History of Environmental Law in the U.S. - Part 1

by Martin T Jones on Jul. 19, 2018

Environmental Law Environmental Law Other 

Summary: a history of environmental laws in the U.S.

NATIONAL BUSINESS INSTITUTE

Altoona, Wisconsin

October 20, 2015

ENVIRONMENTAL LAW FROM START TO FINISH

History of Federal Environmental Laws; What and Why

by

Martin T. Jones

Ridenour Hienton, P.L.L.C.

The information contained herein is for reference purposes only and is not intended to provide legal advice or substitute for legal counsel under any circumstances.  If you have questions concerning environmental issues, please consult your attorney or other environmental professional.

INTRODUCTION

 A complete history of federal environmental laws in the United States is beyond the scope of this presentation, but any presentation entitled Environmental Law from Start to Finish, needs some perspective for the various statutes and rules to make sense. Therefore, this portion of the presentation will focus on the history of environmental legislation at the federal level and try to give some explanation of the factors that led to the adoption of many of the laws.

 Although we can find federal laws that can loosely be described as "environmental laws" going back to the early 1900s, it wasn’t until after World War II that Congress became concerned about the environment in a general sense, and it wasn’t until the 1970s that the bulk of the environmental laws were adopted.

 POST-WORLD WAR II

 The first major post-World War II environmental legislation in the United States was the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA")[1], which was adopted in 1947. FIFRA intended to give the Department of Agriculture responsibility for regulating pesticides, which had been unregulated to that point. Although federal pesticide legislation was first enacted in 1910, it aimed to reduce economic exploitation of farmers by manufacturers and distributors of adulterated or ineffective pesticides. Congress did not address the potential risks to human health posed by pesticide products until it enacted FIFRA. The U.S. Department of Agriculture was responsible for administering the pesticide statutes during that period.

 On June 30, 1948, the first federal legislation to attempt to regulate water quality, the Federal Water Pollution Control Act[2], was passed by Congress. It has been replaced by the Clean Water Act, which will be addressed below.

 Most environmental legislation has been adopted in response to specific events that brought specific environmental problems to the attention of the nation’s citizens and lawmakers. One of the earliest occurred on October 30 and 31, 1948, in Donora, Pennsylvania, when 20 people died and over 600 were hospitalized after sulfur dioxide emissions from a nearby steel and wire plant descended in the form of smog, made worse by a temperature inversion that trapped the sulfuric poison in the valley where the town is located. The incident led to the first United States conference on air pollution in 1950, sponsored by the Public Health Service. Similar air pollution events resulted in the deaths of about 200 people in New York City in November 1953 when heavy smog agitated asthma and other lung conditions.

 As a result, Congress adopted the Air Pollution Control Act[3] on July 14, 1955, the first piece of federal legislation to address air pollution. However, despite its declared intent to combat air contamination, the act put regulation largely in the hands of individual states and gave no means of enforcement to the federal government.

 More New Yorkers died from air pollution events in 1962 and 1966, proving that the Air Pollution Control Act was not the answer to dangerous air pollution.

THE 1960s

 Silent Spring

 In June 1962 Rachel Carson, a science writer for the United States Fish and Wildlife Service, published Silent Spring[4], a book that is widely credited with the birth of the environmental movement in the United States.  Silent Spring told of the horrors of pesticide use, particularly DDT, and as its title suggests, argued that if we did not curtail the use of pesticides, all the birds would die and there would be no bird song in the future.  But Silent Spring went much further than simply suggesting that pesticide use was killing the birds.  It also argued that the chemical industry in the United States was causing cancer in many individuals and was an especially dangerous threat to our children.

 Former Vice-President Al Gore, in his Introduction to the 1994 edition of Silent Spring, described Ms. Carson’s work by stating that, "Rachel Carson showed that the excessive use of pesticides was inconsistent with basic values; that at their worst, they create what she called ‘rivers of death,’ and at their best, they cause mild harm for relatively little long-term gain." He also said, "…rates of cancer and other diseases that may be related to pesticide use have soared."

 Supreme Court Justice William O. Douglas called the book "the most important chronicle of this century for the human race."[5]

 Shortly after Silent Spring was published, the U.S. Department of Agriculture began receiving letters expressing "horror and amazement" at the chemical pesticide practices discussed in the book. The growing concerns over pesticide use prompted President Kennedy to order the President’s Science Advisory Committee to conduct an investigation to determine the dangers that the chemicals represented to humans and the environment as well as to consider if it was necessary to enact new laws regulating the use of chemical pesticides. When the Committee's study was completed in May 1963, it supported Ms. Carson’s conclusions. The Committee found that there were immediate and long-range hazards to man and other animals and that the government had not been protecting against those hazards or learning exactly what the risks were.

 The conclusions Ms. Carson arrived at in Silent Spring were not universally accepted and, in fact, Ms. Carson was attacked on several fronts.  The major chemical manufacturer, Monsanto, for example, published and distributed 5,000 copies of a brochure parodying Silent Spring entitled The Desolate Year which explained how chemical pesticides were largely responsible for the virtual eradication of diseases such as malaria, yellow fever, sleeping sickness, and typhus in the United States and throughout the world, and that without the assistance of pesticides in agricultural production, millions around the world would suffer from malnutrition or starve to death.

 Many people attacked her as being too emotional and not a true scientist. One of the main counterarguments to Ms. Carson's book expressed by the farmers, scientists, and other supporters of the pesticide industry was that farm yields would be drastically reduced without the assistance of chemical pesticides. Scientists from the Department of Agriculture argued that the world would not be able to feed itself without pesticides.

 Ironically, the attempts of the chemical industry to discredit Ms. Carson gave her book even more publicity.  An article published in Business Week noted that ever since excerpts of her book began appearing in The New Yorker, "Miss Carson has had a heavy mail reaction, almost all endorsing her theme." An editor from The New Yorker said that Ms. Carson's mail response was probably the largest the magazine had received since it had run excerpts from John Hersey's story of Hiroshima.

 Silent Spring caught the fancy of mainstream Americans and several environmental groups formed, at least in part, in response to its publication. The Natural Resources Defense Council, the Wilderness Society, and the Environmental Defense Fund each took up the cause of banning pesticides, in particular DDT, and brought even more public attention to the issue.

 The newly formed United States Environmental Protection Agency ("EPA") held 7 months of hearings on DDT.  Surprisingly to some, and little remembered today, is that after listening to the testimony, the EPA's administrative law judge, Edmund Sweeney, declared that DDT was not carcinogenic or otherwise a hazard to man, and that the proper use of DDT does not have a deleterious effect on freshwater fish, wild birds or other wildlife.[6]

 In spite of Mr. Sweeney’s findings, in 1972 the United States banned the manufacture and use of DDT.[7] The United Kingdom followed suit in 1984 and the Stockholm Convention of 2001, which called for the complete elimination of DDT, was signed by more than 100 countries.

 The banning of DDT was amazingly effective.  Originally, the ban was supported by many aid agencies such as USAID, the World Health Organization ("WHO"), the Norwegian Development Agency, and the Swedish Aid Agency, all of which contributed large amounts of money for public health aid to poor nations. Those countries, dependent on that aid, could not continue to use DDT after the ban for fear of losing their foreign aid. Many countries also stopped using DDT for fear that European countries and the United States would refuse to buy their agricultural exports if they continued to use it.

 By any measure, Rachel Carson’s book had an unprecedented impact on the environmental consciousness of people around the world, not least of all in the United States.  She succeeded in her primary goal of having DDT use banned throughout the country and the world.

 The accolades for Ms. Carson are impressive.  Perhaps most significantly, on June 9, 1980, Carson was awarded the Presidential Medal of Freedom, the highest civilian honor in the United States. A U.S. postage stamp was issued in her honor the following year; and several other countries have since issued Carson postage as well. Carson's birthplace and childhood home in Springdale, Pennsylvania—now known as the Rachel Carson Homestead—became a National Register of Historic Places site. Her home in Colesville, Maryland, where she wrote Silent Spring, was named a National Historic Landmark in 1991. Hiking trails, a bridge, State Office Buildings, schools, streets, and a number of conservation areas have also been named in her honor.  Even the ceremonial auditorium on the third floor of EPA's main headquarters is named after Rachel Carson.

 It is fair to say that Rachel Carson and Silent Spring are environmental icons revered by Americans.  But some question whether that reverence is truly deserved.

 DDT's insecticidal properties were discovered in the late 1930s by Paul Muller, a Swiss chemist. The United States military began testing it in 1942, and soon the insecticide was being sprayed in war zones to protect American troops against insect-borne diseases such as typhus and malaria. In 1943 DDT famously stopped a typhus epidemic in Naples in its tracks shortly after the Allies invaded. DDT was hailed as the "wonder insecticide of World War II."

 As soon as the war ended, American consumers and farmers quickly adopted the wonder insecticide, replacing the old-fashioned arsenic-based pesticides. Testing by the United States Public Health Service and the Food and Drug Administration's Division of Pharmacology found no serious human toxicity problems with DDT.

 Muller, DDT's inventor, was awarded the Nobel Prize in 1948.

 There was a huge and positive economic influence on agriculture as a result of DDT’s discovery.  In 1952 insects, weeds, and disease cost farmers $13 billion in crop damage annually. Since gross annual agricultural output at that time totaled only $31 billion, it was estimated that preventing that damage by using pesticides would boost food and fiber production by 42 percent.

 DDT was widely deployed by public health officials, who eradicated malaria from the southern United States with its help. The World Health Organization credits DDT with saving 50 million to 100 million lives by preventing malaria. In 1943 Venezuela had over 8,000,000 cases of malaria; by 1958, after the use of DDT, the number was down to 800. India, which had over 10 million cases of malaria in 1935, had less than 300,000 in 1969. In Italy the number of malaria cases dropped from over 400,000 in 1945 to only 37 in 1968.

 With the effective banning of DDT, malaria has again become a major health problem around the world. An article in National Geographic sets out the issue this way, "We live on a malarious planet. It may not seem that way from the vantage point of a wealthy country, where malaria is sometimes thought of, if it is thought of at all, as a problem that has mostly been solved, like smallpox or polio. In truth, malaria now affects more people than ever before. It's endemic to 106 nations, threatening half the world's population. In recent years, the parasite has grown so entrenched and has developed resistance to so many drugs that the most potent strains can scarcely be controlled. This year malaria will strike up to a half billion people. At least a million will die, most of them under age five, the vast majority living in Africa. That's more than twice the annual toll a generation ago."[8]

 The World Health Organization provides us with some startling facts about malaria. A child dies from the disease every 30 seconds. There is certainly a great irony in the fact that Silent Spring’s stated purpose, at least in part, was to protect children, when in fact, one of the greatest threats to children across the planet today proliferates because the very chemicals that best fight it have been banned for use, primarily as a result of the book.

 Zambia, Africa, is perhaps the country hardest-hit by malaria.  In some provinces, at any given moment, more than a third of all children under age five are sick with the disease.  Nearly 20 percent of all Zambian babies do not live to see their fifth birthday due to malaria. Older children and adults, too, catch the disease (pregnant women are especially prone) but most have developed just enough immunity to fight the parasites to a stalemate, though untreated malaria can persist for years, the fevers fading in and out. Most people in Zambia are debilitated to some degree by malaria; many have had it a dozen or more times.

 Amazingly, a nationwide health survey in 2005 concluded that for every thousand children under the age of five living in the northwestern province of Zambia, there were 1,353 cases of malaria. That’s an annual rate of more than 100 percent. That seems impossible, a typo. It is not. What it means is that many children are infected with malaria more than once a year.

 Malaria was almost wiped out following World War II.  Chloroquine, an anti-malarial drug, was developed in the 1940s.  It was inexpensive, safe, and afforded complete, long-lasting protection against all forms of malaria. DDT was developed about the same time.  It lasted twice as long as the next best insecticide, remaining in the environment long enough to disrupt the mosquito cycle of transmission, and cost one-fourth as much as the less effective insecticides.

 In 1955 the World Health Organization launched its Global Malaria Eradication Program. The goal was to eliminate the disease within ten years. More than a billion dollars was spent on the effort. Tens of thousands of tons of DDT were applied each year to control mosquitoes and Chloroquine was widely distributed.

 As a result of the WHO’s efforts, malaria was virtually wiped out in much of the Caribbean and South Pacific, and from the Balkans and Taiwan. In Sri Lanka, there were 2.8 million cases of malaria in 1946, and a total of 17 in 1963.

 Unfortunately, two things happened.  With malaria ceasing to be a problem in the developed countries, financing for the Global Malaria Eradication Program dried up. It was discontinued in 1969.  And, of course, DDT was banned in the United States in 1972.

 The banning of DDT in the U.S. made sense at the time.  Although there had been millions of cases of malaria in the southern parts of the United States in the 1930s, more than 3,000,000 acres of swamps, the breeding grounds of mosquitoes, were drained (something we probably couldn’t do today with our wetlands regulations), and DDT was sprayed in hundreds of thousands of homes.  In 1946, the Center for Disease Control was established in Atlanta, specifically to combat malaria. The result was that by 1950, malaria had been wiped out in the United States.

 As stated by the article in National Geographic, "Though nontoxic to humans, DDT harmed peregrine falcons, sea lions, and salmon. In 1962 Rachel Carson published Silent Spring, documenting this abuse and painting so damning a picture that the chemical was eventually outlawed by most of the world for agricultural use. Exceptions were made for malaria control, but DDT became nearly impossible to procure. "‘The ban on DDT,’ says a representative of the National Institutes of Health, ‘may have killed 20 million children.’"

 In several places where malaria had been on the brink of extinction, including both Sri Lanka and India, the disease came roaring back. In much of sub-Saharan Africa, malaria eradication never really got started because the World Health Organization had by-passed the continent, for the most part, with its Global Malaria Eradication Program.

 Since DDT was banned, many alternatives have been tried for fighting malaria. None of them have been very successful. The answer that has finally been accepted by most, at least in the countries suffering from the malaria epidemic, is a return to DDT.  Even the Sierra Club has given a luke-warm blessing to using DDT in those areas.  In Zambia, an aggressive program of spraying DDT inside of homes is showing positive results.

 In 2006 the World Health Organization came out strongly in favor of using DDT in the fight against malaria.  Pointing out that the disease kills more than 1,000,000 people a year, the vast majority of them children, and further pointing out that DDT is the most effective pesticide in the fight against malaria, the WHO stated, "…it posed no health risk when sprayed in small amounts on the inner walls of people’s homes."[9]

 

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