The Postmodern Era of Environmental Regulation

This article has been modified from an Editorial by John Toll published in Integrated Environmental Assessment and Management (IEAM) and repurposed with permission.

Four years ago this month, I published an editorial in Integrated Environmental Assessment and Management (IEAM) titled “The Modern Era of Environmental Regulation” (Toll, 2020), a synopsis of the first 50 years of the modern era. It applauded improvements in environmental quality achieved by regulating chemical pollution, but it criticized the environmental regulatory framework and the profession that had developed to serve it. My concern was that environmental regulations provided the motive, means and opportunity to spend too much time and money on relatively minor problems.

That concern hasn't ebbed. I've become both more cynical and more pragmatic. I've come to appreciate the importance of trust. Risk aversion creates mistrust, making smaller problems more difficult to solve than bigger ones. If you find yourself working on a site where the risk or potential risk reduction is relatively low, beware: Such sites can be more difficult to close. Stakeholders often mistrust experts who tell them that a site is not badly polluted, especially if remediation might be a gateway to restoration or redevelopment opportunities.

My pragmatic side recognizes that people, by and large, are rational actors.

If behaviors seem irrational, then we should suspect that we misunderstand what motivates those behaviors. As environmental scientists and engineers, we are trained to collect and analyze data to gradually reveal the truth of a matter. That’s fine up to a point, but the logic breaks down when we buy into the belief that environmental data and their analyses hold the answers to environmental problems. We overvalue data on environmental conditions and undervalue data on human values and motivations. This fundamental misconception leads to misunderstandings, which lead to frustration. Frustration makes us vulnerable to being drawn into what, in my 2020 editorial, I called the “regulatory‐industrial complex.” The “regulatory‐industrial complex” rewards people for enabling and indulging risk aversion because, frankly, fearmongering pays and most of us need paychecks. In the United States alone, we're spending billions of US dollars to remediate (and litigate) contaminated sites, with little evidence that these investments are paying off in reduced risk. Were I to indulge my cynicism, I might say that these expenditures are meant to fund careers rather than mitigate risk.

This problem is on track to get worse before it gets better. Remedial investigations at contaminated sites in the United States generally focus on Toxic and Priority Pollutants. The Toxic Chemicals list is found at 40 Code of Federal Regulations (CFR) Part 401, §401.15 and the Priority Pollutants list is found in Appendix A to 40 CFR Part 423. Both lists specify chemicals regulated in the United States for which we have developed analytical test methods. Note that the Toxic and Priority Pollutants that we study in contaminated site investigations generally do not include contaminants of emerging concern (CECs). CECs comprise chemicals that are widely used (e.g., pharmaceuticals and personal care products) and chemicals that were in widespread use until recently, like polyfluorinated alkyl substances (PFAS). Ling's (2024) recent paper can be seen as support for the “worse before it gets better” assertion. The author reports that “current costs to remove and destroy the total PFAS mass released annually into the environment would likely exceed the global gross domestic product of 106 trillion USD.” Thus, remediation, which is already cost prohibitive, could get a lot more expensive unless we find cheaper, better solutions to pollution problems.

If we set ourselves to the task, could we retool regulations fast enough to make a meaningful contribution to achieving the United Nations’ goals in the next quarter century?

Less emphasis on chemical exposure, and more emphasis on whether and how chemicals affect ecosystem services and function, would be a step in the right direction. Unfortunately, we have installed institutional barriers that make it difficult to change course. I learned this in the 1990s. At the time, I was working on various projects tasked with helping plan 30‐year combined sewer overflow (CSO) control programs. My team conducted technical studies that focused on chemical and pathogen fate and effects. One site stands out in my memory because of the stakeholder involvement process. We met monthly with the stakeholder group throughout the life of the three‐year project. We presented our work, answered questions from stakeholders, and used their advice to guide next steps. At the end of the three years, the stakeholder group wrote the final report for the elected official making the CSO control decision. The report recommended the less expensive of two CSO control programs presented, with one caveat: It wanted the money that wouldn't be spent on more stringent CSO controls to be used on restoration projects in the service area where the CSOs were located. The answer from the official decision maker was that the money was earmarked for remediation and couldn't be used for restoration. In response, the stakeholder group reversed its position and recommended the more expensive program.

At this project site, the less stringent CSO control option would have managed risks from chemical and pathogen exposures just as well as the more stringent option, at a savings of hundreds of millions USD over the 30‐year life of the program. The risk that drove the stakeholder group was caused by habitat degradation, and the associated lost benefits that the ecosystem would provide if restored. Today, after nearly 30 years, the program is nearing completion. The money was spent on CSO controls only. Funds for restoration haven't appeared, at least not on the scale that the stakeholder group envisioned. As a result, restoration hasn't happened, and the benefits to fish, wildlife and people have been lost.

Our habit of defining ecological risk assessment endpoints and justifying remediation decisions in terms of toxic effects on test organisms—not on populations, communities, ecological services or even measures of ecosystem function (e.g., Patrício et al., 2006)—has proved hard to break. This is a good place to revisit my initial argument: that environmental regulations provide the motive, means and opportunity to spend too much time and money on relatively minor problems. In the CSO example, the environmental risks that would have continued under the less stringent, less expensive control option were de minimis, but we spent 30 years and hundreds of millions of dollars fixing them anyway.

Remediation can't eliminate Toxic and Priority Pollutants from the environment, much less CECs, and yet, we keep turning to remediation as the solution to pollution. Therefore, we have a problem not only with pollution but also with incentive. The incentive structure upon which the environmental compliance industry is built is flawed, and fixing it is going to take regulatory reform. Not radical reform, mind you—just sensible reform.

In the United States, the National Contingency Plan (NCP) contains implementation regulations for the Clean Water Act and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The NCP is a good place to begin reform, specifically Subpart E, Hazardous Substance Response, §300.415, Removal Action. Start near the top. §300.415(b)(2) lists the eight factors to be considered in determining the appropriateness of a removal action. The first factor is “actual or potential exposure to nearby human populations, animals, or the food chain from hazardous substances or pollutants or contaminants.” This description sets a very low bar for determining the appropriateness of a removal action. What if the first factor was modified as follows?

• Elevated exposure to nearby human populations at levels associated with measurable population health outcomes (Parrish, 2010).
• Elevated exposure to conventional generic ecological assessment endpoints (C‐GEAEs) or generic ecosystem services endpoints (ES‐GEAEs) at levels associated with impairing clearly understood goals for ecological protection (USEPA, 2016).

Just this simple modification could trigger profound changes in the way we think about pollution problems. It would put pollution on a more even footing with the myriad other problems—and opportunities—that human societies engender. Why? Because it would tie chemical exposure to meaningful impacts that should be the basis for laws and regulations: specifically, measurable population health outcomes and clearly understood goals for ecological protection.

I started by saying that over the course of my career, I’ve become both more cynical and more pragmatic. That doesn’t mean I’ve become any less excited about the opportunities before us. We live in a world ripe with opportunities for improvement. To recognize that fact, one need look no further than the United Nations’ 2030 Agenda for Sustainable Development, with its 17 Sustainable Development Goals (SDGs) (see text box).

I suspect that most IEAM readers identify as environmental toxicologists, chemists or risk assessors, professions that focus on controlling exposures to toxic chemicals. Clearly, that focus is narrower than global sustainability. What might be less clear is that a focus solely or primarily on controlling exposures to toxic chemicals does not necessarily align with the 2030 Agenda for Sustainable Development. Environmental toxicologists, chemists and risk assessors can contribute to achieving the SDGs, particularly SDGs 3 and 6, but unless and until we come to terms with the regulatory deficiencies baked into our professional practices, any progress toward those SDGs will be too expensive and too slow.

By drawing attention and resources away from a sustainability initiative, our professions could arguably contribute to the failure to achieve any semblance of the 2030 Agenda. We are busy working under regulatory mandates that, at best, produce incremental reductions in contaminant concentrations in environmental media. Any gains in ecosystem services are simply fortuitous, because ecosystem services aren’t a factor in remedial decisions. Public health gains might be achieved, but remedies are based on hypothetical exposure assumptions that exaggerate real public health benefits.

At the end of 2024, we’ll be halfway from the turn of the millennium to 2050. So, for a moment, let’s be generous and push back the deadline for achieving something like the 2030 Agenda to 2050. Think about the environmental progress that we’ve made in the quarter century since the year 2000. If we set ourselves to the task, could we retool regulations fast enough to make a meaningful contribution to achieving the United Nations’ goals in the next quarter century? My answer, despite my cynicism, is yes. What would it take? The environmental science professions would have to reorganize. Hazard assessment would be drastically de‐emphasized, except in the product registration and safety domains, which would experience less disruption than pollution control and remediation specialties. Population‐ and community‐level ecological assessment endpoints would become much more central to our analyses. Compensatory mitigation would become a major compliance measure beyond its current use in wetland loss permitting. Engineering With Nature®—a U.S. Army Corps of Engineers (USACE) initiative that seeks to intentionally align natural and engineering processes to efficiently and sustainably deliver economic, environmental and social benefits through collaboration, and other like‐minded initiatives (e.g., https://www.ecoshape.org/en/)—would rapidly spread.

Systems ecology, conservation biology, forestry and other agricultural sciences; multiple branches of economics (e.g., engineering, natural resource, and political economics); geography; social anthropology; applied statistics; decision theory; and other professions would take their places alongside toxicology, chemistry, chemical fate modeling and risk assessment as essential foundations of regulatory and other decision‐making systems, as well as expanding stressors of concern beyond chemical. Truely adaptive management (Walters, 1986), backed by rigorously designed, executed and analyzed field studies, could become routine practice. Failures resulting from well‐designed, vetted experiments could be treated as successes, if properly adapted to. A great many lawyers and policy analysts could find work creating rules and regulations that reward resiliency and innovation, enabling scientists and engineers to experiment with large‐scale, safe‐fail field trials of creative solutions to big problems. Universities and colleges could scale up their offerings and environmental firms would welcome a surge of new professionals into their practices. Professional societies like SETAC could experience membership growth and produce joint programming with allied disciplines.

The changes that our professions would experience if society truly committed to achieving some semblance of the 2030 Agenda by 2050 would be profound and exciting because the work would expand not just in volume but also in meaning and import. The opportunities would be endless. Are we up to the challenge?

Acknowledgment
The author received no funding support and is solely responsible for the work.

Conflict of Interest
The author declares no conflicts of interest.

Author’s contact: [email protected]

References

Ling, A. L. (2024). Estimated scale of costs to remove PFAS from the environment at current emission rates. Science of the Total Environment, 918, 170647.

Parrish, R. G. (2010). Measuring population health outcomes. Preventing Chronic Disease, 7(4), A71.

Patrício, J., Ulanowicz, R., Pardal, M. A., & Marques, J. C. (2006). Ascendency as ecological indicator for environmental quality assessment at the ecosystem level: A case study. Hydrobiologia, 555, 19–30.

Toll, J. (2020). The modern era of environmental regulation. Integrated Environmental Assessment and Management, 16, 807–808. https://setac. onlinelibrary.wiley.com/doi/10.1002/ieam.4330

USEPA. (2016). Generic ecological assessment endpoints (GEAEs) for ecological risk assessment: Second edition with generic ecosystem services endpoints added (EPA/100/F15/005).

Walters, C. (1986). Adaptive management of renewable resources. Macmillan Publishing Company.