Environmental law is a continuing source of controversy. Debates over the necessity, fairness, and cost of environmental regulation are ongoing, as well as regarding the appropriateness of regulations vs. market solutions to achieve even agreed‐upon ends.
Allegations of scientific uncertainty fuel the ongoing debate over greenhouse gas regulation and are a major factor in debates over whether to ban particular pesticides. In cases where the science is well‐settled, it is not unusual to find that corporations intentionally hide or distort the facts, or sow confusion (Oreskes and Conway 2010).
It is very common for regulated industry to argue against environmental regulation on the basis of cost (Pizer and Kopp 2003). Difficulties arise in performing cost‐benefit analysis of environmental issues. It is difficult to quantify the value of an environmental value such as a healthy ecosystem, clean air, or species diversity. Many environmentalists’ response to pitting economy vs. ecology is summed up by former Senator and founder of Earth Day Gaylord Nelson: “The economy is a wholly owned subsidiary of the environment, not the other way around” (Nelson et al. 2002). Furthermore, environmental issues are seen by many as having an ethical or moral dimension, which would transcend financial cost. Even so, there are some efforts underway to systemically recognize environmental costs and assets, and account for them properly in economic terms.
While affected industries spark controversy in fighting regulation, there are also many environmentalists and public interest groups who believe that current regulations are inadequate, and advocate for stronger protection (Hiss 2014; Stein and Beckel 2004). Environmental law conferences – such as the annual Public Interest Environmental Law Conference in Eugene, Oregon – typically have this focus, also connecting environmental law with class, race, and other issues.
An additional debate is to what extent environmental laws are fair to all regulated parties. For instance, researchers Preston Teeter and Jorgen Sandberg highlight how smaller organizations can often incur disproportionately larger costs as a result of environmental regulations, which can ultimately create an additional barrier to entry for new firms, thus stifling competition and innovation (Teeter and Sandberg 2017).
Environmental Impact Statement and NEPA Process
An environmental impact statement (EIS), under US environmental law, is a document required by the National Environmental Policy Act (NEPA) for certain actions “significantly affecting the quality of the human environment” (NEPA 1969). An EIS is a tool for decision making. It describes the positive and negative environmental effects of a proposed action, and it usually also lists one or more alternative actions that may be chosen instead of the action described in the EIS. Several US state governments require that a document similar to an EIS be submitted to the state for certain actions.
Purpose of NEPA
The purpose of the NEPA is to promote informed decision making by federal agencies by making “detailed information concerning significant environmental impacts” available to both agency leaders and the public (Robertson v. Methow Valley Citizens Council 1989). The NEPA was the first piece of legislation that created a comprehensive method to assess potential and existing environmental risks at once. It also encourages communication and cooperation between all the actors involved in environmental decisions, including government officials, private businesses, and citizens (Felleman 2013).
In particular, an EIS acts as an enforcement mechanism to ensure that the federal government adheres to the goals and policies outlined in the NEPA. An EIS should be created in a timely manner as soon as the agency is planning development or is presented with a proposal for development. The statement should use an interdisciplinary approach so that it accurately assesses both the physical and social impacts of the proposed development (EIS 2010). In many instances an action may be deemed subject to NEPA’s EIS requirement even though the action is not specifically sponsored by a federal agency. These factors may include actions that receive federal funding, federal licensing, or authorization, or that are subject to federal control (Eccleston 2008).
An EIS typically has four sections (Eccleston 2014):
- An introduction including a statement of the purpose and need of the proposed action.
- A description of the affected environment.
- A range of alternatives to the proposed action. Alternatives are considered the “heart” of the EIS.An analysis of the environmental impacts of each of the possible alternatives. This section covers topics such as the following:
- Impacts to threatened or endangered species
- Air and water quality impacts
- Impacts to historic and cultural sites, particularly sites of significant importance to indigenous peoples.
- Social and economic impacts to local communities, often including consideration of attributes such as impacts to available housing stock, economic impacts to businesses, property values, aesthetics, and noise within the affected area.
- Cost analysis for each alternative, including costs to mitigate expected impacts, to determine if the proposed action is a prudent use of taxpayer dollars.
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