The Values Underlying Our Environmental Regulatory System: KEYNOTE PRESENTATIONS

MICHAEL P. LAST: Some may think that the question, "environmental compliance: is the system working?" is intended to be rhetorical. That is not the case. Our objective is to take a hard and honest look at our regulatory structure and evaluate how it works and whether the way in which it works optimizes what the system as a whole is hoping to achieve.

Before we can start answering those questions, we must ask the question: What, in fact, is our environmental regulatory system hoping to achieve? And, even before we reach that question, we must ask, why do we care about the environment in the first place? Why are we hoping to achieve anything at all through our environmental regulatory system? Obviously, that question involves us in normative or value-laden issues as compared with strictly "legal" issues. To address this more normative question are three speakers: Patrick Parenteau, Commissioner with the Vermont Department of Environmental Conservation; David Morell, Vice President, Environmental Affairs, ENSCO Environmental Services, Inc., n1* and John Stokes, Director of The Tracking Project.

PATRICK PARENTEAU: Each of us has his or her own philosophy regarding the value of environmental protection. I have yet to hear anyone say they are opposed to environmental protection. There is, however, always a question as to how we manage so many competing human interests in the occupation of this planet — a planet which events continue to show to be a very small place indeed, and one whose parts are truly linked in every sense of the term.

It is easy to lose sight of what this all means, particularly when we wrap it in such impenetrable language as the acronyms we use to describe the work we do. We have POTWs and SIPs and RCRA permits and NPDES permits. We have N-bars and LUST trusts. For human beings of average intelligence, listening to a group of us talk about what we do probably would leave them wondering whether we are from this earth at all, let alone talking about things like clean air, clean water, beautiful, fecund wetland marshes, and strange creatures who live out their existences without need of any human support, asking only to be left alone to ply their trade, so to speak, in the secret, dark, sometimes damp places of the earth.

These are fundamentally enriching things. I would submit that the third great right of Americans — the right to the pursuit of happiness — embodied in the Constitution, is, at least on one level, what this is all about. Few things in life are as deeply satisfying as the surroundings nature has provided. Those who have taken the time and made the effort to find the wild places that remain, whether they be alpine or desert, wetland or coastal, or secret little nooks and crannies hidden in the urban environments most of us occupy, have been touched by that experience in ways that have left an indelible mark.

As we go through life acquiring possessions, seeking position, trying to be models of behavior or figures to be respected and emulated, there is a strong core in each of us that needs something more satisfying. I think we find that in the natural world. I know that I do, at least. The words of Chief Sealth, displayed on the cover of our conference materials — the simple, elegant statement "The earth does not belong to us, but we belong to the earth" — is about as powerful a statement of an ethic as anyone has yet been able to articulate for some of these deeper, larger, longer-term values that environmental protection is about.

But environmental protection is a self-interest too. It is not simply a pantheistic theory of religion or occupation. There is no question that environmental quality and economic well-being are linked. The kind of sustainable, healthy, broadly distributed economic benefits that we all want to see in society cannot happen in a world that is poisoned — with water supplies that are threatened and contaminated and with air that is unfit to breathe.

These things provoke different responses in different people, and everyone has to sort them out for him or herself. But I believe that most people don't want simply to consume and take from the earth; they want to leave behind something of value. I believe we really would prefer to pass on these resources over which we've been given stewardship responsibility in at least as good quality as we received them.

The challenge is, how do we do that and still provide the widespread economic benefit that everyone deserves and for which everyone has a yearning?

Thinking about value, I cannot help but mention what has happened in Prince William Sound, Alaska. That accident — if, indeed, one can call it an accident — did not just happen in the early morning hours of March 24, 1989, when Captain Hazelwood set sail on the Valdez. That accident began many years ago. It was inevitable. And there will be more. And they will be as catastrophic, there is no question in my mind about that, sad as that may be to comtemplate. It challenges all of us to examine everything that we do each day, as we take our place in American enterprise, to try to determine what we can do that day to prevent another Valdez. Maybe we will succeed, and maybe we will never know whether the part we have played is significant. But clearly, if we are to minimize the risks to this world, we must begin to try, because on some scales, as painful, as stark, as agonizing as it is for anyone who cares about the natural world, the Prince William Sound incident pales in comparison with threats like global warming and ozone depletion. If we are to leave this earth in some form of useful condition for future generations, the lesson of Prince William Sound must be with us tonight and on Monday when we report for work and everyday thereafter. %

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DAVID MORELL: In the context of our topic, "Regulatory Compliance: Is the System Working?" I am reminded of the three little monkeys as a visual metaphor for our compliance system: see no evil, hear no evil, speak no evil.

Is the system working? In one sense, of course not. Absolutely not. The emperor has either very tattered clothing or none at all.

But the system is working in another sense. Incrementally, it is "buying off" political pressures. With the proliferation of environmental statutes, regulations, and standards, what we see is that, each time there is a political upsurge at the state and federal level, we respond. That is exactly what our nation's founders had in mind in building our system of government.

But the response has been a nightmare of one law after the next, with a series of micro-successes and macro-failures. In the past decade or two, we have had numerous individual successes — but successes in a manner reminiscent of a perverse version of the old joke which says, "If you don't know where you are going, any road will get you there."

In the environmental field, and particularly in the toxics and hazardous areas — which have been the focus of most of my energies in the last decade — it seems that "if you don't know where you are going, every road will get you there." Try a little of this, a little of that. See what will work. "If it ain't broke, break it," seems to be the attitude with respect to environmentallaw. At the macro level, what we are seeing is a failure of implementation of truly staggering proportions — from Superfund, which would be better called "Super Failure," to RCRA.

In terms of implementation of the laws, I am reminded of an old story of a hippopotamus that fell in love with a pigeon. To effectuate this rather odd-sized relationship, he sought guidance from a wise old owl (you can think of the wise old owl as your local consultant). He said, "Mr. Owl, I am a big hippopotamus in love with a little pigeon. What am I to do?" The owl thought, and finally said, "There is only one solution: turn yourself into a pigeon." The hippo nodded his head and said, "Thank you very much," and began to walk away. The hippo said to himself, "Gee, that was good advice. Turn myself into a pigeon. But how am I going to do that?" So he wheeled around and went back to the wise old owl and said, "You gave me good advice, but how am I going to do it?" The owl looked at the hippo and said, "Listen, hippo, I make policy. I don't implement it." That is the story of our environmental laws, I am afraid.

If you think of the hazardous waste business in Dickensian terms, we have the the "ghost of hazardous waste past," and that has been the Superfund story. It has been driven politically by Love Canal, and we have, of course, chased our tails unsuccessfully in clean-ups and development of our Superfund program. We then have "the ghost of hazardous waste present," with tens of thousands or hundreds of thousands of generators.

Then we try to deal with "the ghost of hazardous waste still to come." That is waste reduction. We don't deal very well with any of these, and then we move on to the next one.

As recently as November, 1988, the Environmental Protection Agency, working with the fifty states, was busily writing landfill standards. They apparently failed to recognize the land disposal phase-out bans that began in my state of California as early as 1981. Of course, these are not yet implemented. One law after another gets layered into the process.

We do see some "policy learning." SARA is an improvement over CERCLA in terms of both permanent remedies and some of the standards applied. HSWA is a tremendous improvement over RCRA in terms of the land disposal phase-out and hammers and the like. But none of it is being implemented. EPA hands over the store to the states, who delegate some to the locals and wait for the potentially responsible parties to do something, and act as if "We can't process the paperwork in time," which, of course, is true.

We find ourselves increasingly trying to deal with waste treatment. We are going to be shocked in October of 1989 when the Capacity Assurance Plans come in from the states under Section 104 of SARA — just as we were shocked with the Title 3 SARA reports on ongoing emissions of toxic air contaminants where we suddenly saw very large numbers.

We supposedly solve the problem of land disposal by going to treatment. But who is siting the treatment facilities? Nobody. The right answer, in places like California, is YIMBY: "yes, in many backyards." But we are not succeeding, either.

California decided to try waste reduction and soon the state will begin mandating waste reduction. But, what impact does that have on the market for treatment facilities? Will it leave the state dependent longer on the leaky landfills of the past and present?

Again, although we think we can solve the hazardous waste problem through waste reduction, we found ourselves, in 1984 and thereafter, after an episode in Bhopal, India, with the recognition that the issue isn't hazardous waste at all. It is hazardous materials management.

We have underground tanks and above-ground storage of liquids and gases, and we are suddenly beginning to accept the fact that a lot of industry poses a serious threat.

For example, we now have the serious possibility that the Mobil Oil Refinery in Torrance, California will close under political pressure brought on by the risk assessment just performed under a California state law that goes far beyond anything we have yet seen in federal law.

As I look back over the last decade or so of toxics statutes, it seems to me that the values have been to pass enough laws to mollify the system for a while. The values have little to do with safety and security — of people or of frogs. They have little to do with economics, and little to do with law and liability. CERCLA may use strong language, but it seems to make no difference in the way in which people manage their waste. They simply delay.

We have produced inaction. We have produced delay. We have produced super-failure, and that is, in fact, the value. We have reinforced the kind of Madisonian value of factionalism that said, "We are going to build ourselves a gridlock." Nothing is happening. The danger is, we build greater and greater expectations amongst the citizenry about what they'll get from the system. But the system isn't delivering anything.

JOHN STOKES: Let me begin by telling you that I have worked with Australian Aboriginal people who are reputed to be among the greatest trackers in the world. What is tracking? It is tracking animals, lost people, being aware of the world around you.

Working with the Aboriginal people, what I learned chiefly was about values. I learned skills, and I learned things about life that Princeton University didn't teach me. My experience was about native peoples, natural peoples.

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More, it was about learning the difference between talking about something and doing something. Talking about the environment is one thing and living in the environment in a natural way is another. What most of us do is like sitting in a car without the keys and making engine noises. I take people out, give them the keys, put them in the car, and show them how to drive.

I am not skilled in the things that lawyers and bureaucrats know. I am not skilled in environmental law. But I am skilled at living in two worlds. I can live in this world — the "modern world" — and I can also live outside with nothing.

Living in the "natural world," I learned what a person needs as compared to what a person wants. That is where we have to begin — looking at needs. If we address needs first and wants later, we will have a basis for thinking about our environment.

Why do we care about our environment? Because we must. Everything that we use, everything that we need, comes from the earth. This is where we live. Even so, it wouldn't matter if we all passed on. You can look up at the stars and know that there will be more — because things happen in cycles. Yet we have developed a way of thinking that everything is linear; that somehow listening to native people is going backwards; that somehow simplifying our lives or living without some of the creature comforts would be to revert to the past.

Yet there is no way to return to the past. All one can do is remember where one has been and carry that knowledge into the future.

The Aboriginal people call this the "dream time." What is meant by that is not all that mystical. If we determine where we are, based on where we've been, and plot our future with that in mind, that is living in the dream time. The dream time is nothing more than the creative present. We make our world. We see what we believe, and if we want to change our world, we change our belief system. It is that simple.

With this in mind, I would like to address some of our beliefs and assumptions about nature.

At The Tracking Project, we teach children survival skills. We teach tracking, martial arts. We go into the schools. We encourage all the children to be an artist of one sort or another. We have a booming business. We don't even need to advertise what we do because people are so interested.

We also work in Indian communities. We encourage them to hold on to their skills, to the things that, earlier, we had tried to beat out of them when we told them, "Don't speak your language. Don't do your dances. Don't wander to your sacred site any more." Those are the very things that now we need to learn from them.

There is a saying that the last shall be the first. We have relegated the native people to the very bottom, and it is time we brought them up. I am glad Mr. Last, our Program Director, put Chief Sealth's words on the front page of the readings for this gathering — "The earth does not belong to us, but we belong to the earth." Because we are a part of the web. And the most important thing I've learned is that what we do to the natural world, we do to ourselves.

We act like irresponsible children with the environment. As a matter of fact, the worst possible future that I can picture for this country is one in which we continue the present.

I travel widely in my teaching job and I see many different natural areas each year. In Hawaii, I visited the island called Kaho'olawe where the Navy practices bombing. The island was completely bombed out. There were bombs lying around on the ground; shells and cartridges. It is a wasteland. And, as I sat at a Navy briefing, an officer said to me, "Be sure you don't pick any flowers. Don't pick up any sea shells, and don't remove any rocks. This is a national preserve."

I live in New Mexico. In the Gila Wilderness Area, a barbed wire keeps me out of the forest, and it keeps the cows in the creek bed where they foul the water.

We can't continue to sell our national forests or lease them and keep people out of them. We don't belong in boxes thinking about the environment. We belong in it. Unless we show people how to live there, they will always feel cut off from it. If people don't see why a tree is necessary, it doesn't matter if someone cuts it down. It doesn't matter if you build another mall.

I show school groups that a tree provides habitat for animals. The bark of this tree can be used for medicine. Or it can be used for rope. The tree can be used for firewood. That tree makes fire this way. Suddenly, that tree has become meaningful to the children, and they don't want to see anything happen to it.

My friend Jim McMullen wrote a book called Cry of the Panther. McMullen is a Viet Nam veteran. When he returned from the war he wasn't feeling very good about himself. He heard that the Florida panther was disappearing, and he thought it couldn't be true and went to find out. As he walked around in the swamp, he learned that the panther had a far harder life than he had, harder even than he had had in Viet Nam.

He lost his self-pity. And when that happened, he began to feel something for that cat. He realized that he and that cat shared something: that if the cat disappeared, a part of him would disappear as well. So he took all his pain and anger from Viet Nam, and channeled it into saving another species.

I go out with groups of veterans with McMullen. He is a role model to them. If we didn't have the wilderness to go to, I don't know what we would do with some of the people with whom we work.

As you can see from these examples, my work is with grassroots people. I don't have much to do with policy. I am at the receiving end of policy.

When I ask my friends, "Is the system working?" they say, "What system?" What most people in this country see at the grassroots level — the people with whom I work — is that corporations get away with what they can. If they get caught, they say they didn't do it. I know there are people and corporations who don't behave that way, but the reality perceived by most people in this country is a shabby one, that we are being cheated and lied to.

I don't romanticize the native people with whom I have worked. I have lived with them long enough to see that they have all the faults that I have and maybe even some in addition. But I respect them because they have lived in this country and all the countries of this earth for so long, yet they have kept them in a beautiful state. Perhaps some of the megaspecies disappeared over a period of 10,000 or 50,000 years, but this [20 ELR 10526] country was a paradise when the Europeans arrived. Five hundred years ago, you could see clear to the bottom of the Hudson River. The forests went all the way from the Atlantic Ocean to the Mississippi River. They say a squirrel could go all that way through the tree tops. The buffalo was not just in the plains area, it was east of the Mississippi, too.

If I were to trace the history of our people in this country, it would be a sad story of the extermination of species and massacres of native peoples. I see it still going on today. The last dusky seaside sparrow just died in Disneyland, in Florida. Lawrence VanderPost wrote, in his article, "Wilderness: The Way Ahead,"² "What we have done in destroying the wilderness is to destroy wilderness man. In a way, that is the greatest loss of all. This person, the wilderness man, might have been our bridge to knowing wilderness and nature in a way in which it should be known by all who wish to live in it and with it."

The natural people have their faults. But, living in nature, nature kept their faults in proportion. I think what Commissioner Parenteau and David Morell were saying is that our problems have grown out of proportion because we see ourselves as separate from nature.

If a man sits on the limb of a tree and starts sawing on the limb on the side where the trunk is, we all know what is going to happen. That is called the natural law. To the native people with whom I speak, what we are doing to ourselves is insane. Everyone knows you don't poison your own water. You don't dump your waste in the box where you sleep. Yet we continue to do that.

If we were all to spend a little more time in nature — not driving through the wilderness on a bus with someone telling us about it, but walking in it, moving in it, becoming a part of it again — that would help change many of the things that we do in this country.

People come to The Tracking Project to learn how to do that. How do I move through the wilderness with some ease, with some grace? The Hawaiian people with whom I work say that we are born and our parents give us some assumptions about life. Our assumptions are formed, they influence our beliefs, and from our beliefs come our practices.

I see in the people with whom I work, and even in myself before I learned differently, some false assumptions about nature, and I would like to address some of these.

One of the falsest assumptions is that the natural world can be divided into animate and inanimate objects. I don't even know what that means anymore after working with native people. If you re-read Chief Sealth's quote, you will see, everything has a reason. Everything is there for a purpose, and the more we learn, the more we realize that the tiny little bug is what feeds the bird, and the bird feeds something else.

"We are separate from nature" is another false assumption. People see themselves, as human beings, high on a pedestal, as though different from the natural world. And yet natural people say that we have all the natural world inside ourselves. That is why we are special, and why we have such a great responsibility to the world. Animals somehow are perceived as lower in consciousness than humans. But to native people the animals have always been our teachers. People didn't just invent fish spears. They watched the blue heron fishing.

They learned everything from nature. If we take the time and have the patience, if we shed our human arrogance and really look at nature, we can still learn many things.

Another false assumption is that humans can improve upon nature. I think it was Eugene Odum who said, "We will never make a great solar collector because nature has already maximized the use of sunlight. It is called a plant." They do a good job. Better than humans will ever do.

The last false assumption is that it is acceptable to make money by using nature. The term "a buck" comes from the fact that a tanned deerskin used to sell for a dollar. So many of our terms come from this habit of looking at nature as if it were just a buck; from looking at a tree and not seeing it for all the beautiful things it has to offer our human spirit.

This attitude is summed up best in the phrase, 'we are spending our children's inheritance.' The Mohawk people have a saying, "Never make a decision without stopping to think of the implications for the seventh generation of unborn children." Take the time to think what will this mean to the children of the future. Why do we care about the natural world? We care for our children. We care because it is our responsibility.

I love the Constitution of the United States. But my education has taught me that we are not born with so many rights. We are born with responsibilities. It has always bothered me that when you see something wrong in the system, it is hard to find the responsible party. Well, we are responsible.

I hope that the people who speak for the environment spend some more time in the environment. Because you are speaking for a constituency, and I think it is important that you visit your constituents. You have got to get out there and feel it. You have to see it.

I would like to see new policies forced to undergo an "ecological audit" before taking effect. This is our house. We live here on earth. This is not an abstract question. Our house is on fire — let's put it out. We don't need a government study to tell us the facts. This is all very real.

n1* Now President, EPICS International, Oakland, California.

2. Excerpted from The Utne Reader, Feb./Mar. 1985; originally published by the Findhorn Press and the Lorian Press.