New Environmentalism

Studies | Environment

No. 201
Wednesday, January 01, 1997
by Lynn Scarlett


Next Steps: What Can Congress Do?

The principles and decision filters of new environmentalism are tools with which to evaluate different policy options. They also provide a map to direct environmental policy reformers on their long, evolutionary road. Examples of specific public policies that reformers can encourage Congress and the administration to implement follow.

Unified Statute and Devolution. Passage of a Unified Environmental Reform Statute is a good first step. A unified statute would create procedures for decentralizing decision making and measuring successes. It could target the Clean Air Act, the Clean Water Act and the Resource Conservation and Recovery Act for revision through phased-in devolution and the sunsetting of duplicative provisions. Because we know that many of the risks addressed by current legislation are trivial or nonexistent, the best decisions about these risks would be made locally. [Knowledge Filter; Risk Filter] Furthermore, different localities would discover and implement different solutions based on their unique conditions. [Strategy Filter]

Several ideas that have been outlined by the Washington, D.C.-based National Environmental Policy Institute serve as a useful starting point for such a statute. A unified statute should:

  • Devolve to the states authority, responsibility and accountability for setting environmental goals where impacts are primarily local, implementing policy and monitoring success. [Decentralization principle] Where air basins or watersheds cross state boundaries, the states involved would have primary authority for setting acceptable standards, and the national role would be one of mediator. [Flexibility principle]
  • Create sunset provisions to phase out existing legislation as revised environmental laws are introduced. As states and localities demonstrate increased competence and ability, they should gain responsibility for their environmental problems. They should not have their hands tied by cumbersome and outdated environmental statutes that dictate priorities, standards and technologies. Since new environmental problems arise and existing but previously unrecognized problems emerge over time, old programs should be eliminated so as not to hamper new solutions. [Efficiency principle, Do No Harm principle]
  • Create a performance-based system that emphasizes ambient environmental standards, not the use of specific technologies. [Balancing principle, Flexibility principle, Efficiency principle]
  • Establish mechanisms for developing ambient standards and issuing permits so that emission permits could be freely traded.58 Permits could take the form of contracts or covenants. [Flexibility principle, Individualism principle]

 Civic Environmentalism Act. The second step to environmental reform by the Congress would be a Civic Environmentalism Act shifting emphasis away from punishment and toward problem solving, bargaining, technical innovation and information exchange. Such an act would begin the privatization of decisions regarding environmental problems. It also would encourage bargaining approaches for Superfund site cleanups, brownfields redevelopment, federal facilities cleanups, toxic emission standard setting and other problems with primarily local impacts. Many states have passed legislation to promote voluntary environmental audits by private firms. Firms need assurances that these voluntary audits will not result in penalties, fines and prosecutions for environmental problems uncovered - and corrected. A Civic Environmentalism Act should include similar audit protections at the federal level. The act would:

  • Reform environmental enforcement by clarifying which actions are subject to criminal penalties and which to civil and administrative proceedings, bring sentencing guidelines for environmental crimes into conformance with those for comparable crimes and eliminate multiple prosecutions for a single violation. [Efficiency principle]
  • Develop and allow states to develop "environmental audit privilege" laws, providing immunity from prosecution to companies that seek out, disclose and correct violations of environmental laws. Current laws allow such information to be used against the company and its officials in criminal and civil trials. Audit privilege laws would end the perverse incentive to cover up environmentally harmful actions, increasing the flow and accuracy of information available to decision makers. [Information flow filter]
  • Create an environmental extension program to help farmers and business owners reduce environmental impacts. Such programs could be funded privately or by shifting funds away from punitive approaches or using proceeds from pollution charges. [Decentralization principle, Flexibility principle]
  • Facilitate the establishment of local market-like bargaining and negotiating processes. Some states and projects already have such processes. For example, some local communities convene informal task forces to weigh cleanup alternatives for brownfields. [Flexibility principle, Efficiency Principle]

Environmental Amenities Act. The third step would be an Environmental Amenities Act patterned in part after 1995 House proposals for takings compensation. The act would compensate property owners who lose some or all use of their property to public environmental amenities such as wilderness, wildlife and wetlands protection. The act would create incentives for environmental stewardship and relieve individuals and firms from providing public amenities at private expense. [Ownership filter] An Environmental Amenities Act would:

  • Require takings compensation for private landowners who must provide public amenities. Such provisions would not include compensation for costs associated with regulations to mitigate pollution. [Balancing principle, Efficiency principle, Compensation principle]
  • Require that private property be included in public environmental programs (e.g., habitat management plans, ecosystem management plans, national and international heritage sites and biosphere reserves) only with the permission of the owner(s) or upon the payment of takings compensation. [Individualism principle, Compensation principle]
  • Empower states to encourage wildlife and habitat protection by using bounties and other tools that allow private parties to benefit from producing environmental goods. [Individualism principle, Flexibility principle]

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