Environmental regulations are not ends in themselves. They are tools for accomplishing public purposes. Like every tool, they have a "business end", the point of application where the intent of the tool-maker and the tool-wielder is turned into actual work.
For environmental regulations in this country, the vast network of local government units -- cities and towns, boards and commissions, districts and authorities -- are responsible for bringing the tools to bear on the regulated communities. State government also plays a pivotal role, ranging from being the source of authority for regulations that do not have a national counterpart, through serving as the delegated authority for national regulations within its jurisdiction, down to the level of hands-on regulation. State and local governments have become the primary implementers of environmental regulations, and of many associated programs (such as compliance assistance, public awareness, and various forms of collaborative environmental problem-solving) as well.
Since just about anything anyone does has an environmental effect, environmental protection is an enormous topic, endlessly ramified into subtopics. In dealing with this tangled profusion of actions, consequences, issues, and public pressures, policy makers have found it essential to partition the tasks and responsibilities associated with environmental protection into manageable units. There are alternative ways to divide the mission, each with its own advantages and disadvantages.
One way to partition the tasks and programs is to make the division according to what part of the environment is impacted. Separate administrative functions deal with air, water, and land (referred to collectively as "media"). This is the way environmental laws have historically been written. Another approach is to divide environmental protection according to the nature of the sources producing the impact. For example, the regulated community can be divided into categories grouping together sources of a similar type, with similar physical and economic constraints on them. Policies which work well with one member of the category might be expected to be extendible to others in that category. That is the idea behind the sector approach, which groups together facilities making similar products or providing similar services (companies that are "in the same business"). Several other ways of partitioning environmental responsibilities and programs also occur in various applications, and are considered in more detail below.
The choice of partition matters. Some environmental tasks are easier to implement if the approach chosen is better suited to the task. If the objective is to clean up the river, the focus will naturally be, as it should be, on the water flowing into the river, and on everything impacting that water. If the objective is to minimize impact to the environment as a whole within the constraints of economic and political reality, it may be more efficient to divide the potential sources of environmental impact into groups operating under similar constraints, and to suit policies to each group.
This document examines how different approaches to partitioning environmental tasks affect those who must translate policies into actions. In particular, the purpose is to determine where the sector approach has been useful (and where it has not), and where it might prove useful in the future, to those who must implement the tasks. Many of the insights reported here were gleaned from conversations with the very individuals on the front lines of environmental protection, and are grounded in their daily experience. The document is offered in the hope that it can help provide some useful and much-needed feedback to those who craft the regulations and policies, from those who must make them function in the real world.
The best manufacturing engineering is continually informed by feedback from the shop floor. Similarly, designers of environmental policy can use feedback from the implementers as an important reality check and corrective. It has been a two-decade struggle to complete the feedback loop in industry. World-class companies have have integrated shop-floor feedback into their manufacturing design processes, and the results are beginning to show in the economic performance, efficiency, and competitiveness of the best of U. S. industry. Completing the loop in the environmental protection enterprise can have analogous benefits. This document will have accomplished its purpose to the extent that it helps open the feedback channel and conveys the information that implementers have learned from experience back to those responsible for the regulatory design process.
The document was prepared under the Environmental Roadmapping Initiative (ERI) of the National Center for Manufacturing Sciences (NCMS). Additional information on the ERI is available at http://ecm.ncms.org/eri .
Broadly speaking, an "implementer" could refer to anyone responsible for applying an environmental policy to a regulated entity. Implementation could include standard regulatory functions (like writing permits, inspecting facilities, or carrying out enforcement actions) as well as broader activities like delivering compliance assistance, educating the public, or facilitating multi-stakeholder negotiations.
In that sense, the implementation role extends far beyond government. Within industry, environmental specialists responsible for reporting and compliance, environmental engineers charged with driving pollution prevention programs, and production managers responsible for keeping their operations within permit limits are all examples of company employees who are applying environmental protection policies as an integral part of their job descriptions. Policy choices can make it more or less difficult to carry out those functions, and consequently can be a decisive factor in how successfully environmental priorities can compete for attention and buy-in. Nor is environmental implementation restricted to industry. A consumer making purchasing decisions could be a very effective implementer of environmental policy -- if he or she understands the policy and is sympathetic to its objectives.
However, the most visible implementers of environmental policy are the individuals in state and local government who must bring the consequences of environmental policy decisions home to the regulated community. They are not typically free to weigh environmental mandates against competing pulls and pushes, as are individuals in the private sector. They must implement the policies that are handed them, often with very limited discretion to adapt policy directives to local conditions.
It is not axiomatic that national environmental protection policies must be implemented through state and local government units. Other types of regulation and control are administered directly by the Federal agencies themselves. One does not find state and local implementers of immigration policy, caretakers of national parks, or purchasers of military equipment. And indeed some environmental policy implementation at the local level may be carried out directly by the EPA regional offices, or even from headquarters. But the nation has not chosen to establish a federal Environmental Implementation Corps. For better or worse, it is most commonly a state or local official at the cutting edge of environmental implementation.
Accordingly, this document will focus on environmental implementers who are part of state and local government. These individuals are also sometimes referred to as "co-implementers", partners in the application of federal and state environmental regulations and programs at the local level. This document will use the term "co-implementers" to distinguish state and local government implementers of environmental policies and programs from implementers in the broader sense.
Many co-implementers have contributed their insights to this document. They understand the complexities involved in translating policies into actions, because they do it every day in the course of their work. But while an individual's responsibilities might include a large component of implementation, there is probably no one who is 100% co-implementer and nothing else. The need to fit implementation into many other functions is probably responsible for many of the insights. The role of co-implementer should not be type-cast.
The main purpose of this document is to gauge how the sector-based approach to environmental protection affects co-implementers, and to explore the potential uses of the sector-based approach. It is therefore important to understand what is meant by "sector" in the context of the various alternative approaches of partitioning environmental policies and programs into subunits.
In the FY2000 Sector Based Environmental Protection Action Plan, a sector is defined as "a discrete production system in the U. S. Economy". A classification of industries in terms of the products and services they provide is available in the North American Industry Classification System (NAICS). Generally speaking, a "sector" can be taken to refer to a grouping or closely related set of groupings at some level of detail in the NAICS hierarchy.
To put this definition in context, let us consider some of the alternative ways of segmenting the universe of environmental protection. We will look at six approaches:
These approaches are considered in some detail, with reference to their consequences for co-implementers, in the following section. Here we will simply define them briefly, and put them in a general scheme.
While this is not an exhaustive list of possible approaches, it covers many of the major historical trends in environmental protection over the last several decades.
It should be noted that the approaches are not mutually exclusive. Some media-based regulations are applied differently to different sectors (such as the Maximum Achievable Control Technology, or MACT standards in air quality regulation), some material-based standards are applied differently in different geographic regions (such as air quality rules in ozone attainment vs. non-attainment areas), etc.
To appreciate the interrelation among these different approaches to segmentation, it may be useful to set them in a broader framework. The first two, media and geography, are segmentation principles applied to environmental resources in the physical world. The next four, sectors, facilities, processes, and materials, pertain to sources of environmental impact in the economic world. (Material-based approaches depend both on the physical properties of a material and on its economic uses, but the forces constraining the selection of materials, particularly those with associated environmental hazards, are often economic rather than strictly physical.)
Taking the physical world first, note that media-based regulation is a "horizontal" stratification of the physical environment, while a geographical approach sets up "vertical" boundaries. The two types of segmentation work hand-in-hand. Often, regulations are designed on a media basis, and implemented on a geographical basis. This combination makes technical and political sense. However, it can become inefficient when, for example, sources in one geographic division create effects in others (as when upwind sources create ozone non-attainment areas downwind).
In contrast, sectors, facilities, processes, and materials represent distinctions whose motivation is rooted in the economic world. The sector is the fundamental stratification of economic activity, cutting across geographic boundaries. Facilities are the localized divisions of the sectors into separately managed units. Processes represent an even finer subdivision of activities within facilities. And materials occur within the context of the processes using them and the products incorporating them. In brief, sectors comprise many facilities, with each facility running several processes, and each process involving several materials.
Thus, according to this point of view, the sector-based approach plays the same cross-cutting role with respect to sources of environmental impact in the economic world that the media-based approach plays with respect to impacted resources in the physical world. The sector level is the broad categorization level of the economic world within which more specialized types of segmentation can function.
We now consider the effects that various choices among these alternative modes of environmental protection can have on implementation of environmental policies and programs. In practice, given the typical range of programs and responsibilities within the scope of a local or state government's activities, each type of segmentation is represented somewhere, and the co-implementer must deal with them all at one time or another. For each approach, this section includes the rationale for using the approach, some examples, advantages and disadvantages, and consequences for co-implementers when the approach is adopted. (An overview of how various approaches are interrelated, where they can interfere with, and where they can mutually reinforce one another, appears at the end of Section 1 of this document).
Statutes and regulations, at the local as well as the national level, are overwhelmingly media-based, and the organization of departments and responsibilities at the local level typically mirrors a media-based segmentation.
This situation is so familiar that it is nearly invisible. But it may be useful to pause at this point and consider why it should be so. When cross-media issues arise, why do we now find ourselves putting multi-media patches on a single media-based system, rather than routinely operating in a multi-media framework?
It may be that there are two different answers to that question, depending on whether it is approached from a national or from a local point of view. The national framework may be a reflection of the historical development of the political motivation for environmental protection, at least in the "modern" era. Environmental problems typically energize public demand for action when specific examples of degradation become acute. Severely polluted rivers drive water quality legislation. Smog drives air quality legislation. The focus is on the concrete problem at hand. The idea of addressing the environment as a whole, and of preventing pollution by modifying the production system and consumption patterns as a whole has evolved only slowly from this beginning. With hindsight, at the 30,000 foot level, the media-based system might be seen as an anachronism, a legacy system which will be replaced by a multi-media framework when laws and rules catch up with our more comprehensive understanding.
But even if there is some truth to that viewpoint, and even if the national framework does evolve along those lines over the long term, it may be prudent to keep in mind that the situation might look different from the local perspective. In their roles as environmental service providers, local governments do not always have the luxury of being able to take a holistic approach to regulation. The wastewater treatment plant must deal with what comes through the pipe, the municipal solid waste department must deal with what goes into the landfill, and tradeoffs will remain a secondary consideration to those responsible for each specific function. And a media-specific focus makes sense from the co-implementer's standpoint even beyond the service provider role. In terms of environmental impact on the public, for example, the media act differently. Solid waste (leachate excluded) stays put, its impact is localized, and it makes sense to regulate it on a local level. The impact of water travels further, and is better regulated on a watershed basis (generally involving several local jurisdictions). Air is more mobile still, and district or state regulation is more suitable. Thus, even if the nation's environmental policy were established on a thoroughly multi-media foundation, local implementation would still find media-specific segmentation useful for a number of applications.
The very existence of local government is based on geographic boundaries, so geographic segmentation is axiomatic for co-implementers.
It should be noted, however, that the category is not completely cut and dried. Segmentation can be based on political boundaries, or on natural features such as watersheds or shorelines. Government units with different responsibilities can have overlapping jurisdictions within a common region. Coordination among such units can present challenges.
In addition to natural features, there is another geographically related category that does not always fall neatly into jurisdictional boundaries. A "community" may be loosely defined as a set of people with a common interest. More specifically, as defined in the document EPA's Framework for Community Based Environmental Protection (CBEP), a community for the purposes of environmental protection has "a common interest in protecting an identifiable, shared environment and quality of life." (Of course, there is a sense of community, as in "communities of interest", which can transcend geography entirely, but we will use the word here in its traditional, place-based sense.)
The CBEP framework is relevant to this discussion, in that it explicitly considers the evolution from a single-medium viewpoint to a multi-media, holistic viewpoint as an integral feature of the development path for a community-based program. While the focus of CBEP is complementary to that of the sector approach (in that it is centered on the receiving end of environmental impact, rather than the source end), it shares many of the same characteristics, such as its emphasis on a holistic and collaborative approach, multistakeholder involvement, and shared purpose.
The extent to which a co-implementer deals on a sector basis is largely determined by the size and makeup of the area over which his or her unit has jurisdiction. If each industry sector present in the jurisdiction is represented by only a single company, segmentation by industry sector has limited relevance. In a rural district, a single sector (for example, a specific type of agriculture) may cover most of the economic activity in the district, leaving nothing, properly speaking, to segment. But in general, the larger and more diverse the region, the more a sector segmentation will be useful.
Co-implementers typically deal with facilities on an individual basis every day. They write permits for facilities, inspect facilities, and generally treat facilities as the basic unit to be regulated.
A few regulations are based on process definitions (an example is certain RCRA categorical waste designations). A process-based approach is generally essential when delivering pollution prevention assistance. Another issue which typically requires a process approach is the determination of an appropriate control technology. However, if economic factors are to be taken into consideration, standards which are essentially process based from a technical standpoint may actually be implemented on a sector basis. The Maximum Achievable Control Technology (MACT) standards in air quality regulation are, in fact, applied according to sector.
Many regulations define specific lists of materials which fall under special rules (an example would be the Hazardous Air Pollutant, or HAP list associated with the Clean Air Act). But regulation of one specific material is generally triggered by a particular issue or event. Concerns with specific materials tends to be sporadic. It might be a pesticide this week, lead next week, and mercury the week after.
Co-implementers may have to deal with specific materials if they become the focus of local concern.
Additional observations concerning these alternative approaches are summarized below. Each approach is listed together with rationales or advantages associated with it, characteristic disadvantages, and some consequences for co-implementers.
| Approach | Rationale | Disadvantages | Consequences for Co-implementers |
|
Media |
Legislative basis Similar transport mechanisms |
Cross-media tradeoffs Balkanized responsibility |
National priorities may not reflect local concerns |
|
Geography |
Responsive to localized impact Co-implementers in place Can adjust to local conditions |
Most suitable for solid waste Water can cross boundaries Less relevant to air |
Suitable segmentation for enforcement Less suitable for setting standards (esp. water, air) |
|
Sector |
Similar economics Level playing field Can extend pilot successes Can work with trade organizations |
Processes can cut across sectors |
Provides opportunity to target compliance assistance activities Can work with trade organizations on a local level |
| Facility |
Can target practices Relevant for EMS-centered programs |
Large number of individual cases |
Playing field not level by design -- may have to deal with questions of equitability |
|
Process |
Similar technology and controls Similar impact |
Applicability of alternatives may be sector-dependent |
Can justify developing on-staff technical expertise relevant to local clusters |
|
Material |
Similar toxicology Can target cumulative impact |
Can occur in different forms Can occur in different processes |
May need to impose global issues on local concerns |
This document is an example of an environmental roadmap. In general, a roadmap is a planning tool that specifies desired end points, plots pathways leading to the end points, and lays out the intermediate stages along each pathway. The level of detail falls somewhere between a concept paper and a project plan. Several industry sectors, such as the semiconductor and electronics sectors, issue periodic roadmaps directed mainly toward organizing the technological progress which must fall into place in order to enable specific milestones in product development. Government agencies, such as the Department of Energy, have further developed the roadmapping format for their purposes. Examples include energy conservation and waste reduction roadmaps for the Industries of the Future program, and an Environmental Management roadmap. The latter includes some background material on the development of the roadmapping concept, and is an example of a roadmap directed toward environmental issues.)
A full environmental roadmap for the state and local government sector, given the sheer number of government units and the diversity of their operations and responsibilities, is a formidable undertaking. The objective of this document is to explore a relatively circumscribed piece of that territory. It considers how sector-based environmental protection has fared in the past at the implementation level, synthesizes the observations and suggestions of state and local government co-implementers into a vision of how sector-based programs might evolve in the future, and discusses what paths lead in that direction and what barriers stand in the way.
The body of the document follows a "topographical roadmap" format. We ask four questions:
Answers to the questions were distilled from the input of individuals from a variety of local and state government units, whose daily responsibilities involve the implementation of environmental protection policies. Some comments were submitted by fax or email in response to e-mailed requests for information. Others were provided through telephone conversations, in-person interviews, and meetings. Selected comments are summarized in Appendix B.