- ABA Groups
- Resources for Lawyers
- Career Center
- About Us
Ms. Comer is a senior attorney in the Office of Policy at the U.S. Environmental Protection Agency and one of several principal authors of the report, An In-depth Look at the United Kingdom Integrated Permitting System, referenced in this article. The findings and conclusions expressed in this article represent the author’s personal opinion and do not necessarily reflect past, current, or anticipated EPA policy.
This article is inspired by the growing interest in sustainability in environmental practice and policy and provides a platform for discussing the potential application of sustainable approaches in the United States. Recognizing that the U.S. national regulatory structure relies on media-specific statutory mandates rather than integrated approaches and policies featured overseas, this paper provides an overview of the United Kingdom’s (UK) implementation of the European Union (EU) mandated integrated regulatory scheme and identifies several key differences between the UK and U.S. permitting systems. Following that comparison, this article offers examples of multimedia experiments conducted in the United States and explores policy proposals calling for sustainable outcomes in the country. Lastly, the article introduces emerging tools, practices, and concepts (short of wholesale reform) that can move the United States in the direction of sustainable systems for environmental management. Importantly, this article does not attempt to define the term sustainability—other sources can be referred to for that definition. For instance, President Obama’s Executive Order 13,514 defines sustainability as “to create and maintain conditions, under which humans and nature can exist in productive harmony, that permit fulfilling the social, economic and other requirements of present and future generations.” Exec. Order No.13,514 (Oct. 5, 2009).
As a backdrop against which to compare the U.S. system, it is useful to highlight the EU Integrated Pollution Prevention Control (IPPC) directive, specifically as implemented in the UK. The contextual narrative that follows is based upon a 2008 report issued by the U.S. EPA Office of Policy that studies the UK implementation of the IPPC under the Environment Agency (EA) with jurisdiction in England and Wales. The report, An In-depth Look at the United Kingdom Integrated Permitting System (EPA-100-S-08-001 July 2008), was intended to encourage dialogue about and potential testing and application of innovative permitting practices in the United States. The following description summarizes the UK implementation of the IPPC directive’s sustainability processes and policies, including commentary comparing the UK and U.S. systems.
The UK environmental permitting scheme mandated by the 1996 EU IPPC Directive is defined by a comprehensive integrated approach embracing the ultimate goal of sustainability. In contrast, the U.S. permitting system is media based and compliance driven. The IPPC permitting regime’s primary objective is achieving a high level of protection for the environment as a whole: preventing emissions to air, water, and soil foremost; and then, where prevention is not practicable, controlling emissions. The UK-enacted legislation, the Pollution Prevention and Control (PPC) Act of 1999, and accompanying UK regulations adopt pollution-prevention, multimedia permitting relying on facility-wide footprint assessments of all environmental impacts. The PPC law and underlying regulations provide the framework for issuing integrated permits in the UK. The PPC system also includes compliance and enforcement, monitoring and reporting, sector management and communication, and public notice and participation in one regulatory construct.
The PPC Act functions as an umbrella statute, allowing for the absorption and application of existing and evolving regulatory mandates (issued by either the EU or the UK) and supporting the consideration of new and improved environmental protection techniques over time. Moreover, the PPC legal authority is far less prescriptive and detailed than corresponding legal authorities in the United States—even the PPC regulations do not contain the complex detail of many U.S. statutes. Often, underlying PPC guidance is used to detail the application of specific legal requirements. It appears that the overarching legal framework in the UK may result in a greater capacity to expeditiously address new issues. This fluid and comprehensive UK legal arrangement exists in sharp contrast to the U.S. national pollution control system consisting of independent, media-specific, dense, and relatively static (over the last 30-plus years) environmental statutory edicts.
The IPPC permitting scheme operates on a sector basis. Industry sectors covered include manufacturers of pulp and paper, organic fine chemicals, pharmaceuticals, food and drink, and textile treatment, as well as operators of large-scale intensive livestock production and hazardous waste landfills. However, not all facilities must apply for a permit. Rather, a set of criteria is used to determine a facility’s potential for causing pollution. An IPPC permit consolidates for one facility all the environmental impacts typically covered by multiple U.S. media-specific permits and regulations (authorized by the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, or other applicable laws) and also includes a number of provisions not found in most U.S. permits. In short, an IPPC permit addresses an extensive set of pollution controls (such as air emissions, releases to water, waste handling, and disposal), resource use (such as energy efficiency, water and raw materials inputs, and waste minimization), and both immediate and long-term practices and effects of facility operation (such as noise, vibration, and odor factors; environmental management techniques or environmental management system use; reporting and monitoring; site restoration, as well as other considerations). In this way, an IPPC permit moves toward investment in a holistic and sustainable strategy.
Additional notable attributes of the UK IPPC system include the use of a single standard-setting concept to set limits and address pollution prevention and sustainability. The central component of an IPPC permit is the application of the common standard Best Available Techniques (BAT). The UK BAT is broader and more encompassing than the similar-sounding terms employed in U.S. statutes, such as the Best Available Technology standard under the Clean Water Act. The UK BAT standards apply to all facility activities that have environmental impacts. Thus, factors used in determining UK BAT standards include not only pollution control methods but also pollution prevention considerations such as technological and scientific advances in production practices and resource efficiency considerations. For the most part, each sector has its own guidance regarding the best available techniques for prevention or control of pollution. This guidance allows UK regulatory authorities to exercise additional technical discretion when setting permit conditions, a degree of flexibility not typically acceptable in the U.S. permitting process.
Another interesting feature of the IPPC is that both regulators and permit holders are held accountable for continual improvement and work together to meet IPPC permitting requirements. The UK EA and industry have ongoing responsibilities for keeping up with innovative developments and improvements. An IPPC permit, therefore, reflects current performance at a facility while also promoting continual improvement. In a complementary manner, the UK system shifts the burden of responsibility for environmental performance to a facility operator. In the UK, each IPPC facility has the duty of assessing (overall) environmental impacts and identifying and continually improving operations to prevent and control pollution and other adverse environmental effects. This contrasts with a U.S. facility that (permitted to meet certain standards and legally stay in compliance) has little motivation for moving beyond what is required. Moreover, the IPPC facility operator and the EA regulator work virtually hand in hand throughout the permit application process. This partnership begins while developing the permit application, continues through permit issuance, and lasts throughout the effective life of the permit. As a whole, UK industry plays a significant role influencing sector-based planning and priority setting and informing sector-wide indicators and performance targets. Not only does this collaborative approach capitalize on the relative expertise of, and input by, the relevant industry sector, it also benefits from the extensive experience of EA permit writers and officials. By creating a culture that balances flexibility and accountability, the UK intends to encourage sustainable environmental practice beyond the traditional command and control response.
The IPPC integrated approach has as a primary goal whole-ecosystem management and, therefore, moves permitting significantly in a sustainable direction. The IPPC declares sustainability as a central objective of the mandate: Prevent pollution first and control pollution second. In this way, the stage is set for countries falling under the directive to strive toward resource conservation measures, energy efficient technology and operations, and pollution prevention tactics. Moreover, in practice, permitting regulators and industry must have an eye on emerging techniques and ongoing improvements over time. The integrated permit system does not sleep: The goal is to constantly strive for better ways to manage the footprint of a facility, including impacts beyond the site-specific boundaries. Lastly, the permit itself considers impacts collectively as a whole and goes beyond the typical media-specific confines of water, air, and land, ensuring that other indicators, such as noise and odor, also be factored into the equation.
Given that systemic changes (such as the EU adoption and each member state’s implementation of the IPPC) typically require new legislation or extensive rule changes, such reforms are not commonplace. As illustrated above, the EU integrated strategy appears to be significantly pushing the tide toward sustainable shores. Any U.S. parallel to the EU IPCC directive, clearly, would require substantial changes to the current pollution control system as mandated by existing statutory authorities. Along with expanding the legal underpinning, a truly sustainable system would embrace nonregulatory tools and approaches that might, for instance, support growing consumer demand for green products and services, capitalize on market impulses and technological innovation, and provide opportunities for addressing community and location-specific needs. Whether driven by legal mandates or nonregulatory in design, multimedia and sustainable approaches attempt to manage environmental issues in a more comprehensive, holistic fashion.
Although an overhaul of the current U.S. national permitting structure is not on the horizon, state and federal environmental agencies in the United States have taken steps to test, incorporate, and apply tools, policies, and approaches that move pollution control strategies in a more sustainable direction. Looking across several decades of experience, a vision emerges of the ideal attributes of an environmental permitting system. Time after time, the themes of streamlining, integration, and sustainability surface as areas for improvement in national innovative reform efforts. A reformed permitting system could integrate, or at least coordinate, across various media-specific permitting and regulatory programs to facilitate a systemic approach to environmental management that acknowledges and addresses potential trade-offs. Furthermore, an integrated permitting system could streamline and simplify deadlines, time frames, and required actions to the extent possible without jeopardizing environmental protection needs. A permitting system could be designed to reasonably efficiently and effectively accommodate periodic changes that follow a path toward sustainability.
Strategies that seek to substantially change environmental permitting systems necessitate a new (or improved) way of doing business and, thus, often require wholesale statutory reconsideration. New regulatory strategies can change fundamental aspects of permits, including who is regulated, what emissions are targeted, how emissions are to be controlled, and how compliance and enforcement will take place.
At both levels of government, attempts have been made to test the capacity for change in the U.S. permitting system. Highlighted here are a few initial ideas tested by state agencies and EPA in the 1990s that integrate or support multimedia considerations in permitting. One leading example of such a regulatory strategy was New Jersey’s facility-wide permitting program that ran from 1994 to 2006. The 1991 State Pollution Prevention Act established the Facility-Wide Permit (FWP) Pilot Program, directing the state Department of Environmental Protection (NJ DEP) to work with 10 to 15 industrial facilities by revoking existing facility permits and issuing FWPs, which incorporated pollution prevention (P2) as a key element. NJ DEP attempted to incorporate lessons learned from this effort into its permitting processes; however, in 2006, the program was ended. Other states, such as New York and Washington, have also tried using sector-based, multimedia teams to coordinate media-specific permitting activities for facilities. Wisconsin and Oregon, among others, managed programs pursuant to state legislation or under guidance that incorporated multimedia and/or sustainable approaches into the environmental management process.
In the 1990s, a number of states adopted legislation to facilitate experimentation with innovative approaches to environmental regulation. Riding that tide in April 1998, EPA and the Environmental Council of the States entered into the Joint EPA/ECOS Agreement to Pursue Regulatory Innovation. This partnership encouraged sustainable development and regulatory efficiency through the use of innovative approaches. The partnership reflected the importance of incorporating sustainability into environmental management. The agreement recognized that sustainable ecosystems require innovative approaches that harmonize environmental, economic, and societal progress. The intent of the agreement was to provide a framework fostering self-motivated actions by industry toward environmental stewardship and sustainability.
Alternative concepts, including sustainable measures, for environmental protection have been brought to the federal table for consideration by both the executive and legislative branches. A few significant efforts within EPA have motivated alternative approaches to traditional permitting systems. There have been a myriad of nonregulatory programs and efforts designed to drive innovation and sustainable outcomes.
Project XL, established in 1995, encouraged the development and use of alternative strategies to produce greater environmental benefits. By testing regulatory strategies that were cleaner and cheaper, participating entities could demonstrate their excellence and leadership (XL). Through 2003, 50 Project XL pilots were developed for facilities, sectors, communities, and government facilities regulated by EPA. Project XL relied upon a variety of means, including regulatory, policy, or procedural flexibilities, to test new concepts while requiring statutory compliance. For example, Intel Corporation conducted a whole-facility permitting experiment in Chandler, Arizona, where several cross-media permits were developed and a facility-wide cap on air emissions replaced individual permit limits for the separate emission sources. The project also included multimedia performance-based permits that specified performance levels for each regulated pollutant to be used at the new facility.
Innovative pollution control strategies can be regulatory and, perhaps equally noteworthy, nonregulatory. EPA continues to manage and support many voluntary programs (such as Energy Star, WaterSense, Design for the Environment, and others) that encourage pollution prevention. Many of these efforts are aimed at informing and assisting the public in making strategic decisions about purchasing, manufacturing, and consuming sustainable products and services. EPA’s newly launched Greener Products website is a central portal providing access to information about everyday products like home appliances, electronics, and cleaning products that can save money, prevent pollution, and protect human health and the environment. The website also helps manufacturers and institutional purchasers with information on standards and criteria for designing greener products.
Although legislation expressly advancing sustainability has not yet been adopted in the United States, there have been notable proposals. For example, in 1997, Congress contemplated the Innovative Environmental Strategies Act, a bipartisan Senate Bill (S. 1348) that was not enacted. The bill suggested that a facility evidencing a strong compliance history (with both environmental and public health regulations) and demonstrating a commitment to pollution prevention could propose an alternative compliance strategy that would waive or modify an existing requirement (and required the facility to undertake a stakeholder participation and public notice process). Nearly a decade later, Senator Dianne Feinstein introduced a bill and urged EPA’s administrator to consider creating a voluntary eco-label program intended to promote products with a reduced environmental impact over their life cycle and provide accurate, scientifically based information on the environmental impacts of products (to reduce consumer confusion and greenwashing). Both of these legislative proposals attempted to move in the direction of more sustainable measures related to the traditional end-of-pipe, compliance-centric U.S. environmental regulatory structure.
Often, sustainable strategies involve changes in how agencies organize themselves to implement and maintain new ideas. Sustainability has been expressly adopted as a principle for federal government operations. On October 5, 2009, President Obama signed into effect a sweeping, far-reaching Executive Order 13,514 (EO) that targets federal agencies with improving energy efficiency and environmental performance within their ranks. The detailed EO contains conservation steps federal agencies are required to undertake, including developing and carrying out integrated strategic sustainability performance plans, meeting a 95 percent green products purchasing goal, and incorporating sustainable design into building construction, operation, and maintenance. The EO covers a vast array of requirements related to energy efficiency, water conservation, waste management and recycling, pollution prevention, green procurement, livable communities, transparency in government, and more. Facing these new responsibilities, where appropriate, the federal force is collaborating across agencies to align critical steps for strategic planning and effectively implement necessary actions. Although this EO applies only to internal federal operations, the impacts from these efforts have the potential to resonate beyond the walls of Washington’s bureaucracy, influencing and informing a clean energy economy and enhanced markets for green products, services, and green jobs. (It may be of interest to note that Obama’s EO 13,514 built off of a Bush-issued EO 13,423 which had replaced several Clinton-issued EOs (13,101, 13,123, 13,134, 13,148, and 13,149) all aimed at greening the government.)
Most recently on September 15, 2011, the National Academy of Sciences (NAS) published Sustainability and the U.S. EPA recommending a series of actions EPA can take “to carry out its historical mission to protect human health and the environment in a manner that optimizes the social, environmental and economic benefits of its decisions.” The report adopts the definition of sustainability from President Obama’s Executive Order 13,514 “to create and maintain conditions, under which humans and nature can exist in productive harmony, that permit fulfilling the social, economic and other requirements of present and future generations.” NAS encourages EPA to consider the potential implications of agency decisions from multiple perspectives and over longer time horizons, such as setting several strategic three-to-five year breakthrough objectives for programs relating to sustainability implementation and a means for measuring results; including “health” in the social pillar of sustainability to communicate its importance in the agency’s sustainability role; developing a “sustainability toolbox” with a suite of assessment and management tools; and instituting a focused program of change management to achieve the goal of incorporating sustainability into all of the agency’s thinking and creating a new culture among all EPA employees.
In addition to state and federal government interest in sustainability, there exists a wide spectrum of engaged and dynamic stakeholders. A multitude of organizations, including communities, nongovernmental organizations (NGOs), academia, interest groups, and leading companies, are creating partnerships to push the envelope of sustainability. These groups include the Sustainability Consortium, the Keystone Center’s Green Products Roundtable, GreenBiz, Rainforest Alliance, and others so numerous it is not possible to properly attribute them all. Collectively, their body of work is extensive and vital. Furthermore, the energy supporting this movement is expanding, especially in light of the real and needed opportunities for advancing market opportunities, creating greener jobs and products, and growing a globally competitive U.S. economy.
For nearly 30 years as coregulators, EPA and states, along with interested partners have experimented with a variety of ways to improve environmental permitting programs, striving to apply more sustainable practices (both pollution prevention and regulatory) to achieve comprehensive environmental improvements. Along with environmental benefits, many advocates of holistic and sustainable environmental management acknowledge a secondary outcome: the potential for improved job retention, new employment opportunities, and ultimately economic growth. To achieve these complementary objectives, regulators, advocates, and the regulated community continue to partner and learn from each other using means that do not require a regulatory scheme or rely on enforcement as a motivating force.
A variety of environmentally related tools are becoming the norm in business practices; tools that can move the United States in the direction of sustainability without wholesale regulatory reform. These tools include (but are not limited to) processes such as footprint assessment, Environmental Management Systems, systems-oriented corporate initiatives on sustainability (such as CERES roadmap), life cycle analysis, and voluntary standards for sustainability. Alongside increasing resource conservation and pollution reduction measures, these approaches may create benefits for U.S. green business growth and job creation, as well as enhance the nation’s global economic competitiveness. Working around the edges of the well-established U.S. environmental protection system, this collection of greener practices and tools offers better choices for consumers, manufacturers, retailers, and institutional purchasers. By moving beyond the borders of solely regulatory efforts, an expanding frontier of effective, sustainable approaches could move the United States into a richer economic and environmental posture.
Sustainability (in its various iterations and with its encompassing reach) is a notion that many in industry, government, and the public are embracing and putting into practice. Over the last few years, EPA has begun to address sustainability in a growing number of its initiatives. With an eye to improving environmental results, contemporary U.S. strategies encouraging green and sustainable efforts (such as EO 13,514) have been introduced. Some companies have recognized a competitive advantage and business sense associated with investing in green products and sustainable practices. Academic institutions, NGOs, and other interest groups have demonstrated the links between a growing global population, dwindling natural resources, struggling worldwide economies, and the earth’s ultimate survival. Through the vibrant combination of these efforts, sustainability is finding its way securely into the lexicon for delivering systems that can ensure environmental endurance, human well-being, and economic survival.