clinton Administration has suggested that "market incentives should
be used to achieve environmental goals, whenever appropriate"(11),
and a recent report by the Environmental Law Institute estimates that governments
are using over 100 different economic incentive mechanisms to address environmental
problems in the United States.(12)
Instead of mandating uniform pollution reductions on a national basis, market-based approaches use economic incentives to encourage polluters to reduce their pollution in the most cost-effective manner.(13) Theoretically, market-based approaches achieve the same, or greater, level of pollution reduction as command and control regulation(14), and eliminate the information-gathering burden on the government of command and control regulation.(15)
The major types of market-based approaches that have been implemented over the past decade are pollutant trading programs, pollution taxes and subsidies, deposit-refund systems(16), and regulatory waiver or variance programs, such as EPA's Project XL or Brownfields Action Agenda.(17)
In a pollutant trading program, the government
gives polluters the "right" to discharge a specific amount of pollution,
and allows polluters to buy and sell their pollution rights.(18)
Under a typical trading program, if a polluter is discharging 10 tons of
pollution, but only has the "right" to discharge 5 tons of pollution, the
polluter must either reduce its pollution discharge by 5 tons, or buy the
right to discharge an additional 5 tons from another polluter. If it costs
less for the polluter to buy the "right" to discharge an additional 5 tons
of pollution than it costs to reduce its discharge by 5 tons, the polluter
will buy the additional pollution rights. Thus, a pollutant trading system
allows polluters to choose the most cost-effective means of controlling
pollution. In addition, the system provides incentives to polluters to
reduce their pollution discharges beyond the levels allowed by law, because
they can sell their pollution "rights" to other polluters.(19)
In many trading programs, the government
auctions or sells some of the pollution rights to polluters.(20)
Accordingly, trading programs can also raise revenue for the government,(21)
while limiting the overall discharge of pollution.(22)
Pollution taxes provide benefits that are similar to the benefits of pollutant trading programs. Under the pollution tax approach, the government imposes a tax on the discharge of a particular type of pollution.(23) If it costs less for a polluter to reduce its discharge of pollution than it costs to pay the tax for the discharge, the polluter will reduce the pollution discharge. Otherwise, the polluter will pay the tax.(24) Accordingly, pollution taxes allow polluters to control their pollution in the most cost-effective manner.(25) Pollution taxes also provide incentives to polluters to reduce their pollution discharges beyond levels allowed by law, because the polluters can reduce their tax burden by reducing their discharges.(26) Finally, pollution taxes provide revenue for the government, in the same way that auctioning pollution "rights" can provide revenue for the government.(27) Unlike trading programs, however, pollution taxes cannot guarantee specific reductions in pollution levels.(28)
Subsidies are the mirror image of pollution
taxes. Instead of taxing pollution discharges, the government offers subsidies
to polluters that reduce their pollution discharges.(29)
If the polluter can reduce its pollution discharge at a cost that is less
than the amount of the subsidy, the polluter will probably reduce its discharge.
Deposit-refund systems use a combination
of a tax and subsidy to encourage pollution reduction.(30)
Consumers of potentially polluting products pay a surcharge when they purchase
the product, and receive a refund of the surcharge when they return the
product for recycling or proper disposal.(31)
This system has traditionally been used to encourage recycling and proper
disposal of beverage containers(32), but
states have also used deposit-refund systems for tires, lead-acid batteries,
used motor vehicle oil and pesticide containers.(33)
Finally, in regulatory waiver or variance
programs, the government allows polluters to avoid some command and control
requirements if the polluter uses other means to achieve the same level
of pollution reduction in a more cost-effective manner.(34)
Supporters of these market-based approaches
cite dozens of studies that suggest that market-based approaches can reduce
pollution control costs by millions of dollars(35),
and provide equivalent or better environmental protection than command
and control regulation.(36) Even if market-based
approaches deliver on all of those rosy predictions(37),
governments should proceed down the economic path with caution, because
"market-based" approaches could exacerbate existing problems of environmental
It is well established that minority and
low-income communities suffer disproportionate exposure to a variety of
types of pollution under the existing command and control regulatory approach.(39)
Although the traditional approach clearly has not adequately addressed
distributional inequities, market-based approaches will inevitably exacerbate
those inequities. While the traditional command and control environmental
laws and regulations do not explicitly require the government
to avoid actions that disparately impact low-income or minority communities,
those laws also do not affirmatively encourage unequal distribution
of pollution. By contrast, as explained below, many market-based approaches
to environmental protection affirmatively encourage polluters to shift
pollution to lower income communities. While command and control regulation
may be facially neutral, but discriminatory in practice, many market-based
approaches are designed in a way that will inevitably treat
low-income communities unfairly.
Classical economic theory institutionalizes
and exacerbates existing social disparities that are based on unequal distributions
of income. As Judge Richard Posner suggests, in a free market economy,
where voluntary exchange is permitted, "resources are shifted to those
uses in which the value to consumers, as measured by their
willingness to pay, is highest. When resources are being
used where their value is highest, we may say that they are being employed
Posner defines "value" in terms of "willingness to pay," on closer reflection,
it is clear that Posner and other economists incorporate "ability to pay"
into the concept of "willingness to pay."(41)
Thus, under traditional economic theory, a pollutant trading program, tax
program or similar market-based reform that shifts pollution to low-income
communities is operating efficiently, and, therefore, desirably, because
resources, such as clean air and clean water, are shifted to the uses in
which the value to consumers, as measured by their willingness (and ability)
to pay, is highest. Since wealthy communities are "willing to pay" more
for clean air and water than low income communities, the market operates
efficiently when it funnels those resources to those communities,(42)
rather than low income communities. In a free market, low-income communities
will never have sufficient financial resources to buy clean air, clean
water and similar environmental and public health resources from wealthy
communities or polluters.
As Professor James White has astutely noted,
the economists' justification for the "efficiency" of the free market "takes
for granted not only the existing values (or tastes) of the actors, but
also the existing distributions among them of wealth, capacity and entitlement,
which it has no way of criticizing ... The market ideology claims to be
radically democratic and egalitarian, because it leaves every person free
to do with her own will what she will. But this freedom of choice is not
equally distributed among all people. The market is democratic not on the
principle of one person, one vote, but on the far different principle of
one dollar, one vote."(43)
In response to those criticisms, economists
admit that economic theory does not make value judgments regarding the
distribution of resources, or the moral or social implications of "efficient"
allocations of resources.(44) They admit
that economic theory does not address the important underlying question
regarding whether an efficient allocation of resources is socially or ethically
desirable.(45) Nevertheless, they argue
that economic theory provides a valuable tool for analysis and prediction
However, environmental law developed and
flourished precisely because economic theory, and the free market, did
not address those social concerns.(47)
Environmental laws often incorporate a moral vision, and strive to advance
civic values that are ignored in the free market.(48)
Environmental law responds to the failure of the free market to prevent
pollution and the destruction of natural resources. While environmental
laws should weigh economic issues, the laws should not substitute economic
considerations for the important social considerations that motivated legislators
to enact the laws in the first place.(49)
Despite the inherent inequities in market-based
environmental protection, governments will continue to implement market-based
reforms to achieve "efficient" allocations of resources. However, governments
should proceed down the "economic incentive" path with caution because
prior "market-based" reforms have not delivered on the promise of "efficient"
allocation of resources.
In a traditional pollutant trading program,
for example, Company "A" voluntarily buys the "right" to discharge pollution
from Company "B", because it is cheaper for Company "A" to buy the "right"
to pollute than to reduce the amount of pollution that it discharges. While
this transaction may be "cost effective" for Company "A" and Company "B",
it is not clear that it is an "efficient" transaction from an economic
If the transaction is examined in terms
of Pareto-optimal efficiency, where a "Pareto-superior" transaction is
one that makes at least one person better off and no persons worse off(50),
the trade will probably not be efficient. Although Company "A" and Company
"B" are better off, persons who live near Company "A", fish in the streams
around Company "A" or hike in the woods around Company "A" may suffer harm
from pollution that Company "A" would have reduced if it did not buy the
right to discharge pollution from Company "B." Those third parties are
"worse off" as a result of the trade. If the third parties were compensated
for the harm that resulted from the trade, the transaction could be "Pareto
superior." (51) However, trading programs
do not require participants to compensate third parties for harms caused
by the trades.
If the transaction is examined in terms
of Kaldor-Hicks efficiency(52), where a
transaction is efficient if the economic benefits of the transaction exceed
the economic harms of the transaction(53),
many trades may be inefficient. A trade will only be "efficient" if the
benefits to the trading parties and third parties exceed any harm caused
by the trade.
The benefits for the trading partners are
economically quantifiable. The seller receives a benefit equal to the amount
of money that the seller receives from the buyer for the pollution "rights"
minus the cost, if any, of creating those "rights" in the first place.(54)
The buyer receives a benefit equal to the amount of money that the seller
saved by buying the pollution "rights" instead of reducing its pollution
discharge. Since most of the trading programs that have been implemented
in the past limit the amount of pollution "right" that a company can buy,
by requiring polluters to meet certain minimal pollution discharge limits,
the economic benefits available to companies through trading have been
limited in the past.(55)
While the benefits to the trading partners
are economically quantifiable, the benefits and harms to third parties
are often difficult to quantify. Assume, for instance, that Company "A"
buys the right to continue to discharge 100 pounds of a pollutant into
a river. The discharge of that pollution might (a) contribute to pollution
of drinking water that causes adverse health effects to persons that drink
the water, and economic costs to the community to clean up the water; (b)
harm fish in the river, which could have adverse health impacts and/or
economic impacts, depending upon the use of the river by the community;
(c) contribute to adverse health impacts to persons that swim in the water,
which could have economic effects if the river is a tourist attraction;
(d) contribute to a decline in other plants or organisms in the river,
which could have impacts on health or the economy; (e) contribute to a
decline in the aesthetic beauty of the river, which could have psychological
and social impacts on the community, in addition to economic impacts.(56)
It is extremely difficult to identify the extent to which a pollution trade
causes these impacts.(57) In addition,
all of these impacts, especially the health impacts, are extremely difficult
to quantify in economic terms.(58) As a
result, most of the impacts are ignored or undervalued in economic calculations.(59)
To the extent that economists ignore or undervalue these impacts when analyzing
pollutant trading programs, assertions that the programs operate "efficiently"
should be viewed skeptically. While trading programs and similar market-based
approaches may be "cost-effective" for businesses, it is not clear that
they "efficiently"allocate resources throughout society.
Theoretically, in a free market economy,
if the harm that a pollution trade caused third parties outweighed the
benefits to those parties, the third parties would bargain with the trading
parties to prevent the harm. Accordingly, resources would be allocated
efficiently in the free market. However, market failures prevent the efficient
operation of the market for environmental or public health resources, and
often prevent low income communities from even participating in the market.
For a variety of reasons, third parties that are harmed by a pollutant
trade may not bargain with the trading partners to prevent the harm. In
some cases, while the aggregate harm to all third parties may outweigh
the benefits of the trade, no single party, or group of parties, may be
harmed sufficiently to be motivated to bargain to prevent the trade. In
some cases, third parties may be willing to bargain with the traders to
prevent the trade, but may be unable to pay the traders enough money to
prevent the trade. Finally, in some cases, the third parties will not bargain
with the traders because the third parties lack information about the potential
health, environmental and economic impacts of a trade to recognize that
the trade will adversely impact them, or to recognize the degree of impact.
In each of those situations, the harm caused by the trade will outweigh
the benefits of the trade, yet the trade will be made. Resources will be
allocated inefficiently due to market failures.
In order to compensate for those market
failures, if governments continue to adopt "market-based" environmental
reforms, they should take several steps to ensure that the reforms achieve
an "efficient" allocation of resources. Since third parties may individually
lack the motivation to participate in the market, although their collective
injury exceeds the benefits of a particular transaction, market-based reforms
should include mechanisms to foster collective organization and action
by third parties, or at least to provide a safety net for third parties
that will fail to organize due to the high transaction costs. Since third
parties may lack sufficient information to understand the impacts that
various market-based environmental strategies may have on them, market-based
initiatives should include mechanisms to increase the availability of information
and the opportunities for public participation. To the extent that financial
disparities reduce the ability of third parties to participate in the market,
market-based initiatives could address the disparities to some extent through
grants and loans. If market-based reforms do not include these safeguards,
it is unlikely that they will achieve "efficient" allocations of resources.
As the preceding section illustrates, most
market-based environmental reforms fail to address important social issues,
including the distributional impacts of pollution, and ignore deficiencies
in the market that lead to inefficient allocation of environmental and
public health resources. As a result, those reforms could exacerbate existing
environmental injustices. Section II of this article examines many of the
current and proposed market-based environmental reforms and analyzes the
potential disparate impacts that could arise from those reforms. Section
III examines pollution prevention and multimedia regulation to demonstrate
that market-based approaches could, in some cases, improve environmental
quality in an efficient manner and foster environmental justice.
Finally, Section IV explores ways that market-based reforms are being,
or could be, modified, to ensure that environmental protection initiatives
foster environmental justice and allocate resources "efficiently."
The Federal government and state governments
have implemented a variety of different types of market-based environmental
protection programs over the past decade. Some of the major initiatives
are pollutant trading programs, pollution taxes, and EPA's Project XL and
Brownfields initiatives. While those programs are reducing the overall
cost of environmental protection for businesses, they could perpetuate
the disparate treatment of low-income communities.
Most of the pollutant trading programs
that have been implemented in the United States have focused on reducing
air pollution.(60) Despite potentially
large cost savings, trading has been limited under most of the state and
federal trading programs.(61)
Although most trading programs have been
implemented in the past decade, the Environmental Protection Agency (EPA)
began experimenting with pollutant trading under the Clean Air Act in the
1970's.(62) Those early experiments matured
into EPA's 1986 Clean Air Act emissions trading policy for "criteria" pollutants,
including sulfur dioxide, nitrogen dioxide, particulates, carbon monoxide,
lead, and ozone.(63) Under the policy,
companies are allowed to build new major air pollution sources(64)
or make major modifications to major air pollution sources in areas of
the country where national air pollution standards are not being met, (65)
if the companies build the source to meet certain technology-based standards
and enter into an agreement with an existing air pollution source in the
area, whereby the existing source reduces its pollution output by at least
as much pollution as the new or modified source plans to discharge.(66)
The policy refers to the reductions as "emission reduction credits,"(67)
which can be used to "offset" proposed pollution increases. While companies
can obtain offsets by entering into agreements with other companies, they
can also obtain offsets by reducing the output of pollution from another
source that they own in the polluted area where the new or modified source
will be sited.(68) Since increases in air
pollution by new sources are offset by reductions from existing sources,
the offset program should ensure that air quality remains at least as good,
if not better, than it would be without the program. While the program
promises cost savings for businesses, very few companies have made offset
trades with other companies.(69)
The emissions trading policy also formalized
the concepts of "bubbles" and "netting" for air pollution regulation. The
"bubble" policy allows regulators to treat several existing air pollution
emission points within an air quality control region as a single "source"
for purposes of determining whether the emission points are complying with
technology-based air pollution limits.(70)
"Netting" allows regulators to treat several air pollution emission points
within a plant as a single "source" for purposes of determining whether
a modification to the plant, or construction of a new portion of the plant,
triggers stringent technology-based limits and permit requirements for
While EPA's emission trading policy was
the agency's first major foray into pollutant trading, the sulfur dioxide
emission trading program created by the 1990 Clean Air Act Amendments(72)
is quickly becoming the model for pollutant trading programs at the federal
and state levels. The trading program is designed to reduce sulfur dioxide
emissions from coal-fired electric power plants in half by early in the
next century. During Phase I of the program, which began in 1995 and ends
in 2000, 110 of the dirtiest power plants were given annual "allowances"
to emit 2.5 pounds of sulfur dioxide for every million Btu consumed by
the plant.(73) During Phase II, which begins
in 2000, all power plants that produce more than 25 megawatts will be given
"allowances" to emit 1.2 pounds of sulfur dioxide for every million Btu
consumed by the plant.(74) Total emissions
from all of the plants are capped at 8.95 million tons of sulfur dioxide
at the end of the program.(75) Utilities
can trade allowances with other utilities, bank allowances for up to 30
years, and buy allowances at an annual auction sponsored by EPA.(76)
While the program targets coal-fired power plants, industrial facilities
that burn fossil fuels can also "opt-in" to the program.(77)
Utilities covered by the program have achieved 100% compliance with its
requirements in Phase I(78), and the program
is having significant environmental and economic benefits.(79)
In addition to the sulfur dioxide trading
program and EPA's emission trading policy, EPA has implemented pollutant
trading programs to phase out production of various types of chlorofluorocarbons
and halons(80), and to phase out the use
of lead in gasoline.(81)
States have also implemented pollutant
trading programs, primarily to address air pollution problems. Regulators
in Los Angeles have implemented the Regional Clean Air Incentives Market
(RECLAIM) to reduce emissions of sulfur dioxide and nitrogen oxides.(82)
The program initially targeted sources that emit 95% of the total emissions
of nitrogen oxides and 66% of the total emissions of sulfur dioxide(83),
and regulators project that it will cost businesses 42% less than a traditional
command and control program.(84) Under
the trading program, the South Coast Air Quality Management District (SCAQMD),
the agency that regulates air pollution in the Los Angeles air quality
control region, assigns a finite number of emission credits to the sources,
based on historical emission patterns, and assigns fewer credits to sources
each year, until the emissions are capped, in 2003, at a level that meets
national air quality standards for sulfur dioxide and nitrogen oxides for
the region.(85) Air pollution sources can
trade credits, but the credits can only be used in the year that they are
issued.(86) The SCAQMD has also implemented
two controversial initiatives to encourage nitrogen oxide emission reductions.
Under one SCAQMD rule, companies can earn RTCs by buying and scrapping
homeowners' gasoline-powered lawn mowers and other garden equipment.(87)
The rule is modeled on another SCAQMD program that allows companies to
earn emission reduction credits by buying and scrapping heavily-polluting
The Texas Air Control Board administers
a trading program for several pollutants that contribute to ozone pollution
in the Houston air quality control region(89),
and the program includes an automobile scrapping program similar to the
While the state and Federal pollutant trading programs promise to reduce pollution in a "cost-effective" manner, these programs could disparately impact low-income communities. First, while some trading programs limit trading to a specific air quality control region, many trading programs do not any include geographic limits on trades. As a result, while trading programs may decrease overall pollution levels, they may increase pollution in certain areas and create "toxic hot spots." Older, heavily polluting industries may find that it is more cost-effective to continue polluting and to buy pollution rights than to install new technologies to reduce pollution, and communities surrounding those industries will be exposed to higher levels of pollution than other communities. Professors Bruce Ackerman and Richard Stewart, early advocates of pollutant trading programs, recognized the "hot spot" problem over a decade ago(91), and recent commentators(92) and environmental justice advocates(93) echo their concerns today.(94)
Even without trading programs, "grandfathering"
provisions in environmental laws that establish more lenient standards
for existing polluters than new polluters provide incentives for old, heavily
polluting industries to continue to pollute.(95)
Trading programs will provide additional incentives for those facilities
to continue to pollute, and will exacerbate the distributional inequities
that are already caused, in part, by "grandfathering" provisions.(96)
If the trading programs will create "toxic
hot spots," economic theory suggests that the hot spots will most likely
occur in low-income communities.(97) Low
income communities are disproportionately impacted by air pollution(98),
the siting of locally unwanted land uses (LULUs)(99),
and the siting of heavily polluting industries.(100)
This trend should continue as pollution trading programs expand for several
reasons that are grounded in economic theory. First, heavily polluting
industrial facilities (the facilities that may purchase pollution credits)
will more likely be sited in low income, urban areas than in middle to
upper income, suburban areas.(101) Second,
low income communities may be less likely than affluent communities to
urge an outdated, heavily polluting industry to implement new pollution
controls, instead of buying pollution rights, if the low income community
fears that the industry will close, depriving the community of essential
jobs and tax revenue, if the community urges the industry to adopt new
pollution controls. Finally, low income communities often lack the political
power to influence industries to adopt new pollution controls instead of
buying pollution rights.(102)
As trading programs proliferate, examples
of the disparate impacts of such programs have begun to proliferate as
well. For instance, Citizens for a Better Environment and the NAACP Legal
Defense Fund recently challenged the auto scrapping program of the South
Coast Air Quality Management District on the grounds that the program discriminates
against minorities in violation of federal civil rights laws.(103)
Over the past few years, oil companies have scrapped 17,000 cars to generate
emission reduction credits that enable the companies to avoid installing
vapor-recovery systems at oil refineries in low-income, Latino communities.(104)
The auto scrapping program has, therefore, concentrated thousands of pounds
of pollution that were previously dispersed throughout the air quality
control region, into several low income, minority communities.(105)
Future pollutant trading programs may create
additional toxic hot spots if regulators do not design the programs to
prevent such inequities. In the next few years, the sulfur dioxide trading
program will expand significantly,(106)
and several major pollutant trading programs may be launched.
Eleven northeastern States and the District
of Columbia(107) have agreed to implement
a pollutant trading program, beginning in 1999, to reduce emissions of
nitrogen oxides from utilities and industrial boilers.(108)
EPA is developing a rule that would establish a similar cap and trade program
to reduce nitrogen oxide emissions in the 37 states that are located east
of the Mississippi River.(109) Both proposals
include an overall cap on emissions, but do not impose any geographic limit
on pollutant trades within the areas covered by the program. Accordingly,
both programs have the potential to create "toxic hot spots."
Heavily polluting, outdated power plants
may have additional incentives to continue operating, and creating "toxic
hot spots," when the Federal government and State governments complete
the ongoing restructuring of electric power transmission regulation. In
1996, the Federal Energy Regulatory Commission began a process that will
require utilities to provide open access non-discriminatory transmission
services over their power lines.(110)
This will allow utilities to deliver power to a wider distribution area
and, presumably, lead to more cost-efficient energy production.(111)
EPA and public interest groups criticized the proposal because it could
increase the market for older, heavily polluting power plants and could
encourage utilities to continue operating those plants.(112)
Accordingly, the proposal could lead to the creation of "toxic hot spots"
of pollution around the power plants(113),
and downwind from the plants.(114) FERC
prepared an environmental impact statement for its proposal and concluded
that the open access rule would not result in significant overall increases
in nitrogen oxide emissions, and that any distributional inequities or
other environmental concerns should be addressed by EPA through EPA's nitrogen
oxide strategy under the Clean Air Act(115).
Utilities are lobbying Congress to include air pollution controls in electricity
deregulation legislation(116), and the
Clinton Administration recently announced plans for electric utility restructuring
legislation that would establish a national nitrogen oxide trading emissions
open trading program.(117)
The Clinton Administration might also seek
legislation to establish a trading program to reduce carbon dioxide and
other greenhouse gas emissions.(118) The
Administration plans to sign the Kyoto Protocol to the United Nations Framework
Convention on Climate Change(119), and
believes that a trading program would enable the United States to reduce
its greenhouse gas emissions to the levels required by the treaty in a
In addition to those air pollution emissions
trading programs, EPA and States are expected to establish more water pollution
effluent trading programs. In order to encourage States to adopt trading
programs, EPA recently issued a Draft Framework for Watershed-Based Trading.(121)
Polluters would still have to meet technology-based water pollution standards,
if any apply to them, under the trading programs.(122)
However, polluters could avoid reducing their pollution discharges beyond
technology-based limits to meet limits that are necessary to protect water
quality(123) by entering into agreements
with other polluters, who will reduce their pollution discharges beyond
levels required by law.(124) Assume, for
instance, that a sewage treatment plant and several farms are located in
the watershed of the Mercer River(125),
and that the river is polluted by excess nutrients. In an effluent trading
program, instead of installing expensive pollution controls to reduce its
own nutrient discharges, the sewage treatment plant could enter into an
agreement with the farms, whereby the farms would agree to change their
farming practices to reduce their nutrient discharges. A few States and
local governments have implemented effluent trading programs,(126)
and EPA hopes that its "Framework" for trading will encourage more governments
to implement such programs(127).
Consequently, to the extent that pollutant
trading programs disparately impact low income communities, those inequities
may be compounded in the near future as regulators launch the new trading
initiatives described in this section.
Pollution taxes, fees and charges(128)
promise to reduce pollution in cost-effective ways similar to pollutant
trading programs. However, so far, the Federal government and state governments
have been reluctant to take advantage of those tools.(129)
The Federal government has used pollution
taxes to phase out the production of various chlorofluorocarbons(130)
and to encourage auto makers to manufacture fuel efficient cars(131).
The Federal government has also considered adopting a carbon tax, or other
energy tax, to spur energy conservation and to reduce greenhouse gas emissions.(132)
In addition, the Clean Air Act specifically endorses pollution taxes as
a tool for States to comply with national air quality standards.(133)
However, most pollution taxes, charges and fees have been implemented by
States, rather than the Federal government.(134)
Some states have imposed fees on the sale of tires(135) or fertilizers(136), in order to finance the cleanup of improper tire disposal sites and inspection of fertilizers. Several states impose variable
fees on polluters for water pollution permits(137)
or air pollution permits(138), based on
the volume or toxicity of the pollution authorized by the permit. Municipalities
often adopt a similar approach when they establish fees for persons or
businesses that dispose of wastewater in a sewage treatment plant.(139)
While those fees provide some incentive to polluters to reduce their pollution,
the primary purpose for most of those fees is to raise revenue to cover
the costs of administering the permit or regulatory program.(140)
By contrast, many municipalities are implementing
variable waste disposal fees, a pollution tax system that primarily aims
to reduce pollution, rather than to raise revenue.(141)
In a variable rate waste disposal program, residents pay variable waste
disposal fees, depending on the amount of waste that they dispose, instead
of paying uniform fees.(142) This creates
an incentive for residents to reduce the amount of waste that they generate.
Waste disposal rates have been reduced significantly in cities that have
implemented variable rate waste disposal fees.(143)
While variable rate waste disposal fees,
energy taxes, and other pollution taxes, fees and charges promise to reduce
pollution in cost effective ways, they can also perpetuate environmental
injustices. First, if governments impose uniform tax rates on pollution
discharges based on the volume or toxicity of the discharge, without regard
to the location of the discharge, pollution taxes could create "toxic hot
spots" in the same manner as pollutant trading systems.(144)
It may be more cost effective for old, heavily polluting industries to
pay pollution taxes than to reduce their pollution discharges, especially
when the taxes are not set at rates to force polluters to reduce pollution.(145)
Unless governments tax pollution in heavily polluted areas at a higher
rate than pollution in other areas, only newer, cleaner industries will
have any incentive to reduce their pollution.(146)
More significantly, though, pollution taxes
could have regressive effects on low income communities.(147)
For instance, since low-income households spend a greater proportion of
their income on heat, electricity and gasoline than high income households,
low income households would feel the impacts of an energy tax much more
keenly than high income households.(148)
Similarly, variable rate waste disposal fees impose more significant financial
burdens on low income residents than high income residents.(149)
At least one commentator has suggested that low income communities should
bear a greater proportional share of pollution reduction costs,
because those communities will receive the greatest benefit from pollution
reductions.(150) Following that logic
one step further, though, shouldn't the communities that benefitted from
the existing inequitable distribution of pollution be taxed for those benefits?
Couldn't that money be used to compensate the communities that have endured
heavier pollution burdens? More sensitive commentators have suggested that
pollution taxes could be structured at different rates(151)
or coupled with subsidies or other companion measures(152)
to be more progressive.
While governments may increasingly turn
to pollution taxes, fees and charges in the future(153),
they should structure such programs to avoid these potential inequitable
Project XL is another market-based reform
that could disparately impact low-income communities. Through Project XL,
which stands for "excellence in leadership," EPA has committed to approve
50 pilot projects to examine innovative ways to achieve environmental and
public health protection in a more cost effective manner.(154)
In Project XL, EPA enters into agreements with polluters that authorize
the polluters to avoid certain regulatory and legal requirements if the
polluter can operate his business in a manner that achieves "superior environmental
results" and meets certain other criteria.(155)
EPA hopes that the initiative will stimulate regulatory flexibility, and
will create models for future reforms.(156)
In a Project XL pilot project, EPA might
(a) authorize emissions trading, caps or bubbles that are not otherwise
authorized by law(157); (b) waive permit
or reporting requirements or procedures to allow businesses to consolidate
permits or reports(158); or (c) allow
businesses to comply with performance standards instead of applicable technology-based
EPA waives or modifies regulatory and legal
requirements in Project XL pilot projects in order to achieve environmental
protection in a more cost effective manner. However, these waivers may
actually increase pollution in the communities surrounding the pilot project,
because determining whether a project produces "superior environmental
results" is a very subjective task. First, it is difficult to calculate
baseline pollution levels, in order to determine whether a project increases
or decreases pollution.(160) Second, Project
XL pilot projects may decrease discharges of one pollutant, but increase
the production of another pollutant, or may transfer pollution from one
medium to another.(161) While the project
might seem, initially, to produce "superior environmental results," it
could aggravate health or environmental impacts to the surrounding community
due to the synergistic or cumulative impacts of the new pollutant or new
discharge, coupled with existing pollution.(162)
Those impacts might not be apparent without detailed study and analysis.
To the extent that Project XL pilot projects
will increase pollution levels in particular communities, it is likely
that the projects will disparately impact low income communities. Project
XL pilot projects are developed through a very time consuming, technical
process, and involve detailed analysis of industrial processes and economics.
While affluent communities will be able to hire consultants and experts
to evaluate the pilot project proposals, and to comment on those proposals,
or to hire legal experts to challenge the validity of the agency's agreements,
it will be more difficult for lower-income communities to shoulder those
expenses.(163) As a result, to the extent
that the Project XL pilot project development process frustrates the ability
of low-income communities to participate in the process, it is more likely
that EPA will enter into Project XL agreements that increase pollution
in those communities than in affluent communities. However, potential disparate
impacts of Project XL may not be a major concern for any communities because
the program has not been very successful thus far.(164)
redevelopment initiatives may raise some of the same concerns regarding
inequitable treatment of communities as Project XL pilot projects. Through
EPA's Brownfields Action Agenda and State voluntary cleanup programs, the
Federal government and state governments are providing liability limitations(166),
grants, loans, tax breaks,(167) and other
economic incentives to developers to encourage them to clean up and redevelop
property that has been contaminated by toxic or hazardous substances.(168)
In many cases, regulators encourage developers to redevelop property by
streamlining the cleanup process for the contaminated property, or by establishing
site-specific cleanup standards for the property.(169)
Critics of EPA's Brownfields Agenda and
State voluntary cleanup programs (collectively referred to as "brownfields
programs") argue that the streamlined, site-specific cleanup standards
provide less protection to public health and the environment than standards
that would otherwise apply to the cleanup of the property.(170)
Most brownfield properties are located in inner city communities, rather
than suburban or rural communities.(171)
Accordingly, critics argue that brownfield programs could force inner city
communities to accept substandard environmental cleanups.
On the other hand, though, critics of Superfund
often assert that Superfund cleanup standards are unnecessarily overprotective.(172)
EPA defends brownfields programs by pointing out that (a) cleanup standards
under those programs must, at a minimum, protect human health(173);
and (b) most brownfields properties would not be cleaned up at all without
a brownfields program.(174) In addition,
the redevelopment can revitalize the communities, and bring back businesses
and jobs.(175) Accordingly, many environmental
justice advocates praise brownfields programs.(176)
At the same time, though, most caution that brownfields programs can only
protect and revitalize communities if the communities are provided with
opportunities for "full and informed" participation in the cleanup and
Although many of the "market-based" reforms
that have been instituted could exacerbate problems of environmental injustice,
a few reforms could potentially reduce inequities. Pollution prevention
and multimedia initiatives are the reforms that hold the most promise for
Instead of regulating the manner in which
pollution is managed or disposed after it is created, pollution prevention
initiatives attempt to reduce pollution at the source(179),
and prevent businesses from creating pollution in the first place.(180)
It is appropriate to label pollution prevention as a "market-based" reform
because pollution prevention practices can save businesses millions of
dollars, and enable businesses to operate more efficiently and reduce waste.(181)
At the same time, pollution prevention
initiatives can reduce the amount of toxic substances in the environment,
reduce worker exposure to toxic substances, reduce the potential for accidents
and spills in transporting toxics, and reduce the amount of toxic substances
in consumer products.(182) The "environmental
justice" benefits of pollution prevention are obvious. If pollution prevention
initiatives actually reduce pollution, they reduce the likelihood that
low income communities will be disparately impacted by cumulative or synergistic
exposure to multiple pollutants. EPA considers pollution prevention to
be the most effective tool to battle environmental injustice.(183)
Congress enacted the Pollution Prevention
Act of 1990 to encourage businesses to adopt pollution prevention measures.
Legislators felt that mandatory pollution prevention requirements would
stifle innovation(184), so the law focuses
on providing information(185), grants(186),
and other incentives to encourage voluntary pollution prevention.(187)
EPA has launched dozens of initiatives aimed at encouraging voluntary pollution
prevention, including its 33/50 initiative(188),
Waste Wise(189), and Design for the Environment(190)
In addition, EPA has used its negotiating
leverage in enforcement actions to encourage businesses to adopt pollution
prevention practices.(192) In appropriate
circumstances, EPA will agree to reduce the financial penalty that it is
seeking from a polluter to settle an enforcement action if the polluter
agrees to implement a "supplemental environmental project (SEP)."(193)
Supplemental environmental projects can include pollution prevention projects,
pollution reduction projects, environmental assessments and audits, and
similar projects.(194) Instead of paying
money into the Federal Treasury, the polluter can invest money in a project
that will improve the performance of its business and reduce the likelihood
that the polluter will violate environmental laws in the future.(195)
EPA benefits because the project improves the quality of the environment
and/or public health, and EPA would not have been able to require the polluter
to undertake the project if the polluter did not agree to implement the
project in order to settle the enforcement action.(196)
EPA's SEP policy explicitly encourages the agency to use SEPs as a tool
to reduce environmental injustice.(197)
Despite the efforts of Congress and EPA,
many businesses have not yet adopted pollution prevention practices.(198)
Some mandatory measures, such as pollution prevention planning requirements,
may be necessary to spur additional pollution prevention.(199)
Multimedia initiatives provide similar
economic and environmental benefits as pollution prevention initiatives.
Traditionally, environmental laws and programs focused on controlling and
managing pollution in the air, water and land separately.(200)
This single-media approach encourages businesses and regulators to focus
on "end of pipe" pollution controls(201),
and inadvertently causes pollution to be transferred from one medium to
Recently, governments have begun to experiment with multimedia initiatives to address air, water, and land discharges of a particular pollutant or polluter simultaneously. When the agency examines the air, water, and land discharges of a pollutant or polluter simultaneously, the agency can
create a more efficient, less expensive(203)
regulatory regime for businesses by eliminating duplicative, conflicting
and inefficient requirements that often arise in single-media permitting
and regulation.(204) More importantly,
when the agency examines all of the impacts of a polluter or pollutant
simultaneously, the agency can identify cumulative or synergistic impacts
more readily, and the agency can take steps to ensure that pollution is
prevented or reduced, rather than redistributed to low income communities.
EPA and States have implemented several
noteworthy multimedia initiatives. First, EPA recently issued multimedia
regulations that limit air and water emissions from pulp and paper companies.(205)
The regulations were the agency's first multimedia regulations, and encourage
companies to substitute chlorine dioxide for chlorine to reduce dioxin
and furan emissions from paper manufacturing.(206)
EPA has also reorganized many of its offices to facilitate multimedia initiatives.(207)
In the States, Massachusetts has adopted
a program to conduct multimedia inspections of polluters and to bring multimedia
enforcement actions, whenever possible.(208)
New Jersey is experimenting with multimedia permits to replace a multitude
of single-media permits.(209) New York
has assigned employees of the state environmental agency to individual
industrial plants to coordinate multimedia planning at those plants.(210)
EPA has provided funding for many of those experiments, and encourages
States to continue those initiatives.(211)
Although EPA and States are experimenting
with multimedia approaches, there are many barriers to broader adoption
of those approaches. Environmental laws and the organizational structure
of environmental agencies make it difficult to establish multimedia permitting,
regulatory, or enforcement programs.(212)
In addition, multimedia programs are complex, costly and time consuming
for government.(213) While multimedia
initiatives provide clear benefits for low income communities and the public
at large, legislative changes and increased funding may be necessary to
spur their continued growth.(214)
Pollution prevention and multimedia reforms
advance environmental justice because they focus on reducing pollution,
while many "market-based" reforms merely attempt to redistribute pollution
in a more "cost-effective" manner. However, as noted in the introduction
of this article, while the "market-based" reforms generally provide cost
savings to polluters over command and control approaches, many of the reforms
do not allocate resources "efficiently" because low income communities
often (a) lack information about the decisions that are being made that
will adversely affect the health and environment of their community; (b)
lack the financial resources to participate in that decisionmaking process;
and (c) lack notice of, and the opportunity to participate equally in,
that decisionmaking process. In short, market failures prevent the efficient
allocation of environmental and public health amenities ("resources").
Since Congress and EPA will continue to
implement "market-based" environmental reforms, this section of the article
examines some of the ways that laws could be reformed to empower low-income
communities to participate more fully in the market for environmental or
public health benefits. When those reforms correct the existing market
failures, perhaps the market will allocate resources more efficiently.
Theoretically, markets operate "efficiently"
if consumers have perfect information.(215)
In practice, consumers almost never have perfect information.(216)
In the environmental arena, as a result, a community may be unaware that
a particular action could adversely affect the health or environment of
the community, and the community may, therefore, not bargain with the actors
to prevent the action. If the community had more information, they might
have bargained with the actor to prevent the harm. In such a situation,
the market allocates resources inefficiently because consumers have imperfect
One obvious way to address this market
failure, and to foster environmental justice, is to improve consumers'
access to information. Market-based reforms could include provisions that
required participants, or the government, to provide detailed information
to communities about the potential environmental and public health impacts
of pollution trades, waivers or modifications of regulatory requirements,
or similar market-based initiatives. Existing "information disclosure"
laws should also be expanded and improved. Those "information disclosure"
requirements would reduce, but not eliminate, the likelihood that the market
would allocate resources inefficiently.(217)
"Information disclosure" provisions would also promote individual autonomy
and advance democratic decisionmaking.(218)
Over the past decade, Congress, EPA and the States have increasingly relied on "information disclosure" laws to produce environmental benefits in economically efficient ways. The Emergency Planning and Community Right to Know Act of 1986 (EPCRA)(219) is the most notable of those efforts,(220) and is a model for laws in other nations.(221) EPCRA requires thousands of manufacturing facilities to provide EPA and States with information about the quantity of regulated chemicals that they used or released into the air, water, or land in a previous year.(222) That information is made available to the public as a "Toxic Release Inventory" (TRI). EPA calls the TRI one of its most effective and powerful tools for improving environmental performance.(223) Facilities that report their pollution releases for the TRI reduced their releases by 44% in the first six years of reporting.(224) Theoretically, citizens, armed with TRI data, can negotiate with polluters to encourage them to reduce their releases, lobby legislators or agencies to limit pollution, boycott polluters, or even use the information as a basis for citizen suits when the information discloses violations of other environmental laws.(225) The release of the information fosters environmental justice, as well, because it enables governments and citizens to identify and act to prevent "hot spots" of pollution.
Other federal initiatives have also included
"information disclosure" requirements. Recent revisions to the Safe Drinking
Water Act require drinking water suppliers to provide consumers with reports
about the source of their drinking water, the health and environmental
effects of contaminants in their drinking water, and the compliance history
of the drinking water supplier.(226) EPA
recently launched a "consumer labeling initiative" to improve the quality
of health and environmental information on insecticide, pesticide, and
household cleaner labels(227), and the
Federal Trade Commission has issued "green marketing guidelines" to prevent
businesses from making false or misleading advertising claims about the
environmental benefits of products.(228)
All of these initiatives provide consumers with more complete information,
so that they can make informed choices about purchasing products or using
resources in a way that protects their health and environment.
Information disclosure requirements are
central to many recent State laws, as well. For instance, California's
Proposition 65 requires businesses to provide notices to the public about
exposures to toxic chemicals(229) in consumer
products, at work, and in the environment.(230)
The law aims to provide information to the public that will enable citizens
to reduce their exposure to toxic chemicals,(231)
and will encourage businesses to reduce their use or release of toxics.(232)
The law has successfully encouraged many companies to reformulate consumer
products to reduce the use of toxics in the products(233),
and has played some role in encouraging businesses to reduce releases of
toxics at work and in the environment.(234)
There are some limits to the effectiveness
of "information disclosure" laws, though. The information that the laws
provide to consumers may be incomplete(235),
inaccurate(236), or confusing(237)
at times. In addition, the public may not be aware that the information
exists(238), or they may be unable to
access or understand the information.(239)
In those situations, it is less likely that the "information disclosure"
laws will achieve their goal of empowering citizens to use the market to
protect health and the environment.(240)
Accordingly, legislators and regulators
should take several steps to incorporate "information disclosure" requirements
into market-based reforms, and to expand and improve the "information disclosure"
requirements in existing laws, like EPCRA, to provide more complete and
accurate information.(241) Data that agencies
collect under any of the environmental laws should be cross-linked and
integrated, so that the information will be more meaningful and accessible
to the public.(242) In order to increase
access to information, data collected by agencies should be made available
in electronic formats, whenever possible, preferably over the Internet.(243)
Steps should be taken to educate the public about the availability of information,
and the meaning of the information. While agencies should lead this effort,(244)
law schools could play an important role as community educators by holding
seminars or workshops, providing "Street Law" courses in local schools(245),
or developing web pages or community handbooks that explain the information.(246)
Finally, the citizen suit and penalty provisions of "information disclosure"
laws should be strengthened to encourage businesses to provide complete
and timely information.
These changes should increase the possibility
that accurate and complete environmental and health information will be
available to citizens, and that citizens will (a) know that the information
is available; (b) access the information; (c) understand the information;
and (d) act on the information in a manner that protects their health and
the environment. In short, the improvements should compensate for some
of the market failures that occur because communities lack information
about the health and environmental impacts of polluters' actions.
Low-income communities may also fail to
participate in the market for health and environmental benefits because
the communities do not have sufficient financial resources to bargain for
those benefits, or even to participate in the decisionmaking process. In
a market-based system, low-income communities may never have sufficient
resources to successfully bargain for environmental or health benefits.(247)
However, technical assistance grants and loans could be made available
to communities that would, at the very least, enable them to participate
in the decisionmaking process. Without that assistance, communities may
be unable to retain experts to evaluate the environmental and health impacts
of pollution trades, waivers or modifications of environmental regulations
for Project XL projects or brownfield redevelopment, or other market-based
actions.(248) Consequently, the communities
would be unable to determine the impacts of the proposed action, and would
be seriously disadvantaged in the environmental bargaining (decisionmaking)
While there are some grants available to
communities to assist communities in reviewing Project XL pilot programs
and brownfields redevelopment proposals(249),
public interest advocates argue that the funding is inadequate, the process
for obtaining the funds is difficult, and that there are unnecessary limits
on the use of funds.(250) In addition,
there are no programs that provide funds to communities to evaluate the
impacts of pollutant trades on the community.
Legislators and regulators could take several
steps to facilitate the participation of low-income communities in the
market-based decisionmaking process. First, technical assistance grants
to review trades, waivers and other market-based actions could be expanded
and simplified and targeted at low-income communities or communities that
have been disparately impacted by pollution. Technical assistance grants
for traditional command and control programs should also be expanded and
simplified to enable low-income communities to participate in those decisionmaking
processes.(251) After all, many of the
environmental and health problems in low income communities are caused
by the cumulative effects of actions under the traditional command and
control programs. Finally, legislators and regulators should provide more
funding to encourage pollution prevention, since pollution prevention is
the surest cure for environmental injustice. (252)
While technical assistance grants and loans
may increase the likelihood that a community can afford to
participate in environmental decisionmaking in market-based programs, other
obstacles have limited public participation by low-income and minority
communities in environmental decisionmaking in the past.(253)
Traditionally, in many command and control programs, communities have not
been provided with information or an opportunity to provide input in the
process until the government has, for all intents and purposes, selected
a course of action.(254) Public meetings
and hearings have been scheduled at times or locations or in formats that
limit opportunities for public participation.(255)
Limited public participation procedures
increase the likelihood that individual citizens will forego participation
in government decisionmaking because they may decide that they will not
be able to influence the ultimate decision, or that they will not be sufficiently
impacted by the government's proposed action to devote the time and energy
to participate. As a result, although a community may be cumulatively severely
impacted by the government's decision to waive regulatory requirements
or allow companies to trade pollution rights, limited participation procedures
may prevent individual citizens from actively participating in the decisionmaking
process. While limited public participation clearly harms communities,
it also harms the government, which makes decisions based on incomplete
information.(256) When governments make
decisions based on incomplete information, it is more likely that their
decisions will not allocate resources efficiently.
Accordingly, broad and flexible public
participation procedures should be included in all polutant trading, regulatory
waiver or variance programs, or other market-based environmental protection
programs, to enable low-income communities, and all citizens, to participate
in the market for health and environmental amenities. In addition, broad
and flexible public participation procedures should be incorporated into
traditional command and control programs to ensure that baseline pollution
levels in low income communities are not disproportionately high before
trading or other market-based programs are implemented.
The National Environmental Justice Advisory Council's Model Plan for Public Participation identifies several "core values" for public participation programs(257) and establishes a model public participation strategy, which includes identifying key individuals who can represent various stakeholder interests, soliciting stakeholder involvement early in the policy-making process, developing relationships with community organizations and providing resources for their needs, regionalizing materials to ensure cultural sensitivity and relevance, establishing site-specific community advisory boards where there is sufficient and sustained interest, and scheduling meetings and/or hearings to make them accessible and user friendly for stakeholders, among other recommendations.(258)
Environmental justice advocates have frequently
emphasized the central role of public participation in achieving environmental
justice in traditional command and control programs.(259)
In market-based programs, it is even more important to provide opportunities
for public participation because market-based programs reduce the role
of the government as a decisionmaker and, consequently, reduce the protections
afforded to minority interests.(260)
Federal and state governments are already
making efforts to improve public participation procedures in command and
control programs. RCRA, NEPA, and many other laws already allow, but don't
require, agencies to provide broader, more flexible public participation
procedures, and President Clinton's environmental justice Executive Order
encourages federal agencies to take advantage of those authorities.(261)
EPA is also including broad public participation
provisions in some of its recent market-based programs, such as Project
XL(262). While public participation requirements
could increase the administrative hurdles for market-based programs and,
thereby, reduce the incentive to persons to participate in those programs,
broad and flexible participation procedures are vital to ensuring that
affected communities will have the opportunity to participate in the decisionmaking
process, and that decisionmakers will have complete information for their
As noted above, "market-based" environmental
reforms and traditional environmental laws could be modified to address
some of the market failures that prevent "efficient" distribution of environmental
and public health resources in a free market. However, while the modifications
described above might enable low-income communities to play a more active
role in market-based environmental decisionmaking, existing disparities
in the distribution of wealth in society may ultimately prevent low income
communities from avoiding disproportionate exposure to pollution. Consequently,
command and control "safety nets" may be necessary to protect low-income
communities in a market-based environmental protection system.
While the inequitable distribution of pollution
in low-income communities has been blamed on many factors, most commentators
agree that one of the major contributing factors is the failure of the
environmental laws to require government regulators to consider the distributional
impacts of their regulatory, permitting, or enforcement decisions.(263)
Accordingly, in order to ensure that "market-based" reforms do not exacerbate
environmental injustice, those reforms could be modified to prohibit trades,
waivers of environmental laws or regulations, or other actions that disparately
impact low income communities, or at least to require regulators to examine
the impacts of those actions on low income communities. More broadly, perhaps
"market-based" and "command and control" environmental laws
could be modified to require governments to consider the distributional
impacts of their decisionmaking, or to prohibit actions under those laws
that have disparate impacts on low-income communities.
However, both approaches might be difficult
to implement, politically and administratively. The narrow approach increases
the government's role in reviewing and overseeing private actions in a
market-based system, and seems antithetical to the rationale for the reforms.
To the extent that the government prohibits certain trades or regulatory
waivers that disparately impact low-income communities, or reviews the
distributional impacts of trades, waivers, and other actions in a market-based
system, businesses and the regulated community may be less likely to take
advantage of those tools, which are often quite time-consuming.
In addition, in order to determine whether
trades, waivers, and other actions in "market-based" programs disparately
impact low-income communities, government regulators must collect and examine
large amounts of data regarding the cumulative and synergistic impacts
of pollution on the community and the demographics of the community.(264)
Like previous efforts to "fine-tune" environmental regulation, this information
collection effort will be time consuming and expensive for regulators.(265)
Data gaps will be inevitable, and decisions that agencies make in light
of those data gaps will be prone to legal challenge.(266)
Important legal terms, such as "low-income community" or "inequitable distribution"
will have to be defined. These implementation problems have stalled previous
efforts to "fine-tune" environmental regulation to focus more specifically
on site-specific environmental impacts and case-by-case decisionmaking.(267)
The broader "safety net" approach shares
all of the problems presented by the narrow approach because the broader
approach encompasses the narrow approach. Under the broad approach, Congress
would amend the existing environmental laws and market-based
reforms to prohibit actions that disparately impact low-income communities
or to require regulators to consider the distributional impacts of their
actions under those laws. It is unlikely that Congress would adopt this
approach because Congress has recently considered, and rejected, several
bills that would have modified some of the current laws to require consideration
of distributional impacts.(268)
Although Congress is unlikely to enact
new legislation that requires government regulators to consider the distributional
impacts of decisions under "market-based" environmental reform programs
or under "command and control" environmental laws, existing laws, coupled
with the environmental justice executive order(269),
may already require or authorize regulators to examine those issues to
For instance, EPA's Environmental Appeals
Board recently concluded that the executive order requires the agency to
examine the environmental and public health impacts of RCRA permitting
decisions on low-income communities, and that the omnibus clause of RCRA(271)
requires EPA or States to include conditions in permits to ensure that
the permits protect health or the environment of low-income communities
(or any communities) and to deny permits when it is not possible to include
conditions in the permit that protect the communities.(272)
Other "command and control" environmental laws contain similar omnibus
Similarly, the National Environmental Policy Act and many State environmental policy acts require governments to consider distributional impacts and other socioeconomic impacts of proposed actions that impact the environment.(274) The Nuclear Regulatory Commission's (NRC) Atomic Safety and Licensing Board recently denied a license for a uranium enrichment plant when the NRC failed to examine the distributional impacts of issuing the license, as required by NEPA and the environmental justice executive order.(275)
Finally, the environmental laws provide
EPA and States with a great amount of discretion regarding enforcement
of the laws(276), and courts are reluctant
to strike down an agency's decision to exercise its enforcement discretion
in a particular manner as arbitrary and capricious.(277)
Accordingly, regulators could use their existing enforcement authorities
more aggressively to reduce the disparate impacts of pollution on low-income
communities.(278) Traditional "command
and control" laws could provide a partial "safety net" for low income communities
in the absence of new legislative protections.
In the current era of anti-regulatory sentiment,
it is clear that market-based environmental reforms will continue to proliferate
and flourish. However, in a free market, low-income communities will never
have sufficient financial resources to buy clean air, clean water and similar
environmental and public health resources from wealthy communities or polluters.
In addition, barriers to collective organization or public participation,
imperfect information, or other market failures will often prevent low-income
communities from even participating in the market for those resources.
Consequently, market-based environmental reforms could exacerbate the inequitable
distribution of pollution in low-income communities.
In the future, market-based reforms should
address those market failures and include measures to prevent environmental
injustice. The preceding section describes many ways that the reforms should
be amended to enable low-income communities to bargain for environmental
and health benefits on a more level playing field. Market-based programs
should ensure that communities receive information about health and environmental
benefits of proposed actions under the program in an inexpensive, timely,
and accessible manner. The programs should make grants, loans and other
economic assistance available to communities to enable the communities
to evaluate the impacts of proposed actions and to participate in the decisionmaking
process under the program. The programs should include broad and flexible
public participation provisions to facilitate public access to the decisionmaking
While those reforms will make it easier
for low-income communities to understand the impacts of proposed actions
and to participate in the bargaining for environmental and health resources
in the market, low-income communities will still lack the necessary financial
resources to purchase the environmental and health resources due to the
existing disparities in wealth distribution. Accordingly, some command
and control "safety nets", such as limits on trades or waivers in particular
communities, may be necessary to prevent market-based actions that would
disparately impact those communities.
If governments adopt these modifications
to market-based reforms, the programs could ultimately achieve both economic
and equity goals. If not, market-based reforms will probably exacerbate
the existing problems of environmental injustice.
1. See Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law, 37 STAN. L. REV. 1333, 1334-35 (1985). See also ROBERT V. PERCIVAL, ENVIRONMENTAL REGULATION: LAW, SCIENCE AND POLICY 131-179 (2d ed. 1996) (describing command and control regulation and its alternatives); ROBERT C. ANDERSON & ANDREW Q. LOHOF, ENVIRONMENTAL LAW INSTITUTE, THE UNITED STATES EXPERIENCE WITH ECONOMIC INCENTIVES IN ENVIRONMENTAL POLLUTION CONTROL POLICY § 3.2 (August 1997) (visited August 4, 1998) <http://126.96.36.199/epalib/incent.nsf/$about > (hereinafter "ELI Report"). While the uniform national limits may be set at a level to protect health or the environment, they are usually set at a level that can be achieved through the use of a particular technology. See PERCIVAL, supra at 151-154.
2. The cost of pollution abatement and control rose from $64 billion in 1973 to over $121 billion in 1994. See GENERAL ACCOUNTING OFFICE, ENVIRONMENTAL PROTECTION: CHALLENGES FACING EPA'S EFFORTS TO REINVENT ENVIRONMENTAL REGULATION, ch. 1 (GAO/RCED-97-155) (July 2, 1997) (hereinafter "GAO Reinvention Report").
3. See Barton H. Thompson Jr., The Search for Regulatory Alternatives, 15 STAN. ENVTL.. L.J. 8,9 (1996). The Clean Water Act defines a "point source" to include "any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged." 33 U.S.C. § 1362(14) (1994). Water pollution, such as runoff from construction activities, that does not come from "point sources," is called "nonpoint source" pollution. See PERCIVAL, supra note 1, at 880.
4. See, e.g. Ackerman & Stewart, supra note 1; Howard Latin, Ideal versus Real Regulatory Efficiency: Implementation of Uniform Standards and "Fine-Tuning" Regulatory Reforms, 37 STAN. L. REV. 1267 (1985).
5. See, Ackerman & Stewart, supra note 1, at 1335, 1341; Latin, supra note 4, at 1267-68. "[T]he cost of controlling a given pollutant may vary by a factor of 100 or more, depending on the age and location of the plants involved and the control technologies available." Robert N. Stavins, Harnessing the Marketplace, May-June 1992, at 21. However, as Ackerman and Stewart note, under the command and control approach, "polluter A is obliged to cut back his own wastes even if it is cheaper for him to pay his neighbor B to undertake the extra cleanup involved." See Ackerman & Stewart, supra note 1, at 1341.
6. See Ackerman & Stewart, supra note 1, at 1335. Conversely, though, when uniform national limits are based on technology, all polluters in a particular region may comply with the uniform limits, yet discharge pollution at a level that harms human health or the environment.
7. See Ackerman & Stewart, supra note 1, at 1336-37. See also E. Donald Elliott, Legal Regulation and Reform: Quality Environmental TQM: Anatomy of a Pollution Control Program that Works, 92 MICH. L. REV. 1840, 1846-47 (1994).
8. See Ackerman & Stewart, supra note 1, at 1335-36.
9. Id. at 1336, 1341; See also Stavins, supra note 5, at 22; ELI Report, supra note 1, § 1.2.
10. See, ELI Report, supra note 1, §§ 2.1.1, 3.3; Stavins, supra note 5, at 21. See also NATIONAL PARTNERSHIP FOR REINVENTING GOVERNMENT, FROM RED TAPE TO RESULTS: CREATING A GOVERNMENT THAT WORKS BETTER AND COSTS LESS (Sept. 7, 1993) (visited August 4, 1998) <http://www.npr.gov/library/nprrpt/annrpt/redtpe93/index.html >
11. See President William J. Clinton, Reinventing Environmental Regulation, §5 (March 16, 1995) (visited August 6, 1998) <http://www.epa.gov/reinvent/notebook/clinton.htm >
12. See ELI Report, supra note 1, ch.12. EPA reviewed many of the early market-based experiments in a 1992 report. See ENVIRONMENTAL PROTECTION AGENCY, THE UNITED STATES EXPERIENCE WITH ECONOMIC INCENTIVES TO CONTROL ENVIRONMENTAL POLLUTION (July 1992).
13. See Stavins, supra note 5, at 21-22; Ackerman & Stewart, supra note 1, at 1335; ELI report, supra note 1, § 3.3. Market-based approaches "can save anywhere from 10% - 90% of the cost of controlling pollution under traditional command and control approaches." See ELI report, supra note 1, § 1.2.
14. See Stavins, supra note 5, at 22; ELI Report, supra note 1, § 3.5.
15. See Ackerman & Stewart, supra note 1, at 1336-37.
16. See Stavins, supra note 5, at 22; ELI report, supra note 1, ch. 3.
17. See infra notes 154-177, and accompanying text.
18. See Ackerman & Stewart, supra note 1, at 1341. Section II of this article describes specific trading programs in greater detail.
19. Id. at 1341-42.
20. Id. at 1343.
21. Id. at 1344, 1346.
22. Id. at 1349. The government can reduce aggregate pollution levels by limiting the overall amount of pollution "rights" that are available to polluters, and by reducing that amount over time. Id. See also Stavins, supra note 5, at 23.
23. While traditional taxes on income, capital formation, payrolls, sales and property generally discourage socially productive activities, pollution taxes discourage environmentally damaging activities. See Richard L. Ottinger & William B. Moore, The Case for State Pollution Taxes, 12 PACE ENVTL. L. REV. 103, 105 (1994); Amy Christian, Designing a Carbon Tax: The Introduction of the Carbon-Burned Tax, 10 UCLA J. ENVTL. L. & POL'Y 221, 226 (1992). Consequently, many legal theorists are advocating a reduction in taxes, like the income tax, that discourage socially desirable activities, coupled with an increase in taxes, like pollution taxes, that discourage socially undesirable activities. See, Ottinger & Moore, supra at 104; Christian, supra at 226-227. In order to protect human health and the environment, pollution taxes should be set at a level that is equal to the harm that the pollution discharges cause to health and the environment. See FRANK S. ARNOLD, ENVIRONMENTAL LAW INSTITUTE, WHY POLICY MAKERS DON'T USE ENVIRONMENTAL TAXES 1 (1994) (visited August 6, 1998) < http://188.8.131.52/epa/eermfile.nsf/vwAN/EE-0312-1.pdf/$File/EE-0312-1.pdf> (hereinafter ELI Tax Report).
24. See ELI Tax Report, supra note 23, at 1.
25. See Ottinger & Moore, supra note 23, at 105; Roger C. Dower & Robert Repetto, Green Fees and the Need for Fiscal Restructuring: Opportunities and Challenges, 12 PACE ENVTL. L. REV. 161 (1994); Stavins, supra note 5, at 22; ELI Tax Report, supra note 23, at 1.
26. See Ottinger & Moore, supra note 23, at 105.
27. See ELI Tax Report, supra note 23, at 1; Stavins, supra note 5, at 22.
28. The level of environmental protection that a tax will provide will vary depending upon the rate of the tax. If the tax is set too low, polluters will not reduce their pollution discharges, or may actually increase their discharges, and will pay the tax as a cost of doing business. ELI Tax Report, supra note 23, at 6-8.
29. See ELI Report, supra note 3, § 3.3.2.
30. See ELI Report, supra note 1, § 3.3.4.
32. Id. Several states, Canadian provinces, and a number of European nations have enacted "bottle bills" to reduce improper disposal of beverage containers. See Stavins, supra note 5, at 24.
33. See ELI Report, supra note 1, § 5.1.
34. See infra notes 154-177, and accompanying text.
35. See ELI
Report, supra note 1, ch.12. A recent report by the Environmental
Law Institute identified 19 studies that compared air pollution control
costs under traditional command and control regulation to various market-based
reforms. Id., table 3-1. All of the studies concluded that market-based
approaches were less costly than command and control regulation. Id.
In one study, command and control regulation was found to be 22 times
more costly than a market-based alternative. Id.
The ELI report also identified 9 studies that compared the costs of command and control regulation for water pollution to market-based reforms. See ELI Report, supra note 1, table 3-2. All of those studies concluded that the "market-based" approaches were less costly, although the cost differences were less pronounced than in the air pollution studies. Id.
36. See ELI Report, supra note 1, at Exec. summ., iv. While market-based alternatives are generally designed to provide environmental protection that is similar to command and control regulation, few studies have examined whether they have achieved that level of protection in practice. Id., ch.12.
37. Despite the rosy predictions, market-based reforms have not been implemented in the manner advocated by economists, participation in market-based reforms has been marginal, and the reforms are not generating the substantial cost savings that economists have predicted. See ELI Report, supra note 1, §§ 3.4, 12. There are many reasons why market-based reforms have not performed as predicted. In many cases, pollution taxes and fees have been designed merely to raise revenue, and have been set too low to provide incentives to reduce pollution. Id. at exec. summ - iv. Participation in trading programs has been inhibited by complicated regulations for those programs. Id. In addition, due to regulatory and legal requirements, opportunities for trading pollution rights are more limited in practice than economists propose in theory. See ELI Report, supra note 1, § 3.4. Consequently, there is little empirical evidence that emissions trading has stimulated environmental performance that is superior to traditional command and control regulation. See David M. Driesen, Is Emissions Trading an Economic Incentive Program?: Replacing the Command and Control / Economic Incentive Dichotomy, 55 WASH. & LEE L. REV. 289, 313 (1998).
38. "Environmental injustice" is the antithesis of "environmental justice," which EPA defines as "the fair treatment and meaningful involvement of all people, regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, programs, and policies. Fair treatment means that no racial, ethnic, or socio-economic group should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations, or from the execution of federal, state, local, or tribal programs and policies." See ENVIRONMENTAL PROTECTION AGENCY, Environmental Justice Through Pollution Prevention Grant Program (1998) (visited August 6, 1998) < http://www.epa.gov/opptintr/ejp2/intro-ix.htm >
39. Studies indicate
that hazardous waste landfills and treatment facilities, and industries
that emit the greatest amounts of toxic chemicals, have been sited predominantly
in minority or low-income communities. See, Paul Mohai, Methodological
Issues: the Demographics of Dumping Revisited: Examining the Impact of
Alternate Methodologies in Environmental Justice Research, 14 Va. Envt'l.
L. J. 615 (1995); Benjamin A. Goldman & Laura Fitton, TOXIC WASTES
AND RACE REVISITED: AN UPDATE OF THE 1987 REPORT ON THE RACIAL AND SOCIOECONOMIC
CHARACTERISTICS OF COMMUNITIES WITH HAZARDOUS WASTE SITES 14-15 (1994);
UNITED CHURCH OF CHRIST COMMISSION FOR RACIAL JUSTICE, TOXIC WASTES AND
RACE IN THE UNITED STATES (1987); U.S. GENERAL ACCOUNTING OFFICE, SITING
OF HAZARDOUS WASTE LANDFILLS AND THEIR CORRELATION WITH RACIAL AND ECONOMIC
STATUS OF SURROUNDING COMMUNITIES (1983). But see David Mastio,
EPA Ignored Race Report, DET. NEWS, May 28, 1998, at A1 (citing
a study that concluded that (a) while 12% of the country's residents are
African American, only 8% of the residents that live near Superfund sites
in EPA Region VI are African American; (b) 75% of the residents that live
near Region IV Superfund sites are white; and (c) the average income of
residents living within a mile of Superfund sites nationwide is greater
than the average national income.)
Studies also suggest that the Federal government
is bringing enforcement actions under environmental laws, and making cleanup
decisions under Superfund, in a discriminatory manner. See Marianne
Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide in
Environmental Law, Nat'l. L.J., Sept. 21, 1992, at S1, S1-12; Rae Zimmerman,
Social Equity and Environmental Risk, 13 RISK ANALYSIS 6, 20 (Dec.
1, 1993); Unequal Protection: Environmental Justice and Communities of
Color (Robert D. Bullard ed., 1994).
Air quality in minority and low-income
communities is worse than in other communities. See Richard J. Lazarus,
Pursuing Environmental Justice: The Distributional Effects of Environmental
Protection, 87 NW. U. L. REV. 787, 797 (1993); See also Hearings
on Environmental Justice Before the Subcomm. On Civil and Constitutional
Rights, 103d Cong., 1st Sess. (March 3-4, 1993) (statement of Paul
Mohai); D.R. Wernette & L.A. Nieves, Breathing Polluted Air,
EPA JOURNAL, Mar./Apr. 1992, at 16.
In addition, the Federal government establishes regulations under a variety of environmental laws to protect persons from exposure to hazardous levels of toxic substances based on assumptions that may not protect various ethnic or racial communities. See Robert R. Kuehn, The Environmental Justice Implications of Quantitative Risk Assessment, 1996 U. ILL. L. REV. 103 (1996).
40. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW , ch.1 (4th ed. 1992), reprinted in KENNETH DAU-SCHMIDT, THOMAS S. ULEN, LAW AND ECONOMICS ANTHOLOGY 1,8 (1998).
41. Judge Posner relates the following story to explain the economist's definition of "value": "Suppose that pituitary extract is in very scarce supply relative to the demand and is therefore very expensive. A poor family has a child who will be a dwarf if he does not get some of the extract, but the family cannot afford the price ... A rich family has a child who will grow to normal height, but the extract will add a few inches more, and his parents decide to buy it for him. In the sense of value used in this book, the pituitary extract is more valuable to the rich than to the poor family, because value is measured by willingness to pay." See POSNER, supra note 40, at 9. While Posner suggests that the rich family is more "willing to pay" for the extract than the poor family, it seems that the rich family is more "able to pay" than the poor family, rather than more "willing to pay." Posner's definition of willingness to pay, therefore, seems to incorporate ability to pay.
42. Professor Gerald Torres notes that "[t]he essence of the market suggests that poor people will be disadvantaged in relation to relatively better off people in the acquisition of goods. Environmental quality is merely a good that also is market sensitive. Thus, it should not be surprising that poor people, and poor black people as a subset of that economic class, suffer greater environmental burdens than do better off people. Poor people merely choose, and rationally so, to spend their scarce resources on other goods." See Gerald Torres, The Future of Environmental Regulation: Environmental Justice: The Legal Meaning of a Social Movement, 15 J.L. & COM. 597, 607-608 (1996).
43. See James B. White, Economics and Law: Two Cultures in Tension, 54 TENN. L. REV. 161 (1987), reprinted in KENNETH G. DAU-SCHMIDT, THOMAS S. ULEN, LAW AND ECONOMICS ANTHOLOGY, 49, 57-58 (1998). White further notes that "[t]he modern celebration of the market as the central social institution ... threatens to destroy the single greatest achievement of Western political culture: the discovery that a community can govern itself through a rule of law that attempts to create a fundamental moral and political equality among human beings. The great phrase in the Declaration of Independence - 'all men are created equal' - is partly a theological statement about the conditions under which we are created and partly a political statement about the obligation of the government to acknowledge, indeed to create or recreate, that equality. The ideology of the market, if it prevailed in its desire to convert all institutions into markets, would destroy this set of political relations and create another in its stead, based upon the dollar." Id. at 58.
44. See POSNER, supra note 40, at 10-11, 17.
45. Id. at 10.
46. Id. at 17-20.
47. As Professor Zygmunt Plater has noted, "Environmental law evolved as a response to the dark side of those dynamic market forces that have built the world's largest economy and have made modern life so materially enriched and diverse. Human nature as reflected in the marketplace, however, inherently tends to ignore and pass on social costs to the environment and to others." See Zygmunt J.B. Plater, Environmental Law as a Mirror of the Future: Civic Values Confronting Market Force Dynamics in a Time of Counter-revolution, 23 B.C. ENVTL. AFF. L. REV. 733, 737 (1996).
48. Professor Plater notes that "environmental law has come to incorporate a set of principles representing and accounting for civic values that extend far beyond the realm of science and current events. Perhaps only in environmental law has the modern legal system directly incorporated issues of long-term societal survival into its operative norms and doctrinal provisions. ... By thus embodying civic values, environmental law transcends ecology and raises issues of social governance. Scratch an environmental law argument and you are likely to find an underlying question of democracy --how individuals, corporations, and communities are to balance their drives and needs, each day and over future years and generations." Id. at 737.
49. If the free market adequately considered the social concerns that environmental laws are designed to protect, there would be no need for environmental laws. However, "[t]he human logic of the marketplace lacks a gene for altruism. Without external constraints, social and political mechanisms driven by individualism are dominated by short-term profit expediencies, to the detriment of many short and long-term societal values. They do not incorporate principles that protect the community when the interests of the community and the individual enterprise diverge." Id. at 763. Accordingly, economic considerations should not be the sole factor that is weighed in future environmental initiatives.
50. See POSNER, supra note 40, at 10.
52. "When an economist says that ... control of pollution or some other policy or state of the world is inefficient, nine times out of ten he means Kaldor-Hicks efficient." Id.
54. The seller may have changed its production process or otherwise reduced its pollution output to create its pollution "rights".
55. See, ELI Report, supra note 1, § 3.3.3..
56. The pollution trade may also have benefits for third parties. For instance, by purchasing pollution rights, a company may be able to continue to operate in a community, providing jobs and revenue to the community that would have been lost if the company were not able to buy the pollution rights. In addition, communities near the company that sold the pollution rights may receive benefits because the seller may have reduced its pollution emissions to create the pollution "rights" that it sold in the trade. These benefits must be weighed with the harms to determine whether the trade is "efficient."
57. In order to calculate the harms and benefits of the trade, one must focus on the harms and benefits caused by the 100 pounds of pollution authorized by the trade.
58. See, e.g., David M. Driesen, The Societal Cost of Environmental Regulation: Beyond Administrative Cost-Benefit Analysis, 24 ECOLOGY L.Q. 545, 558 (1997) (discussing quantification of health impacts for cost-benefit analysis); Robert R. Kuehn, supra note 39, at 116-139 (1996) (discussing quantification of health impacts for risk assessment).
59. See Dana Clark, David Downes, What Price Biodiversity? Economic Incentives and Biodiversity Conservation in the United States, 11 J. ENVTL. L. & LITIG. 9, 19 (1996). Clark and Downes assert that "[t]he current national income accounting system provides an example of a perverse economic incentive ... Rather than recognizing the Exxon Valdez spill for what it was, namely a decline in the value of natural resources in the area, it is recorded as an increase in the national income. The spill boosted GNP! All the clean-up expenditures served to increase national income, but no account was taken of the consequent depreciation of the natural environment." Id. at 20.
60. See Stavins, supra note 5, at 24.
61. See ELI Report, supra note 1, §3.3.3.
62. Id., ch. 6.
63. See 51 Fed. Reg. 43,814 (1986).
64. The policy refers to "major stationary sources," which are defined in the Clean Air Act as sources which have the potential to emit 100 tons per year of any pollutant. 42 U.S.C. § 7602(j) (1994).
65. EPA sets national ambient air pollution limits, called national ambient air quality standards, for "criteria" pollutants. Id. § 7409. States are divided into geographic regions, called air quality control regions, for purposes of regulation under the Clean Air Act. Id. § 7407. If the air quality in an air quality control region does not meet the national ambient air quality standard for a particular pollutant, the region is said to be in "nonattainment" for that pollutant.
66. Id. § 7503.
67. Under the policy, a pollution reduction can be certified as an "emission reduction credit" only if the reduction is greater than any reduction required by law, enforceable, permanent and quantifiable. 51 Fed. Reg. at 43,831.
68. Id. The Clean Air Act also allows companies to use offsets when the companies plan to build new major sources of air pollution or make major modifications to major sources in air quality control regions that meet the national ambient air quality standards. 42 U.S.C. § 7475 (1994). While the non-attainment provisions of the Clean Air Act prohibit increases in pollution in dirty air quality control regions, the Act allows a limited increase in the amount of pollution in clean air quality control regions. Id. If a company plans to build a new major source of air pollution or to make a major modification of a major source in a clean air quality control region, it must ensure that the increased pollution from the source will not exceed the limits allowed for the region. Id. If the pollution will exceed those limits, companies can only build the sources if they obtain offsets equal to the amount of increased pollution. See 51 Fed. Reg. at 43, 831.
69. Nationally, only 10% of "offset" trades occur between companies. See ELI Report, supra note 1, § 184.108.40.206. Usually, companies generate emission reduction credits by closing or making changes to an existing source, and companies use those credits to "offset" the pollution from their new source. Id. Offset trades between companies have been frustrated by regulatory limits on trades and the transaction costs of negotiating a trade, among other factors. Id. § 220.127.116.11.
70. A bubble can include multiple emission points within a single facility, multiple facilities owned by the same company, or multiple facilities owned by different companies, as long as all of the facilities are within the same air quality control region. See ELI Report, supra note 1, §18.104.22.168. It is estimated that bubbles have saved businesses more than $435 million in pollution control costs. Id.
71. See 51 Fed. Reg. at 43,830. Netting is used more often than offsets or bubbles. See ELI Report, supra note 1, §22.214.171.124. Between 5,000 and 12,000 air pollution sources have used netting. Id. Since netting allows a small increase in pollution over the limits that would exist without netting, this "reform" can have adverse effects on the environment. Id. Through netting, companies save money by (a) avoiding more stringent pollution control costs that would apply to the source if netting were not allowed; (b) avoiding the costs of permit review and approval; and (c) avoiding construction delays that could result from the permitting process. Id.
72. 42 U.S.C. §§ 7651 - 7651o (1994).
73. See MARK SQUILLACE, ENVIRONMENTAL LAW VOLUME THREE: AIR POLLUTION 301 (2d. ed.1992).
75. 42 U.S.C. § 7651b(a)(1) (1994).
76. See ELI Report, supra note 1, §6.1.7. By early 1997, utilities had traded more than 7.2 million allowances and purchased over 300,000 allowances at EPA auctions. Id.
77. 42 U.S.C. § 7651i (1994). EPA issued final regulations to implement the opt-in program in 1995. See 60 Fed Reg. 17100 (1995).
78. See U.S. EPA, 1995 Compliance Results: Acid Rain Program, 430-R-96-012, July 1996. In the first year of the program, utilities reduced sulfur dioxide emissions by 5.6 million tons, although they were only required to reduce emissions by 2.2 million tons. See Utilities Double Required SO2 Reductions; EPA Allowance Auction Generates $18 Million, 26 Env't Rep. (BNA) 2249 (March 29, 1996).
79. EPA estimates that compliance with the sulfur dioxide emissions trading program costs about $1.2 billion annually for Phase I, and will cost $2.2 billion annually for Phase II, while a command and control approach would cost between $4.5 to 6 billion annually. See ELI Report, supra note 1, §6.1.7. In addition, Resources for the Future, a policy think-tank, recently published a report that concluded that the benefits of the sulfur dioxide trading program, which include reductions in illnesses and premature death, reduced impact on lakes, streams and other aquatic environments, and improved visibility, will be 13 times greater than the costs of the program by 2010. See Benefits of EPA's Acid Rain Program Far Exceed Its Costs, Researchers Find, 28 Env't Rep. (BNA) 888 (Sept. 19, 1997). While Congress focused on environmental benefits of sulfur dioxide emissions reductions when it created the trading program, recent studies have demonstrated that the health benefits of sulfur dioxide emission reduction dwarf all environmental benefits. See ELI Report, supra note 1, §6.1.7.
80. In order to phase
out consumption (production plus imports, minus exports) of certain chlorofluorocarbons
(CFCs) and halons to comply with terms of the Montreal Protocol on Substances
that Deplete the Ozone Layer, EPA distributed "allowances" to companies
that produced or imported CFCs and halons, which the companies could trade
among themselves. See 53 Fed. Reg. 30,566 (1988). Congress capped
the total number of allowances that EPA distributed, in order to gradually
phase out consumption, 42 U.S.C. § 7671b (1994), and imposed an excise
tax on CFC production to prevent windfall profits. 26 U.S.C. §§
4681, 4682 (1994).
The alowance trading program cost businesses about $2.4 million, as opposed to the estimated $300 million cost of a command and control approach. See ELI Report, supra note 1, §6.1.8.
81. In order to reduce the amount of lead in the ambient air, EPA reduced the limit on the amount of lead in gasoline to an average level of 1.1 gm/gallon by November 1, 1982, 0.5 gm/gallon by July 1, 1985 and 0.1 gm/gallon by January 1, 1986. See ELI Report, supra note 1, §6.1.9. EPA allowed refineries to create lead credits, which could be allocated to other refineries for purposes of determining whether the refineries were complying with the lead limits. Id. For instance, if Refiner A produced 200 million gallons of gasoline in 1983 with an average lead content of 0.8 gm/gallon (when the limit was 1.1 gm/gallon), the refiner could earn 60 million grams of lead credits (0.3 gm/gallon * 200 million gallons), which it could sell to Refiner B, who may have produced 200 million gallons of gasoline with an average lead content of 1.4 gm/gallon. Id. Refiners could bank credits for use until the end of 1987. Id. Almost 60% of refiners participated in trading and 90% participated in banking by the end of the program. Id. EPA phased out the use of lead in gasoline much more quickly through trading than would have been possible under a pure command and control approach. Id.
82. Ozone levels in the Los Angeles area are often twice as high as the national ambient air quality standards. See ELI Report, supra note 1, § 6.1.2. Initially, regulators also proposed to include emissions of certain volatile organic compounds (VOCs) under the trading program. Id. Heavy opposition, coupled with various technical problems, prevented regulators from including VOCs in the program. Id. In 1995, the South Coast Air Quality Management District proposed to expand the trading program to target various sources of VOC emissions, but the agency later withdrew that proposal. Id. §6.1.5.
83. Regulators initially targeted over 700 sources of nitrogen oxide emissions and 50 sources of sulfur dioxide emissions. See ELI Report, supra note 1, § 6.1.2. When the program was implemented in 1994, however, it encompassed 370 sources of nitrogen oxides and 40 sources of sulfur dioxide. Id. §6.1.5. Those sources emit more than 70% of the total emissions of both pollutants. Id.
84. See ELI Report, supra note 1, §6.1.5.
85. Id. §6.1.2.
86. Id. §6.1.5.
87. See Marla Cone, Lawn Mower Buyback Plan Approved, L.A. TIMES, May 11, 1996, at A20. Studies suggest that a single lawn mower can emit as much ozone-causing pollution in 20 hours as a 1996 car emits when it is driven for 26,000 miles. Id.
88. Id. Between 1994 and 1996, more than 7,000 cars were scrapped under the auto buy-back rule. Id.
89. See ELI Report, supra note 1, §126.96.36.199. The Board began to design the program in 1992, and the first trade under the program occurred in July 1995. Id.
90. Id. However, while the California program uses mathematical models to determine the amount of emission reductions that can be earned for each vehicle that is scrapped, the Texas program assigns emission reduction credits based on the actual emissions of the vehicles that are scrapped. Id.
91. See Ackerman & Stewart, supra note 1, at 1350. Ackerman and Stewart defended their proposal by arguing that the command and control approach also does not prevent "hot spots." Id.
92. See Driesen, supra note 37, at 310; Rena Steinzor, Reinventing Environmental Regulation: The Dangerous Journey From Command to Self-Control, 22 HARV.ENVT'L. L. REV. 103, 115 (1998); Alice Kaswan, Environmental Justice: Bridging the Gap Between Environmental Laws and "Justice", 47 AM. U. L. REV. 221, 269 (1997).
93. In a 1995 report, the National Environmental Justice Advisory Council suggested that it would closely monitor the implementation of pollution trading policies, because the policies could encourage inequitable distribution of pollution in toxic hot spots. See Increased Enforcement Recommended in Minority, Low-income Communities, 26 Env't Rep. (BNA) 1554 (Dec. 22, 1995).
94. Critics might argue
that the concerns about "toxic hot spots" are inflated. Trading schemes
are often coupled with command and control standards, so that an industrial
source must meet certain technology-based standards before they can trade
for pollution rights. See, ZYGMUNT J.B. PLATER, ENVIRONMENTAL LAW
AND POLICY: NATURE, LAW AND SOCIETY 748 (2d ed. 1998) (Table identifying
technology-based air pollution limits that can't be avoided through trading).
Thus, there are limits on the amount of pollution that will flow to a "toxic
Such criticism is flawed for several reasons. Technology-based standards are not designed to protect human health or the environment. See PLATER, supra, at 501-503 (contrasting the technology-based standards in the Clean Water Act with the harm-based standards in the Clean Air Act). Thus, if several sources are emitting pollution into the air or water at levels that meet technology-based standards in a "toxic hot spot," those standards will not necessarily protect the health or environment of the surrounding community. Although states may impose more stringent limits on sources in those "toxic hot spots" in order to meet health-based or environmentally-based water quality standards or air quality standards, see, e.g. 33 U.S.C. § 1311 (b)(1)(C) (1994), the health-based or environmentally-based standards do not necessarily protect the health and safety of communities because the standards are set based on risk assessments that do not address the cumulative or synergistic impacts that pollution can have on persons. See Kuehn, supra note 39, at 117-121.
95. See Heidi Gorovitz Robertson, If your Grandfather Could Pollute, So Can You: Environmental 'Grandfather Clauses' and Their Role in Environmental Inequity, 45 CATH. U. L. REV. 131, 134 (1995); See also Steinzor, supra note 92, at 115-116.
96. See Robertson, supra note 95, at 134, 139; Kaswan, supra note 92, at 270.
97. See supra notes 40-49, and accompanying text.
98. See supra note 39.
99. See supra note 39; see also Andrew Szasz, et al, The Demographics of Proximity to Toxic Releases: the Case of Los Angeles County, (visited Aug. 21, 1998) <http://www.mapcruzin.com/scruztri/docs/seek55.htm>.
100. See Controversial Report on Health Effects in Poor Areas of Tennessee Released by EPA, 24 Env't Rep. (BNA)1468 (Dec. 3, 1993); Dr. Andrew Szasz & Michael R. Meuser, Environmental Inequality: Silicon Valley Toxics and Demographics (visited Aug. 8, 1998) <http://www.cruzio.com/~meuser/EI/project.html>; Review of 64 Previous Studies Confirms Conclusions on Pollution's Impact on Poor, 25 Env't. Rep. (BNA) 22 (May 6, 1994); ENVIRONMENTAL PROTECTION AGENCY, Toxic Release Inventory & Emission Reduction 1987-1990 in the Lower Mississippi River Industrial Corridor (1993); LOUISIANA ADVISORY COMM. TO THE U.S. COMM'N ON CIVIL RIGHTS, The Battle for Environmental Justice in Louisiana ..... Government, Industry, and the People (1993).
102. The limited political power of low-income communities is illustrated most dramatically by a passage in a study on the siting of waste incinerators that Cerrell Associates prepared for the California Waste Management Board in 1984. See Kaswan, supra note 92, at 236. The study concluded that "all socioeconomic groupings tend to resent the nearby siting of major facilities, but middle and upper socioeconomic strata possess better resources to effectuate their opposition. Middle and higher socio-economic strata neighborhoods should not fall within the one-mile and five-mile radius of the proposed site." Id. at 236-237. See also Robertson, supra note 95, at 165.
103. See Greg Goldin, Credit Crash: State Enters Fray Over Swapping of Pollution Credits, L.A. WEEKLY , Sept. 12. 1997, at 14.
105. In response to the challenge of Citizens for a Better Environment, the South Coast Air Quality Management District adopted a 10 point plan to prevent toxic hot spots in minority communities. See South Coast Air District Adopts Environmental Justice Program, 28 Env't Rep. 165 (Oct. 24, 1997). The plan created a new monitoring system to evaluate the cumulative impacts of emissions from multiple sources, required the agency to conduct a comprehensive 15 month study regarding the distributional impacts of pollution in the region and to hold a series of town hall meetings to improve public access to the agency, and created a task force of business, environmental and community representatives to address environmental justice issue in air pollution regulation. Id.
106. Phase II of the sulfur dioxide emissions trading program, which begins in 2000, will involve 700 additional sources, and experts are forecasting increased trading by sources in Phase II. See ELI Report, supra note 1, § 6.1.7.
107. The States and the District of Columbia are members of an "Ozone Transport Commission" that was created by the 1990 Clean Air Act Amendmentsto formulate consensus recommendations to control ozone pollution in the States. See 42 U.S.C. § 7511c(a) (1994).
108. The agreement divides the States into three "zones," which must achieve different nitrogen dioxide reduction levels, from 1999 through 2003. See ELI Report, supra note 1, §6.1.5. The agreement specifies the number of emission allowances that are allocated to each state, and the States determine the manner in which allowances will be distributed within each state. Id. Allowances can be traded or banked by sources in the State. Id. Several northeastern States have already created nitrogen oxide cap and trade programs to implement the agreement. See, e.g. State Proposes Market-based Plan to Slash Power Plant Nox Emissions, 28 Env't Rep. (BNA) 1006 (Sept. 26, 1997) (describing New Jersey's program); Biggest Planned Northeast Nox Trade Preparing Region For 1999, Traders Say, 28 Env't. Rep. (BNA) 1336 (November 7, 1997) (describing Massachusetts' program). The Ozone Transport Commission estimates that the trading program will cost 30% less than a pure command and control approach. See ELI Report, supra note 1, §6.1.5.
109. In 1995, EPA created an Ozone Transport Assessment Group (OTAG), with representatives of those 37 states and the District of Columbia, to review potential controls to limit ozone formation in the region. See ELI Report, supra note 1, § 6.1.5. Based on OTAG recommendations, EPA issued proposed rules to cap nitrogen oxide emissions from each State in the region, and to establish a nitrogen oxide emissions trading program for the region. See 62 Fed. Reg. 60318 (Nov. 7, 1997). Midwestern and Southern States are lobbying strongly against the proposal, see Governors Offer Ozone Transport Proposal, Ask Clinton to Rethink Administration Plan, 28 Env't Rep. 2381 (March 13, 1998), while Northeastern States are strongly supporting it. See Northeast Governors Press Clinton to Move Forward with Ozone Proposal, 28 Env't. Rep. (BNA) 2717 (April 24, 1998). While EPA planned to finalize the rule by September 1998, legislation has been introduced to delay the implementation of the rule, and political pressure may derail the proposal. See Legislation Would Delay Promulgation of Epa Rule Addressing Ozone Transport, 28 Env't. Rep. (BNA) 2510 (April 3, 1998).
110. See Order 888: Promoting Wholesale Competition Through Open Access Non-discriminatory Transmission Services by Public Utilities;Recovery of Stranded Costs by Public Utilities and Transmitting Utilities, 75 FERC 61,080 (1996) (visited August 6, 1998) <http://www.ferc.fed.us/news1/rules/data/rm95-8-00V.txt >
112. EPA raised its concerns in the context of the environmental review procedures of the National Environmental Policy Act. See Air Quality Could Be Lowered by Proposal to Increase Utility Competition, EPA Says, 26 Env't. Rep. (BNA) 859 (Sept. 1, 1995). The Center for Clean Air Policy concluded that, without a cap on nitrogen oxide emissions, FERC's open access rules would increase emissions by 11-18% in New York during the summer ozone season. See Study Says Increased Utility Competition Will Boost Ozone in East Absent Controls, 27 Env't Rep. (BNA) 2339 (April 4, 1997). Public utilities in several Northeastern States raised similar concerns to FERC and requested a rehearing on FERC's decision to allow open access. See Order 888-A: Promoting Wholesale Competition Through Open Access Non-discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities (Order on Rehearing), 78 FERC 61,220 (1997) (visited August 6, 1998) <http://www.ferc.fed.us/news1/rules/data/rm95-8p3-000.txt >
113. A recent EPA report concluded that utilities emit between 13-26% of the total airborne emissions of mercury. See Utility Air Toxics Report Highlights Mercury as Pollutant of Concern, Lists Other HAPS, 28 Env't Rep. (BNA) 2285 (Feb. 27, 1998.) Studies have suggested that mercury can cause death, reduced reproductive success, impaired growth and development and behavioral abnormalities in wildlife, and may cause neurological and developmental defects in humans. Id. In light of those findings, EPA used authority under Section 114 of the Clean Air Act, 42 U.S.C. §7414 (1994), to require utilities to monitor and report mercury levels in the coal that they burn. 63 Fed. Reg. 17406 (Apr. 9, 1998). EPA is trying to determine whether it is necessary to regulate mercury emissions from utilities. Id. at 17407.
114. Although it is hard to predict what areas would be impacted by nitrogen oxide emissions from old, heavily polluting power plants, it is likely that the pollutants will exacerbate problems in cities and urban areas, where there are other sources of ozone pollution, rather than in suburban communities. Studies have consistently determined that air pollution disparately impacts low income communities. See Charles Lee, Developing the Vision of Environmental Justice: a Paradigm for Achieving Healthy and Sustainable Communities, 14 VA. ENVTL. L.J. 571 (1995); see also Environmental Justice: Hearings Before the Subcom. on Civil and Constitutional Rights, 103d Cong. (statement of Paul Mohai).
115. See Order 888-A, supra note 112, at I.17. (visited August 6, 1998) <http://www.ferc.fed.us/news1/rules/data/rm95-8P1-000.txt> The Council on Environmental Quality (CEQ) mediated the dispute between EPA and FERC. See EPA-FERC Battle Over Utility Access Rule Resolved Under Referral Process, CEQ Says, 27 Env't Rep. (BNA) 463 (June 21, 1996).
116. See Environmental Group, N.J. Utility Agree on Role of Pollution Control in Restructuring, 28 Env't Rep. (BNA) 2421 (March 20, 1998). Legislation introduced in the 105th Congress would impose caps on emissions of nitrogen oxides, sulfur dioxide, carbon dioxide, and mercury from power plants. See S. 687, 105th Cong., 1st Sess. (1997).
117. See Electric Restructuring Plan Seeks Efficiency Through Renewable Energy, Market Trading, 28 Env't Rep. (BNA) 2461 (March 27, 1998). Environmental groups criticized the plan because it did not include caps on emissions of carbon dioxide, nitrogen oxides and sulfur dioxide. Id. In response to concerns that FERC's open access rules will encourage older, heavily polluting power plants to continue to operate, Clinton Administration officials argue that such plants would be operated at full capacity regardless of the rules. See Energy Official Says Utility Competition Unlikely to Boost Old Plants' Emissions, 28 Env't Rep. (BNA) 2672 (April 17, 1998).
118. See EPA May Seek More Authority for Trading Through Utility Restructuring Legislation, 28 Env't. Rep. (BNA) 2382 (March 13, 1998); Administration Plans to Sign Kyoto Deal, Will Hold Off Seeking Senate Ratification, 28 Env't Rep. (BNA) 2152 (Feb. 20, 1998)..
119. In December,
1997, 160 countries reached agreement on the Protocol, which addresses
emissions of carbon dioxide, methane, hydrofluorocarbons, perfluorocarbons,
and sulfur hexafluoride. See Negotiators in Japan Reach Agreement for
6 Percent Emission Cut by 2008-2012, 28 Env't Rep. (BNA) 1565 (Dec.
12, 1997). The Clinton Administration hopes to enter into bilateral agreements
with several developing nations before the United States signs the treaty,
in order to appease members of Congress who were upset that developing
nations are not required to meet emission limits in the treaty. See
Administration Plans to Sign Kyoto Deal, Will Hold Off Seeking Senate Ratification,
28 Env't Rep. (BNA) 2152 (Feb. 20, 1998); White House Plans to Seeks
Emission Cuts in Developing Countries Before Pact Ratified, 28 Env't
Rep. (BNA) 1615 (Dec. 19, 1997).
While developing countries do not have to reduce their greenouse gas emissions, the treaty allows industrialized countries to sponsor and receive credit for projects that reduce emissions levels in developing countries. See 28 Env't Rep. at 1565. The treaty also allows countries to claim credits for maintaining forests in their country, since forest can function as "sinks" for greenhouse gas emissions. Id. Japan is currently negotiating with Russia to transfer energy efficient technologies to Russia in exchange for emission reduction credits attributable to Russia's vast forestry resources. See Japan Eyes Greenhouse Gas Trades with Russia to Meet Pact Reductions, 28 Env't Rep. (BNA) 2106 (Feb. 13, 1998).
120. The treaty requires the United States to reduce its greenhouse gas emissions to 7% less than 1990 levels by 2008-2012. See 28 Env't Rep. at 1565.
121. See U.S. ENVIRONMENTAL PROTECTION AGENCY, DRAFT FRAMEWORK FOR WATERSHED-BASED TRADING (1996) (visited August 6, 1998) <http://www.epa.gov/OWOW/watershed/summary.html> (hereinafter "Framework").
123. The Clean Water Act requires polluters to comply with certain water quality-based standards in addition to technology-based standards. For instance, the Act authorizes the agency that issues NPDES water pollution permits to require polluters to reduce their pollution discharges beyond the levels required by technology-based standards if the additional reductions are necessary to meet water quality standards. 33 U.S.C. § 1311(b)(1)(C) (1994). In addition, for certain polluted waters, the Clean Water Act requires States to identify the total amount of pollution that can be discharged into the water (the "total maximum daily load" or TMDL), and to limit discharges by all polluters to ensure that pollution discharges do not exceed the TMDL for the water. Id. § 1313(d). Additional pollution reductions may be required to comply with EPA's "anti-degradation" policy. See 40 C.F.R. § 131.12 (1997).
124. Several types of trading are possible in effluent trading programs. A point source polluter may enter into an agreement with another point source, or with a non-point source. See Framework, supra note 121, Exec. Summ. Two non-point sources may enter into an agreement. Id. Several discharges from a single point source might be treated as a single discharge in the same way that air pollution emissions are "bubbled." Id. Finally, a pretreatment plant may enter into an agreement with polluters that dispose of their pollution in the pretreatment plant. Id.
125. Usually, effluent trades can only be made by polluters in the same watershed. See Framework, supra note 121, at 2-8 (describing "Principles for Trading"). This should reduce the potential for environmental injustice to some extent.
126. Wisconsin has implemented a program that allow polluters to trade biological oxygen demand (BOD) effluent reduction credits on the Fox River. See ELI Report, supra note 1, § 6.2.2, and regulators in Denver, Colorado have implemented a phosphorous trading program for the Dillon Reservoir. Id. §188.8.131.52.
127. EPA concluded that the use of water pollution effluent trading was limited, in the past, by the absence of clear and unambiguous authorization for trading in the Clean Water Act. See GAO Reinvention Report, supra note 2, ch. 3:5:4.
128. Taxes are designed to raise revenue, while charges or fees offset costs to government. See ELI Report, supra note 1, § 4.1.
129. See ELI Tax Report, supra note 23, at 2. There are several reasons why governments have been reluctant to use taxes to achieve environmental protection. First, it is politically difficult to enact pollution taxes because the regulated community usually opposes such taxes, especially if the taxes will be set high enough to materially change behavior. See Thompson, supra note 3, at 18; ELI Report, supra note 1, §3.3.1. Second, regulators have less control over the total volume of pollution that is discharged under a pollution tax system than under a "capped" pollutant trading program. Id. §3.3.1. Third, administration of a pollution tax system raises numerous complicated issues. For instance, regulators must determine an appropriate tax rate that encourages pollution reduction, raises revenue, protects viability of businesses, and possibly achieves several other conflicting policy goals. See Ottinger & Moore, supra note 23, at 107; ELI Tax Report, supra note 23, at 9. Measurement of the pollution that will be taxed is often difficult. See ELI Report, supra note 1, §3.4. Finally, some environmentalists oppose pollution taxes because they appear to give polluters a right to pollute, Id. §3.3.1.
130. 26 U.S.C. § 4681. CFC consumption fell from 318,000 metric tons in 1989 to 200,000 metric tons in 1990, and the tax raised $2.9 billion in its first five years. See ELI Report, supra note 1, §184.108.40.206.
131. Manufacturers must pay a tax, ranging from $1,000 to $7,700, depending on fuel efficiency, for each car that they sell that averages less than 22.5 miles per gallon. See ELI report, supra note 1, §220.127.116.11.
132. See, e.g., H.R. 4805, 101st Cong., 2d Sess. (1990). See also Dawn Erlandson, The Btu Tax Experience: What Happened and Why it Happened, 12 PACE ENVT'L L. REV. 173 (1994); Christian, supra note 23; Stavins, supra note 5, at 23.
133. 42 U.S.C. § 7410(a)(2)(A) (1994).
134. See ELI Report, supra note 1, §4.1.
135. Id. §18.104.22.168.
136. Id. §22.214.171.124.
137. Eighteen states that administer the Clean Water Act Section 402 (NPDES) permit program assess permit fees based on discharge volume, and ten other states assess fees based on discharge volume and toxicity. See ELI Report, supra note 1, §4.2.2. For instance, permit fees in Louisiana range from $227.50 to $90,000, based on a variety of factors, including pollutants released, heat load, volume, complexity of the discharger, and potential public health threat of the discharge. Id. §4.2.3. In California, fees range from $400 to $10,000 per year, depending on the threat to water quality from the discharge, and the complexity of the permit. Id.
138. Maine imposes an air pollution permit fee that ranges from $2 per ton for emissions up to 1,000 tons to $15 per ton for emissions in excess of 4,000 tons, and the state imposes a surcharge based on the toxicity of emissions. See ELI Report, supra note 1, §126.96.36.199. New Mexico charges permit fees that range from $10 per ton for criteria pollutants to $150 per ton for air toxics. Id. §4.3.1.
139. See ELI Report, supra note1, §4.2.2.
140. Id. §4.2.3. The 1990 Clean Air Act Amendments require states to impose permit fees that recover the administrative costs of operating the air pollution permitting program. See 42 U.S.C. § 7661a(b)(3)(A) (1994).
141. Variable rate ("pay as you throw") programs have been implemented in 3,400 communities in 37 states. See ELI Report, supra note 1, §4.4.1.
143. A study of 21 northeastern cities that implemented variable rate programs found that waste disposal rates dropped from 17% to 74% in those cities. Id. A 1992 survey of 14 cities found that the waste disposal rates dropped an average of 44% in those cities. Id. At the same time, though, these programs can create incentives for illegal waste disposal ("midnight dumping"). Id.
144. See Ottinger & Moore, supra note 23, at 108.
145. In the past, pollution taxes have generally been set too low to create any significant incentives for pollution reduction. See ELI Report, supra note 1, §3.4.
146. See ELI Tax Report, supra note 23, at 9, 26.
147. See Dower & Repetto, supra note 25, at 168.
148. See Christian, supra note 23, at 250.
149. See ELI Report, supra note 1, § 4.4.1.
150. See Dower & Repetto, supra note 25, at 169.
151. See Christian, supra note 23, at 253-254.
152. See Christian, supra note 23, at 252-253; Ottinger & Moore, supra note 23, at 118.
153. See ELI Tax Report, supra note 23, at 46-47; Stavins, supra note 5, at 23.
154. See ENVIRONMENTAL PROTECTION AGENCY, XL at a Glance? (visited Aug. 6, 1998) <http://yosemite.epa.gov/xl/xl_home.nsf/all/xl_glance> (hereinafter "XL at a Glance"). Some states are also modeling initiatives on EPA's Project XL. See Steinzor, supra note 92, at 111.
155. See XL at a Glance, supra note 154. "To participate in Project XL, applicants must have a good history of compliance with EPA regulations. Successful XL proposals must also develop alternative environmental management strategies that: (1) produce superior environmental results; (2) produce benefits such as increased flexibility, cut costs and reduce paperwork; (3) are supported by stakeholders; (4) achieve innovation/pollution prevention; (5) are transferable to other facilities; (6) are feasible; (7) identify monitoring, reporting, accountability and evaluation methods; and (8) avoid shifting the risk burden." Id.
156. See Beth S. Ginsberg and Cynthia Cummis, EPA's Project XL: A Paradigm for Promising Regulatory Reform, 26 ELR 10059, 10061 (1996).
157. Id. See also ENVIRONMENTAL PROTECTION AGENCY, Status of OSi Specialties Project XL,(visited August 8, 1998) <http://yosemite.epa.gov/xl/xl_home.nsf/all/osi.html> (describing Project XL pilot project for OSi Specialties Inc. plant in West Virginia).
158. See, e.g., ENVIRONMENTAL PROTECTION AGENCY, Weyerhauser Proposes Multimedia Approach to Environmental Protection, (visited Aug. 8, 1998) <http://yosemite.epa.gov/xl/xl_home.nsf/all/weyer.html> (describing a Project XL pilot project for a Weyerhauser pulp manufacturing plant in Oglethorpe, Georgia).
159. See Ginsburg & Cummis, supra note 156, at 10061.
160. See Steinzor, supra note 92, at 131-132; Ginsburg & Cummis, supra note 156, at 10062.
161. See Steinzor, supra note 92, at 133-134.
163. Public interest groups and other commentators have criticized Project XL's public participation procedures because they fail to provide communities with financial or technical assistance that is necessary to participate in the process, and because much of the negotiations to develop the agreements takes place without public participation. See EPA's Project XL in Need of Adjustments to Ease Participation, Forum Participants Assert 27 Env't Rep. (BNA)1839 (Jan. 3, 1997) (hereinafter XL Forum); See also Steinzor, supra note 92, at 142-143; Thompson, supra note 3, at 14, 16.
164. Although EPA
hopes to approve 50 pilot projects, the agency only approved 7 as of April,
1998. See, XL at a Glance, supra note 154. There are several
reasons why the agency has not approved more pilot projects. First, it
has been difficult for EPA to determine whether proposed projects achieve
"superior environmental performance," or for EPA to develop a precise definition
of "superior environmental performance." See Steinzor, supra
note 92, at 130.
Second, negotiation and development of
Project XL pilot project agreements is time consuming and expensive for
EPA, businesses, and communities. See Thompson, supra note
3, at 16; Steinzor, supra note 92, at 128; XL Forum, supra
note 163; GAO Reinvention Report, supra note 2, ch. 4.2.
Finally, by their very nature, Project
XL pilots may violate statutory or regulatory requirements. See Ginsburg
& Cummis, supra note 156, at 10063. While EPA can decide, as
a matter of enforcement discretion, to not prosecute Project XL participants
for statutory or regulatory violations, citizens may be able to challenge
the pilot projects through citizen suit provisions of the environmental
EPA has attempted to address that problem by using permit modifications, site-specific rulemakings, and alternative compliance strategies as ways to exercise their discretion, when the environmental laws grant them discretion, to modify regulatory requirements. See 62 Fed. Reg. 19,872, 19,876 (1997). While EPA feels that it has authority to implement many of the Project XL pilot projects under existing laws, see GAO Reinvention Report, supra note 2, ch. 3:5.1, legislators have introduced legislation that would explicitly authorize EPA to waive or modify statutory or regulatory requirements for Project XL pilot projects. See S.1348, 105th Cong., 1st Sess. (1997); H.R. 3180, 105th Cong., 1st Sess. (1997).
165. "Brownfields" are defined by EPA as "abandoned, idled or underused industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination." ENVIRONMENTAL PROTECTION AGENCY, Office of Solid Waste and Emergency Response, Brownfields Glossary of Terms: Brownfields (visited Aug. 8, 1998) <http://www.epa.gov/swerosps/bf/glossary.htm#brow> The Government Accounting Office estimates that there may be as many as 500,000 brownfields in the United States. Stephen M. Johnson, The Brownfields Action Agenda: A Model for Future Federal/State Cooperation in the Quest for Environmental Justice?, 37 SANTA CLARA L. REV. 85, 94 (1996).
166. See Johnson, supra note 165, at 102, 105.
167. Id. at 104, 112-115.
168. Without incentives, uncertain cleanup standards, uncertain liability, and inadequate financing opportunities often prevent the redevelopment of brownfields. Id. at 97-100.
169. Id. at 103.
170. Id. at 96.
171. Id. at 94.
172. See Zygmunt J.B. Plater, Facing a Time of Counter-revolution--the Kepone Incident and a Review of First Principles, 29 U. RICH. L. REV. 657, 696 (1995) (discussing "Cadillac cleanups'); PERCIVAL, supra note 1, at 393-399; Peter Huber, Crime: Buck-passing, FORBES, Mar. 14, 1994, at 120.
173. See Johnson, supra note 165, at 95-96.
175. Id. at 95.
176. Id. at 95-96.
177. Id. at 96, 100.
178. For a good discussion of the history of federal and state pollution prevention efforts, see Robert F. Blomquist, Government's Role Regarding Industrial Pollution Prevention in the United States, 29 GA. L. REV. 349 (1995).
179. "Source reduction" refers to any practice that "reduces the amount of hazardous substance, pollutant or contaminant entering any waste stream or otherwise released into the environment ... prior to recycling, treatment, or disposal and ... reduces the hazards to public health and the environment associated with the release of such substances, pollutants or contaminants." 42 U.S.C.§ 13102(5)(A) (1994). "Source reduction" does not include recycling.
180. Pollution prevention practices that could be implemented by businesses include (a) changes in process inputs; (b) improved plant management or housekeeping; (c) changes in process equipment or process technology; (d) recycling and reuse within a process; and (e) changes in the design of end products. See Stephen M. Johnson, From Reaction to Proaction: The 1990 Pollution Prevention Act, 17 COLUM. J. ENVT'L L. 153, 157 (1992) (hereinafter "Johnson II")..
181. See Johnson II, supra note 180, at 157-158, 162 (citing economic success stories for 3M, Chevron, Dow and Clairol); Kurt Strasser, Preventing Pollution, 8 FORDHAM ENVT'L L.J. 1,11 (1996); ENVIRONMENTAL PROTECTION AGENCY, POLLUTION PREVENTION 1997: A NATIONAL PROGRESS REPORT, Exec. Summ.:2 (1997) (visited Aug. 8, 1998) < http://www.epa.gov/opptintr/p2_97/execsumm.pdf > (hereinafter "Progress Report") Businesses save money by reducing or avoiding waste disposal costs, and by avoiding waste of raw materials. See Johnson II, supra note 180, at 158. Amoco recently concluded that pollution prevention approaches at one of its refineries could eliminate as much pollution as required by command and control regulations for 1/4 the cost of the regulations. See Strasser, supra, at 9. A Dow Chemical study concluded that the company received a 50% return on funds that they spent on pollution prevention, while they only received a 13% return on funds that they spent on regulatory compliance. Id. A study by New Jersey's environmental regulators concluded that $5-$8 are saved for every $1 that government and industry spend on pollution prevention. See Pollution Prevention Planning Reported to Save Industry $5-$8 For Each Dollar Spent, 26 Env't Rep. (BNA) 671 (August 4, 1995). Pollution prevention approaches were used to remove phosphates from household detergents, see Strasser, supra, at 27-29, and are being used to remove chlorine from paper manufacturing processes. See Louisiana-pacific Kraft Paper Mill Converts to Chlorine-free Operation , 25 Env't Rep. (BNA) 866 (Sept. 9, 1994).
182. See Johnson II, supra note 180, at 162; Progress Report, supra note 181, Exec. summ.:2.
183. See ENVIRONMENTAL PROTECTION AGENCY, Environmental Justice Through Pollution Prevention Grant Program, (visited Aug. 8, 1998) <http://www.epa.gov/opptintr/ejp2/intro-ix.htm >
184. See Johnson II, supra note 180, at 170.
185. 42 U.S.C. § 13105 (1994).
186. Id. § 13104.
187. However, the Act includes a mandatory reporting requirement. Id. §13106. Owners or operators of businesses that must file a toxic chemical release form under the Emergency Planning and Community Right to Know Act must include, on that form, information about their source reduction and recycling activities. Id.
188. The goal of the 33/50 initiative was to reduce emissions of 17 toxic chemicals by 33% by 1992 and 50% by 1995, preferably through source reduction, but possibly through recycling, reuse and pollution control measures. See GENERAL ACCOUNTING OFFICE, TOXIC SUBSTANCES: EPA NEEDS MORE RELIABLE SOURCE REDUCTION DATA AND PROGRESS MEASURES, ch. 0:2 (GAO/RCED-94-93) (Sept. 23, 1994) (hereinafter "Source Reduction Report"). More than 1200 companies participated in the initiative, id. ch.0:4.2, and emissions of the 17 chemicals were reduced by 50% a year ahead of schedule. Id. ch. 3:2.1. While EPA touted the program as a success, many critics argued that (a) substantial emissions reductions were achieved through pollution control measures or recycling, rather than source reduction; (b) many of the emissions reductions were planned by companies prior to the initiative; and (c) substantial emissions reductions that were attributed to the program were achieved by companies that did not participate in the program. See Voluntary Pollution Prevention Program Labeled 'Sham' by Environmental Group, 25 Env't. Rep. (BNA) (June 10, 1994); Source Reduction Report, supra ch. 3:2.1; Joel S. Hirschhorn, Pollution Prevention Comes of Age, 29 GA. L. REV. 325, 332 (1995).
189. Waste Wise is a voluntary initiative to reduce solid waste through prevention, reuse and recycling. See ENVIRONMENTAL PROTECTION AGENCY, Waste Wise, (visited Aug. 8, 1998) <http://www.epa.gov/epaoswer/non-hw/reduce/wstewise/index.htm>
190. The Design for the Environment initiative "helps businesses incorporate environmental considerations into the design and redesign of products, processes, and technical management systems." See ENVIRONMENTAL PROTECTION AGENCY, Design for the Environment, (visited Aug. 8, 1998) <http://www.epa.gov/dfe>
191. EPA's "Partners for the Environment" Web page lists 24 voluntary partneship programs. See ENVIRONMENTAL PROTECTION AGENCY, Partners for the Environment, (visited Aug. 8, 1998) <http://www.epa.gov/partners>
192. In EPA's 1991 Pollution Prevention Strategy, the agency announced that it anticipated "including conditions in administrative and civil settlements of enforcement actions that require firms to adopt pollution prevention practices either as a means of correcting violations of environmental protection laws or in exchange for reduced fines and penalties for violations of those laws." 56 Fed. Reg 7849, 7859 (1991).
193. See ENVIRONMENTAL PROTECTION AGENCY, EPA Supplemental Environmental Projects Policy, (visited Aug. 8, 1998) <http://es.epa.gov/oeca/sep/sepfinal.html> (hereinafter "SEP Policy") A SEP is an "environmentally beneficial project which a defendant/respondent agrees to undertake in settlement of an enforcement action, but which the defendant/respondent is not otherwise legally required to perform." Id. §B. EPA's policy applies to civil judicial and administrative actions. Id. § A.4.
194. Id. §D. All projects must have an adequate "nexus" to the violation. Id. §C1. "Nexus is the relationship between the violation and the proposed project. This relationship exists only if a. the project is designed to reduce the likelihood that similar violations will occur in the future; or b. the project reduces the adverse impact to public health or the environment to which the violation at issue contributes; or c. the project reduces the overall risk to public health or the environment potentially affected by the violation at issue. Nexus is easier to establish if the primary impact of the project is at the site where the alleged violation occurred or at a different site in the same ecosystem or within the immediate geographic area. Such SEPs may have sufficient nexus even if the SEP addresses a different pollutant in a different medium." Id.
195. See Elaine G. Levine, Supplemental Environmental Projects: A Win/Win/Win for the Company, the Agency and the Environment, Presented at the American Bar Association's Section on Natural Resources, Energy and Environmental Law Briefing on Environmental Issues in U.S. EPA Region IV 2-3 (June 7-8, 1994).
197. "Environmental justice" is one of five factors that the agency considers when deciding how much a penalty should be reduced in exchange for a SEP. See SEP Policy, supra note 193, § E.3. In addition, "[e]mphasizing SEPs in communities where environmental justice issues are present helps ensure that persons who spend significant portions of their time in areas, or depend on food and water sources located near, where the violations occur would be protected. ... EPA encourages SEPs in communities where environmental justice may be an issue." Id. § A.2.
198. See Johnson II, supra note 180, at 155, n.9; Strasser, supra note 181, at 13. While toxic emissions, as measured by the Toxic Release Inventory (TRI), are declining, the quantity of toxic chemicals in waste is increasing. See ENVIRONMENTAL PROTECTION AGENCY, 1995 TOXICS RELEASE INVENTORY PUBLIC DATA RELEASE: OVERVIEW (visited Aug. 8, 1998) (hereinafter "1995 TRI Data Release") <http://www.epa.gov/opptintr/tri/pdr95/drover01.htm> When EPA released TRI emissions data in 1997, the agency noted that facilities submitting data did "not anticipate discernible progress in moving" toward pollution prevention in the next two years. Id. ch. 4:55 (visited Aug. 8, 1998) <http://www.epa.gov/opptintr/tri/pdr95/chap4b.pdf>
199. See Johnson II, supra note 180, at 189-194 (describing State pollution prevention planning requirements).
200. See GENERAL ACCOUNTING OFFICE, ENVIRONMENTAL MANAGEMENT: AN INTEGRATED APPROACH COULD REDUCE POLLUTION AND INCREASE REGULATORY EFFICIENCY, LETTER REPORT (GAO/RCED-96-41) (Jan. 31, 1996) (hereinafter "GAO Letter Report"). Since most environmental laws focus on single media, EPA and most State environmental agencies have been organized around separate media-specific offices (i.e. water pollution office, air pollution office, etc.). Id. at :2. Program offices may have little contact with each other. Id.
202. Id. at :2. For instance, when sewage treatment plants remove heavy metals and other contaminants from its wastewater discharges, the pollutants are concentrated in sludge, which is often disposed of on land, instead of the water. Similarly, when a power plant installs filters to remove pollutants from its air emissions, the filtered pollutants are often disposed of on the land, instead of the air. See GAO Reinvention Report, supra note 2, ch. 1:1. The single-media environmental statutes are not coordinated or integrated, and often contain differing philosophies or approaches. Id.
203. See GAO Letter Report, supra note 200; GAO Reinvention Report, supra note 2, ch. 1.1.
204. See GAO Letter Report, supra note 200, at :3.7.
205. See 63 Fed. Reg. 18504 (April 15, 1998).
207. See GAO Reinvention Report, supra note 2, ch. 0:4.1.
208. See GAO Letter Report, supra note 200, at :1, :3. The state environmental agency reorganized its compliance and enforcement office to facilitate the multimedia approach, and implemented the program in 1993. Id. at :2. Facilitywide inspections are unworkable at the State's largest, most complex facilities, where the agency continues to conduct single-media inspections. Id. at :3:2.
209. Id. at :1. The agency recently issued a single five year permit to replace 70 separate air, water and waste permits or approvals for an industrial facility. Id. at :3.7. The state instituted the multimedia permit program, which is a pilot program, in 1991. Id. at :2. It took three years for the agency to issue the first permit, and the agency only issued three permits in the first four years of the program. Id. at :3.5.
210. Id. at :1, :2, :3.3.
211. Id. at :1. However, most of EPA's funding for state environmental programs has traditionally been medium specific, id. at :2, which discourages multimedia initiatives. EPA has provided some initial funding for multimedia initiatives through single media programs in the past, and recently launched a "performance partnership" grant program that should provide easier access to funds for multimedia programs. Id. at :4.1, 4.3; see also ENVIRONMENTAL PROTECTION AGENCY, Performance Partnership Grants, (visited Aug. 8, 1998) <http://aspe.os.dhhs.gov/cfda/p66605.htm>
212. Since the environmental laws are not integrated or coordinated, they may impose conflicting requirements that cannot be satisfied in a unified rulemaking or permitting process. See, supra note 202. Accordingly, Congressional legislators have introduced bills that would explicitly authorize EPA to issue "integrated permits" or to issue multimedia regulations. See S. 1348, 105th Cong., 1st Sess. (1997); H.R. 3180, 105th Cong., 1st Sess. (1997).
213. See supra note 209.
214. Policymakers have often considered the merits of harmonizing all environmental requirements in a single, unified environmental law. See, e.g., Unified Statute Would Help States Move Forward with Multimedia Permits, Other Plans, NEPI Says, 27 Env't Rep. (BNA) 1469 (Nov. 15, 1996); Recommendations on Unified Environmental Law Expected Before End of 1996, EPA Official Says, 26 Env't Rep. (BNA)1125 (Oct. 27, 1995).
215. See Clifford Rechtschaffen, The Warning Game: Evaluating Warnings Under California's Proposition 65, 23 ECOLOGY L.Q. 303, 313 (1996).
216. Id. at 315.
217. Obviously, the community may still lack the financial resources or power to bargain to prevent harm. Id. at 317.
218. Id. at 314-315.
219. 42 U.S.C. §§ 11001 - 11050 (1994).
220. See Gary D. Bass & Alair MacLean, Enhancing The Public's Right-to-know About Environmental Issues, 4 VILL. ENVT'L L.J. 287 (1993).
221. "Pollutant Release and Transfer Registers" have been implemented in Canada, France, Norway, the Netherlands, and the United Kingdom, and are being established in at least nine other countries. See 1995 TRI Data Release, supra note 198, ch. 3.
222. See 42 U.S.C. § 11023 (1994).
223. See 61 Fed. Reg. 51322 (1997).
225. See ELI Report, supra note 1, § 9.1; Bass & MacLean, supra note 220, at 5; 1995 TRI Data Release, supra note 198, ch.2 (visited Aug. 8, 1998) <http://www.epa.gov/opptintr/tri/pdr95/drover01.htm>
226. 42 U.S.C. § 300g-3(c) (Supp. 1997). The amendments require suppliers to notify consumers within 24 hours of any violations that present a threat to public health. Id. § 300g-3(c)(2)(C). They also require suppliers who serve more than 10,000 people to send consumers an annual "consumer confidence report" that describes the source and quality of the drinking water. Id. § 300g-3(c)(4). Smaller suppliers must prepare the reports, as well, but they may only be required to publish the report in a newspaper or make it available on request to consumers. Id. The law requires EPA to establish a national database to track the occurrence of contaminants in drinking water, and EPA plans to make the database available electronically by 1999. Id. § 300j-4(g). EPA issued proposed regulations in February, 1998, to implement the information disclosure requirements of the amendments. 63 Fed. Reg. 7605 (Feb. 13, 1998). The regulations would apply to 56,000 water systems that serve more than 240 million people. See Design Phase of National Database under Development at EPA, 28 Env't Rep. (BNA) 2166 (Feb. 20, 1998). The regulations were finalized in August, 1998. See 63 Fed. Reg. 44511 (Aug. 19, 1998).
227. See 61 Fed. Reg. 12011 (1996); see also ENVIRONMENTAL PROTECTION AGENCY, For Your Information: Consumer Labeling Initiative, (visited Aug. 8, 1998) <http://www.epa.gov/oppfead1/cb/csb_page/qsas/clifyi.htm>
228. See16 C.F.R. Part 260 (1997). See also ELI Report, supra note 1, §9.7.1.
229. The law applies to carcinogens or reproductive toxicants that are included on a list that is prepared by the State. CAL. HEALTH & SAFETY CODE § 25249.6 (West 1992 & Supp. 1997).
230. Id. §§ 25249.5-.13. The law identifies warnings that businesses can use, but are not required to use, to satisfy the notice requirements of the law. See CAL. CODE REGS. tit. 26 §22-12601(a) (1996).
231. The law can be enforced by public prosecutors or by "any person in the public interest." See CAL. HEALTH & SAFETY CODE § 25249.7(c) (West 1992 & Supp. 1997).
232. See Rechtschaffen, supra note 215, at 306-307, 318.
233. Id. at 341. Manufacturers of glazed ceramic ware have agreed to reduce lead levels in their flatware by 50%, and several hundred wineries have agreed to phase out the use of lead foil caps in their wine bottles. Id. at 341-342. Several cosmetic manufacturers have agreed to remove toluene from a variety of different types of nail polish. Id. While the product modifications seem to be motivated by concerns about liability, rather than consumer pressure, they are caused, to some extent, by manufacturers' concerns that "green consumers" will not buy products that contain warnings that suggest that the products contain toxic chemicals. Id.
234. Id. at 307, 348-350.
235. For instance,
EPCRA only requires certain manufacturing facilities to report information
about pollution emissions. See Bass & MacLean, supra
note 220, at 301. While the White House extended the reporting requirement
to federal facilities, see Exec. Order 12,856, 58 Fed. Reg. 41,981
(1993), and EPA issued rules to extend the reporting requirements to seven
other industries, see 62 Fed. Reg. 23833 (1997), many polluters
do not have to file reports under EPCRA. In addition, while polluters must
file reports regarding emissions of approximately 600 chemicals, see
59 Fed. Reg. 61432 (1994), many dangerous chemicals are not covered
by EPCRA. Furthermore, while businesses must report total annual emissions
of regulated pollutants, they do not have to report the pattern of releases
under EPCRA. Bass & MacLean, supra note 220, at 301-302. "For
example, if a company released 10,000 pounds of benzene to the air, there
is no way to know if small amounts were released throughout the year, or
whether 8000 pounds of benzene were released in one week." Id. at
California's Proposition 65 has been plagued by similar problems. The consumer product, workplace, and environmental warnings that businesses have provided under the law have been very vague and general, and have usually failed to identify citizens about the nature of the risk that the businesses' practices pose to health or the environment. See Rechtschaffen, supra note 215, at 307, 326-27, 333-337. For instance, the generic warning that is placed on consumer products merely says that the product contains a chemical (without specifying which) known to the State to cause cancer (or birth defects or other reproductive harm). Id. at 325. Accordingly, the warnings fail to promote informed choice and enhanced decisionmaking by citizens. Id. at 307, 340.
236. For instance, under EPCRA, manufacturers report their pollution emissions based on their own estimates, and manufacturers can change their method of estimating emissions from year to year. See Bass & MacLean, supra note 220, at 301. As a result, EPA estimated that a significant portion of the reduction in emissions over the first few years of the Toxic Release Inventory were due, in part, to changes in the way releases were estimated, rather than environmental improvements. See GENERAL ACCOUNTING OFFICE, TOXIC SUBSTANCES: EPA NEEDS MORE RELIABLE SOURCE REDUCTION DATA AND PROGRESS MEASURES (GAO/RCED-94-93) (Sept. 23, 1994).
In addition, information must be released in a timely fashion in order to remain accurate. Bass & MacLean, supra note 220, at 288.
237. The Toxic Release Inventory, for example, only includes information about the amount and location of pollution releases, and does not include information about the health or environmental risks caused by regulated pollutants. See 1995 TRI Data Release, supra note 198, ch. 2; ELI Report, supra note 1, § 9.2. Industries have complained that the public misinterprets the data that is released under EPCRA because the data is not explained in more detail or in context. See Panel Drafts Recommendations to Help EPA Improve Public Understanding of TRI Data, 28 Env't Rep. (BNA) 2031 (Feb. 6, 1998); Bass & MacLean, supra note 220, at 302.
238. A few years after the Toxic Release Inventory was created, the General Acconting Office conducted a telephone survey of residents in three counties with high levels of toxic emissions, and concluded that almost 60% of the residents in those counties did not know that the Toxic Release Inventory data was publicly available. See GENERAL ACCOUNTING OFFICE, TOXIC CHEMICALS: EPA'S TOXIC RELEASE INVENTORY IS USEFUL BUT CAN BE IMPROVED 33 (GAO/RCED-91-121) (June 1991).
239. In order to enable citizens to use information, the information must be provided to citizens in a user friendly format. See Bass & MacLean, supra note 220, at 288. If there is too much information available to citizens, it may be difficult to access useful information. Id. at 295. "Presenting information in a manner that facilitates understanding and analysis by the public is essential to democratic right-to-know principles." Id. at 289.
240. Nevertheless, only a small group of information-seeking consumers actually needs to use the information to achieve the health and environmental goals of the laws. See Rechtschaffen, supra note 215, at 318. A small group of citizens that discover and use the information can encourage businesses to change their practices to reduce pollution in ways that benefit large numbers of citizens that were oblivious to the information. Id.
241. EPA is currently
considering using its authority under the Emergency Planning and Community
Right to Know Act, the Pollution Prevention Act, 42 U.S.C. §§13101-13109
(1994), the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2692
(1994), or other environmental laws to require businesses that file TRI
reports to include, in the report, information about the way that the businesses
use the chemicals at their facility. See 61 Fed. Reg. 51322 (1997).
In the advanced notice of proposed rulemaking for this "TRI Phase III expansion,"
EPA also indicated that it might require businesses to report "mass balance"
(chemical throughput) information. Id. at 51,324. Congressional
legislators have introduced bills that would require businesses to report
some of this information as part of their TRI report. See H.R. 1636,
105th Cong., 1st Sess. (1997); S. 769, 105th Cong., 1st Sess. (1997).
EPA argues that TRI expansion will increase
businesses' ability to use toxics efficiently, and to reduce toxics use,
and will provide more complete and useful information to citizens, which
will "better position ... the public ... to participate on an equal footing
in environmental decisionmaking," see 61 Fed. Reg. at 51323, but
the agency stresses that the purpose of the expansion is not to promote
toxics use reduction as a federal policy. See ENVIRONMENTAL PROTECTION
AGENCY, Office of Pollution Prevention and Toxics, Issue Paper # 3:
TRI-Phase 3: Expansion of the EPA Community Right-to-Know Program,
(visited Aug. 8, 1998) <http://www.epa.gov/opptintr/tri/trip3v6.htm>
New Jersey and Massachusetts already require
businesses to provide chemical use data under State toxics use reduction
laws. See 61 Fed. Reg. at 51324. Since the Massachusetts Toxics
Use Reduction Act took effect in 1990, the use of toxic chemicals in the
State has fallen by 17% and the volume of toxic chemicals in waste has
fallen by 25%. See Massachusetts Chemical Use Law Lauded; Industry Groups
Oppose Proposed EPA Program, 27 Env't Rep. (BNA) 1346 (Dec. 19, 1997).
Businesses have generally opposed EPA's efforts to expand the TRI to included "chemical use" information because businesses are concerned that (a) much of the information that EPA seeks to make public is confidential business information, and publicizing the information would encourage industrial espionage and theft of confidential information, see 61 Fed. Reg. at 51324, (b) the reporting requirements would be extraordinarily expensive and time consuming, see Industry Opposes Adding Use Data to Expanded Toxic Release Inventory, 25 Env't. Rep. (BNA) 1158 (Oct. 7, 1994); (c) the reporting requirement is based on a false premise that any type of chemical use is harmful and should be eliminated. See 61 Fed. Reg. at 51326.
242. See ENVIRONMENTAL
PROTECTION AGENCY, THE CHANGING NATURE OF ENVIRONMENTAL AND PUBLIC HEALTH
PROTECTION: AN ANNUAL REPORT ON REINVENTION 22-23 (EPA100-R-98-003) (March
1998) (visited Aug. 8, 1998) (hereinafter "EPA Reinvention Report") <http://www.epa.gov/reinvent/annual97/report97.pdf>.
EPA has launched many initiatives that integrate the data collected by
the agency. For instance, EPA has created an "Envirofacts" database, that
is accessible over the Internet and includes permitting, compliance, and
enforcement data under CERCLA, RCRA, the Clean Air Act, the Clean Water
Act, the TRI, and other environmental laws. See ENVIRONMENTAL PROTECTION
AGENCY, Envirofacts Warehouse: Overview (visited Aug. 8, 1998) <http://www.epa.gov/enviro/html/ef_overview.html>
EPA has also created a "Surf Your Watershed"
website, that allows users to locate a watershed on a map, obtain information
about the demographics of the population in the watershed and the land
characteristics of the watershed, and link to EPA databases that provide
information about TRI releases, Superfund sites, Clean Water Act or Clean
Air Act permittees, hazardous waste generators or treatment, storage or
disposal facilities, and water use in the watershed. See ENVIRONMENTAL
PROTECTION AGENCY, Surf Your Watershed, (visited Aug. 8, 1998) <http://www.epa.gov/surf/>
The Web site also ranks the health of the watershed, using an index of
watershed indicators. Id.
The "Sector Facility Indexing Project"
is another major EPA information integration initiative. The project integrates
permitting, compliance, enforcement, demographic, and health and environmental
quality data from several government databases to create individual profiles
for facilities in the petroleum refining, iron and steel, primary nonferrous
metals, pulp mills and automobile assembly industrial sectors. See
ENVIRONMENTAL PROTECTION AGENCY, Sector Facility Indexing Project Home
Page, (visited Aug. 8, 1998) <http://es.epa.gov/oeca/sfi>
EPA initially planned to launch the database in January, 1998, and to include
"toxicity weighing factors" in the database to identify the degree of harm
that particular chemicals may cause to human health or the environment,
so that citizens could understand which chemicals are more hazardous than
others. See Proposed Database on Industrial Releases Would Exaggerate
Risks, Officials Tell EPA, 28 Env't. Rep. (BNA) 440 (July 4, 1997).
In order to verify the accuracy of the data, EPA asked facilities in the
five industrial sectors to review the data before the agency launched the
Web site. See ENVIRONMENTAL PROTECTION AGENCY, Sector Facility
Indexing Project: Comment and Data Review Process, (visited Aug. 8,
However, the American Automobile Manufacturers Association asked its members
to boycott reviewing the information, 19 States urged EPA to scrap the
project, see Release of Facility-specific Data Delayed; Internet Access
Planned for 1998, EPA Says, 28 Env't Rep. (BNA) 1260 (Oct. 24, 1997),
and opponents filed a lawsuit to delay the release of the information.
See Tozzi v. Environmental Protection Agency, No. 1:98CV00169 (D.
D.C. filed Jan. 23, 1998). Critics suggested that the toxicity weighing
factors could mislead the public, see Information on Local Facilities
Delayed; Internet Data Ready Soon, Official Says, 28 Env't Rep. (BNA)
1725 (Jan. 9, 1998), and the agency eventually decided to remove the weighing
factors from the database. See Facility-specific Database Set for Release,
Will Put Compliance Records in One Place, 28 Env't Rep. (BNA) 2527
(April 3, 1998). The Web site was eventually launched in May 1998. See
63 Fed. Reg. 27281 (May 11, 1998).
EPA also unveiled a "Center for Environmental
Information and Statistics" in August, 1998, to provide citizens with integrated
analyses of environmental data and report on environmental quality, status
and trends." See EPA Reinvention Report, supra, at 24; see
also ENVIRONMENTAL PROTECTION AGENCY, Center for Environmental Information
and Statistics Home Page, (visited Aug. 21, 1998) <http://www.epa.gov/ceis>.
Public interest organizations are also trying to integrate environmental information in order to make it more comprehensible and accessible. See, e.g. THE ENVIRONMENTAL DEFENSE FUND, The Chemical Scorecard, (visited Aug. 8, 1998) <http://www.scorecard.org>
243. The Internet
holds great promise as a tool to increase public access to information
and public participation in government decisionmaking. See Stephen
M. Johnson, The Internet Changes Everything: Revolutionizing Public
Participation and Access to Government Information Through the Internet,
50 ADMIN. L. REV. 277 (1998) (hereinafter "Johnson III").
The Emergency Planning and Community Right
to Know Act was the first statute to require an agency to provide information
to the public through a computerized, online database. See Bass
& MacLean, supra note 220, at 287. The Toxic Release Inventory
information is now available over the Internet, and EPA is aggressively
increasing the volume of environmental information, collected or prepared
under any of the environmental laws, that it makes available over the Internet.
EPA's Web pages are visited over 27 million times each month. See
EPA Reinvention Report, supra note 242, at 22.
However, as agencies make more information accessible over the Internet, they must take steps to ensure that low-income communities have equal access to that information. See Johnson III, supra, at 305-310; Bass & MacLean, supra note 220, at 289.
244. Agencies could make presentations at town meetings, sponsor information booths at State or county fairs, or provide funding to community or environmental groups to educate the public about information that is available, and the meaning of that information.
245. Many law schools have established "Street Law" clinical programs, in which law students or professors teach courses on law and democracy to local high school students. See Street Law: Who We Are (visited Aug. 8, 1998) <http://www.streetlaw.org/who.html>
246. See, e.g., Stephen M. Johnson, Toxics in Your Community (visited Aug. 8, 1998) <http://www.law.mercer.edu/elaw/toxics.html> (a handbook on public information about toxic substances, hazardous waste and hazardous substances in Georgia).
247. See Kaswan, supra note 92, at 236-237, 271-272.
248. Low-income communities already lack resources to hire experts to evaluate the impacts of decisions made under traditional command and control laws. See Kaswan, supra note 92, at 273.
249. For instance, EPA's Guidelines for Brownfields Assessment Demonstration Grant proposals states that "[b]rownfields pilot funds may by used for outreach activities that educate the public about assessment, identification, characterization, or remedial planning activities at a site or set of sites. However, the outreach should be directed toward obtaining more effective public involvement and/or environmental assessment and cleanup of hazardous substances, pollutants, or contaminants at affected sites. These funds may not be used for general education activities (e.g., grants to schools for development of curriculum). See ENVIRONMENTAL PROTECTION AGENCY, The Brownfields Economic Redevelopment Initiative: Proposal Guidelines for Brownfields Assessment Demonstration Pilots 5 (EPA 500-F-97-156) (Oct. 1997). See also Steinzor, supra note 92, at 145-146 (discussing EPA funding for community review of Project XL pilot proposals).
250. See Steinzor, supra note 92, at 145-146.
251. While technical assistance grants are available under the Superfund law and many state solid waste, water and air pollution programs, critics argue that these grant programs are complicated, underfunded, and otherwise inadequate. See John S. Applegate, Beyond the Usual Suspects: The Use of Citizens Advisory Boards in Environmental Decisionmaking, 73 IND. L.J. 903, 922-923 (1998).
252. EPA has already
implemented several pollution prevention grant programs, and the agency
should provide more funding for those programs, simplify the application
process, and take further steps to promote the programs and pollution prevention,
EPA provides pollution prevention grants
in several forms. First, the agency established a "Pollution Prevention
Incentives for States" (PPIS) grant program in 1989 to provide money to
States to develop and implement pollution prevention programs. See
ENVIRONMENTAL PROTECTION AGENCY, POLLUTION PREVENTION INCENTIVES FOR STATES
ASSESSMENT STUDY 6 (EPA742-S-96-001) (1996) (hereinafter "PPIS Assessment
Study"). EPA awarded $49 million to grantees in the first nine years of
the program. See ENVIRONMENTAL PROTECTION AGENCY, POLLUTION PREVENTION
INCENTIVES FOR STATES FY 1998 GRANT GUIDANCE 2 (1998) (hereinafter "PPIS
Grant Guidance"). Grantees used the funds to publicize pollution prevention
opportunities and successes, to provide technical assistance to industries
through pollution prevention assessments, site visits, information clearinghouses,
case studies and other guidance materials, and to hire and train regulatory
employees to administer and promote pollution prevention programs. See
PPIS Assessment Study, supra, at 12-13, 18, 21, 23. While many of
the past grants targeted pollution prevention by industries, EPA is encouraging
States to use funds for pollution preventionprograms in the agriculture,
energy, and health and transportation sectors, and to promote environmental
justice. Id. at 6. The goal of the program is to create seed money
for self-sustaining State programs. See PPIS Grant Guidance, supra
EPA also provides pollution prevention
grants that directly promote environmental justice through an "Environmental
Justice Through Pollution Prevention" (EJP2) grant program. See ENVIRONMENTAL
PROTECTION AGENCY, Environmental Justice Through Pollution Prevention
Grant Program, (visited Aug. 8, 1998) <http://www.epa.gov/opptintr/ejp2>
Through the program EPA provides financial assistance to help low income
and minority communities address environmental problems through pollution
prevention instead of traditional pollution control techniques. Id.
EPA provided $4 million in EJP2 grants in 1998. See 63 Fed. Reg.
3563 (Jan. 23, 1998). Private businesses, federal agencies and individuals
are not eligible for the grants. Id. The grants can be used for
projects such as "information access" projects that provide easier access
to environmental information or education about that information to a community,
"small business assistance" projects that implement pollution prevention,
and "brownfield" projects that assist communities in participating in cleanup
and redevelopment decisions and encourage pollution prevention in the project.
EPA also provides grants for pollution
prevention through its Risk Reduction Through Pollution Prevention, Agriculture
in Concert with the Environment, and National Industrial Competitiveness
Through Efficiency: Energy, Environment and Economics grant programs. See
PPIS Assessment Study, supra, at 8.
In 1997, EPA provided almost $1 million in grants through a "Pollution Prevention Information Network" grant competition to create new centers for the collection, synthesis and dissemination of pollution prevention information and coordinate pollution prevention information management efforts. See 62 Fed. Reg. 5393 (1997).
253. See Applegate, supra note 251, at 906-918; Stephen M. Johnson, NEPA and SEPA's in the Quest for Environmental Justice, 30 LOY. L.A. L. REV. 565, 603 (1997) (hereinafter "Johnson IV").
254. See Applegate, supra note 253, at 906-908.
255. See Johnson IV, supra note 253, at 603.
256. See Johnson III, supra note 243, at 300. In a recent Federal Register announcement regarding Project XL, EPA stressed that "[s]takeholder involvement is critical to the success of each XL project. Stakeholders provide information about the preferences of the community. They may identify issues that have escaped the notice of project sponsors and regulators. ... An effective process for stakeholder involvement is an acknowledgment that today's regulators and regulated community do not have a monopoly on the best ideas for tomorrow's system of environmental protection." 62 Fed. Reg. 19872, 19877 (1997).
257. See NATIONAL ENVIRONMENTAL JUSTICE ADVISORY COUNCIL, The Model Plan for Public Participation 5 (visited Aug. 8, 1998) <http://www.prcemi.com/nejac/pdf/modelbk.pdf> (hereinafter "NEJAC Public Participation Plan").
258. Id. at 6-9. For an interesting article regarding the use and evolution of citizen advisory boards, see Applegate, supra note 251.
259. See NEJAC Public Participation Plan, supra note 257, at i; Kaswan, supra note 92, at 251; Michael B. Gerard, Demons and Angels in Hazardous Waste Regulation: Are Justice, Efficiency and Democracy Reconcilable?, 92 NW. U. L. REV. 706, 735-36 (1998); Johnson IV, supra note 253, at 572.
260. Theoretically, in command and control programs, the government protects the interests of minority voices, and makes environmental decisions in the public interest. See Applegate, supra note 251, at 904. Pollutant trading programs and many other market-based programs provide individuals with the decisionmaking authority, and limit the government's power to intervene to protect minority interests that are not protected by the market.
261. The Executive
Order requires that agencies provide the mechanisms necessary for minority
or low-income groups to participate effectively in government decisions.
Exec. Order No. 12,898, 3 C.F.R. §§ 1-103(a), 5-5 (1997).
EPA's Environmental Appeals Board has noted
that the agency has "significant discretion ... to implement the mandates"
of the executive order to ensure that there is adequate public participation
in RCRA permitting, and the Board encouraged the agency to offer "early
and ongoing" opportunities for public participation beyond those required
by regulation when the agency " has a basis to believe that the [permitting
decision] ... may have a disproportionate impact on a minority or low-income
segment of the affected community." See In re: Chemical Waste Management
of Indiana, Inc., 1995 EPA App. LEXIS 25, *17 (1995). EPA recently amended
its hazardous waste permitting regulations to provide for increased public
participation, and the agency plans to issue guidance on ways to advance
"equitable public participation". See 60 Fed. Reg. 63417, 63420
Similarly, the Council on Environmental Quality(CEQ) recently drafted guidance regarding the executive order that encourages federal agencies to develop innovative methods to involve low-income and minority communities in review of documents prepared under the National Environmental Policy Act. See Johnson IV, supra note 253, at 575.
262. Recent Project XL guidance indicates that "the extent to which project proponents have sought and achieved the support of parties that have a stake in the environmental impacts of the project" is "an important factor" in EPA's approval of projects. See 62 Fed. Reg. 19,872, 19877 (1997). The agency's guidance establishes a procedure that project sponsors should follow to negotiate with the community and other stakeholders to develop a project before formally applying to the agency for approval of the project. Id. at 19,878-19,879. Most of the important documents in the development of a Project XL project are posted on the Internet to increase public access to the information. Id. at 19,880. While the Project XL negotiation process is initiated by the project developers, rather than the agency, and the developer can apply to the agency for approval of the project even though the negotiation participants have not reached consensus on the project, EPA has indicated that projects that receive significant dissent from public interest participants will be more likely to be disapproved. Id. Cynics may argue that the government is more willing to require broad public participation procedures for Project XL than for traditional command and control programs because the agency may lack the statutory authority to approve certain Project XL projects, and broad public participation may reduce the likelihood that opponents will challenge the projects in court.
263. See Kaswan, supra note 92, at 223, 260, 268-69; 273; Lazarus, supra note 39, at 712-714. To the extent that environmental laws address distributional issues, the laws include exemptions and waivers to reduce economic burdens on specific businesses or industries, rather than to protect public health or the environment. See Lazarus, supra, at 715.
264. The narrow approach seems to be a variant of the "fine-tuning" of environmental regulation discussed by Professor Howard Latin in his seminal article, Ideal versus Real Regulatory Efficiency: Implementation of Uniform Standards and "Fine-Tuning" Regulatory Reforms, supra note 4.
265. See Latin, supra note 4, at 1279.
266. See Latin, supra note 4, at 1281. Latin astutely observed that "theoretically 'efficient' regulatory strategies require more data, more sophisticated scientific and economic analyses, more agency expertise and resources, and more cooperation from regulated parties." Id. at 1304.
267. While the Clean Water Act authorizes EPA and States to impose limits on water pollution discharges that are more stringent than technology-based limits if it is necessary to meet water quality standards for the body of water where the discharge occurs, the agencies have been reluctant to impose those more stringent limits. Id. at 1305. Similarly, EPA and States have been reluctant to regulate toxic water pollutants under Section 307(a) of the Clean Water Act, or hazardous air pollutants under Section 112 of the Clean Air Act. Id. at 1307-1309. Professor Latin argues that these failures are due to the problems identified previously regarding "fine-tuning" of environmental regulations. Id. at 1314-1324.
268. See, e.g. S. 1161, 103d Cong., 1st Sess. (1993); H.R. 5326, 102d Cong., 2d Sess (1992); S. 2806, 102d Cong., 2d Sess. (1992).
269. See Exec. Order No. 12,898, supra note 262. The Executive Order does not impose new legal requirements on federal agencies, but it implements requirements of NEPA and Title VI of the Civil Rights Act of 1964. Id. Although citizens cannot obtain judicial review of the executive order, or agency compliance with the executive order, id. § 6-609, EPA's Environmental Appeals Board has held that administrative review of an agency's compliance with the order is available. See In Re: Chemical Waste Management of Indiana, Inc., supra note 261.
270. See Lazarus, surpa note 39, at 717. In a recent article, Professor Richard Lazarus identified several Clean Air Act provisions that require, or authorize, governments to consider distributional factors. See Lazarus, supra note 39. He noted that sections of the Act require agencies to consider distributional factors when setting national ambient air quality standards, id. at 718 (citing 42 U.S.C. § 7408), redesignating nonattainment areas, id. at 718 (citing 42 U.S.C. § 7470); waiving certain requirements for new sources of air pollution, id. at 719 (citing 42 U.S.C. § 7411; and siting solid waste incinerators, id. at 720 (citing 42 U.S.C. § 7429).
271. RCRA permits must include "such terms and conditions [as may be] necessary to protect human health and the environment." 42 U.S.C. §6925(c)(3).
272. See In Re: Chemical Waste Management of Indiana, Inc., supra note 261. RCRA does not require the government to treat low income communities differently than other communities. Instead, the EAB held that the executive order requires EPA or States to examine the health and environmental impacts of a proposed permitting decision on a community more closely when a commenter submits a "superficially plausible claim" that the decision will have a disproportionate impact on minority or low-income residents, and to include conditions in the permit, under the omnibus clause, to protect the health and environment of those communities. Id. at *20-*24. As the Board noted, "[i]t is certainly conceivable that, although analysis of a broad cross-section of the community may not suggest a threat to human health and the environment from the operation of a facility, such a broad analysis might mask the effects of the facility on a disparately affected minority or low-income segment of the community. (Moreover, such an analysis might have been based on assumptions that, though true for a broad cross-section of the community, are not true for the smaller minority or low-income segment of the community)." Id. at *19-*20.
273. See, e.g., 33 U.S.C. §§ 1312(a); 1342(a)(1)(B) (Clean Water Act permitting provisions); See also Lazarus, supra note 39, at 721, citing 42 U.S.C. § 7661c(a) (Clean Air Act permitting provision). Professor Lazarus suggests that the omnibus clause could even be read to authorize permitting agencies to require permittees to provide access to information necessary to oversee the facility's operation or to "enhance the resources" of citzen groups that are charged with overseeing the operation of the facility. Id.
274. See Johnson IV, supra note 253, at 566, 579. However, NEPA and SEPAs only require governments to consider those impacts. The laws do not prohibit government actions that disproportionately impact low-income or minority communities.
275. See In the Matter of Louisiana Energy Services, L.P., LBP-97-8, (May 1, 1997) (visited Aug. 8, 1998) < http://www.nrc.gov/NRC/ASLBP/lesj9.html>
276. The laws give government regulators considerable discretion in choosing the targets of enforcement actions, see, e.g., 42 U.S.C. § 7413 (Clean Air Act); 42 U.S.C. § 6928 (RCRA); 33 U.S.C. § 1319 (Clean Water Act, and in choosing the amount or type of penalties in enforcement actions, see, e.g., 33 U.S.C. § 1319(d) (Clean Water Act) and 42 U.S.C. § 7413(e) (Clean Air Act).
277. See Heckler v. Chaney, 470 U.S. 821 (1985).
278. See Lazarus, supra note 39, at 720.