Environmental law is not just about environment but also about the benefits which we derive from it. Impacts of human activities on environment is hard to quantify. However, since the aftermath of the World War II, the concept of sustainable development arose. This is based on the simple principle that future generations also have a stake on the environment and the Earth we live in today. This field of environmental law has evolved from being just about law of torts to having specific legislations for its own governance. Today, specific statutes on the environment law such as the National Environment Policy Act, 1972 (NEPA), Clean Water Act, 1972 (CWA), Clean Air Act, 1963 (CAA) etc. exist for the benefit of the people and in order give what the courts and the principles of natural justice provide for environment, a codification. However, the primary concern of the law makers over the years have been which approach to follow. In this article we analyse the two chief approaches on the dealings of the matter and how the law makers in the United States dealt with it throughout the twentieth century.

The two chief approaches to environment policy are namely ambient based approach and technology-based approach are based on the need to control the pollutants released in the environment. On one hand, the ambient based approach as the word ambient itself means is primarily structured on the environment around us. On the other hand, technology-based approach is founded on the inflexible area-wide standards based on the best possible technology of the time as it literally means. Both the approaches have their own merits and demerits which need to be discussed in detail.

Technology based policy approach

Technology based approach; It empowers the Environment Protection Agency (setup under the NEPA, 1972 as a federal body controlling all the minimum environment standards) to set standards without concerning itself with the topic of economic viability for the industries and the workers. It aims to reduce the water pollution caused by the industries and are in themselves, wider. This is more so concerned with the industries/ setups causing a large amount of pollution and does not concerns itself much with the non-point sources of pollution. In a scenario where, suppose the standard foe a particular bacteria/ pollutant is to be say 100 PPM, the large industries curb their part of the pollutants released through various measures but the non-point sources are less regulated and they do not curb their release, the deterioration of the particular water body will continue. The approach is mostly adopted by the water pollution statutes. The Clean Water Act of the United States is one such statute. The Clean Water Act, makes the standards nation-wide meaning that there are no state interreferences in process. This also benefits the states, as on one hand they are getting the water in their territory cleaned up and on the other, the industries if shift to another state, they have to bear the costs of achieving the regulations as well as shifting thus the fear of industrial shifting due to pollution control norms being minimised.

Another contention based on the CWA is the definition of the waters as under the statute. It has been replaced as recently as 2020 by the Trump administration. Initially under the rulings of various courts and even the Supreme Court of USA in the case of County of Maui v. Hawaii Wildlife Fund[i], the regulations on discharge was not only regarding rather permanent and navigable water bodies but also any such discharge which might in an indirect way have an impact on the same. The 2020 rules, however, change the definition of discharge under the statute to being concerned with only with the water bodies of permanent and navigable nature.

Ambience based policy approach

Ambient based approach, the approach is mostly adopted by the air pollution statutes across the globe. Such is the case with the United States of America too. The Clean Air Act, 1963 an ambient based regulation, since the 1970 amendment to it, empowers the Environment Protection Agency (EPA) to set “requisite standards to protect the air around us.” Thus, it essentially requires the EPA to first test the standards of the air around the particular place, then set standards. This however, may leave a bad impact on the economy and the jobs of the area as the statute does not provide due concern for the investment the private industries have to make in order to fulfil the regulations. However, since these standards are based on the surroundings, the non-point sources of pollution are also taken into due account which is not the case with the technology-based approach. The Clean Air Act, since based on the surroundings around us is regulated on a case-to-case basis. In urban areas, the EPA might set higher standards compared to the countryside where there are relatively less industries and cleaner air. This statute nevertheless, gives the EPA concerned authority to go over and above the concerns of economic viability for the industries and focus primarily on the health of the citizens of United States.

Approach of the US Congress and the Courts

These approaches nevertheless have their own loopholes and in order to curb the chaos with could spread through such loopholes, the Congress while enacting the Clean Water Act and the Clean Air Act clubbed the two approaches and walked a mid-way so that the health of the citizens could be prioritised but keeping the environment as clean as possible. On such example of this mid-way approach is the mechanism of the Water Quality Standards (WQS) in the Clean Water Act. These standards are based on the quality of water of the particular water body and the affects on it in the near future due to human activities which may include industries, plantations as well as farming and logging. The same mid-way approach can be seen with respect to the more ambient based Clean Air Act. In the case of Massachusetts v. Environment Protection Agency[ii], the Supreme Court of US, it was held by the court that the EPA being the federal regulatory body of the US for the matters of protection of environment was under a duty to under the assessment of the Green House Gases (which the EPA had argued to be beyond the ambit of the CAA,1963) and release the requisite standards to be maintained for the protection of the same. Furthermore, it was a clubbed approach by the court as well as it directed the EPA to not only to address the concerns of the citizens and parties involved but also declare and regulate the Green House Gases harmful to the environment. This gave to the rise of the EPA setting up the National Ambient Air Quality Standards (NAAQS) and thus regulating the GHG emission of non-point sources like vehicles as well.

The regulation of the pollution from discrete small sources such as cars and trucks are regulated through either the National Ambient Air Quality Standards (NAAQS) or the California Air Resources Board (CARB) standards. Though after the above-mentioned judgement was passed by the Supreme Court of the US, there was no doubt as to the matter whether specific states can put up their own standards or not and thus CARB standards came into light due to the much ore industrialisation and pollution in the state of California. Even though most manufacturers prefer CARB over the national standard as it is more stringent and thus the automobiles with these standards are allowed all over the US. These norms of the CARB as well as the Clean Air Act have prompted much of the Air pollutions regulations across the world. The EU and Indian standards for automobile emission are heavily based on the requisites and the functioning of the NAAQS and CARB.

Conclusion

In the words of Biologist Barry Commoner, “Environmental Concern is now firmly embedded in Public life: in Education, in Medicine and Law, in Journalism, Literature and Art.” Thus environment law has evolved from being a matter of private concern of nuisance into a matter of public concern and thus the policies formulated must have a view of the public at large. The two approaches to the Environmental policy have proved their own merits and demerits. In order to minimise the environmental concerns and at the same time maintain the model of sustainable development of both environment and economy, a two-pronged approach keeping both the ambience of the place and the technology of the time in mind. And so is the case with the environment protection statutes of the US and in fact, across the world as the US was one of the first countries to enact the concerns as not a private offence but a matter of public concern. 

Reference

[i] 140 S. Ct. 1462.

[ii] 549 U.S. 497 (2007)