This is part two of my three-part series on the ways the new administration, guided by a revitalized EPA, can strengthen environmental protections, and steer America away from the threats of climate change, toxic pollution and other environmental disasters. Yesterday, I wrote about how we can better enforce our existing laws.
In addition to enforcing the laws, we need to change how we implement them, moving from what could be called the "pollution principle" to the "precautionary principle."
Let me give you an example. Under the Clean Water Act, water pollution permit hearings can drag on for months or more. Yet even with such lengthy proceedings, regulated utilities or businesses are able to push back against regulators who seek to set pollution permits at protective levels by insisting on extensive analyses that overburden available resources.
This has created a process so time consuming and expensive for governments that permitting bodies have learned to err in favor of the polluter in the hopes of avoiding litigation. So when there is doubt as to the amount of stress a system can take -- pollution in a stream, grazing or timbering on land, or the like -- the default ends up being to allow as much pollution as doubt allows. That gets the permits out faster and is more likely to avoid litigation by regulated businesses.
I've seen this personally many times. Good people are pressured to reduce public protections more than they believe appropriate. Polluters have so intimidated those who set effluent or emission standards that now there is effectively a right to pollute unless proven otherwise.
This is backwards. To solve it, we need to change the burden of proof when it comes to pollution and environmental harm. The default in case of uncertainty should be toward less, not more pollution. The burden of proof at every stage should be on the polluter, not the public; the presumption should be public health.
Here's another instance. In the judicial realm, when an agency action -- a regulation for example -- is challenged, the standard of review courts must follow is established by the Supreme Court's decision in Chevron v. NRDC (467 U.S. 837 (1984) available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=467&page=837 ). That standard is entirely procedural and devoid of substantive direction. But the standard of review should not ignore substance particularly when Congress acted. The congressional preference expressed in most environmental statues is not neutral; environmental laws favor public health protection over private profit. And the intent of the statue should affect the deference courts give agencies.
For example, when EPA issues a rule under the Clean Air Act, a statute Congress enacted to improve air quality, there should be more leeway given to the agency if someone challenges the rule as being overly protective, but little leeway given if the claim is the rule is not protective enough. Similarly, any uncertainty or ambiguity in a Clean Water Act permit decision that imposed more stringent discharge limits to protect water purity should be reviewed with greater deference than one that allowed higher pollution levels because greater deference would give more meaning to the Act's goals that all waters should be clean enough for drinking, fishing and swimming.
In most statutes, Congress has indicated the position to which we should default. Congress wants us to err on the side of caution. The Clean Air Act talks about setting healthy levels with "margins of safety." The Clean Water Act has different systems overlaying each other to ensure full protection. CERCLA, the statue that set up the "Superfund" for pollution remediation, is intended to be read broadly. The National Environmental Policy Act does more than just require agencies to write environmental impact statements; it establishes a "national policy" to consider environmental impacts in all decision making and "to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." The Resource Conservation and Recovery Act ensures that hazardous wastes cannot be buried out of sight and out of mind; its mandate applies without regard to site-specific demonstration of harm. The Endangered Species Act has a zero extinction policy.
When we look at the intent of our environmental statutes, we find clear meaning to protect the land, air and water. But when regulators or the courts treat each case separately, we fail to see the forest for the trees.
In July 1869, the great naturalist John Muir wrote, "When we try to pick out anything by itself, we find it hitched to everything else in the Universe." Just as those opposing environmental protections have been able to infuse the entire system to bias private profit, non-governmental organizations and their allies must seek to change the systemic bias of our laws, our public laws, to one of public benefit and inter-connectedness.
Tomorrow, I'll post my third and final part of this series on how we must change our environmental laws to meet the challenges ahead.