EARTH DAY SPECIAL REPORT

A Stalled Movement

With the passage of one landmark piece of legislation after another, the 1970s marked the peak of the environmental movement. Now it’s playing defense.

A group of 'hippie' men and children sit in a park with tie-dyed tapestries on Earth Day, April 22, 1970. (Photo by Hulton Archive/Getty Images)
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Amy Harder
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Amy Harder
April 20, 2011, 2:15 a.m.

When it comes to en­vir­on­ment­al policy, the United States is liv­ing in the past.

It’s been more than 15 years since Con­gress passed or over­hauled any ma­jor piece of en­vir­on­ment­al le­gis­la­tion. Ad­voc­ates have in­stead fo­cused on push­ing gov­ern­ment to en­force cur­rent en­vir­on­ment­al-pro­tec­tion laws and on de­fend­ing some that are ser­i­ously out­dated.

“A gen­er­a­tion has passed, and we’re in grid­lock in terms of ad­van­cing policy at the fed­er­al level where a lot of these prob­lems have to be solved,” said Wes­ley War­ren, a former of­fi­cial in the Clin­ton White House who is now the Nat­ur­al Re­sources De­fense Coun­cil’s dir­ect­or of pro­grams.

Ad­voc­ates re­call the hey­day of the move­ment in the 1970s when Re­pub­lic­an law­makers such as Sens. John Chafee of Rhode Is­land, Mark Hat­field of Ore­gon, and Robert Stafford of Ver­mont led the way on many en­vir­on­ment­al is­sues and two Re­pub­lic­an pres­id­ents — Richard Nix­on and Ger­ald Ford — signed a slew of land­mark meas­ures in­to law.

Today, 41 years after the first Earth Day on April 22, 1970, the en­vir­on­ment has be­come one more par­tis­an battle­ground, as evid­enced by GOP ef­forts earli­er this month to use the de­bate over a con­tinu­ing res­ol­u­tion for the fisc­al 2011 budget to lim­it the En­vir­on­ment­al Pro­tec­tion Agency’s au­thor­ity. It is now part of Re­pub­lic­an Party or­tho­doxy that en­vir­on­ment­al reg­u­la­tions have gone too far and have un­ne­ces­sar­ily re­strained en­ergy de­vel­op­ment and eco­nom­ic growth.

“The Re­pub­lic­an Party today is not even re­cog­niz­able to the one I used to deal with in the ‘70s,” said Patrick Par­en­teau, who held sev­er­al jobs at the Na­tion­al Wild­life Fed­er­a­tion throughout the 1970s and ‘80s and is now a pro­fess­or at Ver­mont Law School. “I don’t know if we’ll ever see [again] the era of en­vir­on­ment­al move­ment that I saw.”

After Con­gress passed a wave of en­vir­on­ment­al le­gis­la­tion in the 1970s, bi­par­tis­an sup­port for the move­ment star­ted to erode as the GOP be­came more con­ser­vat­ive and voters rarely made the en­vir­on­ment a top-tier is­sue on Elec­tion Day.

Dav­id Jen­kins, a lob­by­ist for the ad­vocacy group Re­pub­lic­ans for En­vir­on­ment­al Pro­tec­tion, said that a polit­ic­al turn­ing point came in 1994 when Re­pub­lic­ans won con­trol of the House and Speak­er Newt Gin­grich “put liber­tari­an-minded West­ern­ers — with an en­vir­on­ment­al ax to grind — in charge of the Nat­ur­al Re­sources Com­mit­tee.” Jen­kins poin­ted to then-Reps. Richard Pombo of Cali­for­nia and Helen Chenoweth of Idaho, and Rep. Don Young of Alaska, who played im­port­ant roles on the pan­el. “That co­in­cided with the rise of po­lar­iz­ing and equally liber­tari­an talk ra­dio,” he said.

Gin­grich’s House was un­suc­cess­ful in rolling back en­vir­on­ment­al laws, but GOP hos­til­ity to­ward en­vir­on­ment­al is­sues, mainly pushed by Demo­crats, has con­tin­ued to grow. “The re­sent­ment didn’t go away, and it festered, and it’s now erup­ted in vari­ous ways,” Par­en­teau said, re­fer­ring to the rise of the tea party move­ment.

Some of con­ser­vat­ives’ op­pos­i­tion is fueled by the per­cep­tion that en­vir­on­ment­al­ists are East Coast or West Coast elit­ists out of touch with the real-world con­cerns of people in the heart­land who are try­ing to make ends meet. Con­gres­sion­al Demo­crats in en­ergy-pro­du­cing states have also be­come wary of ag­gress­ive en­vir­on­ment­al reg­u­la­tion, par­tic­u­larly at a time when un­em­ploy­ment re­mains high.

Opin­ion polls re­veal the en­vir­on­ment­al move­ment’s polit­ic­al prob­lems. In­creas­ingly, re­spond­ents ex­press doubts about the valid­ity of cli­mate change, des­pite mount­ing sci­entif­ic evid­ence that the plan­et is warm­ing. Re­pub­lic­ans have blocked a cap-and-trade sys­tem — de­noun­cing it as “cap-and-tax” — to re­duce the car­bon emis­sions that con­trib­ute to cli­mate change, even though the idea is modeled after the 1990 Clean Air Act amend­ments that Pres­id­ent George H.W. Bush signed and that ef­fect­ively cut the sul­fur di­ox­ide emis­sions that cause acid rain.

Di­ane Katz, a re­search fel­low in reg­u­lat­ory policy for the con­ser­vat­ive Her­it­age Found­a­tion, dis­agrees with the char­ac­ter­iz­a­tion that Con­gress has not passed ma­jor en­vir­on­ment­al policy in al­most two dec­ades. She cited the En­ergy In­de­pend­ence and Se­cur­ity Act of 2007, which es­tab­lished re­new­able-fuel stand­ards and ap­pli­ance- and light­ing-ef­fi­ciency stand­ards; and the 2008 farm bill, which im­posed, for the first time in many cases, en­vir­on­ment­al stand­ards on farm op­er­a­tions. Katz said that en­vir­on­ment­al con­cerns are far less press­ing than in the ‘70s, when rivers were catch­ing fire be­cause of pol­lu­tion. “It’d have been pretty dif­fi­cult to not take ac­tion back then,” she said. For Con­gress, the is­sues today are much cost­li­er re­l­at­ive to their en­vir­on­ment­al be­ne­fits than they used to be, Katz ad­ded.

Cli­mate change is only one of the is­sues that en­vir­on­ment­al­ists are pres­sur­ing Con­gress to ad­dress. Little-known but im­port­ant laws such as the Tox­ic Sub­stances Con­trol Act and the Oil Pol­lu­tion Act are due for over­haul. And oth­ers, such as the Na­tion­al Forest Man­age­ment Act and the En­dangered Spe­cies Act, are com­ing un­der cri­ti­cism from law­makers and in­terest groups be­cause they say they are overly re­strict­ive and hinder eco­nom­ic de­vel­op­ment.

Here is a run­down of a dozen pivotal en­vir­on­ment­al-policy laws en­acted since Nix­on es­tab­lished the En­vir­on­ment­al Pro­tec­tion Agency in 1970. Law­makers have left some of these stat­utes re­l­at­ively un­touched for years. Oth­ers — namely the Clean Air Act — are now un­der at­tack like nev­er be­fore.

The Clean Air Act

Most cur­rent law­makers view the Clean Air Act through the prism of Pres­id­ent Obama’s polit­ic­ally di­vis­ive cli­mate-change rules. Un­der the law’s au­thor­ity, EPA is gear­ing up to im­ple­ment stand­ards that will con­trol green­house-gas emis­sions from coal-fired power plants, man­u­fac­tur­ing fa­cil­it­ies, and oth­er ma­jor pol­luters. That rule­mak­ing has raised the ire of vir­tu­ally all con­gres­sion­al Re­pub­lic­ans as well as many Demo­crats from en­ergy-in­tens­ive states where the reg­u­la­tions would have the greatest im­pact. House-passed le­gis­la­tion to pree­mpt the rules en­tirely faces an up­hill climb to pas­sage in the Sen­ate, but Demo­crats have warmed to less-sweep­ing meas­ures that would lim­it but not take away EPA’s power to reg­u­late green­house-gas emis­sions.

The Clean Air Act is much more than just that set of stand­ards for car­bon emis­sions, though. Passed in 1970 and sig­ni­fic­antly amended in 1990, the land­mark act set the na­tion’s first-ever goals and stand­ards for air qual­ity to pro­tect hu­man health. The 1990 amend­ments in­cluded a mar­ket-based cap-and-trade sys­tem to cut sul­fur di­ox­ide emis­sions from acid rain, which en­vir­on­ment­al­ists and in­dustry of­fi­cials alike have deemed largely suc­cess­ful in cut­ting pol­lu­tion without crip­pling in­dustry.

EPA Ad­min­is­trat­or Lisa Jack­son is rolling out oth­er ma­jor rules un­der the Clean Air Act to slash tox­ic air pol­lut­ants such as mer­cury emit­ted by power plants, in­dus­tri­al boil­ers, and in­cin­er­at­ors.

The Na­tion­al En­vir­on­ment­al Policy Act

Also passed in 1970, the Na­tion­al En­vir­on­ment­al Pro­tec­tion Act was one of the first corner­stones of mod­ern U.S. en­vir­on­ment­al policy. It re­quires fed­er­al agen­cies to, as en­vir­on­ment­al­ists say, “look be­fore you leap.” Un­der the act, the gov­ern­ment must as­sess the en­vir­on­ment­al ef­fects of all the ma­jor activ­it­ies it funds be­fore ap­prov­ing them. It also es­tab­lished the pres­id­ent’s Coun­cil on En­vir­on­ment­al Qual­ity.

The law has re­cently reentered the con­gres­sion­al de­bate primar­ily be­cause of grow­ing calls for Wash­ing­ton to add cli­mate change to the en­vir­on­ment­al im­pacts it weighs in do­ing en­vir­on­ment­al as­sess­ments. En­vir­on­ment­al ex­perts say that the act should in­clude that au­thor­ity, but con­gres­sion­al Re­pub­lic­ans have in­tro­duced meas­ures to block the ex­pan­sion.

The Clean Wa­ter Act and the Safe Drink­ing Wa­ter Act

These two laws taken to­geth­er give gov­ern­ment the au­thor­ity to en­sure that the na­tion’s wa­ter­ways are clean and its drink­ing-wa­ter sup­plies are safe. Con­gress passed the Clean Wa­ter Act in 1972 and then sig­ni­fic­antly amended it in 1987 and 1990 to in­crease con­trols on tox­ic pol­lut­ants and to more ef­fect­ively ad­dress oil spills. The Safe Drink­ing Wa­ter Act, signed in­to law in 1974, en­sures a pot­able drink­ing-wa­ter sup­ply by, among oth­er things, fund­ing the con­struc­tion of puri­fic­a­tion plants. “One [law] re­moves pol­lu­tion from wastewa­ter be­fore it goes in­to a river and the oth­er en­sures qual­ity drink­ing wa­ter com­ing out of it,” War­ren says.

En­vir­on­ment­al ex­perts hope and pre­dict that law­makers will re­in­tro­duce le­gis­la­tion in this Con­gress to amend the Clean Wa­ter Act to more ef­fect­ively ad­dress in­ter­state wa­ter pol­lu­tion and oth­er is­sues.

The En­dangered Spe­cies Act

En­vir­on­ment­al ex­perts say that the gov­ern­ment should in­voke the 1973 En­dangered Spe­cies Act only as a “safety net” if oth­er laws fail to pro­tect en­dangered an­im­als. “If we do our job, we wouldn’t have to in­voke the En­dangered Spe­cies Act,” said Bob Irvin, seni­or vice pres­id­ent of con­ser­va­tion pro­grams at the De­fend­ers of Wild­life. “It’s the law that comes in­to play when everything else has failed be­cause the spe­cies is on the brink of ex­tinc­tion.” The stat­ute aims to pro­tect and re­cov­er en­dangered or threatened spe­cies and to pre­serve their hab­it­ats.

House Re­pub­lic­ans in this Con­gress have sought to over­turn the en­tire law or parts of it; some, for ex­ample, want to “del­ist” gray wolves in the north­ern Rocky Moun­tains from the law’s pro­tec­tions.

Fuel-eco­nomy stand­ards

Con­gress ap­proved the coun­try’s first-ever cor­por­ate av­er­age fuel eco­nomy stand­ards for vehicles in 1975 in re­sponse to OPEC’s em­bargo. Oil ex­perts say that the stand­ards, first es­tab­lished un­der the En­ergy Policy Con­ser­va­tion Act and gradu­ally in­creased since then, have been in­stru­ment­al in con­strain­ing Amer­ica’s in­sa­ti­able ap­pet­ite for oil to power its trans­port­a­tion sec­tor and suc­cess­ful in im­prov­ing air qual­ity.

In 2010, Obama sig­ni­fic­antly raised fuel-eco­nomy stand­ards after 2016 and is­sued the first-ever car­bon-emis­sions stand­ards for vehicles. In re­sponse, House-passed le­gis­la­tion would put the Trans­port­a­tion De­part­ment solely in charge of set­ting fuel-ef­fi­ciency stand­ards past 2016, pro­hib­it­ing EPA in­volve­ment. The le­gis­la­tion would roll back the fuel-eco­nomy rules the ad­min­is­tra­tion is fi­nal­iz­ing now.

The Na­tion­al Forest Man­age­ment Act

After a series of de­bates over the clear-cut­ting of na­tion­al forests, Con­gress passed this law in 1976 to man­age the gov­ern­ment’s wood­lands. It dir­ec­ted the U.S. Forest Ser­vice to de­vel­op rules gov­ern­ing tim­ber com­pan­ies’ cut­ting prac­tices and man­dat­ing prompt re­for­est­a­tion of har­ves­ted areas.

The law has been the fo­cal point of leg­al fights since at least the pres­id­ency of George W. Bush, and the polit­ic­al land­scape is no dif­fer­ent on Obama’s watch. His ad­min­is­tra­tion is seek­ing com­ment now on re­vised rules to im­ple­ment the plan­ning pro­vi­sions of the law, and en­vir­on­ment­al groups are not sat­is­fied with what they’ve seen so far. “In terms of pro­tect­ing wild­life and hab­it­at, [the ad­min­is­tra­tion’s pro­pos­al] leaves too much to the dis­cre­tion of in­di­vidu­al forest man­agers,” said Irvin, whose group is lead­ing the charge to en­sure that the rules meet the en­vir­on­ment­al com­munity’s stand­ards. “As a res­ult, it doesn’t have the en­force­ab­il­ity that it really needs to make sure its as­pir­a­tions are ful­filled.”

The ad­min­is­tra­tion will is­sue its fi­nal rules later this year.

The Fed­er­al Land Policy and Man­age­ment Act

This 1976 law gov­erns the way the In­teri­or De­part­ment’s Bur­eau of Land Man­age­ment ad­min­is­ters pub­lic lands. In­teri­or Sec­ret­ary Ken Salaz­ar is­sued an or­der in Decem­ber that in­structs of­fi­cials to con­sider des­ig­nat­ing cer­tain ad­di­tion­al pub­lic lands as “wild lands.” It is a less re­strict­ive des­ig­na­tion than “wil­der­ness,” but it would prob­ably put en­ergy pro­duc­tion and oth­er ma­jor activ­it­ies off-lim­its. Salaz­ar is fa­cing cri­ti­cism from House Nat­ur­al Re­sources Com­mit­tee Chair­man Doc Hast­ings, R-Wash., and oth­er Re­pub­lic­ans, who say that the ad­min­is­tra­tion is clos­ing off too much land to en­ergy de­vel­op­ment. The agency is en­gaged in its two-step pro­cess of gath­er­ing pub­lic com­ment.

The over­whelm­ing per­cent­age of the pub­lic lands in the In­ter­moun­tain West states of Col­or­ado, Montana, New Mex­ico, Utah, and Wyom­ing, where oil-and-gas de­vel­op­ment is the most pre­val­ent, are not des­ig­nated as wil­der­ness and won’t ne­ces­sar­ily be des­ig­nated as wild lands. To date, the bur­eau has pro­tec­ted just 1 per­cent of West­ern pub­lic land as wil­der­ness and has leased 42 per­cent of it to oil and gas com­pan­ies. The agency is eye­ing parts of the re­main­ing 57 per­cent of the land, which is now cat­egor­ized as “mixed use.”

In a bit of a twist, the Fed­er­al Land Policy and Man­age­ment Act has also come in­to play in battles pit­ting en­vir­on­ment­al groups against clean-en­ergy de­velopers seek­ing to build large sol­ar-pan­el and wind farms in the West. Green groups have pro­tested the loc­a­tion of and hast­i­ness in plan­ning cer­tain pro­jects in Cali­for­nia and Ari­zona be­cause of their po­ten­tial to af­fect wild­life, es­pe­cially en­dangered spe­cies. “It would be the ul­ti­mate irony in the push to ad­dress the harm­ful im­pacts of cli­mate change if we ended up do­ing more harm by where we loc­ated some of these re­new­able-en­ergy sources,” Irvin said, “just as we have to be con­cerned when we de­vel­op more-con­ven­tion­al sources of en­ergy like oil and gas.”

The Sur­face Min­ing Con­trol and Re­clam­a­tion Act

Passed in 1977, this law is the gov­ern­ment’s primary au­thor­ity to reg­u­late the en­vir­on­ment­al im­pacts of sur­face and moun­tain­top-re­mov­al min­ing. It also re­quires that min­ing com­pan­ies re­store aban­doned min­ing areas to a be­ne­fi­cial use. The In­teri­or De­part­ment is writ­ing new rules to pro­tect streams from the ef­fects of all types of min­ing. The Of­fice of Sur­face Min­ing Re­clam­a­tion and En­force­ment ex­pects to is­sue draft rules later this year. In the Ap­palachi­an states, min­ing com­pan­ies prac­tice moun­tain­top-re­mov­al min­ing — es­sen­tially blow­ing off the tops of moun­tains — to get ac­cess to coal. Res­id­ents and en­vir­on­ment­al groups de­cry the meth­od for its de­struct­ive im­pact on the land and es­pe­cially on wa­ter­ways.

The Tox­ic Sub­stances Con­trol Act and Su­per­fund

Taken to­geth­er, these two laws have been in­stru­ment­al in en­sur­ing that busi­nesses prop­erly man­age tox­ic chem­ic­als — and clean up after them­selves if their work con­tam­in­ates a site with tox­ic waste. Con­gress passed the Tox­ic Sub­stances Con­trol Act in 1976 and Su­per­fund, of­fi­cially known as the Com­pre­hens­ive En­vir­on­ment­al Re­sponse, Com­pens­a­tion and Li­ab­il­ity Act, in 1980. Su­per­fund is par­tic­u­larly sig­ni­fic­ant be­cause it al­lows the gov­ern­ment to hold com­pan­ies li­able for dis­pos­al of waste that took place be­fore the law was en­acted. The Tox­ic Sub­stances Con­trol Act au­thor­izes EPA to reg­u­late cer­tain tox­ic chem­ic­als throughout the man­u­fac­tur­ing, dis­tri­bu­tion, and im­port­a­tion and ex­port­a­tion pro­cesses.

Sen. Frank Lauten­berg, D-N.J., could re­in­tro­duce le­gis­la­tion in this Con­gress to re­vise the Tox­ic Sub­stances Con­trol Act for the first time in 35 years. His bill would re­quire man­u­fac­tur­ers to provide in­form­a­tion about the chem­ic­als con­tained in con­sumer products.

The Oil Pol­lu­tion Act

Con­gress passed the Oil Pol­lu­tion Act in 1990, a year and a half after the Ex­xon Valdez spill. It stream­lined the fed­er­al gov­ern­ment’s re­sponse to oil dis­asters, in­creased oil com­pan­ies’ li­ab­il­ity, and im­posed oth­er meas­ures to guard against an­oth­er tanker spill.

In the af­ter­math of the BP oil spill last year, which far ec­lipsed the Ex­xon tanker dis­aster as the worst in U.S. wa­ters, ex­perts say that Con­gress needs to up­date the stat­ute. BP’s spill oc­curred in the Gulf of Mex­ico’s deep wa­ters and presen­ted a whole set of prob­lems that the gov­ern­ment and oil in­dustry didn’t have to con­tend with two dec­ades ago. The 1990 law fo­cused on tanker safety, not on a deep­wa­ter-well blo­wout. In ad­di­tion, Con­gress has not ad­jus­ted oil com­pan­ies’ eco­nom­ic li­ab­il­ity for a spill. Most ana­lysts now see the $75 mil­lion ceil­ing as in­ad­equate, but con­gres­sion­al law­makers have not agreed on a new cap or for­mula.

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