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A BRIEF HISTORY OF NATIONAL ENVIRONMENTAL POLICY

For reasons noted at the beginning of this chapter, much of the impetus for environmental improvement and planning must necessarily come from the federal government. Since 1970, federal legislation has been the major shaper of environmental planning and the nation's efforts to deal

U.S. air pollution trends

FIGURE 15-2 U.S. air pollution trends.

Sources: Data through 1990 are from Environmental Quality; 22nd Annual Report of the Council on Environmental Quality, U.S. Government Printing Office, ashington, DC, 1992, p. 11. Subsequent data are from the Statistical Abstract of the United States, 122nd edition, 2002, Table 348.

with environmental problems. In fact, to a large extent the environmental planning professions have been brought into being by legislation passed by Congress.

As discussed in Chapter 4, environmental consciousness in the United States grew substantially during the 1960s. At the end of 1969, Congress passed the National Environmental Policy Act (NEPA).

The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment . . . declares that it is the continuing policy of the federal government, in cooperation with State and Local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony.6

NEPA was signed in 1970 as President Nixon's first official act that year. Subsequently, the Environmental Protection Agency (EPA) was created by executive action. During the 1970s many states enacted their own versions of NEPA, generally known as "little NEPA" acts. Within the next few years, a variety of other major environmental acts became law. These included the Clean Air Act of 1970; the Clean Water Act of 1972; the Marine Protection, Control, and Sanctuaries Act of 1972; the Coastal Zone Management Act of 1972; the Safe Drinking Water Act of 1974; the Resource Conservation and Recovery Act of 1976; the Toxic Substances Control Act of 1976; and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, more commonly known as "Superfund" and discussed subsequently in this chapter.

After this initial burst of legislation additional bills followed at irregular intervals. In 1990 amendments to the Clean Air Act placed limits on the amount of sulfur dioxide that could be emitted in the process of generating electricity and permitted the setting up of a permit trading system run by the Chicago Board of Trade. The system reduced sulfur dioxide emissions, a major cause of acid rain, by approximately 60 percent over the next two decades. The amendments also led to an almost total phasing out of chlorofluorocarbon emissions which had caused serious damage to the earth's ozone layer.

The establishment of National Ambient Air Quality Standards (NAAQS) provided air quality standards for metropolitan areas and propelled those that fell into the non-attainment category into taking a range of steps to reduce various kinds of air pollution, in many cases with significant results.

The 1992 energy bill gave a boost to solar and wind power by requiring electric utilities to buy power generated on-site (for example, allowing the homeowner who had installed solar panels to sell any excess generated back to the utility and, in effect, run his electric meter backward). The act also established energy efficiency standards for light bulbs and home heating systems, a major item, since a substantial part of total U.S. energy use is for heating and lighting.

During the Clinton administration (January 1993 to January 2001) there was no one overarching environmental bill passed, though there were a number of minor bills pertaining to specific items such as acquisition of land for conservation purposes. There was, however, a steady stream of regulations, presidential directives, and small steps of a pro-environmental nature, many connected with issues such as endangered species, logging, mining, and road building on public lands. One program initiated under President Clinton that is familiar to millions of Americans is the Energy Star program, which promotes energy efficiency in refrigerators and other electric appliances. In general, President Clinton got good marks from environmentalists.

President George W. Bush (January 2001 to January 2009) was not held in high regard by most environmentalists, as their habit of referring to him as the "toxic Texan" indicates. He appeared to take a dim view of most environmental regulations, seeing them as a burden on economic activity and an infringement on freedom. Many environmentalists saw him as a man who would appoint to high positions in regulatory agencies people who were hostile to regulation and who saw their roles as being to limit regulatory action.

The big piece of legislation with major environmental consequences that passed during the Bush administration was the Energy Policy Act of 2005. This was a massive bill oriented toward increasing domestic production of energy. It included subsidies, friendly regulatory treatment, and preferential tax treatment for almost every sort of energy, including oil, coal, nuclear, wind, solar, and geothermal, with an emphasis on the first three. It included funds for research on a wide range of energy technologies, including both fossil fuels and renewables. The bill also established a variety of subsidies for green buildings and for the retrofitting of older structures to reduce energy consumption. Although the major weight of the bill was on the production side, it did have a significant conservation element too.

The fruits of the bill with which you may be most familiar are the "this fuel may contain up to 10 percent ethanol" signs at gas pumps. The bill mandated the addition of renewable fuels to gasoline and also provided a 45 cents per gallon subsidy for ethanol used as a gasoline additive. The move to ethanol seemed like a good idea at the time, both to reduce U.S. dependence on imported oil and also to reduce greenhouse gas emissions by getting some energy from a renewable source. But it has since come in for considerable criticism. Some studies have concluded that when one considers all of the petroleum used in the cultivation, fertilization, and transportation of corn and all of the electricity used in the plants that convert corn to ethanol, the net reduction in atmospheric carbon dioxide is negligible. The ethanol program has also been criticized from an entirely different perspective. As of 2011 about 40 percent of U.S. corn production (about 36 million out of a total of 91 million acres planted in corn) went for ethanol to be mixed with gasoline. That, it is argued, drives up food prices all over the world, which raises the question of whether in a world where not everyone has enough to eat we should be putting that much corn in our gas tanks.

The Obama administration, which took office in January 2009, marked a sharp change in the national administration's stance toward the environment. President Obama's choices for top federal posts signaled a much more pro-environmental stance. Most notable was his pick for head of the Department of Energy, Steven Chu, a winner of the 1997 Nobel Prize in physics. Not only were Chu's scientific credentials outstanding, but his environmental predisposition was very clear. As Director of the Lawrence Berkeley National Laboratories in California, he had made the organization one of the major players in research on biofuels and solar energy and was clearly on record about the necessity of shifting away from reliance on fossil fuels.

Both in his campaign and after his inauguration, President Obama indicated a serious concern with global warming and hence a big commitment to the development of alternatives to fossil fuels and an interest in energy conservation. Because of the financial crisis of fall 2008, the new administration's first domestic priority was the passage of an economic stimulus package, the American Recovery and Reinvestment Act of 2009, a $787 billion appropriation that became law in March of that year. The bill contained substantial sums for scientific research related to environmental and energy issues, green buildings, subsidies for alternative energy development, and modernization and expansion of the U.S. electric grid. The last item was part of a move toward the replacement of fossil fuels by electricity to be generated by alternative methods including nuclear, solar, and wind. The argument was that such a goal could not be realized without the capacity to move larger amounts of power than is now possible from generating sources to distant users. The stimulus package was never renewed, in large measure because of the push in Congress for deficit reduction.

Almost from the start of his administration, President Obama pushed hard for a "cap and trade" system to limit total carbon emissions. This would be a system somewhat analogous to the system that has been used in connection with the control of sulfur dioxide (see page 324) but on an economy-wide scale. Formally the American Clean Energy and Security Act, the bill was also referred to as the Waxman Markey bill after its sponsors, Representatives Henry Waxman (Democrat from California) and Edward Markey (Democrat from Massachusetts). The basic idea of the bill was to limit the permitted carbon emissions of major industrial and commercial emitters (the cap) and then to allow those emitters who were under their limits to sell (trade) their unused emissions rights to firms that wanted to emit more than their permitted amount. That would encourage greater efficiency by motivating firms to either accumulate salable rights or reduce the number of rights that they would have to purchase.7

The bill was long and complex and had numerous caveats and exceptions, many of them accommodations to the realities of legislative politics. It was easily attacked on these grounds. Many economists had favored a so-called carbon tax (so many dollars per ton of carbon emitted) on the grounds of administrative simplicity and greater efficiency, but that was a political nonstarter in the prevailing anti-tax political climate. Opponents of cap and trade argued that although the cap and trade was not literally a tax, it was one in all but name. They argued that, like a tax, it would push up firms' costs. That would show up in higher prices, which would lead to reduced sales, which would, in turn, cause job losses, a powerful point in a time of high unemployment. Opponents also claimed that it would cause further outsourcing of jobs to nations that did not impose comparable restrictions and therefore, in addition to costing jobs, would increase our trade deficit.

The bill passed the then strongly democratic House of Representatives in June 2009 and was then referred to the Senate, but never came up for a vote there. In November 2010 the Republican Party took control of the House with a large majority and the bill was effectively dead.

Although President Obama's legislative accomplishments in terms of environmental policy are very limited, he has had a very large influence through a different route. In 2007 in Massachusetts v. EPA the Supreme Court ruled that the EPA could regulate carbon dioxide emissions. Previously substances like sulfur dioxide, nitrous oxide, and particulate matter were considered to be pollutants and thus subject to EPA regulation, but carbon dioxide lay outside of the agency's purview. The ruling, though it permitted the EPA to regulate carbon dioxide emissions, did not require it to do so. Under the Bush administration the EPA steadfastly refused to use its power to regulate carbon dioxide as an air pollutant. Shortly after President Obama took office in 2009 he and the EPA's new director reversed that policy. The EPA imposed regulations on existing electric generating plants and more importantly imposed restrictions on the carbon dioxide emissions of new electric generating power plants so strict that at the time of writing no new coal-fired power plants are being built in the United States. Coal's share of electric power production is declining and that of natural gas is increasing. This is important because about two-fifths of all carbon dioxide emissions in the United States came from the generation of electricity, and per unit of energy natural gas generates only a little more than half as much carbon dioxide as does coal. (It also burns much more cleanly so that the shift reduces the amount of particulate matter, heavy metals, and other pollutants in the air.) In fact over the past several years total U.S. carbon dioxide emissions have declined slightly despite population and economic growth. The shift away from coal to natural gas in electric power generation is the main reason for this.

There is no way that the Obama administration could have achieved this shift through legislation because of the political influence of the coal industry and the number of legislators who come from coal-producing states. Rather, the Obama administration took a regulatory path. EPA regulations on both smokestack emissions and the disposal of the ash from coal burning have forced and will continue to force many older coal-burning electric generating plants out of business. It was estimated that by June 2015 85 coal-burning power plants with about 13 billion watts generating capacity (out of a U.S. total generating capacity of approximately 300 billion watts) would be forced to close. Most of these plants are in the Appalachian region.

These regulations are part of a larger plan, the Clean Power Plan, which would reduce carbon dioxide emissions by 30 percent from the levels that prevailed in 2005. The plan would give each state a target and it would be up to the state to choose the manner in which it met that target. Presumably, the total effect would be to reduce the amount of electric power generated by coal, with that loss made up by the increased use of natural gas, renewables such as wind and solar, possibly by some increase in nuclear power, and by steps to increase the efficiency of electricity use.

The plan has been a matter of enormous political contention. In August 2015 the final regulations for the Clean Power Plan were published in the Federal Register. Within two months 27 states, primarily those with Republican governors, had filed lawsuits intended to block the implementation of these regulations. Similar suits had also been filed by a number of companies and business organizations. The suits took the position that the President's attempt to achieve by executive order what he could not achieve legislatively constituted an excessive and unconstitutional exercise of his legal powers. In explaining their motivations in bringing the suits, his opponents asserted that the regulations would push up the cost of electric power, thus reducing employment and weakening U.S. international economic competitiveness. They also pointed specifically to the effect of employment in the coal industry. Some more liberal states, including New York and California, filed amicus curiae (friend of the court) briefs in support of the administration, as did a variety of non governmental organizations. On December 9, 2016 the U.S. Supreme Court issued a "stay" preventing the federal government from implementing the regulations pending a review by a federal appeals court. This was clearly a victory for the states but it is probable that the issue will someday return to the Supreme Court for a final decision. Once again the court was split along ideological lines. The four conservative justices voted for the stay and the four liberals voted against it. This time the court's swing vote on many issues, Justice Kennedy, sided with the conservatives.

The sharp disagreement between the Obama administration and most of the Republican Party over the climate change/environmental regulation issue was highlighted in December 2015 when the House of Representatives voted to prohibit the EPA from enforcing rules that would limit carbon dioxide emissions from both existing and future electric generating plants. The Senate had passed similar legislation in November. The bills had no chance of becoming law because the Republicans did not have sufficient votes to override a presidential veto. They were purely symbolic. The House vote occurred during the world climate summit meetings in Paris and was clearly intended to make clear that the Republican congressional delegations would oppose U.S. participation in any major initiatives that might come from the summit. Senator James Imhofe (R Oklahoma) who became Chairman of the Senate Committee on Environment and Public Works after the 2014 elections characterized the proceedings at the summit as just "hot air." In 2012 he had published a book, The Greatest Hoax: How the Global Warming Conspiracy Threatens Your Future, a title which leaves little doubt about his views on the matter. As noted in Chapter 12, current regulations now call for 54.5 miles per gallon for automobiles in 2025, an approximate doubling of the current CAFE requirement. That, too, could not have been achieved legislatively, but rather was achieved through the regulatory route.

President Obama has probably been the most activist president on environmental matters and is generally well thought of by the environmental movement. Because most of what he has done has been through executive order, how much of his environmental legacy survives will be heavily dependent upon the results of the 2016 election, since what is done by executive order can also be undone by executive order. That which is done by legislation is more durable.

Although this section has focused on the actions of the federal government it has to be said that some states, most notably California, have taken very large steps on their own. California imposed regulations to improve ambient air quality well before the federal government did and for a time had more stringent requirements on automotive emissions. Its most ambitious environmental initiative was the Global Warming Solutions Act (AB 32) passed by the state legislative in 2006.8 This set up a state cap and trade system designed to bring California's carbon dioxide emissions in 2020 down to the level that prevailed in the state in 1990. The legislation allowed a long lead time with caps for power generation and industrial uses to begin in 2013 and natural gas and transportation to begin in 2015. At the time of writing it is too early to make a judgment on its performance. The state belongs to a multi-state organization, the Western Climate Initiative, so it is possible that other states will follow California's lead if the program works well.

Carbon dioxide emitted anywhere circulates globally. California's population is less than 1 percent of the earth's population, so one could argue that California's residents will capture less than 1 percent of the benefit of the program while absorbing most of its costs. Thus the program goes far beyond pure self-interested economic rationality and the trap of the tragedy of the commons, and expresses commitment to a larger ideal.

 
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