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"),
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,
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 It has been replaced by the Clean Water Act, which will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
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,
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."
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.
In spite of Mr.
Sweeney’s findings, in 1972 the United States banned the manufacture and use of
DDT. 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."
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."
