Ethical Principles in U.S. Environmental Legislation

1. Ethical Principles in U.S. Environmental Legislation Andrew Brook Philosophy and Environmental Studies Bryn Mawr College and Carleton University

2. Overview • The United States has a wide-ranging group of quite powerful federal environmental protection Acts. Among the most important are the National Environmental Policy Act (the first, going back to 1969), Endangered Species Act, Clean Air Act, Clean Water Act, and the (so-called) Superfund for cleaning up environmental contamination. • Like all legislation, indeed all public policy, this legislation enshrines and provides tools for enforcing a variety of ethical principles. • In this talk, I will look at some of the most important Acts and explore the ethical thinking behind them. • A work in progress: suggestions very welcome.

3. Enshrining Values • Legislation enshrines values in two ways: • First, it expresses values and mobilizes the coercive power of the state to enforce their satisfaction. • Second, it ‘freezes’ values – the shape that a value had when enshrined in a law and the priority given to it by the law are the shape and priority that it will have until the law is modified or repealed. • In the US, that can be a long time: Amendments made to the Constitution over 200 years ago in some cases are still the test for all subsequent law and policy. • The range and diversity of the legislation is striking. Under the administration of the Environmental Protection Agency (EPA) alone (sometimes together with other agencies), there are over 25 pieces of legislation, as well asExecutive Orders and other regulatory instruments. • Here is the list:

4. Atomic Energy Act (AEA) 1946 • Chemical Safety Information, Site Security and Fuels Regulatory Relief Act 1999 • Clean Air Act (CAA) 1970 • Clean Water Act (CWA) (originally: Federal Water Pollution Control Act of 1948) • Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund) 1980, 1986 • Emergency Planning and Community Right-to-Know Act (EPCRA) 1986 • Endangered Species Act (ESA) 1973 • Energy Independence and Security Act (EISA) 2007 • Energy Policy Act 2005 • EO 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations 1994 • EO 13045: Protection of Children From Environmental Health Risks and Safety Risks 1997 • EO 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use 2001

5. Federal Food, Drug, and Cosmetic Act (FFDCA) 2002 • Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) 1996 • Marine Protection, Research, and Sanctuaries Act (MPRSA, also known as the Ocean Dumping Act) 1988 • National Environmental Policy Act (NEPA) 1969 • National Technology Transfer and Advancement Act (NTTAA) 1996 • Noise Control Act1972 • Nuclear Waste Policy Act (NWPA) 1982 • Occupational Safety and Health (OSHA) 1970 • Oil Pollution Act (OPA) 1990 • Pollution Prevention Act (PPA) 1990 • Resource Conservation and Recovery Act (RCRA) 1976 (late 80s) • Safe Drinking Water Act (SDWA) 1974 • Shore Protection Act (SPA) 1988 • Toxic Substances Control Act (TSCA) 1976

6. Bureaucracy and Budget • Not only is the list of governing legislation long; massive resources are devoted to applying and enforcing the Acts. • In just the EPA alone, there are about 17,500 fulltime positions and the annual budget for 2010 is about $10.5b (that’s $10,500,000,000.00). • Plus, the Superfund has spent probably a further $10b in federal funds since it was created in 1986 and double that has been expended under order by parties responsible for hazardous contamination. • (Interestingly, by 1994 when an attempt was made by the Clinton administration to improve the Superfund, bipartisan support could no longer be achieved. Near the end, we will see another effect of the changes in political climate since the heyday of environmental legislation in the 1970s.)

7. Various Aims of the Different Acts • The Acts that the EPA administers differ from one another quite widely: • Some are specific to one technology or problem, the Atomic Energy Act and (a large interest of mine) the Nuclear Waste Policy Act, for example. • Some are parts of other, more encompassing Acts, the Chemical Safety Information, Site Security and …. Act • Some create bodies and relationships rather than enforce standards, the Emergency Planning and Right to Know Act, for example. • Some are aimed primarily at issues other than environmental protection. The Energy Independence and Security Act of 2007, the Federal Food, Drug, and Cosmetic Act, ‘FIFRA’, and the National Technology Transfer and Advancement Act are examples. • Some aimed at specific human populations, Executive Order (EO) 12898 of 1994 about environmental justice in minority and low-income populations and EO 13045 of 1997 on protecting children from environmental health and safety risks, for example. • There is also considerable overlap: About a dozen address pollution, sixare aimed at toxic substances, four are about energy and three are about water.

8. The ‘Big’ Acts • But some of the Acts are of wide, general application and directly seek to protect the environment. Chronologically, • National Environmental Policy Act (1969, which created the regimes of Environmental Assessments (EAs) and Environmental Impact Statements (EISs) (the international grandaddy of environmental legislation ) • The Clean Air Act (1970) • The Clean Water Act (1972) • The Endangered Species Act (1973, probably the most important Act – interestingly, the lead agencies are FWS and NOAA, not the EPA). • Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund) (1980, 1986), together with the Resource Conservation and Recovery Act (1976 but not in force ‘til the late 1980s) • The Energy Policy Act (2005) and the Energy Independence and Security Act (2007), the only recent Acts on this list • We will look at some of the ethical values enshrined in these Acts.

9. A Framework for Assessing Values • When a value is expressed in legislation (or elsewhere), it can be assessed using a framework of various dimensions. Here are some of the more important: • Who and what fall within the scope of the value? • Beings: From just humans (or just oneself and one’s loved ones) at one end to ‘Gaia’, the biosphere as a whole, at the other. • Time: From now to indefinitely in the future. • Space: From here to the whole planet. • Are the valued items valued as an intrinsic good or an instrumental good? (Instrumental: good because it helps us achieve other things.) • Is the valued items valued for consequential or ‘deontic’ reasons? (Deontic: good without reference to future goods and benefits.) • What is the basis of the ethical concern? Here two main options are duty to respect vs. care and concern for the valued object, its interests and capabilities. • How does the value relate to such distinctively human values as liberty and equality and to other environmental values?

10. Clean Air, Clean Water, Superfund • The values behind the Clean Air, Clean Water, and Superfund Acts are unsurprising: Pollution and contamination are bad . They harm people and the resources on which people depend. The values embodied in these acts are largely human-centric, instrumental, and consequentalist. Relationship to values about humans? Centred on human health and safety (kinds of liberty). National Environmental Policy Act (NEPA) • The values enshrined in NEPA (1969) are more interesting. Here is Section 2, Purpose: SEC. 2. The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare or man; to enrich the understanding of the ecological systems and natural resources important to the Nation; …. • A “productive and enjoyable harmony between [people] and [their] environment” may not be all the way to deep ecology (which insists that all life forms are interconnected and humans have no ecological priority) but it goes well beyond regulating contamination and pollution. • Has NEPA met or even had the power to meet these high purposes? Another matter. • The values expressed by SEC. 2 are not entirely human-centredand are not entirely consequentialist. Source in duty or in care? This is not clear. The Act explicitly recognizes the human-centred value, development.

11. Endangered Species Act (ESA) • So what values does the ESA express? And – just as interesting in this case – not express? • The Endangered Species Act (ESA) aims to protect endangered species from extinction as a “consequence of economic growth and development untempered by adequate concern and conservation” (SEC. 2(a)1). • It was created in 1973, under Nixon. (As was the NEPA, the Clean Air Act, and the Clean Water Act. Indeed, he proposedESA – and the EPA itself (1970).) • Its most important mechanism is a list of endangered species. There are rules for how a species gets on the list but once it is on, the Act provides the FWS, the NOAA and the EPA with the power to control habitat, including habitat that is private property. • In particular, the law prohibits any action that causes a ‘taking’of any listed species. “The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” (SEC. 3 (19)). • ‘Harm’ is probably the most important word in that definition. Harming does not consist only of capturing or killing a member of an endangered species. Changing any aspect of the endangered species’ environment in a way that increases the risk of the species going extinct also counts as harm.

12. The Values that the ESA Enshrines Clearly the fundamental value animating ESA is biodiversity. The greatest possible variety of living creatures is a Good Thing, such a good thing that it is to be promoted even if the costs not just to government but also to individuals are high. Our five assessment scales, • ESA is very broad scope. It offers protection to all living things, stopping short only of the biosphere as a whole. It was aprofound change from nature-as-resource. • How are living things valued? The Act says this: “These species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people” (SEC. 2(a)3). • Interpreted literally, this is pure instrumentalism. However, it is not unreasonable to think that at least some of the proponents of the legislation held that diversity of life forms is a good in itself, whatever its value to humans or any other beings. • Consequentially or ‘deontically’? As with instrumentalism, literally 2(a)3 is pure consequentialism. And the same qualification seems to me to apply. • Is the basis of valuing a duty, the duty to respect diversity, or care and concern for the living beings within the scope of the Act? Here again the words of the Act do not give us much guidance.

13. Biodiversity Vis-à̀-vis Other Values That leaves the last of the five scales. How do the values of the ESA relate to human-centred values, liberty and equality, for example? Here the ESA is remarkable. • Private property and free enterprise are fundamental institutions of liberty. Harm to it was a driving force behind the Superfund (Love Canal). • Yet the ESA applies to private property (land in particular) as much as to public property. Private land-owners can be deprived of income and enjoyment (via timbering, clearing and cultivating, using water resources, and the like) without compensation, if such uses run risks to an endangered species. • This is a large expansion of the harm principle. Hence the saying among opponents of the Act that if a member of an endangered species appears, an owner should ‘shoot, shovel, and shut up.’ • Now, this is not the only limitation on property rights in US law. • Eminent domain seizures can be done for very broad reasons. • Sovereign immunity even when clear neglect. • Even in the US context, however, the attitude of the ESA to property is unusual. Which means that it is also in tension with the demands of liberty • By privatizing costs, the ESA also aggravates inequality in some cases.

14. EPA Acts and other environmental values Comparing NEPA and ESA briefly, notice that NEPA goes farther than the ESA in one respect: It specifically mentions the biosphere as a whole (this should have given in global scope). Not for nothing is the NEPA considered a model. To close, let us briefly set the values enshrined in EPA Acts against some environmental values that have become prominent more recently. • First and most obviously, all the Acts extend in space only to US states and territories, the potential of the NEPA to do better notwithstanding. But all land is interconnected and many environmental problems cannot be solved in one country. • Nor does exporting them do. (85% of the goods sold by Walmartare made offshore.) • That legislation freeze values and value priorities has created another problem, of a different kind. • Three of the most important environmental values currently are that: • Global warming is bad, indeed potentially extremely dangerous • We have an obligation to future generations, so an obligation to live sustainably. • The health of the biosphere is vital, both intrinsically and instrumentally. How do these values sit vis-à-vis the Acts that we have considered?

15. Other environmental values 2 • They don’t – and probably won’t. • Except for the brief mention of the biosphere in NEPA, none of new values plays any role in the Acts we considered (climate change technology does appear – as one of twelve objectives – in the more recent Energy Policy Acts (2005 and 2007)) • Indeed, many activities under the Clean Air, Clean Water, and Superfund bills actually contribute to global warming. Some activities under the ESA run counter to sustainability. • Yet all these activities are not just legal but legislated. • Now the special problem: • In the current political climate, there is little likelihood of enshrining the newer values in legislation. • So the values frozen by passage of the old Acts have not just top but exclusive priority in federal legislation and probably will for quite some time. • Take-home messages? Two: • The acts that we have considered may not get all the way to deep ecology or ecofeminism but NEPA and ESA embody important environmental values. • Enshrine ethical values in legislation carefully. It freezes them and you might not be able to unfreeze or counter-balance them later if you want to do so.