Environmental Policy-It Is Time for a New Beginning Arnold W. Reitze, Jr.* I. INTRODUCTION Almost twenty years have passed since President Nixon signed the National Environmental Policy Act that began the "decade of the environment."I The Environmental Protection Agency (EPA) was also created in 1970 to centralize federal efforts to improve our environment.2 Myriad environmental statutes and imple- menting regulations followed.3 Today EPA employs over four- * Professor of Law and Director, Environmental Law Program, The George Washing- ton University, Washington, D.C. The author would like to express appreciation to Edna G. Reitze, Apphia Schley Esq., and Professor Joshua Schwartz for their valuable comments. 1. Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. §§ 4321- 4370a (1982 & Supp. IV 1986)). 2. EPA was established December 2, 1970 by Reorganization No. 3. Pub. L. No. 91-90, 83 Stat. 852 (1970) (codified at 42 U.S.C. § 4321 (1982)). 3. The major environmental statutes and the dates of their major amendments are: a. Clean Air Act, Pub. L. No. 84-159, 69 Stat. 322 (1955); Clean Air Act Amendments of 1966, Pub. L. No. 89-675, 80 Stat. 954 (1966); Clean Air Amend- ments of 1970, Pub. L. No. 89-604, 84 Stat. 1976, (1970); Clean Air Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685 (1977) (codified at 42 U.S.C. §§ 7401-7642 (1982)). b. Federal Water Pollution Control Act, 66 Stat. 755 (1952); Federal Water Pol- lution Act Amendments of 1961, Pub. L. No. 87-88, 75 Stat. 204 (1961); Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (1972); as last amended by Pub. L. No. 100-4, 101 Stat. 60 (1987) (codified at 33 U.S.C.A. §§ 1251-1387 (West 1986 & 1987 Supp.)). c. Toxic Substances Control Act, Pub. L. No. 94-469. 90 Stat. 2003 (1976); as last amended by Pub. L. No..99-519, 100 Stat. 2989 (1986) (codified at 15 U.S.C. §§ 2601-2629 (1982 & Supp. IV 1986)). d. Federal Insecticide, Fungicide and Rodenticide Act, c. 125 §§ 2-13, 61 Stat. 163 (1947); Pub. L. No. 92-516, 86 Stat. 975 (1972) as last amended by Pub. L. No. 98-620, 98 Stat. 3357 (1984) (codified at 7 U.S.C. §§ 1 3 6-136y (1982 & Supp IV 1986)). e. Resource Conservation and Recovery Act of 1976, Pub. L. No. 94-580, 90 Stat. 2795 (1976), as last amended by Pub. L. No. 99-499, 100 Stat. 1613 (1986) (codified at 42 U.S.C. H§ 6901-6991i (1982 & Supp. IV 1986)). f. Marine Protection, Research and Sanctuaries Act of 1972, Pub. L. No. 92-532, 86 Stat. 1052 (1972); as last amended by Pub. L. No. 99-499, 100 Stat. 1613.(1986) (codified at 33 U.S.C. §§ 1401-1445 (1982 & Supp. IV. 1986)). Ill COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:111 teen thousand people.4 Its major environmental statutes fill a 654 page book and the regulations encompass eleven volumes and 8608 pages of the Code of Federal Regulations. EPA's operating programs require about $2.7 billion and the Superfund and Leak- ing Underground Storage Tank (LUST) programs require an ad- ditional $1.6 billion.5 EPA's work and billions of dollars spent by the public and pri- vate sectors have given us cleaner air and water, but the ap- proaches used for the past twenty years are about to run out of steam. New programs are becoming more expensive, more com- plex, and often provide only marginal benefits. The reason is not difficult to visualize. When a pioneer wanted to dispose of solid waste, it was thrown in the back yard. Small cities had to establish a municipal dump. Large cities today must ship wastes long dis- tances, the wastes are much greater on a per capita basis (because of the increased use of packaging materials) and they must be dis- posed of in a manner that protects the public from nuisance, odor, and ground water contamination. The price per ton for proper disposal escalates. Similar patterns occur concerning dis- charges into the air and water.6 Furthermore, when environmen- tal problems receive governmental attention, not surprisingly, the inexpensive, quick payoff responses come first. For example, au- tomobile air pollution control costs in 1981 dollars were $50 per vehicle for the 1970-1971 model year (MY), $370 for the 1972 MY, $700 for the 1977-1979 MY and $1400 for the 1981 MY. The 1979 to 1981 MY cars incurred marginal costs for pollution g. Safe Drinking Water Act, Pub. L. No. 93-523, 88 Stat. 1660 (1974); as last amended by the Safe Drinking Water Amendments of 1986, Pub. L. No. 99-399, 100 Stat. 642 (1986) (codified at 42 U.S.C. §§ 300f-300j-1l (1982 & Supp. IV 1986)). h. Comprehensive Environmental Response, Compensation and Liability Act of 1980, Pub. L. No. 96-510, 94 Stat. 2767 (1980), as amended by the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613 (1986) (codified at 42 U.S.C. §§ 9601-9657 (1982 & Supp. IV 1986)). i. Uranium Mill Tailings Radiation Control Act of 1978, Pub. L. No. 95-604, 92 Stat. 3021 (1978) (codified at 42 U.S.C. §§ 7901-7942 (1982)). j. The National Environmental Policy Act, Pub. L. No. 91-190, 83 Stat. 852 (1970), as last amended by Pub. L. No. 94-83, 87 Stat. 424 (1975) (codified at 42 U.S.C. §§ 4321-4370a (1982)). 4. 14,323 work years are requested for fiscal year 1988, EPA 1988 Budget in Brief 3 (1987). 5. Id. 6. Steinhart, Down In The Dumps, AUDUBON, May 1986 at 102. 112 Environmental Policy control of $700 (1981 dollars), yet, had only very modest margi- nal reduction in emissions.7 Since the mid 1960's the United States has seen a tremendous legal effort to deal with pollution. Our nation spent nearly $500 billion from 1972-1983 on pollution abatement-over $2000 for every person living in the United States.8 The great output of laws and input of money have brought large programs and some measurable improvement in our environment. But the easy im- provements have now been made and many of our programs are bogged down. In the past ten years there have been reductions in the levels of all six of the air pollutants for which health-based national ambient air quality standards have been established. However, three of the six showed no change between 1985 and 1986, while sulfur dioxide and ozone decreased only three and two percent respectively.9 Increasingly, it is questionable whether the programs are worth their cost and hassle. Yet mas- sive and more stringent programs are being developed that are aimed at truly marginal problems while serious issues are not ad- dressed. This view is shared by EPA experts who believe that cri- teria air pollution including acid precipitation, stratospheric ozone depletion, and pesticide contamination are high priority subjects for control.'0 Yet all receive from modest to little atten- tion. However, hazardous waste sites which are considered by EPA experts to be of medium/low risk, have the largest program budget in EPA devoted to their cleanups." Environmental law programs ought to protect public health and/or the well being of ecosystems. Today they often seem to primarily produce billable hours for environmental consultants and lawyers. 7. L. wHTTE, THE REGULATION OF AIR POLLUTANT EMISSIONS FROM MOTOR VEHICLEs 85 (1982). 8. National expenditures are added from Table A-19, COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY, 15TH ANNUAL REPORT 614 (1984) [hereinafter CEQ, AN- NUAL REPORT]. They are $499.371 billion in dollars of the year of expenditure (not ad- justed for inflation). Population of the U.S. was 242.4 million in 1987. 9. EPA, NATIONAL AIR QUALITY AND EMISSION TRENDs REPORT, 1986 (1988). 10. Pesticide problems are generally unappreciated by a largely urban America. How- ever, an estimated 300,000 farm workers suffer pesticide-related illnesses annually. This helps create a death rate in agriculture that in 1985 was 49 workers in 100,000 as com- pared with 11 in 100,000 for six other major occupational groupings. McCarthy, Mysterious Maladies of Farm Workers, Wash. Post, June 13, 1988 at All, col. 4. These statistics, how- ever, are challenged by the president of the American Farm Bureau Federation as being too high. Wash. Post, July 4, 1988 at A20, col. 3. 11. Allen, The Situation: What The Public Believes; How The Experts See It, 13 EPAJ. Novem- ber, 1987 at 9. 1989] 113 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:111 The following are some examples of the lack of focus in the system. In 1986, Congress enacted Title III of the Superfund Amendments and Reauthorization Act (SARA), known as the Emergency Planning And Community Right-To-Know Act of 1986.12 This statute appears to require what EPA for years has had the authority to do under the Toxic Substance Control Act (TSCA).' 3 Since EPA was unwilling to exercise its authority, Con- gress passed this legislation to mandate information gathering and direct the states to create another planning entity.14 The pri- vate sector will incur substantial expense in generating the re- quired data. Will the law prevent another accident such as the one in Bhopal, India?15 It probably will not, if the recent chemi- cal warehouse fire in Seabrook, New Hampshire is indicative.'6 Will the public benefit? Yes. But how much is it worth? Do states really have the resources to carry out effective planning? Could locally generated revenues be better spent housing the homeless, mentally ill, or dealing with some other locally pressing concern? At the state level, examples of expensive marginally useful pro- grams also exist. The most newsworthy is California's Proposi- tion 65.17 Beginning February 1988, this law bans the discharge of certain chemicals, designated by the state, into drinking water sources. It also requires companies using any substances on the list to post work place safety warnings and requires that warning labels be affixed to those consumer products containing such sub- stances. Consumer warning requirements take effect one year af- 12. The Superfund Amendments And Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613 (1986). 13. EPA's former director of the Office of Toxic Substances supports the concept of a broad TSCA authority to gather information. See Issues in Toxic Control: An Interview With Don R. Clay, EPA J. June, 1985 at 3. 14. EPA, TITLE III FACT SHEET, EMERGENCY PLANNING AND COMMUNITY RIGHT-TO- KNOW (1987); Elkins & Makris, Emergency Planning and Community Right-to-Know, 38 J. AIR POLLUTION CONTROL Assoc. 243 (1988). 15. Galanter, When Worlds Collide: Reflections on Bhopal, The Good Lawyer, and the American Law School, 36 J. LEGAL ED. 292 (1986); D. KURZMAN, A KILLING WIND (1987). 16. On March 12, 1988 a fire at the Johnson Matthey chemical warehouse consumed 3000 or more chemicals and attracted national attention. The company was in full compli- ance with Title III of SARA, but problems existed in emergency response at the local, state and federal levels. See Burtis, Title III Compliance May Not Be Enough: Lessons Learned from a Chemical Fire in Seabrook, NH, ENVTL. MANAGER'S COMPLIANCE ADVISOR 11 (1988). 17. Proposition 65, The Safe Drinking Water and Toxic Enforcement Act of 1986. This law was passed as a water initiative and is codified at Cal. Health and Safety Code §§ 25249.5 - 25249.13 (West Supp. 1987). 114 Environmental Policy ter they are added to the Governor's list.' Governor George Deukmejian submitted a list of only twenty-nine substances. This created an immediate outcry'9 which was followed by a law suit that resulted in 201 substances being added to the list.20 Once a toxic substance is listed, "clear and reasonable" warnings must be provided. The burden of proving compliance is on the producer or seller, though, and there can be substantial uncertainty as to when there are "no significant risks" that would obviate the need for a warning.2 1 As this law begins to be implemented, will notifi- cation of hazardous substances in consumer products provide benefits commensurate with the cost? Do we gain public health benefits from these required warnings that justify the costs-so- cial and economic? The nation is fixated on the dangers from hazardous sub- stances. There is no question that they are undesirable. The right-to-know law and California's Proposition 65 each address a problem and will probably have some benefit.22 But efforts aimed at control of hazardous substances seem imbalanced in a nation that casually accepts an estimated 314,000 deaths per year from cigarette smoking.23 Our toxic cleanup program is giving in- creased attention to the protection of our underground water supply. EPA's operating plan for fiscal years 1986 and 1987 put the development of new standards in the drinking water program "among the highest priorities for the Agency."24 Underground water protection programs have also expanded for waste manage- ment facilities under the Resource Conservation and Recovery 18. [Current Developments] Env't. Rep. (BNA) No. 2245 (Oct. 17, 1986). 19. Mathews, Deukmejian Using Short List of Toxics, Wash. Post, March 28, 1987, at A8, col. 1. 20. AFL-CIO v. Deukmejian, slip op. 348195 (Cal. Super. Ct. 1987). 21. Environmentalists would argue that the uncertainty over the "no significant risk" level gives industry a strong interest in having risk levels clearly established. California has set more numerical limits under this Act in one year than EPA has addressed under TSCA in 12 years. Roe, Market Incentives for Toxic Chemical Protection, 19 EDF LETTER 3:4 (1988). 22. Both of these statutory examples have strong proponents that see substantial public benefits from these laws. See Waisanen, Management Systems Being Developed By OSHA And EPA, [Current Developments] Env't Rep. (BNA) No. 231 (June 17, 1988) (emergency planning and community right to know); Environmentalists and Industry Square Off Over Cali- fornia Toxics Law, The Fight For Prop 65, 6 NRDC NEWSLINE 2:2, May/June 1988. 23. OFFICE OF TECHNOLOGICAL ASSESSMENT, U.S. CONGRESS, SMOKING-RELATED DEATHS AND FINANCIAL COSTS (Sept., 1985). 24. GENERAL ACCOUNTING OFFICE, GROUNDWATER STANDARDS STATES NEED MORE IN- FORMATION FROM EPA 5 (March, 1988). 1989] 115 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:111 Act (RCRA)25 and remedial actions under "Superfund" which must attain the underground water Maximum Containment Level Goals established under the Safe Drinking Water Act.2 6 Under- ground water protection is important, as it provides the water supply for half of our population.27 But our efforts to protect this resource are offset by other governmental policies concerning un- derground water. We use seventy percent of this water for irriga- tion28 that is often provided at government expense and is then used to produce low value crops such as hay.2 9 We subsidize irri- gation but use more than one third of the water from Western federal irrigation projects to grow crops that are eligible for fed- eral subsidies because they are in oversupply.30 We tolerate rapid exhaustion (mining)3 ' of entire aquifers and the imminent re- gional economic collapse which will follow when the supply of un- derground water is gone or is effectively out of reach because of excessively high pumping costs.3 2 The most serious consequence of our lack of focus or perspec- tive is the complete failure of our nation to grapple with the fact that environmental law brings arithmetic improvement to an ex- ponentially worsening world pollution problem. Or, put another way, our population and consumption increases wipe out the ben- efits of environmental controls. This is the famous Malthusian theory now verifiable by real world data. But, we find our re- sponse is further limited by the law of diminishing returns. Pollu- tion control programs usually bring further improvement at very high marginal cost, with continued environmental destruction oc- 25. WAGNER, THE COMPLETE HANDBOOK OF HAZARDOUS WASTE REGULATION 82 (1988). 26. ERT, INC. & SIDLEY AND AUSTIN LAW OFFICES, SUPERFUND HANDBOOK 73 (2d ed. 1987). 27. C. MEYERS, A. TARLOCKJ. CORBRIDGE & D. GETCHES, WATER RESOURCES MANAGE- MENT 630 (3d ed. 1988). 28. Id. at 582. 29. Irrigation has been defined as: "The construction of vast works (dams, tunnels, canals, and so on) at public expense in order to produce surplus agricultural commodities, which are then purchased and stored at public expense. Western Water Made Simple, HIGH COUNTRY NEWS 192 (1987). 30. First Waves in New Water Wars, U.S. NEWS & WORLD REPORT, May 30, 1988 at 21. 31. Mining occurs when water withdrawal occurs faster than the aquifer can be renewed by rainfall percolating through the soil. The nation uses approximately 21 billion gallons per day of groundwater in excess of local recharge rates. See NATIONAL WATER COMMIS- SION, THE NATION'S WATER RESOURCES, 1975-2000, vol. I at 8 (1978). 32. Groundwater overdraft is more than 12,500 million gallons per day in the Texas- Oklahoma High Plains area, an amount about equal to the natural flow of the Colorado River. Id. at 18. 116 Environmental Policy curring despite extraordinary efforts at control. No matter how stringent environmental controls become, the increase in popula- tion and consumption nullifies the effort, and the law of diminish- ing returns limits the effectiveness of new responses. An example of this principle at work in water pollution is a large modern sewage treatment plant such as the Blue Plains Plant in Washington, D.C. After meeting EPA's effluent stan- dards, such a facility can legally release the equivalent of forty-five million gallons of untreated sewage a day.3 Our very expensive sewage treatment construction program reduces, but does not eliminate, adverse environmental impact. As more people enter the area and water consumption increase, benefits are further re- duced. In the ten years prior to 1984, EPA reported that the pop- ulation served by municipal treatment plants increased by eighteen million people but the total amount of pollutants enter- ing the nation's rivers from these plants stayed constant. Water pollution did not worsen because the federal government spent $40 million, and state and local governments spent nearly as much, to build sewage treatment plants over a fifteen year period. The water pollution problems that did not receive substantial funding, such as non-point source discharge, worsened.34 An ex- ample of this principle at work in air pollution would be a 1,000 Megawatt coal burning electric power plant which is subject to New Source Performance Standards (NSPS) under the Clean Air Act. If the plant utilizes particulate removal equipment with 99.4o efficiency, it will still release over 1200 tons per year of particulate pollution, i.e., the equivalent of a major stationary source (as defined by the CAA) nearly ten times over.35 33. This is based on meeting 85% removal through "secondary treatment." EPA's ef- fluent limitations for secondary treatment are found at 40 C.F.R. section 133.102. The 30- day removal shall not be less than 85% for BODs and suspended solids. More stringent requirements can be applied to meet stream quality standards, which is the situation with Blue Plains. See Montgomery Environmental Coalition, Inc. v. EPA, 19 ERC 1169, 1170 n.2 (D.C. Cir. 1983). 34. Houck, Ending The War: A Strategy To Save America's Coastal Zone, 47 MD. L. REv. 358, 379 (1988). 35. A major stationary source is defined in § 302(j) of the Clean Air Act (42 U.S.C. § 7602 (1982)) as a facility that has the potential to emit one hundred tons per year or more of any air pollutant. It is assumed here that a 1000 megawatt plant will burn 10,000 tons of bituminous coal per day. The coal produces 24 x 10 BTU/ton and is 8% ash. Thus 800 tons per day of ash is produced but since 70% is fly ash (30% is bottom ash) only 560 tons/day is released to the air. This is 3.36 tons/day after control or 1226.4 tons/year after controls. 1989]1 1 17 118 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:111 We are exhausting our capacity to absorb high cost and margin- ally effective programs. At the present time, for example, Clean Air Amendments are pending in Congress. Our legislators are arguing over how stringent to make State Implementation Plans (SIPs) in order to reach ozone standards,3 6 that are of modest importance to public health when compared, for example, to the problems posed by Acquired Immune Deficiency Syndrome (AIDS).37 An Office of Technology Assessment study indicates that it would cost from $6 billion to $7 billion annually for ozone control to be implemented in cities that, under existing law, need further controls.38 One aspect of this control program will be tighter standards on automobiles. Yet, it is not the tailpipe, but the front of vehicles that kills nearly 50,000 Americans per year.39 Current regulatory efforts downplay airbags and other safety de- vices.40 The chemical most in need of control, to protect public health from automobiles, is alcohol.4 1 Instead, we press for costly programs to control marginal problems of air pollution.42 The serious air pollution issues, such as acid rain43 and carbon dioxide 36. Ozone standards of 0.12 parts per million, measured as a one-hour average, were to be achieved by the end of 1987. EPA states that 68 cities failed to meet the standard. On May 26, 1988, EPA expanded its definition of areas that violate ozone standards to include 345 counties or cities. [Current Developments] Env't Rep. (BNA) No. 171 (June 3, 1988). 37. Ozone in the lower atmosphere is a threat to health and is regulated under a com- plex federal/state program. Sixty-eight cities are ozone violators. Congress extended the December 31, 1987 attainment date to August 1988, and EPA has been developing a "Post-87 Ozone Attainment Policy." AIR POLLUTION CONTROL NEWS, March-April, 1988 at 2. Ozone in the stratosphere forms a band about six miles thick that protects humans from harmful ultraviolet solar radiation. This has received considerable attention, particularly concerning the "ozone hole" over Antarctica. This has led to laws and an international treaty (The Montreal Protocol, signed by President Reagan, April 5, 1988) restricting chloroflourocarbons (CFC's) that destroy stratospheric ozone. U.S. DEP'T OF STATE, THE OZONE TREATY: A TRIUMPH FOR ALL, UPDATE FROM STATE 3 (May-June 1988). 38. [Current Developments] Env't Rep. (BNA) No. 68 (May 20, 1988). 39. There were 47,900 deaths from motor vehicles in 1986. THE WORLD ALMANAC AND BOOK OF FACTS 810 (1988). 40. The Insurance Institute for Highway Safety estimates there would be 7,750 fewer deaths in 1990 if all cars were equipped with airbags. If airbags had been required since 1969, estimated lives saved could have exceeded 100,000. McCarthy, lacocca's Conversion, Wash. Post, July 2, 1988 at A23, col. 3. 41. According to the U.S. National Highway Traffic Safety Administration, approxi- mately 33o of fatal motor vehicle accidents in 1985 were alcohol-related. STATISTICAL ABSTRACT OF THE UNITED STATES 1987, 590. In 1986, approximately 347 of these fatali- ties were alcohol-related. STATISTICAL ABSTRACT OF THE UNITED STATES, 1988, 581. 42. LAVE & SESKIN, AIR POLLUTION AND HUMAN HEALTH 231, 245 (1977). 43. See, e.g. R. MELLO, LAST STAND OF THE RED SPRUCE (1987). Environmental Policy (CO2 ) buildup (the greenhouse effect), receive little effective con- trol efforts.4 4 In the 1960's, there was little federal environmental law.4 5 In- deed there was little action by the legal profession. Much of the literature concerning the environment was being written by scien- tists acting as political activists. The consensus among these writ- ers was that environmental degradation had reached crisis proportions, and that it was caused by the multiple effects of pop- ulation, consumption, and social policies that allowed or even en- couraged conduct that harmed ecosystems.4 6 While some of the most outspoken of these environmental "gurus" differed as to whether population or consumption was the primary factor, they all agreed that these were the major factors.4 7 As the environmental programs began to evolve in the 1960's, the federal government took the dominant role. There was (and still is) no overall environmental program or goal.. Each discreet problem competes for the attention of Congress and the Admin- istration. Environmental protection measures compete for funds with other environmental programs and must also compete with all the other claimants seeking federal funds for their programs. The programs that survive and prosper are those that obtain the most political support and encounter the least effective opposi- tion. In the environmental field this has meant that, from the be- ginning, the impacts of population and consumption have been ignored. These two problems lack well-organized constituencies and there is no consensus that they are problems, let alone problems in need of solution. So Congress focused on the obvi- ous-the anti-environmental social conduct (pollution), which is 44. The first five months of 1988 were substantially warmer than any previous period in the past 100 years. The four warmest years in the last century have been in the 1980's. A NASA expert has testified before Congress that the agency has "997 confidence" that current temperatures represent a "real warming trend" rather than a chance fluctuation. Weisskopf, Scientist Says Greenhouse Efect Is Setting In, Wash. Post, June 24, 1988 at A4, col. 1. 45. Modern environmental law may have begun with the Federal Water Pollution Con- trol Act of 1948 but the first federal laws with some enforcement powers were the Federal Water Pollution Control Act amendments of 1965 and the Clean Air Act of 1963. 46. Ehrlich & Holdren, The People Problem, THE SATURDAY REVIEW, July 4, 1970, at 2. Commoner, The Causes of Pollution, 13 ENVIRONMENT 2 (1971). 47. Dr. Paul Ehrlich was the leading proponent of population control as the most im- portant measure of environmental control. Dr. Barry Commoner considered technology to be the major problem in the United States. A. REITZE, ENVIRONMENTAL LAw 23 (2d ed. 1972). 1989] 119 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 14:111 the least important of the three causes of ecosystem degradation. As the environmental law program developed, the sewage treat- ment construction program dominated the funding process.48 Given the way the law evolves this was understandable, even if it was an irrational way to formulate environmental policy. Sewage treatment grants provided federal money to every congressional district; moreover, because the construction of sewage treatment plants is not a regulatory program, the program was not opposed by potential regulatees. Industry benefitted because waste produ- cers were able to avoid capital costs associated with waste treat- ment by hooking into municipal treatment facilities. As the nation congratulated itself on its environmental efforts, some professionals warned that these approaches would not work. But the nation was not listening. The environmental ap- proaches that were adopted had developed a large constituency of beneficiaries that wanted to maintain the status quo. By the mid-1970's, the environmental program was largely in place. New laws were described as "mid-course corrections" or "fine tuning." When 1981 brought to power an administration that was committed to anti-environmental policies, the people inter- ested in environmental protection fought to keep what they al- ready had. Expansion of the field moved primarily in the direction of hazardous and toxic substance control. This subject had some support of the Reagan Administration, a national con- sensus that the problem needed attention, and a Congress that was very supportive. So like water seeking the easiest path, envi- ronmental law moved in the direction of least resistance. The environmental field lacks any overall plan or direction. We can not continue indefinitely to create expensive programs. We can not continue to solely address the problem of environmental degradation through regulations to clean up the environment in which the twin problems of population and consumption are ig- nored. This nation needs a comprehensive environmental policy and that policy must be broad enough to include a population, material conservation, and energy policy. Included in this envi- ronmental policy should be a long range view of environmental 48. Between 1972 and 1984 federal, state, and local governments invested $56 billion in construction of municipal sewage treatment facilities. BNA U.S. ENVIRONMENTAL LAWS 475 (1986). In fiscal year 1987, a substantially reduced federal sewage treatment plant construction grants program was budgeted at $2.361 billion. OMB, BUDGET OF THE UNITED STATES GOVERNMENT, FY 1989, 5-47 (1988). 120 Environmental Policy priorities and some consideration of costs and benefits. The fo- cus of this article is the impact of population, material conserva- tion and energy policies on environmental law, with recommendations concerning the integration of these subjects into environmental policy. A broad view of the environment was taken by the 1972 Club of Rome study. It claimed that growth on this planet is ultimately limited by five basic factors-population, agricultural production, natural resources, industrial production, and pollution. The group's belief was that the problems facing mankind are of such complexity and are so interrelated that traditional institutions and policies are unable to cope with them.49 Unfortunately, their pes- simistic view of political institutions seems to be accurate, for de- spite the great publicity given to the study, little change has occurred. II. TOWARD A COMPREHENSIVE ENVIRONMENTAL POLICY A. Population In 1977, President Carter instructed his Council on Environ- mental Quality (CEQ) and the Department of State to study the "probable changes in the world's population, resources and envi- ronment through the end of the century." The study would serve as the "foundation for our longer-term planning."50 In 1980 the study, the Global 2000 Report, was released. It constituted the first attempt by the United States government to project long- term trends in population, resources and the environment.51 The study predicted continued rapid growth in the world's population with the most growth in the poor, less-developed, nations. The projections were pessimistic, with per capita food supply declin- ing in poor countries, especially in sub-Sahara Africa. The report predicted that oil prices would rise, which has not yet material- ized, but the report accurately predicted a bleak outlook for lesser developed countries in terms of meeting their energy needs. 49. D.H. MEADOWS, D.L. MEADOWS, J. RANDERS & W. BEHRENS, THE LIMITS To GROWTH (1972). 50. President's Message to Congress on the Environment, 13 WEEKLY COMP. PRES. Doc. 782 (May 23, 1977). 51. COUNCIL ON ENVIRONMENTAL QUALITY AND U.S. DEP'T. OF STATE, THE GLOBAL 2000 REPORT TO THE PRESIDENT: ENTERING THE TWENTY-FIRST CENTURY (1980). 1989] 121 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 14:111 While the picture painted by the report is depressing, overall it has not been inaccurate.52 When President Carter received the report, he established a Presidential Task Force on Global Resources and Environment to be headed by the Chairman of the CEQ It was to include the Secretary of State, the Assistant to the President for Domestic Af- fairs and Policy, the Director of the Office of Science and Tech- nology Policy, and the Director of the Office of Management and Budget. President Carter also directed the State Department to raise the issues identified in the Global 2000 Report in all appro- priate international meetings.53 At approximately the same time as the Global 2000 Report was released, a study called the World Conservation Strategy was re- leased by the United Nations Environment Programme (UNEP). 54 The UNEP report called attention to the 500 million people in developing countries that were malnourished and 800 million that were destitute. These people, in their struggle to subsist, were destroying the very resources that would be necessary to free them from poverty and starvation.55 In the United States, the Presidential Commission on World Hunger stated that chronic undernutrition is a major world problem; some 800 million peo- ple outside the Communist countries exist in a state of chronic undernutrition.56 In 1969, President Nixon called for the creation of a commis- sion on population growth.57 Congress responded with legisla- tion "to establish a Commission on Population Growth and the American Future."58 This commission was to study population problems. Its report, Population and the American Future, was sub- mitted on March 27, 1972.59 The major recommendations of the Commission were: 52. Brown & Flavin, The Earth's Vital Signs, STATE OF THE WORLD I (1988); Postel & Heise, Reforesting the Earth, STATE OF THE WORLD 83 (1988). 53. CEQ 11TH ANNUAL REPORT 5 (1980). 54. International Union for the Conservation of Nature and Natural Resources (Morges, Switzerland), World Conservation Strategy: Living Resource Conservation for Sustainable Development, (1980). 55. CEQ, t TH ANNUAL REPORT 5 (1980). 56. PRESIDENTIAL COMM'N ON WORLD HUNGER, OVERCOMING WORLD HUNGER: THE CHALLENGE AHEAD (1980). 57. H. R. Doc. No. 139, 91st Cong., Ist Sess. (1969). 58. Pub. L. No. 91-213, 84 Stat. 67-69 (1970). 59. CoMMIssioN ON POPULATION GROWrH AND THE AMERICAN FUTURE, POPULATION AND THE AMERICAN FUTURE (1972). 122 Environmental Policy 1) Schools should receive aid for population and sex educa- tion programs and such information should also be provided through the media and responsible community organizations. Information dissemination should strive to improve the quality of education for parenthood. 2) Discrimination based on sex should be fought through pas- sage of the proposed Equal Rights (for men and women) Amendment to the Constitution. In addition, adequate child- care arrangements should be provided for parents who wish to use them. 3) Discrimination against children born out of wedlock should be eliminated and adoption laws reformed. 4) Investment should be increased in birth control research. 5) Access to abortion services should be liberalized, with the admonition that abortion not be considered a primary means of birth control. 6) Health services related to fertility, including prenatal and pediatric care, contraceptive services, voluntary sterilization, abortion, and the treatment of infertility, should be extended and improved through public and private financing mechanisms. 7) No increase in present levels of legal immigration should be permitted, and illegal immigration should be stopped. 8) To ease problems created by poor population distribution, programs for human resource development should be devel- oped and assistance provided in relocating. 9) Comprehensive planning should be done on a metropoli- tan and regional scale, with greater public control over land use. 10) Genuine freedom of choice of housing within metropoli- tan areas should be promoted for minorities. 11) A National Institute of Population Sciences should be cre- ated within the National Institutes of Health, and an Office of Population Growth and Distribution should be created within the Executive Branch. Although he stated, "I do not plan to comment extensively on the contents and recommendations"6 0 of the Commission's re- port, President Nixon immediately rejected the main recommen- dations, and he did nothing to support any of the recommendations. President Nixon said that liberalizing abor- tion laws "would demean human life," and that he wished "to make it clear that I do not support the unrestricted distribution of family planning services and devices to minors. Such measures would do nothing to preserve and strengthen close family rela- 60. Rosenthal, Nixon Rejects Population Panel Advice, Wash. Post, May 6, 1972 at Al, col. 4. 1989] 123 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 14:111 tionships."6 ' A mere glance at these recommendations demon- strates how little has been accomplished in achieving them. The major reason is that the development of a population policy has been engulfed by the concern over family planning, and the con- cern over family planning is dominated by the politics of abortion.6 2 In 1967, the Foreign Assistance Act was amended to require that a portion of United States foreign aid be spent for population planning.63 Section 104(a)64 of that Act states that "the Congress recognizes that poor health conditions and uncontrolled popula- tion growth can vitiate otherwise successful development ef- forts. . . ." However, Section 104 prohibits the use of United States population assistance funds to pay for research on abortion methods. It prohibits use of these funds to lobby for abortion. The Agency for International Development (AID) went further and prohibited use of AID funds for any abortion-related activi- ties. According to AID, no funds were used for such activities.65 This law was further restricted by the Reagan Administration. The Administration policy is that no United States financial aid for population planning is to be given to any organization which provides information or services related to abortion, even if it does so in foreign nations with funds from other sources.66 The irony is that this policy was announced in 1984 at the Interna- tional Conference on Population sponsored by the United Na- tions in Mexico City, Mexico. Mexico has a very high birth rate and its impact on the nation's economy generates a constant flow of illegal immigrants to the United States. The Reagan policy led to the withdrawal in 1985 of United States funds for the Interna- tional Planned Parenthood Federation (IPPF) and for the United Nations Fund for Population Activities (UNFPA). The UNFPA lost its funding because of presumed "indirect" support for "co- ercive" abortion in China, though, the charge concerning UNFPA appears to be untrue.67 The policy of the Reagan Administration is that abortion is not an acceptable element of family planning 61. Id. 62. Reidinger, Will Roe v. Wade Be Overruled? 74 A.B.A.J. 66 (1988). 63. GuTrMACHER INSTITUTE, ISSUES IN BRIEF (Sept., 1987). 64. Pub. L. No. 95-424, 92 Stat. 945, (codified at 22 U.S.C. § 2151(a) (1982)). 65. PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., FACT SHEET 2 (1988). 66. Id. at 2. 67. Id. at 3. 124 Environmental Policy programs. The Agency for International Development (AID) rules that implemented this policy were challenged by a family planning organization in a federal court. In July 1988, the Fed- eral District Court of the District of Columbia held that the AID rules violate First Amendment rights to free speech and associa- tion of the United States family planning groups. Spokesmen for the Justice Department and AID said the decision will be appealed.68 Domestic population policy is more ephemeral, but the most tangible expression is Title X of the Public Health Service Act. 6 9 This legislation was enacted in 1970 to make contraceptive serv- ices available to all.70 This statute has remained controversial, for the Reagan Administration has attempted to promulgate regula- tions that would implement the agenda of anti-abortion groups. Under this law, the use of federal funds to perform abortions is forbidden. But anti-abortion groups do not want the subject mentioned. Under 1988 regulations,7 1 family planning can not include any abortion-related information or abortion referral. A pregnant client must be referred for prenatal care services and must be provided with prenatal care information. These regula- tions have been challenged in three lawsuits.72 In federal district courts in Massachusetts and Colorado, injunctions were issued against the anti-abortion regulations. In June 1988, a federal judge in New York upheld the Reagan Administration's prohibi- tion on federally funded family planning clinics informing women that abortion is an option for handling an unintended preg- nancy.73 Within this arena is a sideshow of litigation concerning the Adolescent Family Life Act.7 4 This law, enacted in 1981, is dubbed the "Chastity Act." It is aimed at dealing with the prob- lem of teenage pregnancy, without the use of birth control or abortion. It seeks to educate adolescents to abstain from sex through counseling, frequently with the active and federally 68. Hockstader, Funds Ban Rejected for Groups Performing Abortions Abroad, Wash. Post, July 6, 1988 at A17, col. 4. 69. Pub. L. No. 97-35, (Title IX, § 39 31(a)(1)), 95 Stat. 570, (codified at 42 U.S.C. § 300 (1982)). 70. GurrMACHER INSTITUTE, supra note 63. 71. 53 Fed. Reg. 2,922 (1988) (to be codified at 42 C.F.R. Pt. 59) (proposed Feb. 2, 1988). 72. GurrMACHER INSTITUTE, WASH. MEMO., (Feb. 8, 1988 and March 29, 1988). 73. Rich, judge Backs Ban on Abortion Advice, Wash. Post July 2, 1988 at A5, col. 1. 74. Pub. L. No. 97-35, 95 Stat. 580 (codified at 42 U.S.C. § 300(z) (1982)). 1989] 125 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:111 funded involvement of religious groups. Part of this act was de- clared unconstitutional by the Federal District Court of the Dis- trict of Columbia and was directly appealed to the United States Supreme Court.75 The Supreme Court declined to strike down the law in a 5 to 4 decision written by Chief Justice William H. Rehnquist.7 6 The Court suggested that the proper remedy was to withdraw funds from those grantees that were acting improperly.7 7 An important part of a population policy concerns the role that immigration should play in the increase in the size of the United States population. We must consider what measures to take to control legal and illegal immigration. The Immigration Reform and Control Act of 1986 is just beginning to be implemented.78 More than 2.1 million illegal immigrants have filed for amnesty.7 9 We do. not yet know the environmental effects of this legislation.80 As the political and economic conditions in the Third World- particularly in Central and South America-continue to deterio- rate, desperate individuals will try to immigrate to the United States. As immigrants become United States citizens and get in- volved in the political process, we can expect continued pressure to legalize larger immigration quotas. We can also expect illegal immigration to continue to increase because nothing is acting to diminish the desperate conditions which motivate migration. For much of the world, war, runaway inflation, and declining food supplies create intolerable conditions that cause people to ille- gally immigrate. The United States does not have a viable plan for dealing with an army of invaders from the south. This will be an unarmed army, composed largely of children who are merely seeking the American dream. Whether they are welcomed or re- jected, the large numbers of immigrants pose a major policy 75. Reske, The Abortion Counseling Case, 74 A.B.A.J. 76 (1988). 76. Bowen v. Kendrick, 108 S.Ct. 2562 (1988). 77. Marcus, Funding for Religious Groups To Promote Chastity Upheld, Wash. Post, June 30, 1988 at A22, col. 5. 78. Hoffman, The Immigration Reform and Control Act of 1986: What Does American Business Do Now?, VIRGINIA BAR NEWS, April, 1988 at 17. 79. Barker, 2.1 Million Immigrants Beat Amnesty Deadline, Wash. Post, May 6, 1988 at A9, col. 1. 80. One study, funded by the Ford Foundation, is to evaluate the Immigration Reform Act and its impact on American society and that of other countries. It is being done by the Urban Institute in Washington, D.C., See Rich, Think Tank Survives Lean Times, Wash. Post, May 16, 1988 at A13, col. 3. 126 Environmental Policy problem for this nation. The most humane policies are those that deal with the underlying causes-energy prices, diminished natu- ral resources, lowered agricultural production, and high birth rates. The United States today is one of the fastest-growing industri- alized nations.8 ' The number of women of child-bearing age is at an all-time high. Immigration, legal and illegal, is a major con- tributor to our population growth. It is, therefore, imperative that citizenry in general, and not just the opponents of population planning, take an interest in the population growth impacts on our environment. The time has come to ask the question: What is the desirable size for the United States population (and for the world population)? The time has come to determine what steps might be taken to effectuate a population goal. Since about one- quarter of all births are unplanned or unwanted, the reduction in government support for family planning could result in popula- tion growth that few people desire. The United States does not have an articulated population pol- icy, but it does have a pro-natality tilt. The decision as to whether or not to have children is protected by the right to privacy, which- is protected under the Constitution of the United States.82 After that decision is made, however, the public pays to provide infra- structure for the child: government supplies education, health care, recreational facilities, and much more, to raise a newborn infant into an economically productive adult. This makes the public treasury an important subsidizer of the individual's private decision to have a child. The recent political proposals to provide subsidized child care for working parents is a further example of this shift in the costs from the parents to the public. Many of the public expenditures that benefit families are justified, but their in- direct contribution to population growth remains unexamined. Private decisions, or careless indifference, concerning natality have a large societal impact. For every 100 children born today in the United States, thirteen will be born to teenage mothers, fif- 81. U.S. growth rate of.9% is low by developing world standards (3% for Sub-Saharan Africa) but it is nearly double the rate for Europe and the Soviet Union (.5%). Our growth rate, if continued, will result in the nation's population doubling during a human's lifetime and potentially occurring more rapidly with increased immigration. CEQ 16TH ANNUAL REPORT 408 (1985). 82. See, e.g., Griswold v. Conn., 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1971); Roe v. Wade, 410 U.S. 113 (1973). 1989]1 127 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:111 teen will be born into households where no parent is employed, fifteen will be born into households with a working parent earn- ing a below-poverty wage, and twenty-five children will be receiv- ing welfare assistance at some time prior to their adulthood.3 Since 1960, the population of the United States has increased by about 60 million people84 and the world population has in- creased by 2 billion.85 Total energy consumption by the United States has increased sixty-nine percent and our population has in- creased by one-third.86 These increases have nullified most of our efforts at pollution control. As a nation, it is time to recog- nize that the more rapidly we stabilize our population, the higher our per capita income will be. Conversely, the more our popula- tion grows, the poorer we will become and the greater the stress will be on our ecosystem and on our national security.87 Merely feeding our expanding population will require large inputs of fer- tilizers, insecticides and agricultural machinery. All of the above are highly energy intensive inputs, but without such inputs, Amer- ican agriculture is no more productive than the Third World agri- culture and perhaps less. As energy costs rise, so will agricultural production costs, and production can be expected to decline, for purchasers will not be able to afford their present diet. Petro- leum, as it becomes scarce and more costly, can only be used in agriculture by reducing consumption in other sectors of the econ- omy. To maintain our standard of living over the next several decades will be difficult, if not impossible. B. Material Conservation In order to effectively deal with our environmental problems, we must develop a material conservation policy that can be imple- mented in conjunction with pollution controls. The material con- 83. Squires, We Don't See Any National Agenda for Children, WASH. PosT HEALTH, May 24, 1988 at 9, col. 4. 84. THE WORLD ALMANAC AND BOOK OF FACTS 532, 535 (1988). 85. PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., Supra note 65. 86. THE WORLD ALMANAC AND BOOK OF FACTS 125 (1988). 87. Population increases also bring increases in domestic animal populations. World sheep and goat populations increased by about 250 million animals between 1955 and 1976. Grazing lands are under pressure from those seeking farm land and, thus, these lands are farmed and not allowed sufficient fallow time for soils to recover. Marginal lands are grazed and as the vegetative cover disappears so, too, does the soil to the effects of wind and rain. Desertification follows and has been especially serious in the arid areas south of the Sahara Desert. CEQ 16TH ANNUAL REPORT 282-284 (1985). 128 Environmental Policy servation policy must harmonize with the energy policy and, to the extent possible, with economic and environmental goals. However, it will be difficult to develop such a policy. Consump- tion is part of the American Dream. Each generation has ex- pected to live better, i.e., consume more, than their parents. If national consumption decreases, our natural environment might improve, but the economic and political implications would be profound. Consumption policy, therefore, must focus on certain aspects of consumption to be politically acceptable. This would include situations where recycling could be accomplished without objectionable adverse effects, the use and disposal of hazardous material, and the use and disposal of materials of strategic impor- tance. Energy policy is the most important aspect of consump- tion, however, because energy use is so closely related to our major environmental problems, such as the large scale biosphere impacts of increased carbon dioxide,88 acid rain8 9 and pollution of the oceans.90 In the longer term, conservation of material, i.e., doing more with less, is the key to the United States staying wealthy. In the past, the resources of the world were easily avail- able and inexpensive. Today, world population pressure, the in- creased consumption of other developed nations, and the diminishing resource base makes conservation imperative. We need to develop a sustainable economy within the carrying capac- ity of our resources. This is not only a economic and environ- mental necessity; it is also important in avoiding armed conflict as the world battles over who will get the last barrel of oil or the last ton of a rare mineral. There have, in the recent past, been some limited efforts to de- velop a national materials policy. When the National Environ- mental Policy Act (NEPA) became law in 1970, it required the federal government to use all practicable means to "enhance the quality of renewable resources and approach the maximum at- tainable recycling of depletable resources."9' In the fall of 1970, Congress established a National Commission on Materials Pol- 88. See generally Rotty & Reister, Use of Energy Scenarios in Addressing the C02 Question, 36J. AIR POLLUTION CONTROL Assoc. 1111 (1986). 89. See generally NATIONAL RESEARCH COUNCIL, ACID DEPOSITION, LONG TERM TRENDS (1986). 90. See generally NATIONAL ADVISORY COMMITI'EE ON OCEANS AND ATMOSPHERE, THE ROLE OF THE OCEAN IN A WASTE MANAGEMENT STRATEGY (an., 1981). 91. 42 U.S.C. § 4331(b)(6) (1982). 1989] 129 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 14:111 icy92 under Title II of the Resource Recovery Act.93 In 1973, the Commission produced a final report that called for a national materials policy to protect the environment and to conserve re- sources.94 Needless to say, the report was ignored. In 1973, the National Academy of Sciences and the National Academy of Engi- neering held a symposium on materials policy. This meeting co- incided with the renewal of the Arab-Israeli conflict and with a five month oil embargo against the United States.95 Again noth- ing of substance developed from the report, despite the impact of oil cutoffs. During the period from 1970 to 1975, state governments and Congress focused on a minor aspect of materials policy, the so called "bottle bills" aimed at reusing beverage containers.9 6 A comprehensive solid waste statute was not enacted until 1976 when Congress passed RCRA.9 7 RCRA has been amended sev- eral times since its enactment with the most important changes being the Hazardous and Solid Waste Amendments of 1984.98 RCRA as amended includes in Section 6901(c): (c) Materials The Congress finds with respect to materials, that- (1) millions of tons of recoverable material which could be used are needlessly buried each year; (2) methods are available to separate usable materials from solid waste; and (3) the recovery and conservation of such materials can re- duce the dependence of the United States on foreign resources and reduce the deficit in its balance of payments.99 This finding has never resulted in serious efforts at imple- mentation. 92. The subject had been studied earlier. In the 1950's President Truman, concerned about resource shortages experienced during and after World War II and the Korean War, established the Paley Commission to study the subject. U.S. PRESIDENTS MATERIALS POL- Icy COMM'N, RESOURCES FOR FREEDOM: A REPORT TO THE PRESIDENT (1952). 93. Pub. L. No. 91-512, 84 Stat. 1227 (1970). 94. FINAL REPORT OF THE NATIONAL COMM'N. ON MATERIALS POLICY, MATERIAL NEEDS AND THE ENVIRONMENT TODAY AND TOMORROW, (June, 1973). 95. NATIONAL ACADEMY OF SCIENCES, NATIONAL MATERIALS POLICY (1975); NATIONAL ACADEMY OF SCIENCES, MINERAL RESOURCES AND THE ENVIRONMENT (1975). 96. A. REITZE, ENVIRONMENTAL LAW 55 (1972); Note, The Oregon Bottle Bill, 54 OREGON L. REV. 175 (1975). 97. 42 U.S.C. §§ 6901 - 6991(i) (1982 & Supp. IV 1986). 98. Pub. L. No. 98-616, 98 Stat. 3221 (1984). 99. 42 U.S.C. § 6901(c) (1982). 130 1989] Environmental Policy 131 RCRA as amended has developed into one of the major pro- grams implemented by EPA. The statute is divided into nine sub- chapters or subtitles. The most significant is the subchapter III (or C) program dealing with hazardous waste management. The program for resource conservation and recovery has not gotten much past the use of the words in the Act's title. In the United States, we recycle only about ten percent of our waste; paper, glass and a few metals are the subject of most of the effort. 00 RCRA has had little effect on these dismal statistics. One small, tangible example of the federal program is the regulatory guide- lines for federal procurement of recycled goods.'0 ' In addition EPA could use Section 6 of the Toxic Substances Control Act (TSCA)I 0 2 to control the generation of wastes in specific indus- tries, but it has not chosen to do so. The RCRA subtitle C program encourages source reduction, recycling and waste minimization,1 0 3 at least in regard to hazard- 100. Steinhart, supra note 6, at 102. 101. RCRA states that if a federal, state, or local procuring agency uses appropriated Federal funds to procure certain designated items, such items must be composed of the highest percentage of recovered materials practicable. EPA is required to designate these items and to prepare guidelines to assist procuring agencies in complying with these re- quirements. 42 U.S.C. § 6962 (1982 & Supp. IV 1986). EPA issued the first of these guidelines for cement and concrete containing fly ash, on January 28, 1983, 40 C.F.R. §§ 249.01-249.33 (1987). EPA issued a second guideline for paper and paper products containing recovered materials, on October 6, 1987, 40 C.F.R. § 250.10 (1988). A third guideline, for asphalt materials containing ground tire rubber, was proposed on February 20, 1986 (51 Fed. Reg. 6,202 (1986)). A fourth guideline, for engine lubricating oils, hydraulic fluids, and gear oils containing re-refined oils, was proposed on October 19, 1987 (52 Fed. Reg. 38,838 (1987)); this guideline is being finalized. The most recent EPA effort is the EPA Proposed Guideline for Federal Procurement of Retread Tires under the Resource Conservation and Recovery Act (53 Fed. Reg. 15,624 (1988)). Other guidelines are to be issued pursuant to an agreement made in EDF v. EPA, DC, No. 87-CV-3212-SS, April 8, 1988. [Current Developments] Env't Rep. (BNA) No. 2451 (April 15, 1988). 102. 15 U.S.C. § 2605 (1982). 103. Source reduction reduces the amount of waste that exits from the process by changes in technology, process, plant operations and procedures and raw materials before the waste is generated. Recycling implies use, reuse or reclamation of the waste. If re- cycled on site the waste may be excluded from the reach of RCRA. American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987). Waste minimization is defined at 42 U.S.C. § 6922(b) as the reduction in volume and toxicity of waste that has been generated. There is some inconsistency between EPA definitions and those used in pending legisla- tion and others in the field. Note that waste minimization can be considered treatment that is subject to RCRA permitting requirements. COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 14:111 ous material.10 4 There are three waste reduction provisions under RCRA: (1) section 3002(a)(6),05 which requires genera- tors to report efforts made to reduce the volume and toxicity of waste; (2) section 3002(b), 0 6 which requires that generators cer- tify in their section 3002(a) manifests that they have a program to reduce the amount or toxicity of the wastes generated to the de- gree determined by the generator to be economically practicable; and (3) section 3005(h), 07 which requires the same certification for new permits issued for the treatment, storage, or disposal of hazardous waste. These statutory provisions are more hortatory than regulatory. It is not surprising that a report by Congress' Office of Technol- ogy Assessment concluded that waste reduction efforts in indus- try have been minimal.'08 Current waste reduction is motivated by the increasing cost of land disposal. The high cost of land dis- posal prompts industry to reduce the creation of hazardous mate- rial and/or recycle the wastes'09 or burn them, sometimes in processes that utilize their energy.110 A more important industry motivator is the "Superfund" legislation,III which makes genera- tors liable for what they send to land disposal sites. Since this liability is joint and several and can extend far into the future, even a small amount of waste sent to a disposal site can expose the generator to substantial claims.I12 EPA has taken the position that treatment and recovery should be the preferred methods for managing hazardous waste"13 and has formally adopted this policy.11 4 Under RCRA, most un- treated hazardous wastes will be banned from land disposal by 104. For an overview see Noll, Haas, Patterson, Recovery, Recycle and Reuse of Hazardous Waste, 36J.AIR POLLUTION CONTROL Assoc. 1163 (1986); EPA, THE NEW RCRA-A FACT BOOK 1 (Oct., 1985). 105. 42 U.S.C. § 6922(a)(6)(C) (1982 & Supp. IV 1986). 106. Id. at § 6922(b)(1). 107. Id. at § 6925(h). 108. OFFICE OF TECHNOLOGY ASSESSMENT, FROM POLLUTION TO PREVENTION (June, 1987). 109. Lehman, Can Pollution Be Destroyed? 12 EPA J. 10 (1986). 110. Skinner, Research to Break the Land Disposal Habit, 12 EPA J. 12 (1986). 111. Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. H§ 9601-9657 (1982 & Supp. IV 1986). 112. ERT, INC. & SIDLEY & AUSTIN LAw OFFICES, SUPERFUND HANDBOOK (2d ed. 1987). 113. White, EPA Program for Treatment Alternatives for Hazardous Waste, 35 J. AIR POLLU- TION CONTROL Assoc. 369 (1985). 114. 41 C.F.R. § 35050, (1976). EPA created a waste minimization staff within the Of- fice of Solid Waste to aid in efforts to encourage waste reduction and to release grant 132 Environmental Policy 1990. The major impetus for hazardous waste reduction is just beginning to be felt as EPA regulates to limit the land disposal of these hazardous substances. These regulations are causing dispo- sal prices to rise sharply. In addition, facilities for disposal may not exist at any price due to public opposition to the presence of landfills,'1 5 as well as the waste industry's problems in dealing with uncertainty regarding regulatory requirements and the diffi- culties of obtaining affordable insurance." 6 In the 1984 RCRA amendments, "7 Congress created a phased program for EPA to implement that would reduce the use of land disposal for hazardous waste. The Amendments state that "reli- ance on land disposal should be minimized or eliminated, and land disposal, particularly landfills and surface impoundments, should be the least favored method for managing hazardous wastes.""s Under RCRA, EPA is required to set pretreatment requirements that reduce the toxicity of wastes."9 The statute also prohibits storage of waste in excess of time and quantity lim- its.1 2 0 The placement of hazardous wastes in salt formations or in caves is restricted and subject to permit requirements.'2 ' Bulk or non-containerized liquid wastes were prohibited from landfill dis- posal in May, 1985 and the rules were further strengthened in November, 1985.122 The first phase of the land disposal ban began November 7, 1986 when EPA set out the regulatory program for land disposal prohibitions and treatment standards for specified solvent and di- oxin wastes.123 The second phase is the ban on the "California list". These wastes were first banned by California and its pro- monies that were approved by Congress. [Current Developments] Env't Rep. (BNA) No. 37 (May 13, 1988). 115. Tarlock, Anywhere But Here: An Introduction to State Control of Hazardous Waste Facility Location, 2 J. ENV. L. I (1981); Tarlock, Siting New or Expanded Treatment, Storage, or Disposal Facilities: The Pigs in the Parlors of the 1980s, 17 NAT. RES. L. 429 (1984). 116. COOKE, LAW OF HAZARDOUS WASTE: MANAGEMENT, CLEANUP, LIABILITY 189-190 (1988); see generally Abraham, The Insurance Implications of Administrative Compensation Systems, 25 Hous. L. REV. 817 (1988). 117. Pub. L. No. 98-616, 98 Stat. 3221 (1984). 118. RCRA, § 1002(b)(7), 42 U.S.C. § 6901(b)(7). (1982 & Supp. IV 1986). 119. Id. at § 3004(m), 42 U.S.C. § 6924(m). 120. Id. at § 3004(j), 42 U.S.C. § 6924(j). 121. Id. at § 3004(b), 42 U.S.C. § 6924(b). 122. Id. at § 3004(c), 42 U.S.C. § 6924(c). 123. Id. at § 3004(e), 42 U.S.C. § 6924(e). Regulations are at 51 Fed. Reg. 40,572 (1986). See also 40 C.F.R. 261.31. 1989] 133 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:111 gram has been incorporated into RCRA.124 These wastes include free liquids associated with sludge, heavy metals, acids with pH below two, polychlorinated biphenyls (PCB's), and halogenated organic compounds. A California waste, except halogenated or- ganic waste, can be rendered into a solid and disposed of in a landfill.1 25 The third phase is a schedule of disposal restrictions for wastes not dealt with in either phase one or phase two. The schedule is to be based on a ranking of the hazardous waste, with high volume, high toxicity wastes to be regulated first. EPA promulgated a schedule in 1986 that would regulate one-third of the ranked and listed hazardous waste by August 8, 1988, two- thirds by June 8, 1989, and the remaining waste by May 8, 1990.126 In May, 1988, proposed regulations for restrictions on the first one-third of the list were promulgated.127 At the same time that restrictions on waste disposal have be- come more stringent, EPA has promulgated more restrictive tech- nical and permitting standards for landfills and other disposal units. The basic regulations were issued in 1982.128 In 1985, the rules were amended to reflect the statutory changes made in 1984.129 These rules set standards for the required double liners and leachate collection systems.'30 In 1986, the rules were tight- ened again to further control and detect leachate.s'3 The effect of these rules is to discourage land disposal of waste. The impact of RCRA and CERCLA on hazardous waste dispo- sal has resulted in a de facto policy that, however limited, is as close as we have come to a national material policy. A general consensus has developed that a hierarchy of waste management practices exist according to the ability to protect the environment. They are:13 2 * Waste reduction to produce fewer harmful residuals, includ- ing process changes and raw material substitutions. 124. RCRA, § 3004(d), 42 U.S.C. § 6924(d). 125. 51 Fed. Reg. 19;300 (1986). 126. RCRA, § 3004(g)(4), 42 U.S.C. § 6974(g)(4) (1982); see also 51 Fed. Reg. 44,713, 44,740 (1986). 127. 53 Fed. Reg. 17,578 (1988), [Current Developments] Env't Rep. (BNA) No. 106 (May 27, 1988). 128. 40 C.F.R. §§ 264.1-264.351 (1987). 129. 50 Fed. Reg. 28,702 (1985). 130. RCRA, § 3004(o), 42 U.S.C. § 6924(o) (1982 & Supp. IV 1986). 131. 52 Fed. Reg. 20,218 (1986). 132. Wolf, Source Reduction and the Waste Management Hierarchy, 38 J. AIR POLLUTION CON- TROL Assoc. 681 (1988). 134 Environmental Policy * Waste recycling including resource recovery. * Physical, chemical, and biological treatment that results in reduced volume and/or less toxicity. * Incineration at high temperature. * Solidification and/or stabilization before land disposal. The disputes concerning this hierarchy usually involve the issue of when an option is no longer viable, so that a generator can move down the hierarchy to select another option. The extreme environmental position would demand source reduction in all, or nearly all, situations.. The extreme industry position is to favor land disposal unless an alternative presently exists that would be cost effective in the short run, usually three years or less. Most people would occupy the middle ground, but areas of disagree- ment are many. Should requirements be eased for small quantity generators? How do you force decision makers to consider all disposal costs when many costs are masked by insurance or work- men's compensation, or can occur in the future on someone else's watch. Decision makers are often rewarded for being short- sighted.'3 3 This, however, is a problem that is pervasive in the environmental law field. The hazardous waste reduction pro- gram, with all its limitations and unresolved issues is, neverthe- less, the best model of what will be involved in a materials policy and the problems that will arise in policy implementation. One other aspect of materials policy that has received some at- tention is the subject of strategic materials. These are raw materi- als of significant importance to the nation's economy or defense. In 1985, the Office of Technology Assessment of the United States Congress (OTA) issued an assessment entitled Strategic Materials: Technologies to Reduce U.S. Import Vulnerability.'34 Among its findings were that the United States utilizes thirteen minerals and materials that are essential to the national economy and are subject to supply interruption. Four of these minerals, chro- mium, cobalt, manganese, and platinum are pervasively used in our industrial production and have no readily available substitute, and so are considered "first tier" strategic materials. The other nine materials are not as essential and are considered "second tier" strategic materials.1 3 5 Chromium, cobalt and manganese 133. Id. I34. OFFICE OF TECHNOLOGY AND ASSESSMENT (OTA), STRATEGIC MATERIALS: TECHNOL- OGIES To REDUCE U.S. IMPORT VULNERABILITY (1985). 135. The nine are industrial diamonds, beryllium, vandium, graphite, rutile, bauxite, tin, tantalum, and columbium. 1989]1 135 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:111 are essential to the production of high quality steels. Platinum group metals'36 are essential in catalytic applications in petro- leum refining and chemical processing. Their major use, how- ever, is in automobile catalytic converters, an important component of the Clean Air Program. The United States annu- ally imports over $1 billion worth of these "first tier" materials. Three nations, South Africa, Zaire, and the U.S.S.R. produce over half the world's supply and therefore, we are vulnerable to supply disruption. After the 1973-1974 oil embargo, the National Commission on Supplies and Shortages was established.'37 The Commission was to report on government policies affecting supply and economic stockpiling of natural resources. The Commission reported that the major threats to supply continuation were not foreign embar- goes, but were military conflict, regional war or civil disorder. It recommended comprehensive strategic and economic stockpiling of essential resources. But, its report had no significant impact on government policy.' 38 Congress in 1980 enacted the National Materials and Minerals Policy, Research and Development Act.' 39 This Act calls for ma- terial and mineral policy making to be coordinated in order to achieve a long-term balance between energy needs, a healthy en- vironment, natural resources conservation, and social needs. The President is required to support research and development to in- clude recycling, conservation, substitution, and new engineering designs for non-fuel minerals.140 This Act, however, has not led to any structured mineral policy.14' The National Critical Materi- als Act of 1984142 establishes a Critical Materials Council report- ing to the Executive Office of the President, but it has had minimal impact.143 136. Platinum, palladium, rhodium, iridium, osmium, and ruthenium. 137. 50 U.S.C. § 2169(d) (1982). 138. Jones, United States Dependence On Imports Of Four Strategic And Critical Minerals: Impli- cations And Policy Alternatives, 15 B. C. ENvTL. AFF. L. REV. 217 (1988). 139. 30 U.S.C. §§ 1601-1605 (1982). 140. 30 U.S.C. § 1603 (1982). 141. Jones, supra note 137, at 253. 142. Pub. L. No. 98-373, 98 Stat. 242 (codified at 30 U.S.C. §§ 1801-1811 (1982 & Supp. IV 1986)). 143. OTA, supra note 133, at 44. 136 Environmental Policy The Federal stockpiling law, amended in 1979 as the Strategic and Critical Materials Stock Piling Revision Act of 1979,14 pro- vides for acquisition of strategic and critical materials. However, it has been over thirty years since major additions to the stockpile have been made. The materials in the stockpile do not meet pres- ent industrial needs, and the law precludes their release for gen- eral economic or budgetary purposes. Thus, the stockpile has little to offer in the way of protection to the civilian economy and is very limited in its value for national defense. Critical materials, by definition, are materials for which the United States can not develop self-sufficiency. To minimize the danger of dependency, we can use substitution, conservation, stockpiling, and seek more numerous foreign sources of supply. Substitutes for the first tier materials are unlikely in the foresee- able future. Stockpiling to meet basic defense goals would re- quire an investment on the order of $6 billion.145 Such investment is politically unrealistic. Improved sources of supply will be difficult to find, require substantial capital investment, and take many years to implement. For platinum metals, new sources are unknown.1 46 Conservation through recycling, product life ex- tension, lowering additions of alloys to the minimum, and im- proved processing techniques have potential in reducing foreign dependence. Platinum offers. the best opportunity for successful material recovery if automobile catalysts can be recycled. Critical materials, thus, remains a subject that has been intensely studied but has not resulted in any coherent national policy. The United States possesses five percent of the world's popula- tion, and yet, it consumes eleven times the world's average in en- ergy, six times the steel, and four times the grain. Our consumption patterns, thus, have global impact, and are in turn affected by international events.'47 This is exemplified by the United States' expenditure of $15 million per month to maintain our military presence in the Persian Gulf, an expenditure that might create greater security if it were spent on energy conserva- tion.'48 Our traditional consumption patterns can not continue. 144. 50 U.S.C. § 986 (1982 & Supp. IV 1986). 145. Jones, supra note 137, at 278. 146. Id. at 280. 147. Zero Population Growth, newsletter, May 1988. 148. Telephone conversation with Brian McCarten, Center for Defense Information, Washington, D.C., April, 1988. 1989) 137 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:111 As natural resources diminish and consequently become more ex- pensive, the other industrialized, developed nations of the world will compete with us for these resources. This will increase prices and drive the lesser-developed nations further into poverty and debt. Increase in petroleum prices, for example, have increased the Third World's dependency on wood for fuel. More than one and a half billion people living in developing nations depend on wood as their only fuel for cooking and heating. This, in turn, has led to an increased rate of deforestation, followed by destructive wind and rain erosion, the silting of rivers and irrigation systems, and increasing severity of drought and floods.14 9 In addition, multinational corporations, moving to the developing world, bring increased demand for resources to those countries. For ex- ample, the steel-making industry has expanded in Brazil, Korea, Taiwan, and elsewhere.150 Thus powerful forces exist to deny the United States the right to continue its consumption of a dispro- portionate share of world resources. The more quickly we achieve a sustainable economy, the better the chance we have for a peaceful and environmentally sound world ecosystem. C. Energy In the 1950's, the United States was a net exporter of energy. But increased consumption changed the nation into a major im- porter of energy fuels. Between 1950 and 1965, United States energy consumption grew at an average annual rate of 3.5o and then increased to 4.5o per year until the 1973 oil embargo. Do- mestic production, however, grew at only three percent per year until 1970, and then growth essentially ceased.'5' Oil imports tripled from 1960 to 1973, with much of the increase coming from the Middle East and North Africa. Natural gas provided more than half the growth in energy consumption between 1950 and 1970. But artificially low natural gas prices, regulated by the government, served to encourage use and to discourage produc- tion. By the early 1970's, natural gas shortages were common.152 Coal had been the dominant energy source from the late nine- teenth century until 1910. After that year, the use of coal de- clined from over seventy-five percent of total United States 149. S. Pastel & L. Heise, Reforesting the Earth, STATE OF THE WORLD 1988 83 (1988). 150. J. GEVER, R. KAUFMAN D. SKOLE & C. VOROMARTY, BEYOND OIL 123 (1986). 151. CEQ SIxTH ANNUAL REPORT 109 (1975). 152. Id. at 109-110. . 138 Environmental Policy energy consumption to about twenty percent in the early 1970's. Inexpensive oil and gas was the major reason for coal's loss of markets, combined with consumer preference for cleaner fuels. Beginning in the late 1960's, coal prices began to reflect the in- creased costs of meeting safety requirements and for air pollution controls in underground mines and reclamation requirements for surface mines. However, by that time, competing fuels also had pressures that increased their prices.'53 After the Arab states cut off oil shipments to the United States in 1973, petroleum prices increased up to ten times the level of the previous year. President Nixon announced the start of "Pro- ject Independence" to move the nation to energy self-sufficiency by 1980.'54 On March 18, 1974, seven Arab oil-producing coun- tries lifted the embargo. But the United States had been warned, and for at least a few years energy policy concerned the federal government. In May, 1974, the Federal Energy Administration was created to centralize and coordinate energy policy.' 5 5 In Oc- tober, 1974, energy research, as well as the military and produc- tion activities of the Atomic Energy Commission (AEC) were placed in the new independent agency, the Energy Research and Development Administration (ERDA).' 5 6 The AEC was abol- ished.'5 7 The Energy Supply and Environmental Coordination Act was also enacted in 1974.158 It was intended to encourage the use of coal, and the Act provided waivers from requirements of the Clean Air Act. It had little impact and has been largely repealed. The blueprint for energy self-sufficiency was the Project Inde- pendence Report.'59 Released in November, 1974, it was the work of most federal agencies and of many private contractors acting under the direction of the Federal Energy. Administration. 153. DEP'T OF ENERGY (DOE), ENERGY SECURITY: A REPORT TO THE PRESIDENT OF THE UNITED STATES 166, (March. 1987). 154. President's Address to the Nation Announcing Additional Action to Deal with the Energy Emergency, 1366 WEEKLY COMP. PRES. Doc. 9 (1973). 155. Federal Energy Administration Act of 1974, Pub. L. No. 93-275, 88 Stat. 196 (1974). 156. Energy Reorganization Act of 1974, Pub. L. No. 93-438, Oct. 11, 1974. 157. The regulatory functions of the AEC were given to the newly created NRC while the remaining functions went to ERDA. Title I of the Energy Reorganization Act of 1974 created ERDA; Title II created the NRC. Pub. L. No. 93-438, 88 Stat. 1233 (1974). 158. Energy Supply and Environmental Coordination Act of 1974, Pub. L. No. 93-319, 88 Stat. 246 (1974) (codified at 15 U.S.C. § 791 (1982). 159. CEQ, SIXTH ANNUAL REPORT 111 (1975). 1391989) COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 14:111 The report conveyed the message that there was no obvious or simple solution to the mess that we, as a nation, had created. En- ergy policy had to focus on virtually every aspect of the subject and seek improvements that were feasible. The report and its supporting studies were the roots of the energy policy recommen- dations made by President Ford inJanuary, 1975. President Ford proposed the Energy Independence Act of 1975, which provided for (1).higher energy prices to encourage domestic production and to discourage consumption; and (2) a program of energy con- servation through non-price measures. The 94th Congress re- sponded to the President with its own proposals that included regulation of fuel inefficient automobiles. However, the Congress wanted mandatory, not voluntary, conservation and did not want substantial energy price increases.'6 0 Despite executive and legis- lative branch differences and jurisdiction battles among the key committees in Congress, many new energy laws were enacted.'6 ' The Federal Non-Nuclear Energy Research and Development Act of 1974162 directed the ERDA to conduct a comprehensive energy research and development program with particular em- phasis on energy conservation, environmental protection and availability of water. The Solar Energy Research, Development, and Demonstration Act of 1974,163 the Solar Heating and Cool- ing Demonstration Act of 1974'64 and the Geothermal Energy Research, Development and Demonstration Act of 1974165 were all aimed at encouraging non-conventional energy technologies. Most of these programs were eventually budgeted out of exist- ence in the 1980's. Section 11 of the Federal Non-Nuclear Energy Research and Development Act of 1974166 directed the CEQto report annually on the probable environmental consequences of trends in the de- velopment and application of energy technologies. The first CEQ report appeared in its 1975 Annual Report.'67 It was based on a 160. DEMOCRATIC POLICY AND STEERING COMMITTEE OF THE HOUSE OF REPRESENTATIVES AND DEMOCRATIC POLICY COMMITrEE OF THE SENATE, THE CONGRESSIONAL PROBLEM OF ECONOMIC RECOVERY AND ENERGY SUFFICIENCY, (94th Cong., 1975). 161. CEQ SIXTH ANNUAL REPORT 115 (1975). 162. 42 U.S.C. §§ 5902 and 5903 (1982 & Supp. IV 1986). 163. 42 U.S.C. § 5551 (1982). 164. 42 U.S.C. § 5501 (1982). 165. 30 U.S.C. § 1101 (1982 & Supp. IV 1986). 166. 42 U.S.C. §§ 5901-07 (1982 & Supp. IV 1986). 167. CEQ SIXTH ANNUAL REPORT 427 (1975). 140 Environmental Policy Stanford Research Institute (SRI) study of the economics of alter- native energy scenarios for the year 2000. The report estimated that synthetic fuels from coal and oil shale would meet about six- teen percent of the nation's total energy demand, assuming prices of imported oil remained high.168 But instead of becoming an important source of usable energy, the "synfuels" industry col- lapsed in the 1980's. 1. The Energy Policy and Conservation Act of 1975 In 1975, total United States energy consumption dropped by more than two percent for the second year in a row. However, imports of petroleum rose to about forty percent of United States oil consumption because domestic oil production continued to fall.' 69 In late December, 1975 the Energy Policy and Conserva- tion Act (EPCA) was enacted to address this problem.i7 0 The first title included a strategic petroleum reserve (SPR) to store 150 million to one billion barrels of oil to cushion the impact of future supply interruptions.7 1 Title II provided for petroleum rationing and other emergency provisions.172 Titles III and V included mandatory fuel economy standards for automobiles that required an average of 27.5 miles per gallon (m.p.g.) by 1985.'17 Title IV was a price control program for domestic oil that terminated after forty months.174 The Act also mandated energy efficiency label- ing requirements for consumer products75 and provided finan- cial assistance for federal, state, and industrial conservation programs.7 6 There were also some minor provisions limiting the Clean Air Act and providing the Federal Energy Administration (FEA) with authority to order power plants and other major fuel- burning installations to convert from the use of oil to the use of coal.'77 The strategic petroleum reserve is considered to be a successful program by the Reagan Administration. In 1987 the 168. Id. 169. CEQ, SEVENTH ANNUAL REPORT 102 (1976). 170. Energy Policy and Conservation Act of 1975, Pub. L. No. 94-163, 89 Stat. 871 (codified at 42 U.S.C. §§ 6201-6422 (1982 & Supp. IV 1986)). 171. Id. at §§ 151-166, 42 U.S.C. §§ 6232-6247. 172. Id. at §§ 201-255, 42 U.S.C. §§ 6261-6275. 173. Id. at §§ 501-512, 15 U.S.C. §§ 2001-2012. 174. Id. at §§ 401-463. 175. Id. at §§ 321-339, 42 U.S.C. §§ 6291-6309. 176. Id. at § 361-367, 371-376, 42 U.S.C. §§ 6321-6363. 177. Id. at § 101, 106, 42 U.S.C. §§ 6211-6215. 1989] 141 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:111 SPR contained 500 million barrels of oil which is about the amount the nation imports in ninety-six days. President Reagan reaffirmed his commitment to the goal of 750 million barrels in the SPR in August, 1986.178 Since we have not had occasion to use the SPR, it remains an insurance policy of unknown value. Much of the EPCA has been a failure. Energy conservation took place largely because consumers were price sensitive, not be- cause of legal mandates. The automobile fuel economy standards were initially not a major concern to American automobile manu- facturers because consumer preferences and foreign competition assured that the fuel efficiency requirements would be met. When declining fuel prices began to affect the car-buying public, the manufacturers began to lobby for the corporate average fuel economy (CAFE) standards to be relaxed. The Ford Motor Com- pany threatened to take advantage of a loophole in the law and turn its large cars into imports if the CAFE standards were not lowered.'7 9 The Reagan Administration, through the National Highway Traffic Safety Administration, responded to industry (over the objection of Chrysler Corporation) by lowering the fuel economy standard.8 0 In 1986, a task force on governmental reg- ulation chaired by Vice President Bush recommended abolishing the CAFE standards as they were squeezing the manufacturers out of the "muscle car" market.'8 While the automotive fuel economy legislation could benefit from technical amendments to close loopholes, the law is both necessary and properly directed. The United States uses sixty- three percent of its oil for transportation, and its combustion re- leases more than 700 million tons of air-polluting carbon. The average American automobile generates its weight in carbon each year.182 If the fleet fuel efficiency in the United States had re- mained at the 1973 level of 13 m.p.g., our gasoline consumption would have grown by one-third. Because fuel economy increased to 18 m.p.g. in 1985, fuel consumption growth was contained. This conservation effort was more important than the supply side 178. DOE, supra note 153, at 215. 179. Brown, Ford Threatens U.S. Over Fuel Economy Rules, Wash. Post, Nov. 2, 1985 at Al, col. 2. 180. [Current Developments] Env't Rep. (BNA) No. 24 at 858 (Oct. 10, 1986). 181. Fuel Economy Standards Targeted by Task Force, Wash. Post, Dec. 23, 1986 at A17, col. 5. 182. Flavin & Durning, Raising Energy Eficiency. STATE OF THE WORLD 1988 50 (1988). 142 Environmental Policy efforts made to find more oil, and yet it has been almost without support by the government. If fuel efficiency were brought to the 50 m.p.g. level that is technically achievable by existing technol- ogy, global gasoline consumption could be cut by almost one- fourth (assuming no growth in vehicle miles traveled).183 The va- cuity of the supply side approach is obvious, for despite increases in oil prices and a 2807 increase in drilling, the United States is producing less oil today than in 1973.184 Energy efficiency standards for consumer products have also fared poorly at the hands of the Reagan Administration. The EPCA was amended by the National Energy Conservation Policy Act (NECPA) of 1978.185 This law authorized, but did not re- quire, DOE to establish mandatory energy efficiency standards. It did require energy efficiency labeling.86 By 1980, DOE had is- sued proposed standards for only eight classes of appliances.'87 In January, 1981, DOE reversed direction and declared that eco- nomics justified only a "no-standards" standard for household appliances.'88 This ended federal rulemaking but also precluded state regulation because of the preemption provisions of the EPCA.o89 Joined by one congressman and three states, the Natu- ral Resources Defense Council (NRDC) challenged DOE's "no- standards." On July 16, 1985, the D.C. Circuit Court of Appeals overturned the DOE standards and remanded the case to the dis- trict court.'90 DOE then embarked on rulemaking. Before regu- lations could be promulgated, Congress enacted the National Appliance Energy Conservation Act of 1987 (NAECA)l' 9 to amend EPCA.192 The law mandated that by 1993 household ap- pliances be fifteen to twenty-five percent more efficient than 1985 models. It is estimated that the law will reduce electric power de- mand by an amount equal to the output of 22 large power plants. '9 NAECA was enacted by Congress to remove the discre- 183. Renner, Car Crash, 1 WORLD WATCH 35 (1988). 184. Gever et al, supra note 150, at 12. 185. 42 U.S.C. § 8201 (1982 & Supp. IV 1986). 186. 42 U.S.C. § 6272 (1982 & Supp. IV 1986). 187. National Appliance Energy Conservation Act of 1987, Pub. L. No. 100-12 § 1, 101 Stat. 103 (1987). 188. Pub. L. No. 100-12 § 5, 101 Stat. 107 (1987). 189. Pub. L. No. 100-12 § 7, 101 Stat. 118 (1987). 190. NRDC v. Herrington, 768 F.2d 1355 (D.C. Cir. 1985). 191. 42 U.S.C. § 6201 (1982 & Supp. IV 1986). 192. 42 U.S.C. §§ 6291-6309 (1982). 193. 133 CONG. REC. § 2031 (daily ed. Feb. 17, 1987) (statement of Sen. Cranston). 1989] 143 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 14:111 tion of DOE and the Act passed with the support of industry, which wished to avoid regulation by the states that had found ways to regulate despite the Reagan Administration's "no-stan- dard" approach. In 1976, the United States economy was recovering and energy use increased again, rising 4.8o.194 Another natural gas shortage arose in the winter of 1976-1977, leading to the Emergency Natu- ral Gas Act of 1977.195 That Act set up nationwide allocations of natural gas and provided for higher priced intrastate natural gas to be sold on the interstate market. Despite renewed oil cutoffs the United States did not actually develop or implement a coherent energy policy. From Novem- ber, 1978 through April, 1979, six million barrels a day of Iranian production were eliminated from the world market due to polit- ical turmoil. Part of this loss was made up by increased produc- tion elsewhere, but the net supply loss was over two million barrels per day and caused prices to increase by more than double the previous rate. The outbreak of war between Iraq and Iran in the fall of 1980 again removed from two to three million barrels a day from the world market, but worldwide surplus pro- duction capacity and high inventories limited the impact.196 In 1977 the Department of Energy was created.'9 7 Into this agency went the Federal Energy Regulatory Commission (the new name for the Federal Power Commission which regulates natural gas and licenses hydroelectric facilities) and the energy programs of numerous executive agencies. The most important transfers were the Federal Energy Administration and the Energy Research and Development Administration (ERDA).' 98 ERDA contained the non-regulatory functions of the abolished Atomic Energy Commission as well as the more general energy research and de- velopment responsibilities. 2. The Carter Administration In April 1977, President Carter submitted his National Energy Plan to Congress. The plan encouraged Congress to adopt seven goals to be achieved by 1985. They were to (1) reduce the rate of 194. CEQ EIGHTH ANNUAL REPORT 61 (1977). 195. National Gas Act, 15 U.S.C. § 717 (1982). 196. DOE, supra note 153, at 16. 197. Department of Energy Organizaton Act, 42 U.S.C. § 7101 (1982). 198. 42 U.S.C. § 7151 (1982). 144 Environmental Policy growth of energy consumption to below two percent per year; (2) reduce gasoline consumption by ten percent below its current level; (3) reduce oil imports from a projected level of sixteen mil- lion barrels per day to six million barrels per day; (4) establish a Strategic Petroleum Reserve of one billion barrels; (5) increase coal production by about two-thirds to more than one billion tons per year; (6) bring ninety percent of existing United States homes and all new buildings up to minimum energy efficiency standards; and (7) use solar energy in more than 2.5 million homes.'99 The Carter Administration's energy policy primarily followed the "soft" energy path. Energy conservation was the cornerstone of Carter's plan, which built on the programs developed under Presidents Nixon and Ford. The "soft" energy path embodies the concept of natural limits to growth, with people striving to live within these limits. Conservation is important. This ap- proach also emphasizes the development and use of energy sources that are relatively non-polluting, renewable, small-scale and often decentralized. The "hard" energy path seeks to de- velop all current energy sources, with a highly centralized, highly electrified energy future. It seeks to satisfy every possible con- sumption desire.200 Governmental approaches have been stymied because neither approach has achieved a national con- sensus. The Carter Administration tried to appease both groups by supporting energy conservation and alternative energy devel- opment, as well as oil and gas leasing of the Continental Shelf, coal development on public lands, and other supply enhancement policies.201 This dual approach was echoed in a February 1979, CEQreport-The Good News About Energy. It examined the contri- bution that increased energy production could make but con- cluded that the United States "can do well, indeed prosper, on much less energy than has been commonly supposed."202 This fact, which CEQ gave half-hearted recognition to in its 1979 re- port, had been well-recognized by the private sector which had made intense efforts to conserve energy as energy costs soared. Since 1973, energy efficiency improvements have saved six times 199. CEQ EIGHTH ANNUAL REPORT 62 (1977). 200. Id. at 273. 201. CEQ NINTH ANNUAL REPORT 343 (1978). 202. CEQ TENTH ANNUAL REPORT 316 (1979). 1989] 145 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:111 more energy than the net capacity generated from all new sources. 203 An error made by the "hard energy" advocates was to assume the nation needs, or benefits from, high consumption of fuels. It is the end use of power for heat, mechanical work, mobility, and other services that consumers desire. This is more easily supplied through increased efficiency of fuel utilization than by expanding the use of fuels. Thus, the private sector pushed energy conser- vation, while the misguided government leadership looked to in- creasing consumption.204 In November, 1978, five major energy laws were passed: (1) the National Energy Conservation Policy Act,205 which estab- lished a variety of regulatory, grant, and loan programs to en- hance conservation; (2) the Energy Tax Act, 2 0 6 which provided tax credits for conservation and solar energy; (3) the Natural Gas Policy Act,2 0 7 (NGPA) which largely decontrolled the price of new natural gas and established measures to encourage production of natural gas; (4) the Public Utility Regulatory Policies Act, 2 0 8 (PURPA) which encouraged revisions in state public utility rate structures to price energy at, or near, its replacement cost; and (5) the Powerplant and Industrial Fuel Use Act,2 09 (PIFUA) which was designed to increase the use of coal. The National Energy Conservation Policy Act and the Energy Tax Act, the two acts aimed at conservation, were phased out during the Reagan Ad- ministration. The NGPA created a myriad of gas categories by raising the price for "new" gas to a higher level than the ceiling price for old gas. Although this encouraged the production of natural gas, the NGPA price ceiling did not permit the market- place to determine the price of natural gas. Thus, since present natural gas prices are higher than justified by market conditions, foreign oil is economically more attractive and oil imports con- tinue to rise.2 10 203. Carothers, Small Wonders: The Energy Efficiency Revolution, 13 GREENPEACE, March/April 1988, at 11. 204. Id. at 13. 205. Pub. L. No. 95-619, 92 Stat. 3206 (1978). 206. Pub. L. No. 95-618, 92 Stat. 3174 (1978). 207. Pub. L. No. 95-621, 92 Stat. 3350 (1978). 208. Pub. L. No. 95-617, 92 Stat. 3117 (1978). 209. Pub. L. No. 95-620, 92 Stat. 3289 (1978). 210. DOE, supra note 153, at 115. 146 Environmental Policy PURPA encourages electric cogeneration, in which waste heat from electric power generation is used beneficially, and where re- newable resources such as wind, solar, biomass, and small hydro- electric generation (80 megawatts or less) are exploited. It provides favorable pricing provisions and exemptions from cer- tain regulatory requirements. To qualify, the project must be designated a "qualifying facility" (QF) by FERC. PURPA has been enthusiastically received. Between 1980 and 1987, applica- tions for more than 43,500 megawatts of generating capacity were filed with FERC. However, gas and oil-fueled cogenerators made up forty percent of this capacity,211 thus continuing the use of nonrenewable fossil fuels.212 The PIFUA and other legislation aimed at increasing the use of coal and decreasing the use of petroleum had little effect, even though coal use increased by one quarter of a billion tons be- tween 1974 and 1985. The reason for coal's resurgence was the great increase in oil and gas prices, combined with the reluctance of electric utilities to make further commitments to nuclear power.2 13 President Carter continued to push for energyconservation and production through hard and soft energy paths, but his ef- forts during the remainder of his term were largely in vain. The President pressed for an Energy Mobilization Board (EMB) that would accelerate the completion of important non-nuclear energy projects. In June, 1980 the House of Representatives unexpect- edly voted down the EMB bill by a large margin.214 The Presi- dent did achieve passage of the Energy Security Act (ESA),215 which established the Synthetic Fuels Corporation (SFC) to stim- ulate the production of two million barrels per day of synthetic fuels by 1992. That industry, as previously noted, collapsed eco- nomically in the 1980's. The Act also established a Solar Energy 211. Id. at 157. 212. Id. at 156. PURPA has been attractive to developers who qualify because prices to be paid for power produced by the projects are set before construction begins. If a devel- oper keeps construction costs and operating efficiencies within projections the project can be profitable. Under conventional electric utility regulation, prices are determined after the project is completed and can be adjusted thereafter. Therefore, under conventional utility regulation, investment can be disallowed in whole or in part. Increasingly this is happening, thus, investment requires assuming the risk of regulatory change. This risk has made investors wary. 213. Id. at 162. 214. CEQ ELEVENTH ANNUAL REPORT 263. (1980). 215. Pub. L. No. 96-294, 94 Stat. 611 (1980). 1989] 147 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:111 and Conservation Bank, a biomass financial assistance program, a minimum rate for filling the Strategic Petroleum Reserve, and statutory support for electric and gas utility investments in energy conservation.2 16 All but the last provision have fallen by the wayside. 3. The Reagan Administration The Carter Administration was replaced by the Reagan Admin- istration which was more comfortable with the "hard" energy path, but most comfortable with no government policy. 2 17 The Reagan Administration terminated investment in soft energy ap- proaches, except under PURPA and in energy conservation. The Reagan Administration reverted to an energy policy which seeks to satisfy every consumptive desire by pursuing hard energy paths through the private sector. The Administration's rhetoric exalts the virtue of the free market, but the energy industry is highly concentrated, with fifteen companies accounting for two-thirds of the nation's production of crude oil.218 These companies and their Organization of Petroleum-Exporting Countries (OPEC) petroleum suppliers have a vested interest in maintaining the sta- tus quo. The Reagan Administration's program has avoided assisting re- newable resource development. In fiscal year (FY) 1989, solar and renewable energy technology programs were funded at an estimated $123.090 million. 2 19 This is a little over one percent of the Department of Energy's (DOE) nuclear defense activities. The governments of Japan and West Germany consistently fund basic research in the solar area, particularly photovoltaic re- search. This may be the reason that Japan has moved ahead of the United States as the world's largest solar-cell producer.220 Since the world of the present is often the result of the research and development efforts in the past, the future of renewable re- sources is being decided now. That future is bleak. Energy con- servation was also downplayed by the Reagan Administration. 216. CEQ ELEVENTH ANNUAL REPORT 264 (1980). 217. An important exception was the Carter Administration's synthetic fuel program. It was criticized by conservatives and dropped by the Reagan Administration. See BADEN, EARTH DAY RECONSIDERED 63 (1980). 218. J. GEVER ET AL., supra note 150, at 220-221. .219. OMB, supra note 48, at I-J4. 220. Best, Solar Cells: Still A Tough Sell, SIERRA, May/June, 1988 at 27. 148 Environmental Policy Outlays for energy conservation research and development and grants in FY 1989 are an estimated $308 million compared with $2.2 billion for energy supply research and development.2 2' Mar- ket forces responding to higher energy prices are the primary fac- tor in stimulating energy technologies that are more efficient. We are getting close to the post-petroleum age. If we are going to produce oil at the present level after the year 2000, it must be from fields which have not yet been discovered. Thus, the United States needs to confront its dependency on foreign petroleum by minimizing its demand and by attempting to change its energy fuel mix in an orderly way. The reason that conservation is so important-is that OPEC can greatly increase prices when demand grows. Past experience demonstrates that OPEC increases prices when demand reaches eighty-five percent of its capacity.222 Minimizing demand, i.e., conservation, is an indispensable part of the solution because of the low net energy of most of our en- ergy options. As we drill deeper for oil, convert coal to liquid and gaseous fuels, or pursue alcohol fuel options, we must use energy to obtain fuels in a usable form. When direct and indirect energy inputs are considered, the net energy produced by many supply- side proposals is minimal or negative.223 Consequently many of our energy resources can never be mined at a profit. When the price of energy rises and thereby makes production more attrac- tive, the cost of production also increases. Only programs which increase efficiency in the use of energy and which emphasize non- petroleum energy supplies that have a net energy potential have a future in sustaining a viable ecosystem in a post-petroleum world.2 2 4 The choice as to what energy fuel mix to adopt in the near future is complex. Coal use, for example, leads to acid rain and carbon dioxide buildup. Technologies which limit environ- mental damage, such as air pollution controls, also utilize energy and thereby decrease the net energy obtained from coal. Nuclear power, a potential alternative, has its associated adverse environ- mental and safety problems and it is of questionable economic viability. Nuclear energy's net energy production is low because of the large amount of energy used to produce the materials nec- essary to build the power plants and the supporting fuel cycle in- 221. OMB, THE UNITED STATES BUDGET IN BRIEF, FY 1989 58 (1988). 222. DOE, NATIONAL ENERGY POLICY PLAN PROJECTIONS To 2010 2-3 (Dec., 1985). 223. See generally, H. ODUM, ENVIRONMENT, POWER, AND SOCIETY (1971). 224. J. GEVER ET. AL., supra note 150, at 20, 224. 1989] 149 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:111 frastructures, the energy intensive fuel production process, and the energy costs associated with the need to decommission obso- lete plants and store the radioactive wastes. New energy produc- tion technologies involving oil shale, and coal gasification and liquefaction, have low net energy production because processing the fuel is energy-intensive. In addition, processing uses scarce water, precluding its use for agriculture, and can do considerable harm to human health and the environment because of its toxic chemical byproducts.225 The role of nuclear power in the United States is unclear. Since 1972, 117 nuclear plant orders have been cancelled; all projects on which construction began after 1973 have been canceled.226 The Shoreham nuclear power plant in Long Island, for example, is likely to never produce power commercially even though it is completed.227 Costs of construction, licensing delays, the public attitude since Three Mile Island and Chernobyl, high-level radio- active waste disposal problems, and insurance issues228 have made investment in nuclear power very unattractive. The nuclear industry is dependent upon extensive government subsidies which makes its survival dependent upon political decisions.229 But the attractiveness of nuclear power could change with a shortage or substantial price increase in oil. Even, in our anti- nuclear climate, 105 commercial nuclear power plants produce seventeen percent of the United States' electricity. This is the second largest source of electricity and is equal to the entire United States electricity demand in 1952.230 Outside of the United States, the picture is quite different. Nu- clear power is expanding. More than 100 nuclear powerplants have been ordered since 1978, and more than 370 nuclear plants are operational. In France, over seventy percent of the electricity is nuclear-generated, and in Japan twenty-seven percent of the 225. MITRE CORPORATION, HEALTH AND ENVIRONMENTAL EFFECTS OF OIL SHALE TECH- NOLOGY (1979); MrrRE CORPORATION, HEALTH AND ENVIRONMENTAL EFFECTS OF COAL GAS- IFICATION AND LIQUEFACTION TECHNOLOGIES (1979). See also CEQ, TENTH ANNUAL REPORT 348 (1979). 226. DOE, supra note 153, at 189. 227. Kurtz, Cuomo's Plan to Mothball Long Island Nuclear Plant Stalls, Wash. Post, May 17, 1988 at Cl, col. 2. 228. Reitze & Rowe, The Price Anderson Act-Limited Liability For The Nuclear Industry, 17 ENvTL. L. REP. 10185 (Envtl. L. Inst.) (1987). 229. One estimate of the U.S. government subsidy to the nuclear power industry is $15 billion per year. Carothers, supra note 202, at 17. 230. DOE, supra note 153, at 187. 150 Environmental Policy electricity is nuclear-generated.2 3' The disaster at Chernobyl has increased grass roots opposition to nuclear power, but, so far this has not led to a change in the many nations that are far more dependent upon nuclear power than the United States. III. CONCLUSION Since consumption-induced stress can seriously damage our environment, energy policy needs to be formulated as part of an environmental policy. We need to plan how much energy we should use and how it should be fueled. In addition, we must today consider that the Clean Air Act with its stringent environ- mental controls on new facilities provides a major incentive to keep aging dirty coal plants on line.2 3 2 Expansion of the hydroe- lectric industry is largely precluded due to the lack of economi- cally suitable sites for new plants and environmental opposition to dams.2 3 3 Nuclear power expansion in the United States is dead primarily because of mismanagement by the industry.234 The government seems content to see electrical power production ex- pand and for such power to be generated from aging nuclear plants, the burning of dirty fossil fuels, and imported sources.235 Solving the problem of acid rain is, we are told, precluded by con- siderations of employment and economic impacts.236 Environmental problems are not easy to solve, but we need to avoid focusing excessively upon narrow, isolated issues. We need to look at the important issues which were identified in the 1960's, but that seem to have been lost in the 1980's. The solu- tion to our environmental problems does not lie in tirelessly reg- ulating peripheral details; it lies in adopting basic, overall population, material conservation and energy policies. A great 231. Id. at 183. 232. Banks, EPA Bends to Industry Pressure on Coal NSPS - and Breaks, 9 ECOLOGY L.Q. 67 (1980-81). 233. DOE, supra note 222, at B-6; Wild And Scenic Rivers, GAO/RCED-87-39, Dec., 1986. Small low-head hydro-projects do continue to be built over the opposition of many environmentalists. See Reisner, Power, Profit, and Preservation, WILDERNESS, Fall 1984 at 26 and Small Hydroelectric Projects and State Water Rights, 18 PAC. L.J. 1225 (1987). 234. Cook, Nuclear Follies, FORBES, Feb. i1, 1985 at 82; Komanoff & Van Loon, "Too Cheap to Meter" or "Too Costly To Build"? (How Nuclear Power Has Priced Itself Out of the Market) 4 NUCLEUs 3 1982; but see, Novak and Kaplan, Power Politics, How the Nuclear Power Lobby Won Big on Capitol Hill, COMMON CAUSE MAGAZINE, Jan./Feb., 1988 at 20. 235. Huber, Electricity And The Environment: In Search of Regulatory Authority, 100 HARv. L. REV. 1001 (1987). 236. CEQ 16m ANNUAL REPORT 202 (1987). 1989] 151 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 14:111 deal of research has already been done, but it has not resulted in policy development. Part of the reason is that the Department of Energy is not primarily an energy agency, for it commits about two-thirds of its budget to the production of nuclear weapons.237 Its environmental mission is even more limited. Materials policy and population issues have been studied, also, but have not been integrated into environmental policy. There are hard choices to be made. We must choose between an expanding population, an increased material standard of liv- ing, or continued high expenditures for national security. We can not simultaneously pursue all three. From 1980-1987 we spent $2 trillion trying to buy security,23 8 in a world whose population has outstripped its resource base. In such a world, a wealthy well- armed population can not continue to consume a disproportion- ate share of the global resources. Our centralized and complex society is extremely vulnerable to disruption from terrorism, fuel and strategic material cut offs, and wars over access to natural resources. Since the price at the pump for gasoline does not include the massive defense costs to assure its delivery, the price does not reflect the real cost. This encourages gasoline consumption and the continued growth of the national debt. We have created a runaway national debt that grew from $1 trillion in 1981 to $2.6 trillion in 1987 and now threatens the well being of our economy. A large chunk of this national debt was incurred to keep petro- leum flowing to the United States. Thus our fuel consumption is a threat to our economy, security, and environment. Developing the infrastructure to support a post-petroleum fuel mix will be difficult. Curbing consumption through increased ef- ficiency and lifestyle changes will be even more difficult. But this environmental approach offers the best chance we have of sus- taining our ecosystem, our economy, our national security, and our world. If the United States had a stabilized population, it could help other nations to do the same through technical, finan- cial, and educational assistance. This proposed solution is sim- ple, perhaps simplistic, but achieving it is very difficult. 237. Total federal funds for DOE in FY 1989 are $16,079,752,000 and are $12,529,893,000 after offsets. OMB, supra note 48 at 6f-72. Total obligations for atomic energy defense activities are $10.8 billion and $8.1 billion after offsets. OMB, APPENDIX BUDGET OF THE UNITED STATES GOVERNMENT, FY 1989, I-JI (1988). 238. Center for Defense Information, 16 THE DEFENSE MONITOR 7 (1987). 152 Environmental Policy Nevertheless, any success reduces the pressure on our environ- ment and increases the time we have to protect our planet. At the same time, we should focus on lowering our dependency on natu- ral resources, particularly petroleum. This can be accomplished by improved energy efficiency and by lifestyle changes, which would occur if we allow energy costs to slowly rise to reflect, as much as possible, the actual cost. Government efforts to provide a greater diversity of transportation options and a serious effort to reduce dependency on the automobile would assist in reducing the demand for petroleum. Diminished fuel use would be the way to lessen the onslaught of acid rain, the greenhouse effect, oil pol- lution of the oceans and other environmental problems which have not responded well to the existing regulatory approach. Re- ducing demand for oil would also slow the rate at which future petroleum prices increase and relieve some of the economic pres- sure on Third World nations. A major effort by the United States should be made to reduce the energy used by agriculture. This will be absolutely necessary if we are to continue feeding our population and exporting food in an era of increasingly expensive petroleum. Post-petroleum agriculture could provide an opportunity to reverse the employ- ment trend of this century by producing new opportunities for jobs; human labor would replace the current energy and pe- trochemical intensive American agriculture. Soil conservation ef- forts made to improve farm land could provide employment opportunities in reversing the declining fertility of the base of our farm economy. The nation's high paying, blue collar jobs that have been lost to foreign competition are unlikely to ever reap- pear.239 But if we focus upon trying to build a sustainable econ- omy, there will be plenty of meaningful work to do. Investment must be made to develop viable technologies to re- place petroleum. A mix is needed and no clear picture of what technologies will evolve is available. But the criteria for the tech- nologies we should support should be: (1) technologies should be sustainable without serious harm to the ecosystem; (2) tech- nologies should be decentralized rather than lead to economic concentration; (3) technologies should produce net energy. If this analysis had been performed in the 1950's, we would proba- 239. Rich, Economic Fortunes Fading For America's Less Educated, Wash. Post, June 2, 1988 at AlI, col. Al18. 1989]1 153 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:111 bly not have sunk billions of dollars into nuclear technology and its limited payoff. Such an analysis would probably preclude de- velopment of an alcohol-fueled economy. Alcohol requires al- most as much energy to produce as the product provides. Moreover, the removal of crop residues for alcohol production will increase soil erosion. If food crops or agricultural land is used for alcohol production then the amount of food dimin- ishes.240 Thus, solar, wind, and hydroelectric generation fit these criteria. However, the need for liquid fuels also requires efforts in the synfuel areas, but increased research and development is needed rather than moving environmentally dangerous present day technologies to the production stage. We can not protect our environment with the approaches which we have vigorously pursued for the past twenty years. Many envi- ronmental regulations are requiring close to 100o control of pol- lution emissions, and the costs of such compliance are approaching infinity. Yet our ecosystems continue to decline in quality. Moreover, all of our problems are exacerbated by the sixty million people added to our population since 1960. Yet our population policy, or lack of one, receives little attention. We need a serious, sustained, interdisciplinary effort to develop and implement policy to resolve these problems. The policy we choose will determine what kind of world we leave our children. This choice is too important to be entrusted to a single mission agency, although many .government agencies must be involved. The EPA, with its orientation largely determined by the statutes it implements, has sometimes become part of the problem rather than the source of solutions. The components of EPA lobby for more money to address their numerous existing mandates with- out much attention being given to the overall needs for ecosystem protection. The appropriate organization for broad environmen- tal planning should be the Council on Environmental Quality (CEQ). The CEQ has a national constituency and its placement in the Office of the President gives it a good location for carrying out planning functions that will affect many agencies and all levels of our government. Since it does not administer existing statutes or have many operational responsibilities, it is free to adopt new ap- proaches to environmental protection. Its mission is simple; exe- 240. J. GEVER ET. AL., supra note 150, at 245. 154 Environmental Policy cution is difficult. CEQ could generate information and create the plan to achieve a sustainable ecosystem that would offer a quality life to succeeding generations. The CEQ engaged in broad spectrum environmental planning in its early years. Much of the work was valuable but unused. There was little leadership to explain the problem to the public and to move toward consensus. We need to develop environmen- tal policy in a manner similar to the way economic policy evolves. Economic policy is very complex, but we have developed consid- erable proficiency in appointing qualified professionals to high level advisory groups within government. Political leaders use the work of skilled professionals to develop a political consensus followed by legislation and implementation. We have demon- strated in the economic sphere that we possess the ability to translate an admittedly imperfect, though complex discipline, into public policy within the framework of a democratic society. We need to do the same for environmental policy. We can not afford the ad hoc approach that has been used for twenty years. We can not pretend that ecosystem protection can be solved by a large intrusive bureaucracy generating endless regulations while ignor- ing the population and consumption elements of the equation. The interest in serious broad spectrum environmental planning peaked in 1980. The anti-environmental agenda of the Reagan Administration began its work in 1981.241 The CEQ was down- graded and its staff was significantly reduced. The exercise of leadership in the environmental field by the CEQ ended. In an- other agency, Surgeon General C. Everett Koop, with a compara- bly small staff, became a nationally recognized figure for his leadership and moral persuasion concerning AIDS and the dan- gers of smoking to the public health.242 The CEQ however, be- came unimportant. In the Reagan years the subjects of population and energy conservation have nearly disappeared from the annual reports of the CEQexcept for a few pages in the 1984 report claiming that the anti-abortion policies espoused by 241. The Reagan Administration's efforts to stop pollution control are documented in Wood, Principals, Bureaucrats, And Responsiveness In Clean Air Enforcements, 82 AM. POLITICAL Sci. REV. 213 (1988). 242. Bean, Surgeon General's Stature Is Likely to Add Force to Report on Smoking as Addiction, Wall St. J., May 13, 1988 at 21. 1989] 155 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:111 the Administration at the International Conference on Population in Mexico City were an environmental policy. 2 4 3 A primary responsibility of a new administration should be the rehabilitation of the CEQ. CEQmembers should be chosen from the best minds on the subject-as close as we can come to philos- opher kings. They should expand the concept of environment to include a long range view of environmental priorities. The CEQ will require a small, but professionally skilled, staff of at least the thirty-two of the pre-Reagan era.24 4 To bring our planet into harmony with its long term carrying capacity will not be easy. To even begin the task requires con- fronting and changing long established values of our society. En- vironmental law has become a technician's field. But this approach, while having value, will eventually lead to collapse. Our habitat can not be sustained by incrementally reducing pollu- tion at extraordinary cost. Environmental law needs to become a revolutionary field that honestly confronts the physical and bio- logical limits of our world and seeks to live within these limits. To do so, we all need to learn a lot more than we know today, but we know enough to now begin. We must start the dialogue that is necessary in a democratic society to produce change. Our problems of the present and the future are not separate individual problems of overpopulation, war, famine, and resource shortages. Our problems are interrelated problems for which harmful envi- ronmental impacts are often a symptom. Dealing with these problems requires simultaneous solutions in which the common theme is to cut down waste and to establish a stable and sustaina- ble population. This requires a viable population, material con- servation, and energy policy. 243. CEQ 15TH ANNUAL REPORT 484 (1984). 244. ORLOFF & BROOKS, THE NATIONAL ENVIRONMENTAL POLICY AcT 40 (1980). For fis- cal year 1987 the Council on Environmental Quality had II full-time permanent positions. OMB, supra note 237, at I-C4. 156