The Changing Environmental Management Scene: Federal Policy Impacts the Private and Public Sectors

John Voorhees¹

The U.S. Environmental Protection Agency (EPA) appears to be genuinely interested in promoting the development of environmental management systems (EMSs) for businesses, municipalities, universities and colleges, and other nongovernmental organizations (NGOs). In November 2000, EPA issued an EMS Action Plan that contains strong advocacy and credible new program initiatives to encourage the use of EMSs to reduce environmental impacts and to improve environmental performance. EPA continues to advocate that businesses implement EMSs for compliance and enforcement purposes, but the EMS Action Plan—the most extensive policy guidance issued to date on the subject—suggests that EMSs can be used for a wider range of applications. Together with President Clinton's "Greening the Government Through Leadership in Environmental Management" Executive Order,² which mandates EMSs for federal agencies, these policy initiatives may cause a rapid expansion in the use of EMSs and facilitate new multidisciplinary approaches for a much larger group of organizations.

An EMS is a tool that converts ordinary thinking about the daily affairs of a business enterprise or organization into a systems approach designed to reduce environmental impacts and improve the environment in which we live. An EMS is no longer simply a means by which heavy industry can achieve environmental compliance and avoid sanctions for noncompliance. Innovations are occurring in how EMSs are designed and implemented that are reshaping how we think about the interaction between human behavior and the environment. EMSs are being used by a new group of organizations. Municipalities, universities and colleges, service firms, and other NGOs have begun considering the application of a systems approach to achieve superior environmental performance. A trend is emerging in which these and other proactive organizations are implementing systems, not because of fear or apprehension of federal criminal prosecution, although this is clearly possible,³ but rather because it makes sense financially, socially, and morally to undertake "a systems approach" to improve environmental performance.

Cities, schools, and federal government agencies are beginning to use EMSs to track their overall environmental performance and limit their impacts. Communities, students and faculty, and government employees are using these systems to learn how to reduce their individual and collective impacts. These organizations are setting examples and demonstrating how to achieve impressive quantifiable results. When the rest of us get the message, some lasting environmental improvements will occur.

The Evolution of EPA's EMS Policy

For years, EPA has used command-and-control enforcement tactics to enforce regulatory policies and punish organizations' and individuals' noncompliance with environmental law. EPA has always had difficulty in harmonizing its stringent enforcement policy (100% compliance, 100% of the time) with encouraging nonoffending businesses to step up their environmental performance. Well-intentioned EPA reinvention programs such as Project XL, the Common Sense Initiative, Environmental Leadership, and others have struggled to attain worthwhile goals because of the reluctance of many members of the regulated industry to volunteer to work with, rather than against, the government to achieve superior environmental results.⁴ One reason for skepticism is that these programs were preceded by enforcement guidances such as EPA's audit policy that were met [31 ELR 10080] with well-publicized hostility.⁵ Critics have argued that audits and self-disclosure of environmental noncompliance is an open invitation for companies to be treated harshly in return for meager penalty mitigation.⁶ The U.S. Department of Justice's (DOJ's) internal memorandum in the subject of self-disclosure of environmental crime, and EPA's guidance regarding the investigation of the "ever-expanding universe of environmental crime," hardly assuaged these fears.⁷

One of the fundamental problems has been the government's inability to articulate a sound environmental policy that advances strict enforcement goals and advocates reducing regulated and nonregulated environmental impacts by industry. The two concepts are interdependent but are frequently confused and misjoined in policy statements. Enforcement is strictly a government function to assure compliance with environmental laws, to prosecute and punish environmental violators, and to deter future violations. The government must maintain a strong environmental enforcement program and simultaneously take initiatives to encourage companies to go "beyond compliance." When EPA included EMSs in its enforcement policy dialogue, many companies became confused and assumed that EMSs are simply mechanisms to prevent or detect violations of law,⁸ without realizing the beneficial consequences of moving beyond compliance. Indeed, the term "beyond compliance" is confusing because it conjures up legalistic formalities and restraints that most business people do not understand, without concrete examples. Many members of the business community experienced frustration with the term because it was so difficult to achieve a perfect compliance record in order to set the stage for moving "beyond compliance."

While EPA struggled to create a coherent policy regarding EMSs, the United States lagged behind a large number of developed countries whose companies and other organizations have adopted EMSs for sound socioeconomic as opposed to compliance purposes. Most companies in this country that adopt an EMS continue to be motivated by compliance concerns or are required to implement such systems to settle enforcement cases.⁹ Outside the United States, however, the vast majority of the companies and other organizations that implement EMSs do so to achieve environmental excellence for social, economic, and moral reasons. Because there are so many reasons to develop effective programs, avoiding potential punishment is arguably of limited significance, except in the United States.

Now, finally, the recent EMS Action Plan suggests that EPA is developing an EMS policy whose goal is to persuade businesses and other organizations, including federal, state and municipal governments, that an EMS can be used for a multitude of reasons that actually benefit the environment rather than to merely keep business owners and responsible corporate officers out of jail.¹⁰

The Latest EMS Trend for Government, Municipalities, Universities and Colleges, and Service Firms

This Article explores the evolution of EPA's EMS policy and summarizes how the new EMS Action Plan and the "Greening the Government" Executive Order are changing the EMS landscape. By adopting EMSs to advance the goal of agencies in improving their pollution prevention, the federal government is now sending a strong message to government agencies that an EMS will improve environmental performance. It appears that the emphasis behind these policies is more on pollution prevention than compliance assurance for the simple reason that government entities are rarely the subject of environmental enforcement actions. While EPA occasionally investigates government officials who may have exceeded their authority or violated federal environmental [31 ELR 10081] laws, the new policies are focused on proactive steps for the government to achieve environmental excellence rather than mechanisms to detect and prevent violations of law. This Article will focus on a few federal agencies that have chosen to control their impacts and improve environmental performance by adopting an EMS. These agencies became interested in the systems approach long before President Clinton's executive order.

This Article contains a discussion of how the federal government's policy is creating a ripple effect beyond federal boundaries by encouraging new uses of EMSs for municipalities, universities and colleges, and service firms that traditionally have not been the subject of criminal environmental enforcement actions. A federal pilot program has enabled municipalities to create EMSs, not merely to avoid environmental violations and potential criminal sanctions, but rather to achieve superior environmental performance that results in quantifiable benefits to their citizens. This Article reviews how some mayors, city councils, and community leaders are taking advantage of this program and learning how EMSs can be strategically used to reduce a wide range of environmental impacts close to home.

In addition to the developments on the municipal level, this Article will discuss how progressive universities and colleges are implementing EMSs to set examples for their students and their host communities on how to become responsible stewards of the environment. As learning centers and repositories of environmental data they can develop academic, research, and facilities programs to advance information and technology exchange regarding EMSs. Businesses are teaming up with educational institutions to learn how to reduce their environmental impacts. Moreover, schools are linking with their host communities to discover new ways to achieve environmental excellence.

Finally, an entirely new group of businesses, service firms—whose environmental impacts have largely been overlooked because they are unregulated by EPA and state environmental agencies—are developing EMSs primarily for competitive but also for pollution prevention purposes. A sound EMS can address their limited impacts, improve their environmental performance, and provide market advantage by increasing the bottom line.

History of EPA's Interest in EMSs

The concept of internal corporate compliance systems that reduce civil and criminal liability exposures has been around for some time. Such systems received particular attention on November 1, 1991, when the U.S. Sentencing Commission promulgated sentencing guidelines for organizations. The guidelines provided for penalty mitigation if at the time the offense occurred the organization had implemented an "effective program to prevent and detect violations of law."¹¹ In the aftermath of the issuance of the guidelines, many companies created compliance systems that were designed to prevent their employees from violating any laws that were relevant to their operation. Businesses tailored their programs to address recurring compliance problems.¹²

At business and legal conferences, and industry meetings in the early 1990s, representatives of the public and private sector began to discuss the application of the new sentencing guidelines to corporations for environmental offenses.¹³ This was largely in response to the federal government's frequent warnings that it would vigorously prosecute environmental crimes and jail white collar violators. Many lawyers and environmental consultants responded by advocating the use of internal audits and other management controls to keep organizations from unintentionally violating complicated environmental laws and regulations and suffering harsh criminal punishment. Early forms of EMSs were in reality simply subcomponents of internal compliance systems. They were used strictly to monitor ongoing operations, and served as early warning devices for environmental noncompliance.¹⁴

By the mid-1990s the concept of a stand-alone EMS [31 ELR 10082] emerged after organizations such as the Coalition for Environmentally Responsible Economies (CERES), the International Chamber of Commerce, the Global Environmental Management Initiative (GEMI) and the International Organization for Standardization (ISO) created voluntary principles or standards for organizations to achieve laudatory environmental goals and objectives. These organizations and others caused interest in EMSs to grow. In these formative years, EPA was careful not to endorse any particular organization or standard, but rather advocated the adoption of EMSs for businesses to achieve and maintain compliance.

EPA and EMS Policy

EPA's interest in environmental management began in 1993, when it joined the U.S. Technical Advisory Group (TAG), which was charged with developing the official U.S. positions on ISO 14001. EPA's Office of Water (OW) assumed the lead for coordinating and expressing the Agency's positions on ISO 14001.

In May 1995, before the final ISO 14000 standards were completed, EPA's Office of Pollution Prevention and Toxics issued an EPA Standards Network Fact Sheet entitled ISO 14000: International Environmental Management Standards. The fact sheet described the process ISO was then going through in developing a series of voluntary standards and guideline reference documents on topics including EMSs, eco-labeling, environmental auditing, life-cycle assessment, environmental performance evaluation, and environmental aspects in product standards.¹⁵ EPA stated, "the focus on 'management' distinguishes these standards from 'performance' standards. An EMS helps an organization to establish and meet its own policy goals through objectives and targets, organizational structures and accountability, management controls and review functions all with top management oversight."¹⁶ "The Environmental Management Systems specification document calls for environmental policies which include a commitment to both compliance with environmental laws and prevention of pollution."¹⁷ Thus, at this early date, EPA realized that an EMS could serve multiple purposes. Instead of advocating the use of EMSs strictly for pollution prevention purposes, however, the regulators mixed the message with a heavy dose of compliance warnings, with the effect of delaying the private sector's interest in using EMSs except to prevent and detect violations.

The Code of Environmental Management Principles

At the same time, EPA was actively engaged in the development and implementation of environmental management standards for the federal government. On October 16, 1996, EPA published the Code of Environmental Management Principles (CEMP),¹⁸ which focused on compliance assurance prevention. The CEMP required each agency to make a top-management commitment to improved environmental performance by establishing policies that emphasize pollution prevention and the need to ensure compliance with environmental regulations; to implement proactive programs that aggressively identify and address potential compliance problem areas and utilize pollution prevention approaches to correct deficiencies and improve environmental performance; to develop and implement necessary measures to enable personnel to perform their functions consistent with regulatory requirements, agency environmental policies and overall mission; to develop measures to address employee environmental performance and ensure full accountability of environmental expenditures; and to develop and implement a program to assess progress toward meeting environmental goals, using the results to continually improve environmental performance.¹⁹

The CEMP motivated a few federal agencies to adopt a management system approach to control their environmental impacts. Some agreed to use the ISO 14001 standards as a model for their EMSs. A few case studies will be summarized hereinbelow.

EPA's First ISO 14000 Proposal for Using Voluntary EMSs

On January 14, 1997, Michael B. Cook, Director of the Office of Wastewater Management of EPA's OW, issued a proposal for funding from EPA to support the use of ISO 14001 voluntary EMSs in water pollution programs administered by the states.²⁰ The water systems proposal was intended to support long-term integration of EMSs into the ongoing operations of EPA's water and wastewater program, which is jointly administered by EPA and states.²¹ By early 1997, the OW had already sponsored a number of projects designed to educate states on the ISO 14000 standard and encourage use of it for their small and medium sized water systems.²²

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EMS Demonstration Project

Later in 1997, EPA announced an EMS demonstration project for municipalities and counties.²³ This project was designed to allow municipal governments to experiment with EMSs to ascertain how they might impact their regulatory programs.²⁴ Nine communities and subunits of municipal government were selected to participate in this program.

The Commission for Environmental Cooperation Council

On June 12, 1997, the Commission for Environmental Cooperation Council, which included representation from the United States, Canada, and Mexico, issued a joint resolution requiring "future cooperation regarding environmental management systems and compliance."²⁵ The council reiterated its strict nonendorsement of EMSs:

Voluntary compliance programs and initiatives developed by governments can supplement strong and effective enforcement of environmental laws and regulations, can encourage mutual trust between regulated entities and governments, and can facilitate the achievement of common environmental protection goals. Private voluntary efforts, such as adoption of [EMSs] such as those based on [ISO] 14001, may also foster improved environmental compliance and sound environmental management and performance. ISO 14001 is not, however, a performance standard. Adoption of an EMS pursuant to ISO 14001 does not constitute or guarantee compliance with legal requirements and will not in any way prevent the governments from taking enforcement actions when appropriate.²⁶

The council nevertheless created a working group to explore the relationship between the ISO 14000 series and other voluntary EMS programs and opportunities to develop and exchange information between governments on the role and effect of EMS on compliance and environmental performance.²⁷

In October 1997, EPA published a comprehensive resource directory for those persons and organizations interested in learning more about ISO 14000.²⁸

Coordination of EPA Programs Involving EMSs

On December 16, 1997, EPA Deputy Administrator Fred Hansen directed the Office of Policy and Reinvention (OPR) "to take lead responsibility for policy coordination of all EMS pilots, programs, and communications."²⁹ Hansen requested the OPR to publish the Agency's position and strategy regarding EMSs; develop a plan showing how EMS activities are consistent with EPA's position and strategy; and develop an EPA/state plan for the joint collection, management, and analysis of data being developed to test whether EMSs lead to improved performance.³⁰

EPA's First EMS Position Statement

On March 6, 1998, EPA's OPR issued a position statement noting that it encouraged the use of EMSs but would not offer regulatory incentives solely for ISO 14001 certification.³¹ This mixed message understandably left a number of business leaders wondering whether it was worth the expense to develop an EMS for regulatory purposes. In the same position paper, EPA announced that it was working in partnership with a number of states through the Multi-State Working Group (MSWG) in exploring the utility of EMSs in public policy innovations. Here, the emphasis was placed on the possibility that EMSs might make environmental improvements. EPA and the MSWG decided to create a common database and a series of data protocols for information on EMSs. From the perspective of the regulators, the following information would be useful to be collected from facilities:

Environmental performance information on "the types, amounts, and properties of pollutants that are released to the air, surface water, groundwater, or the land [and] information relating to recycling, reuse, and energy requirements…."³²

Compliance information regarding "the recent history of regulatory violations; the number and seriousness of the violations; how quickly violations were discovered and corrected; and the measurements of any changes in regulatory compliance status."³³

Pollution prevention information "including a description of the type of pollution prevention and source reduction techniques used, including good operating practices, inventory control, spill and leak prevention, raw material modification/substitution, process modification, and product reformulation or redesign."³⁴

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Environmental conditions information on the status of the ambient environment surrounding the facility prior to the implementation of the EMS to "assist all parties in determining the sustainability of certain human activities from an environmental, economic and social perspective."³⁵

Cost/benefit information associated with the implementation of an EMS to illustrate "possible net financial benefits that might accompany improved compliance and increased environmental performance, or that might result from being able to achieve compliance in less costly ways."³⁶

Stakeholder participation and confidence information regarding how community participation in the development of an EMS may increase environmental protection and performance, and protect human health.³⁷

A year and a half later, EPA refined its position on EMSs and began to take a more proactive approach that encouraged the use of EMS for environmental "excellence."

Aiming for Excellence: Report of the EPA Innovations Task Force

In July 1999, EPA's Innovations Task Force released a report entitled Aiming for Excellence: Actions to Encourage Stewardship and Accelerate Environmental Progress.³⁸ The report specified that EPA would "encourage organizationsto use EMSs that improve compliance, pollution prevention, and other measures of environmental performance. We'll continue evaluation efforts to learn more about which EMS elements and applications are most effective, and we'll determine how these systems might be used to strengthen environmental programs and policies."³⁹

EPA's Innovative Approaches to Enforcement and Compliance Assurance

In September 1999, EPA's Office of Enforcement and Compliance Assurance issued a report entitled Innovative Approaches to Enforcement and Compliance Assurance; Action Plan for Innovation (Innovative Approaches Report).⁴⁰ While the report covered a number of different areas,⁴¹ with regard to EMSs the Agency agreed to endorse

the use of well-designed EMSs that focus on improved compliance, environmental performance, and pollution prevention. These systems provide a framework for organizations and communities to more effectively manage their environmental obligations, including those required to comply with applicable statutes and regulations. In addition, these systems can be useful for moving beyond compliance, improving overall environmental performance, and making greater use of pollution prevention approaches. From a business standpoint, EMSs can help organizations meet their environmental obligations more efficiently, and, therefore, maintain their competitive position in various markets.⁴²

EPA decided that six months after the issuance of the Innovative Approaches Report it would support the development of a strategy by the OPR "to increase EMS use in targeted sectors … and support the development of tools by OPR that encourage improved environmental performance, such as training, information gathering, 'best practices' manuals, and short-term and long-term measures of environmental performance."⁴³ It also agreed to encourage companies that already excel to continue to improve their environmental performance and noted that EPA would develop a performance track program to reward companies with incentives for this improving performance.⁴⁴ To qualify for this program, "top performers" would take such extra steps as "(1) implementing a well designed EMS; (2) involving the community in decision-making; and (3) reporting to the public about their environmental performance."⁴⁵

National Performance Track Program and Awards

Several months after the issuance of the Innovative Approaches Report, Administrator Carol M. Browner announced the development of a National Environmental Performance Track Program and Awards "to motivate and reward top environmental performance at facilities owned by businesses and governments."⁴⁶ The Performance Track Program has two tracks:

The first level, the Environmental Achievement Track, is designed for facilities that are able to demonstrate that they have achieved and would continue to achieve levels of performance that are better than compliance …. The second, Environmental Stewardship Track, will be designed for facilities or companies that have met a consistently higher level of environmental performance and leadership.⁴⁷

The core elements of the program will

motivate and recognize facilities that go "beyond compliance";

encourage facilities of all sizes to participate;

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distinguish at least two levels of performance for which facilities may qualify;

recognize facilities that use EMSs and measures to systematically track their environmental efforts to improve their performance over time;

offer incentives that are proportional to levels of performance, including recognition; administrative streamlining; and flexibility in reporting, monitoring, and permitting;

provide information to the public on the environmental performance of participating facilities;

strongly encourage candidates for the higher track to attain significant, measurable environmental performance and resource efficiency; and

align as closely as possible with existing state programs.⁴⁸

EPA's EMS Action Plan

The above-referenced policy declarations and program initiatives were a prelude to EPA's EMS Action Plan, which was released for public comment on December 20, 1999, and finalized in November 2000. The Action Plan contains 3 goals and 11 elements to improve the environmental and economic performances of a wide range of organizations, including the federal government, universities and colleges, and municipalities.⁴⁹ The Agency signaled that it will step up its use of EMSs to achieve specific environmental protection goals, and reaffirmed its commitment to evaluate the potential of EMSs to bring about major changes in public policy.⁵⁰ EPA anticipated that it will carry out the Action Plan in collaboration with state and local governments, other federal agencies, academia, industry, and other NGOs.⁵¹

Goal I: Promote Wider Adoption of EMSs Across a Range of Organizations and Settings

Element 1: Develop Tools and Other Resources to Support EMS Implementation

EPA will develop tools to encourage the broader use of EMSs and for general support to those companies who seek to implement EMSs.⁵² The tools, including training programs, best practices manuals, and compliance and pollution prevention modules, will be available for large and small organizations to employ.⁵³ EPA also plans to establish an EMS Resource Center, which will be a single dissemination point for these tools and resources, as well as "service" centers located at academic institutions.⁵⁴

Element 2: Strengthen and Expand EMS Assistance Networks to Assist Small Organizations in EMS Implementation

EPA and the National Environmental Education and Training Foundation are working together to design a series of workshops for EMS assistance providers. The workshops are focused on "facilitating and improving assistance to small and medium-sized industries, municipalities, and non-profit organizations with the EMS implementation."⁵⁵ EPA is also exploring the development of EMS "service centers" at colleges and universities to "provide training and other educational opportunities to organizations interested in adopting EMSs. The focus would be on governments and small businesses. Training could be provided both on-site and through distance learning approaches, and could be augmented by mentoring from organizations that have actually developed EMSs."⁵⁶

Element 3: Provide Recognition and Incentives to Organizations With Effective EMSs

EPA will continue to incorporate EMSs into current leadership programs such as StarTrack, the Region I leadership program, and the National Environmental Leadership Program (NELP), and will consider how best to utilize EMSs in any future leadership programs.⁵⁷

Element 4: Incorporate EMS Elements Into Sector-and Geographic-Based Programs

EPA plans to work with select sectors to develop EMS tools that are tailored to specific industrial sectors. Through its OW and its Office of Compliance, EPA has been developing a pilot program to demonstrate EMS implementation in municipalities and supporting EMS efforts in the metal finishing and the biosolids management industries.⁵⁸ These projects emphasize pollution prevention, regulatory compliance [31 ELR 10086] and overall environmental performance, including areas that are not subject to regulation.⁵⁹

Goal 2: Provide Excellence in the Practice of EMSs

Element 5: Establish a Core EMS Coordinating Function and Support Team Within EPA

EPA has decided to appoint a single office within the Agency to be responsible for overseeing the implementation of the EMS Action Plan. EPA will use its program offices and regions to actually work on the development of EMS programs within the Agency. A cross-agency senior staff policy group will meet on a regular basis and discuss EMS policy and coordination issues. The lead office will be responsible for establishing an EMS practice forum and a cross-agency EMS support network that will provide assistance to new EMS programs within the Agency. The purpose of the forum is for those individuals with experience in the application of EMSs to discuss and share lessons learned in their work.⁶⁰ EPA has also decided to encourage the discussion and exploration of policy options within and outside the Agency; develop written analyses; sponsor public and private discussions; and participate in forums such as the MSWG and the Commission on Environmental Cooperation Council.

Element 6: Support EMS Implementation at EPA and Other Federal Agency Facilities

EPA will work closely with other federal agencies and government departments that are taking a leadership role in EMS or are interested in learning more about EMSs. EPA will support the implementation of an executive order entitled "Greening the Government Through Leadership in Environmental Management" and the CEMP for federal agencies issued by EPA pursuant to Executive Order No. 12856. EPA will also develop an internal EMS training and awareness program to increase general awareness regarding the benefits of EMSs and to ensure that there are sufficient numbers of individuals with the requisite skills in the various applications of EMSs within the Agency.⁶¹

Element 7: Conduct Research and Evaluation of EPA's EMS Programs

EPA will work in partnership with the MSWG, the University of North Carolina, and the Environmental Law Institute to create a national database on many different EMS indicators from approximately 80-100 facilities.⁶² These facilities will include those chosen from state and federal pilot programs and a group of "control" facilities that have chosen not to participate in an EMS program. The national database will be publicly available and will assist EPA in understanding the effects of EMS implementation on environmental and economic performance.⁶³ The results of research will be used to determine the potential public policy applications of EMSs. EPA will work with the National Academy of Public Administration to analyze the ISO 14001 registration practices in the United States and recommend policy changes based upon this analysis.

Element 8: Establish and Maintain an Active EMS Outreach and Engagement Program

EPA will sponsor outreach events that promote effective EMSs and foster a dialogue on EMSs and their potential public policy applications.⁶⁴ The Agency will target these events to specific geographical regions or industry sectors. EPA already participates in the ISO process for the current and subsequent revisions of ISO 14000. The National Technology Transfer and Advancement Act directs federal agencies, including EPA, to consider the use of national and international voluntary consensus standards such as the ISO 14001 standard for EMSs. For these reasons, EPA has agreed to

continue to sponsor national workshops, conferences or other outreach events to discuss the benefits of EMSs and to provide a constructive forum for discussing relevant public policy issues;

promote agency views on ISO 14001 in U.S. and international fora;

increase [EPA's] understanding of national and international EMS registration/accreditation systems and seek to influence changes in such systems that are advantageous, consistent with Agency guidelines for participation in voluntary standards activities;

advance EPA views in U.S. TAG meetings on ISO 14001 revisions; and

support and encourage NGO and other stakeholder participation in EMS dialogues and other venues such as U.S. TAG meetings, the MSWG on EMSs, and the development of EPA programs and policies.⁶⁵

EPA is especially interested in how EMSs are being developed internationally and is evaluating innovative EMS applications and policies that have been developed and tested abroad. It will collaborate on development and assessment of tools and other resources to support EMS implementation; conduct joint pilot projects; encourage international parties to engage in research and evaluation efforts; and share EPA perspectives internationally on elements of an effective EMS. EPA also has responsibility to coordinate international trade and the environment strategy through its [31 ELR 10087] Trade and Environment Standing Committee to ensure consistency with international trade obligations.⁶⁶

Goal 3: Fuller Integration of EMSs Into Agency Programs and Activities

Element 9: Incorporate EMS Priorities Into EPA's Planning and Budgeting

EPA is asking each office and its regional offices to commit to specific activities involving EMSs and provide associated resources to implement the Action Plan.

Element 10: Integrate EMSs Into Compliance Assurance and Enforcement Activities

EPA is seeking to integrate some of the elements of EMSs that promote compliance into the civil inspection/auditing/compliance assistance programs and casework enforcement initiatives.⁶⁷ Here, the goal of the plan is to increase the number of entities that voluntarily discover, report, and subsequently correct violations using EMSs. Among other things, the Agency is refining and enhancing the compliance portion of the multimedia inspection course and publicizing the availability of EPA's Audit and Small Business Policies to regulated entities.

Element 11: Incorporate EMSs Into Pollution Prevention Programs

EPA believes that EMSs "play a major role in many of EPA's pollution prevention programs because of their capacity to identify environmental improvement opportunities that exist outside traditional regulatory compliance. These opportunities include improving energy and resource efficiency, addressing product stewardship responsibilities, and managing unregulated chemicals."⁶⁸

Summary of Comments Regarding the Action Plan

EPA circulated the draft Action Plan informally at conferences and through other means to companies, educational institutions, state governments, environmental consulting firms, federal agencies, and others.⁶⁹ Commentators were generally favorable regarding the scope and content of the plan. One representative of the federal government stated that the "draft plan identifies numerous ambitious objectives regarding implementing EMSs in all facets of federal agencies/facilities and numerous outreach initiatives." This commentator questioned whether EPA had the resources to make it work. Additionally, she asked: "Given the mood of Congress, where will the funding come from? Will this be a re-prioritization of existing funds or will there be additional funding? What is the true level of support for this initiative? Is this window dressing or commitment?" Another commentator urged that the government commit sufficient resources and full-time federal employees into the proposed programs in order to make them succeed.

A representative from a Fortune 500 company stated that EPA's plan to promote EMSs did not appear to present either a benefit to or a burden upon his company. This commentator said he would, however, have "serious concerns" if EPA "planned to start dictating" how his company implemented its EMS. He stressed that there are benefits to the government in promoting EMSs for government agencies and for small and medium sized companies that cannot otherwise afford the staff to develop such systems; however, such systems must be tailored to the site and complexity of the company, otherwise an overly burdensome system will result, which "will turn off a smaller company."

Another commentator stated that EPA should form an EMS Advisory Council made up of stakeholders who would meet quarterly and offer input, review, criticism, and alternate thinking to build up external support for EPA's efforts. In this vein, the commentator said EPA should consider a national award for EMS excellence and make awards to individuals, groups, and companies—both public and private—stressing innovativeness and continual improvement. EPA should also consider funding grants to small and medium sized companies for implementing EMSs with the condition that companies which successfully implement systems should be required to "talk about their experience with others and be willing to share their ongoing learning with EPA staff, i.e., being a member of their team." This commentator also said that EPA should promote interaction with industry "in a shared learning environment."

Another commentator was interested in identifying the target audiences for the EMS best practice tools. This commentator wanted EPA to show some concrete examples of how EMSs would be useful to core agency programs and activities such as permitting and how their use might create opportunities for a wider nongovernmental audience to develop their own EMS programs. EPA should consider developing an internal core regulatory program certified to ISO 14000, as well as "generic sector-based EMSs" to move those sectors beyond compliance.

An environmental consulting group agreed that EPA should make implementation of EMSs at appropriate EPA facilities a key priority, stressing that by doing so "EPA will be implementing what it is encouraging others to implement, which will give a great deal of credibility to its outreach efforts." Likewise, "EPA personnel will develop firsthand experience at EMS implementation, which will make the agency much more effective at providing guidance to other federal agencies." This group also stated that EPA [31 ELR 10088] should focus more attention on small and medium sized enterprises and build demand for EMSs. "In the United States there exists relatively weak recognition of the cost savings and market advantages of EMSs. Demand can be generated by providing public recognition, encouraging the use of EMSs for supply chain environmental management, or describing the business benefits of EMSs."

Finally, an employee of a state environmental agency wrote that her state strongly supports the goals of the EMS Action Plan. She said that her state was interested in the development and sharing of EMS tools, such as the creation of EPA's "practitioners' forum" and in information such as the potential effects of EMSs on both compliance and environmental performance. Her state has pockets of expertise regarding EMSs but seeks to train key enforcement personnel in the appropriate use of EMSs in enforcement negotiations. She also said that her state will be developing an EMS for the state's Environmental Laboratory and hopes to work closely with EPA to support that effort. She stated that her department wanted to incorporate EMS into both sector-based and geographic-based programs. Finally, she suggested that EPA consider EMS models that are similar to, but not limited to, an ISO EMS. One possibility would be an EMS framework for state agencies that would meet their environmental needs.

Analysis of EPA's Action Plan

There are several immediate benefits that may be achieved based upon the adoption and implementation of the EMS Action Plan. In the short term, EPA will receive data regarding the costs of EMSs, savings generated, and whether EMS programs actually improve environmental performance.⁷⁰ Careful analysis of this data once it is validated should improve EPA's understanding of the multiple reasons organizations should adopt systems. This analysis could improve policy development. Certainly, the credibility of the data and its ultimate use will make a difference in how many other public- and private-sector organizations decide to adopt EMSs.⁷¹

It has been suggested that "proactive environmental management that results from implementation of an EMS in connection with ISO 14001 certification can lead to more cooperative relationships between businesses and government regulators."⁷² The Action Plan contains four elements that will produce information from businesses' EMSs that can be catalogued by the Agency.⁷³ But EPA is also interested in developing EMSs for its internal operations and programs.⁷⁴ As these internal EMSs mature and the Agency learns which economic and environmental benefits are derived from such systems, regulators may have a greater understanding of the impact of EMSs on business operations, the result being better regulations, policy initiatives, and regulatory programs.

EPA has recently created an Office of Environmental Information, which offers a significant opportunity to build an "information infrastructure" on EMSs.⁷⁵ Internal EMS data as well as information from other sources collected as a result of the Action Plan can be used as a resource for other organizations, such as businesses and local governments, to make determinations whether EMSs would improve their environmental performance. This information may also lead EPA to conclude that it should expand its advocacy and promotion of EMSs.⁷⁶

Many federal agencies have had difficulty translating the CEMP policy initiatives into specific programs for their organizations to reduce their environmental impacts and improve performance. It appears that the Action Plan is designed in part to encourage and assist the federal agencies in transcending these problems and in learning how to create EMSs for their multiple facilities.⁷⁷ On the municipal level, cities and towns have been unable to envision EMSs as economically feasible and adaptable to numerous departmental units. Until recently, few local officials have realized that a successful implementation of an EMS can result in cost savings and set an example for their constituents to reduce their individual and collective impacts. Municipal EMSs can, for example, result in citizens moving "beyond recycling" and contribute to the improvement of urban and rural quality of life. EPA is envisioning that lessons learned from municipal EMS programs, publicized as a result of its Action Plan, will cause more local governments to adopt such systems.⁷⁸

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Universities and colleges, similarly, are only beginning to realize how EMSs can be used to save resources, including money, harness existing academic and facilities management expertise, and serve as environmental management technology exchange centers. Data from EPA, coupled with robust public and private discussion of successful EMS programs, could have beneficial impacts on these and other organizations' understanding of how they can achieve environmental excellence using a systems approach.⁷⁹

The Action Plan recognizes that while some data will be developed internally by designing EMSs for the Agency, other information will come from outside organizations, international sources and registration practices, and other governmental participants. Perhaps in the long term, the largest amount of data will come from the government itself, because at the same time EPA is implementing the Action Plan, federal agencies will be implementing the recent "Greening the Government" Executive Order by developing EMSs to reduce their environmental impacts. The time frame for the implementation of EMSs at federal facilities stretches out over the next several years. In any event, the government during this process will be acquiring significant information on how systems can reduce environmental impacts. Accordingly, the Executive Order bears close inspection as part of the trend to create and implement EMSs in the public sector.

Greening the Government Through Leadership in Environmental Management

Executive Order No. 13148

On April 21, 2000, President Clinton signed Executive Order No. 13148, "Greening the Government Through Leadership in Environmental Management."⁸⁰ This Executive Order requires the head of each federal agency to

develop and implement EMSs to support environmental leadership programs, policies and procedures;

establish and implement environmental compliance audit programs which emphasize pollution prevention as the preferred means to achieve and maintain environmental compliance;

inform the public and their workers of possible sources of pollution resulting from facility operations;

reduce its reported Toxic Release Inventory ("TRI") releases and off-site transfers of toxic chemicals for treatment and disposal by 10 percent annually or by 40 percent overall by December 31, 2006; and reduce its use of selected toxic chemicals, hazardous substances and pollutants or its generation of hazardous and radioactive waste streams by 50 percent by December 31, 2006⁸¹

develop a plan to phase out the procurement of class I ozone-depleting substances for all non-excepted uses by December 31, 2010⁸²; and

promote the sustainable management of federal facility lands through the implementation of cost-effective, environmentally sound landscaping practices and programs to reduce adverse impacts to the natural environment.⁸³

Within 18 months and 2 years, respectively, from the date of the Executive Order, President Clinton has required that each agency shall conduct an agency-level EMS self-assessment and implement EMSs through pilot projects and agency facilities based on the CEMP and/or another appropriate EMS framework.⁸⁴ By December 31, 2005, each agency will be required to implement an EMS for all "appropriate" agency facilities based on facility size, complexity, and the environmental aspects of facility operations.⁸⁵ EMSs at these facilities shall include measurable environmental goals, objectives and targets that will be reviewed and updated annually, and EMS performance measures to be incorporated in audit protocols.

The remainder of the Executive Order requires stepped up emergency planning, disclosure to the public of the government's use of toxic chemicals, and specific pollution prevention goals⁸⁶; mandates the use environmentally [31 ELR 10090] beneficial landscaping management practices; describes specific acquisition and procurement practices and programs that include a centralized green procurement and "pharmacy" distribution systems to track the distribution and management of toxic or hazardous materials; requires the use of environmentally benign adhesives; and provides for certain national security exemptions.⁸⁷

This Executive Order, if fully implemented, may mean that over 15,000 federal facilities will develop and implement EMSs for their operations. While the logistics of the Executive Order are rather stunning, it appears that federal managers will be required to marshal their resources and create systems to monitor and reduce their environmental aspects and impacts. The focus and intent of the Executive Order appear to be on pollution prevention, with the secondary goal of compliance assurance mentioned. The Executive Order will, understandably, leave many managers wondering exactly how to create an effective EMS, how much will it cost, how long will it take, and what measurable benefits will occur if their agencies successfully implement an EMS. Some relevant federal experience does, however, exist.

Federal Facility ISO 14000 Pilot Projects

Several federal facilities have already developed sophisticated EMS pilot programs that have successfully reduced environmental impacts and resulted in improvement of certain operations. Speakers at the June 5-6, 2000, San Diego meeting of the EPA MSWG on EMSs explained recent developments in the implementation of EMSs for federal facilities.

Eglin Air Force Base⁸⁸

Eglin Air Force Base covers 724 square miles of the Florida Panhandle (1/3 of its total square miles) and employs over 10,000 people. Eglin has a 50,000-acre test range where military ordnance, including smart bombs, laser, and other guidance systems, are routinely tested. The base has historic structures—even within the bombing range—archeological artifacts and cultural resources dating back 10,000 years, and several endangered species.

In 1997, Eglin began a pilot ISO 14001 EMS program which resulted in an EMS that measures and reduces: (1) discharges to air; (2) contamination of land; (3) releases to water; and (4) degradation of cultural resources. Performance measures are web-based, available to the Eglin Intranet and accessible to the Base Environmental Protection Committee for checking periodic audits online, the document control system, and progress in reducing impacts. The entire system cost $ 302,000, took a year to develop, and will cost approximately $ 150,000 per year to keep running.

Naval Aviation Depot (San Diego, California)⁸⁹

The Naval Aviation Depot (NADEP) in San Diego has the distinction of being the first U.S. Department of Defense (DOD) facility to become certified to ISO 14001 for a significant portion of its operations. The effort began with a gaps analysis in 1997 and ended with registration on May 6, 1999. NADEP employs approximately 3,500 civilian and military personnel who repair military aircraft. Instead of creating a system for the entire depot, NADEP took a phased approach, creating operational units and selecting those units that would be least resistant to the concept of implementing an EMS. NADEP developed the fixed elements of the system (EMS manual, document control system, paperless software application, audits program) using a Pollution Prevention Team and an Environmental Improvement Team. Benefits included vertically integrated environmental planning, awareness of environmental impacts, a consistent approach to project management, enhanced public relations, team-building, improved communications, and cooperative advantages. The initial ISO 14001 registration covers 750 of NADEP's employees and 70% of NADEP's environmental aspects. The Undersecretary of the DOD is in the process of developing an EMS policy for the entire DOD. It is anticipated that other federal defense facilities will use Eglin's and NADEP's systems as resources for the development of their EMSs.

U.S. Postal Service⁹⁰

The Postal Service is a quasi-federal agency that is not subject to either the Executive Order or the CEMP.⁹¹ Nevertheless, it has developed an EMS for its Suburban Maryland Process and Distribution Center, located in Gaithersburg, Maryland, that will serve as a model for other facilities. The Postal Service has approximately 825,000 employees, 40,000 facilities, and 220,000 vehicles. To succeed in convincing upper management to develop an EMS pilot project, environmental managers commercialized the message. The Gaithersburg facility was selected by the Postal Service because it was one of the largest facilities in the metropolitan Washington area, consisting of more than 1,000 employees [31 ELR 10091] and a fleet of 1,200 vehicles which service 400,000 delivery points in Montgomery County.⁹² Design and implementation of the EMS was conducted by the Global Environmental Technical Foundation, a team of 12-14 individuals drawn from the labor union and from supervisors, and an executive team which included a facilitator, the plant manager, the facility's supervisor, and his staff. These groups focused on economic, social, and environmental indicators to communicate to the employees the advantages of creating and implementing a successful EMS.⁹³ The resulting EMS, which the Postal Service self-certified to ISO 14001, reduced landfilled waste by 50%, prevented pollution by using nontoxic inks, and implemented shared energy savings programs that captured and reduced operating costs. Recycled mail material is being used for composting purposes and as a retention liner for the Chesapeake Bay. The Gaithersburg EMS reduced pollution impacts, increased operational efficiencies, and contributed to the financial, safety, and management planning functions at the facilities.

National Aeronautics and Space Administration

The National Aeronautics and Space Administration (NASA) is developing EMSs based upon ISO 14001 at 3 of its 10 centers and is considering certification to the ISO 14001 standard at 1 or more of these sites.⁹⁴ Since 1997, the Johnson Space Center in Houston, the John H. Glenn Research Center at Lewis Field in Cleveland, and the Stennis Space Center in southern Mississippi have been participating in this pilot test project. The Johnson Space Center designs spacecraft and associated systems for human flight; the Glenn Research Center designs and develops advanced technologies for new propulsion, power, and communications systems that are applied to aeronautics and space; and the Stennis Space Center serves as NASA's primary testing and flight center and certifies rocket propulsion systems for the Space Shuttle and future generations of space vehicles.⁹⁵

NASA's Environment Management Board is considering the results of the study together with a cost/benefit analysis to determine whether it makes sense to proceed with a possible agencywide third-party registration to ISO 14001.⁹⁶ NASA became the first federal agency to attain ISO 9000 Total Quality Management certification in 1999, and it is believed by senior management that the agency may be ready to use the tools it developed in the ISO 9000 certification program to assist in the development of a comprehensive ISO 14001 program for NASA's extensive environmental impacts.

Federal agencies' operations can have an extraordinary and extensive range of impacts on the environment. The federal government is using systems technologies to account for and then diminish impacts covering many workplace applications. As this record unfolds and serious attention is paid by government managers to the quantifiable results of mitigation systems, persons involved in municipal, educational, and private-sector operations are bound to notice how these types of systems can be applied to their operations. Some have already started this process, with the following results.

New Uses of EMSs

Municipalities

Early EMSs for British and Australian Municipalities

There are literally thousands of municipalities in the United States that could develop and implement EMSs, not because they are necessarily at risk of being convicted of environmental crimes, but rather because an EMS could have a beneficial impact on their operations and improve the quality of life of their citizens. One of the early municipal leaders in this regard is the London (United Kingdom) Borough of Sutton. The Sutton Council developed an environmental policy in 1986 to balance short-term economic needs with long-term environmental goals. In June 1995, the Sutton Council amended its environmental policy to implement by 2000 a complete EMS which includes a commitment to continuous improvement of the Borough's environmental impacts, training of staff and controllers on environmental issues to help foster a sense of responsibility for the environment, and a requirement that all suppliers to the Sutton Council recognize and address environmental matters relating to their products and services.⁹⁷

Across the globe, the city of Manningham, Australia, developed an EMS that was certified to ISO 14001 in October 1998.⁹⁸ Manningham's EMS is seeking to achieve "the stretch goals of zero extinction, zero climate damage, zero waste, zero soil degradation and zero pollution."⁹⁹ Manningham has adopted "problem-solving methods that are aimed at producing outcomes that meet with the community's social economic and environmental objectives with minimum compromise."¹⁰⁰ A growing number of other municipalities in Europe and Asia have been testing similar [31 ELR 10092] systems in an effort to produce environmental improvements that set examples for their citizens and their neighbors. The European Union is promoting "ISO 14000 Cities" as centers of excellence for environmental trade. Some of these cities are evaluating every aspect of municipal operations from parks, waste disposal, airports,¹⁰¹ and services to create one EMS for the entire city.

Municipalities in the United States

Municipalities in the United States generally are unfamiliar with EMSs and traditionally have used their environmental staff, city attorneys office, environmental consultants, and outside counsel when necessary for advice regarding compliance with environmental laws and regulations. Municipalities in this country have not employed a systems approach to reduce their legal risk, much less their environmental impacts. These local governments are not going to invest scarce financial resources or waste employee time in the development of EMSs unless government leaders can be shown both the direct and indirect benefits of implementing systems to reduce environmental impacts.

Direct and Indirect Benefits of EMSs for Municipalities

Direct benefits of the systems approach for municipalities usually include saving money in waste disposal services and fees, reducing transportation costs and overhead, changing internal operations to minimize energy costs, and setting a positive example for citizens on how they can minimize their individual impacts. Indirect benefits include the reduction of environmental liabilities, lawyers and consultants' fees, potential fines and penalties from EPA, and environmental claims brought by citizens and environmental public interest organizations. Indirect benefits may also include more efficient redevelopment of industrial brownfields when those areas are identified and targeted for remediation and reuse on a prioritized basis. Both employment opportunities for inner city residents and the tax base are expanded when these properties are restored because they are invariably close to core urban areas that contain labor pools and the properties are recycled for productive business purposes. Frequently prioritization through an EMS will allow for a portion of these properties to be used for recreational and residential purposes and will allow the city to organize a holistic life-cycle approach to restoring inner city neighborhoods and adjacent contaminated properties.

A municipal EMS can also create a framework for the reduction of environmental impacts of ongoing and future activities. For example, an environmental policy that is a critical component of an EMS can provide direction for municipal planners in making smart growth decisions. With guidance from the policy and other systems strategies, these planners can make decisions, with public participation, regarding the acquisition of open space, the development of bike paths, transportation corridors, and redevelopment. A municipal EMS can include descriptions of methods in which services can be expanded so that all residents benefit from environmental programs. Municipal EMSs can assist cities in creating effective recycling, waste exchange, trash collection, and transportation programs that allow more creative and innovative approaches to pollution prevention, energy efficiency, and waste minimization.

An EMS for a municipality usually begins with a full aspects/impacts analysis of the operations, which can reveal a host of environmental impacts that can be eliminated or modified to save municipalities' resources. Preliminary results from EPA's pilot program involving EMSs and municipalities show both the direct and indirect benefits of this new application of environmental management principles to day-to-day municipal operations.

EPA's Municipal EMS Pilot Project

On January 28, 2000, EPA released its final report EMS Pilot Program for Local Government Entities. From August 1997 through July 1999 EPA sponsored an EMS pilot program for nine municipal governments. The purpose of the pilot program was to test the applicability and benefit of an EMS on environmental performance, compliance, pollution prevention, and stakeholder involvement in local government operations.¹⁰² Included in this project were municipal wastewater treatment facilities, departments of public works, an electric-generation facility, a state prison, a department of financial services, and a transit authority.¹⁰³ The number of employees in these organizations ranged from 15 to 1,700. At the outset of the pilot project, EPA found that these municipal subentities were interested in developing EMSs for the following reasons:

Compliance responsibilities: elimination of potential environmental problems, incidents and enforcement actions.

Management confidence: management wanted assurance that their organizations were adequately handling environmental responsibilities and identifying opportunities for improvement.

Organizational factors: government managers wanted better efficiency, worker health and safety, improved employee morale, and reduced costs.

Public image concerns: improved relationships with neighbors and counteracting bad press.

Improved regulatory relationships: one manager said, "every time EPA shows up it's a compliance issue or a consent decree."

[31 ELR 10093]

Privatization issues: remaining competitive with private industry or privatized operations.

Growth management: addressing smart growth and sprawl issues, considering using EMS as an incentive to attract the right type of industry and sending a message that the city has a strong environmental consciousness.

Municipalities as leaders and innovators: several participants wanted to play a strong role in leading and mentoring their communities in environmental stewardship initiatives.¹⁰⁴

At the conclusion of the pilot program, EPA found that "data and information collected in the pilot project shows that an EMS provides local governments with incentives and strong management tools to meet regulatory and compliance responsibilities, and integrates well with existing compliance and safety programs."¹⁰⁵ EPA concluded that the nine participating entities "advanced their environmental management capabilities, resolved some of their environmental challenges, and promoted operational efficiency, consistency and stakeholder involvement as well."¹⁰⁶ According to the study, the entities: (1) achieved a better understanding of their legal requirements; (2) were able to more efficiently train employees whose competence in their work area is critical to the environment; (3) recognized that simple internal housekeeping measures had a positive effect on environmental performance; (4) imposed additional requirements such as pollution prevention, reduced energy use, helped manage contractors, and expanded citizen awareness; and (5) promoted employee involvement in environmental problem solving. Based upon the positive results of the first municipal pilot project, EPA recently announced that it was expanding the program to 12 additional municipal governments and 2 universities.¹⁰⁷

The lessons learned from the municipal pilot projects are easily transferable to other communities that may be interested in using an EMS to reduce existing impacts. Municipal EMSs are different than EMSs created for businesses. Municipalities have completely different leadership structures and their accountability is to citizens rather than shareholders. For municipalities, EMSs can have positive impacts that can result in major monetary and environmental gains at minimal costs. Following EPA's successful pilot project, municipalities may be willing to create single-unified EMSs for the entire city instead of individual programs for discrete subunits of municipal operations. Government leaders will become comfortable with a systems approach to environmental management when the records of citywide EMS programs are publicized.

New Communities' Environmental Design Programs

Perhaps the easiest way to incorporate an EMS into municipal operations is to build the community around the EMS. Several communities currently in development are using the design phase to incorporate environmental goals and objectives to improve the environment and the quality of life of their new residents. Two communities being built in the countryside of Virginia, EcoVillage in Loudoun County and Haymount in Caroline County, are using a systems approach that incorporates environmental design principles.¹⁰⁸ The environmental principles for Haymount include: design with humility and acknowledge the complexities of nature; accept environmental responsibility; nurture the connection between nature and the human spirit; design with sustainable objectives as a requisite; and design with flexibility to allow for environmental technology advancements.¹⁰⁹ Designers of Haymount saved 40% of projected infrastructure costs by adopting a new urbanism plan instead of traditional larger lots for the rural community.¹¹⁰

Natural Capitalism

Designing new communities or redesigning existing ones using principles of "natural capitalism" can positively influence both the environment and human relations. Paul Hawkin, Amory Lovins, and L. Hunter Lovins have written a remarkable book, Natural Capitalism, which includes an extensive discussion on environmental design and sustainable communities. The principles of natural capitalism have a much broader application than assisting in the development of new communities. Natural capitalism involves: (1) increasing resource productivity to slow resource depletion, lower pollution, and provide worldwide employment with meaningful jobs; (2) reducing the wasteful throughput of materials by redesigning industrial systems on biological lines so as to change the nature of industrial processes and materials, enabling the constant reuse of materials in continuous closed cycles (often with the consequence of substantially reducing if not eliminating toxicity); (3) changing the relationship between producer and consumer in order to shift an economy of goods and purchases to one of service and flow; and (4) investing in sustaining, restoring, and expanding stocks of natural capital to produce more abundant ecosystem services and natural resources.¹¹¹ These principles can be used to enhance almost every aspect of modern life. The principles can be incorporated into an EMS to guide industry, government and citizens in how to reduce wasteful practices and change processes to enhance and protect the natural environment.

Municipalities can incorporate these principles into a [31 ELR 10094] citywide EMS and positively impact everything from the weather to human relations. For example:

Better understanding of urban heat islands and vegetative shading is encouraging efforts in urban forestry and the use of lighter-colored paving and building services. By helping bounce solar heat away, such measures could cool Los Angeles by about 6F°, a temperature drop that would cut the city's cooling loads by about 20 percent and smog by about 12 percent, saving more than a half billion dollars per year.¹¹²

A recent study by the Lawrence Berkeley Laboratory in Berkeley, California, concluded that residents and businesses in New York City could reduce their air conditioning costs by $ 22 million by replacing dark roofs with new reflective roofs. In one example, a white roof was found to reflect 60% of sunlight, reducing air conditioning costs by 18%.¹¹³ A simple EMS can assure that important environmental design principles are not left out of the environmental equation.

New Urbanism, Development, and Environmental Design

Similarly, principles of new urbanism (integrating housing and other land uses within walking distances in compact communities) can be incorporated into EMSs to design livable sustainable communities. Developers recently

created an affordable housing community on formerly contaminated mine-tailings property in Breckenridge, Colorado (the Wellington Neighborhood);

decreased the width of streets by 8-12 feet, installed vegetated swales and detention ponds instead of storm sewers (saving an average of $ 4,400 per lot that was invested in common areas, with a concurrent increase in property values); and

created "green" roofs that reduce flooding risks and cooling needs that now are so popular, sophisticated and competitive in central Europe it is difficult to get a permit in cities like Stuttgart without making the roof green.¹¹⁴

Municipal design that uses these principles "creates vibrant street life, local 'third places' (like the English pub, neither home nor work) for friendly local association, real front porches, and houses that front onto and engage the street rather than blankly walling it off—all of which reduce crime."¹¹⁵ Using EMSs to assist the design process improves the quality of life for citizens and in turn diminishes a wide range of negative, and totally unnecessary, environmental impacts.

Universities and Colleges

Research Facilities and Environmental Exposures

Educational institutions, large and small, have substantial environmental impacts. Student, faculty,and staff populations engage in many activities that adversely affect the environment. Universities and colleges are akin to small cities; their environmental impacts can vary widely, related to housing, transportation, land use, discharges, and emissions. For example, research schools need to be primarily concerned about the safe handling, storage, and disposal of hazardous waste in their laboratories. According to one author, the most common environmental exposures for colleges and universities include: (1) the absence of comprehensive and coordinated spill control plans; (2) acidic laboratory, x-ray, and maintenance chemicals corroding on-site and off-site sewer pipes; (3) exposed asbestos; (4) historically poor disposal practices for hazardous, infectious, and radioactive waste; (5) improper maintenance of laboratory hood filters; (6) improper maintenance of electrical equipment that contains polychlorinated biphenyls; (7) inadequate backflow prevention devices to keep harmful chemicals and microorganisms from siphoning back into the municipal water supply; (8) incomplete records of former on-site industrial/commercial activities; (9) insufficient chemical pretreatment of wastewater discharge to municipal wastewater treatment plants; (10) lack of an overall hazardous waste and/or infectious waste management program; (11) lack of an underground tank management program; (12) mold and bacteria in air conditioning systems causing sick building syndrome; and (13) trustee property donated to the institutions with unknown pollution conditions.¹¹⁶

Laboratories' Environmental Impacts

Universities and colleges use a much larger number of chemicals in much smaller quantities than their industrial counterparts.¹¹⁷ Inventorying chemicals is a large problem as is assuring that proper disposal occurs within deadlines specified by the manufacturers. Some universities have over 1,000 labs on campus that routinely are used for a wide variety of experiments by students with limited experience. Frequently, visiting professors from foreign countries bring with them diverse notions of appropriate disposal practices. There is constant turnover of the students and a continuing need for training in safety and the proper handling of chemicals. In addition to the research labs, other student and faculty activities such as fine arts, ceramics, and photography studios, to name but a few, can cause degradation to the environment.

Environmental Resources

Universities and colleges also have extensive human resources readily available for faculty and students, government officials and businesses to study their environmental impacts. For example, seven large companies recently [31 ELR 10095] teamed with the Massachusetts Institute of Technology's (MIT's) energy laboratory to support research on carbon sequestration.¹¹⁸ For over 25 years, the energy laboratory has taught students environmental responsible technologies and policies and has investigated carbon sequestration from large stationary sources since 1989.¹¹⁹ The initiative combines the resources and expertise of the private sector with MIT's scientists and engineers to capture carbon dioxide emissions at their source.

Multiple Disciplinary Environmental Programs

Many universities and colleges have multiple disciplinary environmental programs that include undergraduate, graduate and post-graduate courses in subjects such as environmental management, life-cycle design, sustainability, natural capitalism, ecological literacy, risk assessment, the traditional biological, chemical, and aquatic studies of the ecosystem, and a wide range of other environmental topics. These schools can use their existing infrastructure and academic programs plus grant money from government and private-sector sources to study their own environmental impacts. EPA's Action Plan recognizes that universities and colleges can also collect data and research on EMSs and function as service centers to assist with EMS developments. EPA has selected the University of North Carolina, Chapel Hill to take a leading role in the collection of data regarding EMSs. Other schools have created EMS service programs and EMS training institutes, and organizations such as the Campus Consortium for Environmental Excellence (C2 E2) and the Partnership for Environmental Technology Education (PETE) have been formed as campus coalitions to foster environmental goals for higher education. As these educational institutions and others begin to use EMSs to improve their own environmental performance, they build capacity to help other schools and businesses to do the same.

Regulatory Enforcement

As might be expected, the recent interest by educational institutions in EMSs followed an intensive effort by EPA to investigate universities' and colleges' regulatory noncompliance.¹²⁰ In 1995, Yale University paid a $ 69,000 fine for Resource Conservation and Recovery Act (RCRA) violations and was required to pay $ 279,000 for supplemental environmental projects.¹²¹ In 1998 and 1999, the University of Hawaii was fined $ 1.8 million when EPA inspectors located hazardous wastes buried in the basement of a chemistry building on the university's main campus in Honolulu. Boston University paid $ 253,000 in fines in 1998 and $ 500,000 on supplemental environmental projects to settle RCRA and Clean Water Act (CWA) violations involving an oil discharge into the Charles River. The University of Georgia has been negotiating with the Georgia Department of Natural Resources to settle a CWA case regarding discarded containers of chemicals and rotting laboratory animal carcasses from which toxic chemicals have been leaking into a stream on campus. Many other schools have had unannounced visits from EPA inspectors and have paid fines for environmental violations.

EPA Assistance

An EPA enforcement attorney who is familiar with regulatory matters involving colleges and universities in New England, where there has been a particularly intensive regulatory review of higher education's environmental violations, states: "They're like small towns with analogs of factories, car repair, huge underground fuel-storage tanks, but there's no government. Every facility on campus seems to have its own environmental manager. Most of them differ with each other over how to comply with regulations, and a lot of them seem to be getting it wrong."¹²² EPA has been urging these and other schools to implement EMSs to solve their compliance problems and prevent pollution. Region I has set up a web page and conducted EMS workshops for the institutions; Region II has sent 344 letters to the institutions urging them to take advantage of EPA's audit policy; Regions III and IX have also encouraged higher learning institutions to disclose their environmental violations in return for penalty mitigation pursuant to the Agency's audit policy.¹²³

Existing Environmental Resources on Campus

Despite these common and complex environmental problems, most schools could improve their environmental performance with existing resources located on campus. For example, in 1987, long before EPA began its crackdown on universities and colleges, and before EMSs became a popular means of dealing with regulatory issues, Rutgers University launched its Environmentally Sensitive Contracting and Campus Ecology Programs to improve management of the waste produced by 47,000 students and 17,500 faculty in and around 752 buildings in the campus system.¹²⁴ The result was a comprehensive environmental program that reduced the overall volume and cost of waste management [31 ELR 10096] and recycled content products, stimulated and implemented multidisciplinary environmental research and technology using Rutgers University faculty and students from all academic areas, implemented local/state economic development programs as a result of environmentally sensitive technology transfer programs, and assisted local communities, school systems (K-12), other universities and colleges, government agencies, and political subdivisions in the development of their environmental and recycling programs.¹²⁵

Educational EMSs

Most educational institutions, like Rutgers, began many years ago to develop procedures, policies, and guidances on environmental practices on campus that can be collected to begin the development of an EMS. It is critical for a core team made up of environment, health, and safety (EH&S) personnel and members of the university-college community to have, as the first step in the development of an EMS, input into this process and assist in conducting an investigation of the environmental aspects and impacts of the university or college. It is also necessary, early on, for a "champion" to advocate and to endorse the program. The schools with the most successful EMS programs, according to presenters at the EPA's EMS conference for universities and colleges, have the commitment of the president, chancellor, provost, or some similar high-ranking official. Clear lines of authority need to be structured between the EMS action team and the institution's hierarchy to create an effective system.

Differences Between Campus and Industrial Impacts

There are important differences between industry and universities and colleges, distinctions that should have a substantial impact on how EMSs are designed and implemented. For example, the governing body of a university is completely different than a corporation; students and faculty are constantly changing; and educational institutions are akin to small cities with educational, rather than profit-making, goals. EPA has dealt harshly with some schools that have violated regulations without much appreciation for the different missions of these institutions. Moreover, a common complaint on campus is that environmental regulations that apply to educational institutions need to be written with greater clarity so that EH&S staff can understand how they apply to the schools and in order that additional training can be undertaken by both the institutions and government officials to avoid future noncompliance. Best practices manuals, conferences and workshops on EMSs, data collection and management systems research, and EMS implementation will assist educational institutions achieve environmental excellence.

Older Institutions

Older institutions probably have the most immediate needs for an EMS because some of their facilities were built prior to the imposition of building codes and many campus buildings have antiquated equipment. EMSs for these as well as newer institutions can address the environmental aspects and impacts of the entire school and then combine existing environmental programs with streamlined procedures to reduce those impacts and achieve solid environmental performance. EMSs need to be implemented for the older institutions to assist them in pollution prevention, waste minimization, and energy efficiency. Students and faculty are interested in these subjects and volunteers are abundant. Part of an EMS program can include chemical "amnesty days" during which students and faculty are allowed to turn in their older chemicals to EH&S staff for proper disposal.

Newer Institutions

At least one new institution has been built with an EMS as a central feature of its development program. Florida Gulf Coast University (FGCU) is a brand new university with 3,500 students, sited on 760 acres in southwestern Florida.¹²⁶ On campus, 340 acres are being developed and 419 acres are reserved for open space. The campus EMS includes a requirement that each student take an environmental literacy course as a prerequisite for graduation. Each of the buildings is being built pursuant to green building guidelines. The EMS is supported by the Institute for Sustainability, the Campus Ecosystems Project, the University Environmental Club, and the President's Environmental Task Force. FGCU has developed a mission statement and principles that challenge the university to integrate its EMS with academics, planning and operations, and state and local environmental agencies and citizens in the surrounding community.

Educational institutions, large and small, old or new, can benefit from the implementation of EMSs. As experience with EMS broadens, other institutions that have not fully understood their environmental impacts may also consider implementing an EMS. If EPA's Action Plan is fully implemented, universities and colleges will be given the opportunity to expand their EMS experience through the collection and dissemination of data that will help other institutions and NGOs develop their systems.

Service Firms

There are many nonmanufacturing firms that currently do not understand either the scope of their impacts on the environment or the advantages of an EMS to their internal and external operations. Professional service firms (including investment banking services, audit, tax and accountancy advisory [31 ELR 10097] services, commercial legal services, marketing communications services, management and information technology consulting services, recruitment, placement and personnel services, and marketing research services) make up 17% of all employment in Europe and the United States, with total revenues of $ 700 billion and 15% growth per annum.¹²⁷ While such firms traditionally have provided advice and representation to companies, few have developed an EMS to evaluate and improve their own environmental performance. Frequently, such firms merely recycle their paper, cardboard, and toner cartridges, and make modest attempts to reduce their waste consumption and become more energy efficient. Yet, each American wastes or causes to be wasted nearly one million pounds of materials each year.¹²⁸ Business can assist in the task of fostering enhanced individual and collective responsibility for environmental impacts by developing an EMS for employees. When an effective EMS is implemented, service firms begin to recognize that there are a host of methods to reduce impacts, beyond rudimentary recycling, that can actually increase employee productivity, benefit the environment, and bolster corporate image.

The Environmental Workplace Design

An EMS is not a tool useful in the design of a building. But it can be used to educate a business about how its employees inside a building are impacting the environment and how building design can actually improve work performance and comfort. People who work in well-designed, energy-efficient, and environmentally sound office buildings show an increase in productivity from 6% to 16%.¹²⁹

The Alcoa Corporate Center building on Isabella Street in Pittsburgh is an example of a well-designed office environment. Each of the office floors average 100 workstations, all within 45 feet of the expansive cityscape, seen by employees through 11-foot windows.¹³⁰ Escalators were used throughout the building to increase employee interaction and conviviality, building teamwork and spirit. Each floor has its own color scheme. According to Alcoa, "studies show that color can have a definite impact on emotions, energy and reactions. That's why choosing colors for the building was so important. Our design principles show we want a bright, high energy work environment. The ambiance has to encourage creativity, stimulate new ideas and facilitate teamwork."¹³¹ Color was used for three purposes at the Alcoa Corporate Center: first, it was used to convey a feeling of welcoming and warmth into the office areas; second, to guide people as they used the building and orient them to the building's functions; and third, to support flexibility and efficiency within the building.¹³²

Remodeling existing buildings can produce dramatic results involving health, productivity, and quality of life for employees. The Rocky Mountain Institute of Old Snowmass, Colorado, has created business strategies based upon whole-system design changes and productive uses of natural resources that can profitably solve most environmental impacts. For example, a simple replacement of lighting ballasts that automatically dim lights to match available daylight gains 18 distinct benefits many of which are not counted by decisionmakers.¹³³ Replacing windows in office buildings with "superwindows" during renovation projects or new construction can reduce the flow of heat and noise four times better than existing windows, create immense energy savings, and results in a healthier work environment.¹³⁴ An EMS can be used to stimulate environmental planning and design to get employees and management to be more knowledgeable about the nature and range of environmental impacts of businesses so that positive changes can occur as businesses develop and expand.

Paperless Performance

Many businesses are attempting to become "paperless." When Alcoa employees moved into the new center, they were allotted just seven boxes of paper. "That meant many documents had to be scanned into the computer system or put into storage—and roughly 25 tons of paper were discarded."¹³⁵ Email and faxes via the computer can dramatically reduce paper use, as can full practical utilization of electronic storage of documents. Fully electronic storage may not be practical unless future electronic retrieval is assured. Companies can reduce their dependency on paper by maintaining internal records electronically, and have employees suggest ways to reduce paper use and commit to more environmentally friendly office practices. Dow Europe [31 ELR 10098] reduced its paper flow by 30% in 6 weeks simply by discouraging unneeded office paper:

Mailing lists were eliminated and senders of memos got back receipts indicating whether each recipient had wanted the information. Taking those and other small steps, Dow was also able to increase labor productivity by a similar proportion because people could focus on what they really needed to read. Similarly, Danish hearing-aid maker Oticon saved upwards of 30% of its paper by redesigning business processes to produce better decisions faster. Setting the default on office printers and copiers to double-sided mode reduced AT&T's paper costs by about 15%. Double side copying can reduce paper consumption 35%. Recently developed copiers and printers can even strip off old toner and printer ink, permitting each sheet to be reused about ten times.¹³⁶

A properly designed EMS with active involvement of end-users in the planning and implementation of the system can capture pollution prevention and waste minimization opportunities and assist employees to incorporate them into day-to-day operations.

Telecommuting

With telecommuting, the Internet and other remarkable technological advances, service businesses can consider ways to reduce office space, travel, and overhead while developing and upgrading their information technology systems. The World Resource Institute (WRI) has committed to reducing its carbon dioxide (CO₂) emissions to zero by 2003.¹³⁷ WRI is an international research organization whose environmental impacts occur as a result of office electrical use, travel, paper use, and other human activities. WRI's pollution prevention program includes ensuring that all office equipment is turned off each night (savings: 2.5 tons of CO₂ emissions and $ 159 per computer); 10% paper reduction (savings: reducing CO₂ emissions by about 4 tons); and increased video conferencing in lieu of traveling to meetings (savings: 88 pounds of CO₂ for each 100 miles of travel per person).¹³⁸

Websites and Electronic Libraries

Service firms can use websites, electronic records databases, and stored information to reduce records production waste, share conference rooms, and merge other facilities and resources to measurably decrease environmental impacts without sacrificing client services or market share. The use of the Internet is generating enormous environmental benefits, according to a recent study by the Center for Energy and Climate Solutions.¹³⁹ The study suggests that by 2007, the Internet could avoid the need for "five percent of commercial building space; including up to 1.5 billion feet of retail space, one billion square feet of warehouses and as much as two billion square feet of commercial office space, the equivalent of almost 450 Sears Towers."¹⁴⁰ In the short term, by 2003, the Internet could save 2.7 million tons of paper each year and reduce 10 million tons of CO₂ production.¹⁴¹ These figures are expected to double by 2008.

The Internet

The Internet is also a powerful tool to provide stakeholders with up-to-date information on environmental performance and to facilitate public awareness and dialogue regarding environmental issues. When companies and government entities incorporate a web-based education and outreach strategy into an EMS, public participation is increased, resulting in better decisions, reduced environmental impacts, and systems that better reflect the interests of key stakeholders. The stakeholder dialogue can reside within the EMS and be used to continuously improve collaborative decisionmaking and reward innovative businesses with greater consumer and stakeholder support.

Computerized Transportation Plans

Other opportunities include developing a computer-based transportation plan, in connection with an EMS, to allow employees time, financial support, and other incentives to use alternative forms of transportation and receive "environmental credit" for taking public transportation to and from work. Honda and Toyota have introduced "hybrid" vehicles that are a combination of electric and gas fueling systems, with dramatic improvements in the number of miles that can be driven per gallon of gas. Companies across the United States and throughout the world have purchased natural gas vehicles for their commercial fleets. There are about 40,000 privately owned natural gas fleet vehicles in the United States. These vehicles have less impacts on the environment because natural gas burns with a reduction of up to 98% of harmful tail pipe emissions and is less expensive fuel than gasoline. Some companies and municipalities have endorsed the National Home Fueling Project, which is designed to increase the use of natural gas vehicles by utilizing [31 ELR 10099] the existing natural gas infrastructure, which connects 70 million homeowners across the United States with natural gas delivered to their homes for heating and other purposes. With the installation of a compressor, a citizen can fuel her natural gas vehicle at home and travel approximately 200 miles before refueling is required. Home fueling options and alternative fuel vehicles such as hypercars are the subject of extensive research and development, and are being considered for mass production by the major automotive companies who are seeking new ways to increase their profitability and at the same time reduce vehicle emissions. Home fueling an alternative fuel vehicle can be one step in a master transportation plan for employees to reduce their environmental impacts pursuant to a comprehensive EMS.

Environmental Credits and Bonuses

Employees could also receive environmental credit for reducing their individual environmental impacts, such as waste and energy usage. Employees who succeed in reducing their individual impacts might have their "environmental credits" exchanged for money, time off, or other incentives. At the end of the year, employees could cash in their environmental credits. Companies could maintain a record of what impacts are reduced during the year and give all employees an "environmental bonus" at year-end for reducing such things as energy consumption, waste, and vehicle miles traveled. They might also reward the outstanding performance of those employees who donate their time for environmental pro bono projects.

The Green Team

Allergan, a $ 1.1 billion global pharmaceutical company that specializes in the research and development of eye care products, has developed a comprehensive strategic approach to environmental excellence for its office and manufacturing employees. The company's program could be used as a model for most service firms.¹⁴² Allergan developed an Environmental Quality Work Group when the environment became a quality initiative at the company.¹⁴³ The company undertook a companywide environmental survey of 4,500 of its 6,000 employees in 100 countries. The survey produced four major initiatives: (1) an environmental awards and recognition program for employees; (2) increased training; (3) improved product design; and (4) the use of environmental suggestion systems.¹⁴⁴ Allergan implemented these and other programs and results include: decreased worker's compensation claims; a $ 5.5-million reduction in packaging costs; avoidance of substantial contamination and remediation costs; a decrease in energy usage per unit costs worldwide; partnerships with regulatory agencies; and improved environmental reporting and employee awareness.¹⁴⁵ As a centerpiece of these environmental initiatives, Allergan created Green Teams at its nonmanufacturing facilities to ensure that

wastes that must be created are reduced where possible; wastes that can not be reused are recycled where possible; employees are educated as to methods for reducing, reusing and recycling wastes; employees are provided financial incentives for reducing, reusing and recycling wastes; products purchased are partly made from recycled materials; waste audits are conducted to determine the types of recyclable materials present in waste; and waste going off-site to landfills or to other types of disposal facilities is reduced.¹⁴⁶

Each Green Team was assigned a human resource representative and a facilitator who had the authority to bring team members together to facilitate action plan development, and to allocate resources appropriately to accomplish the environmental objectives of the company.¹⁴⁷ Within several years following the commencement of the program, Allergan had three facilities operating at a "leadership" level, six facilities operating at a "prevention" level, and five facilities operating at a "baseline compliance" level.¹⁴⁸

Motivating Consultants

Firms with the environmental commitment of Allergan can discover ways to work with other companies in improving both companies' environmental performance. Alliant Energy Corporation has adopted a system to provide its environmental consultants and employees with financial benefits for reducing corporate liability and environmental impacts.¹⁴⁹ Alliant shares environmental risk with its consultants by increasing compensation to those consultants who are able to obtain site closure letters from state environmental agencies for Alliant's manufactured gas plant sites in Wisconsin and Iowa. If the sites are closed ahead of schedule, fulfilling all state environmental requirements, Alliant also increases compensation to its internal environmental staff who successfully completed the project. If the sites take longer than expected, disincentives, including reduction of compensation, come into play. Companies can duplicate Alliant's environmental incentives program [31 ELR 10100] and incorporate them into an EMS to improve environmental performance.

Green Discounts

In a competitive world in which service firms are striving to retain clients and share many clients with other firms, businesses will have to distinguish themselves by doing more than simply providing competent services at reasonable rates. Those firms that can introduce "environmental discounts" for customers will be in the forefront of environmental excellence. They can also network with companies and other institutions that have implemented EMSs and offer those potential customers discounts for environmental services after implementing an EMS. By reducing their environmental impacts and liabilities, companies should reduce their environmental and legal costs, insurance premiums, and consulting fees. Law firms working with management companies can encourage their clients and prospective clients to adopt such systems, the clients' reward being smaller legal and consulting fees, fewer environmental accidents and potentially reduced insurance premiums, lower debt service, and decreased costs of raising capital. Clients with outstanding environmental records attract investors, who are beginning to understand how to measure environmental performance as a business asset.¹⁵⁰ An effective EMS can bring business opportunities to firms and clients alike who are attracted to innovative approaches to improving the environment.

Two large companies are taking this approach. UBS, a Swiss bank operating in 50 countries, became the first bank in the world to receive certification to ISO 14001.¹⁵¹ UBS has an EMS that reduces the environmental impacts to air, soil, and water from its inhouse operations with a primary focus on reducing greenhouse gas emissions.¹⁵² Externally, UBS views the Kyoto Protocol as presenting new business opportunities for its customers who can invest in innovative businesses that are reducing their emissions and taking advantage of the "Kyoto mechanisms."¹⁵³

Volvo Cars, a subsidiary of Ford Motor Corporation, has an EMS embedded into the core of the corporation.¹⁵⁴ The purpose of the system is to achieve continuous environmental improvement in the production, sales, and servicing of its automobiles, taking into account the complete life cycle of the vehicles; ensuring a similar degree of environmental care is experienced by working partners, including suppliers, and assuming a leading position regarding environmental standards.¹⁵⁵

Suppliers

At some time in the future, companies that adopt EMSs may expect their service firms to do the same. A key environmental impact of service firms is supply chain purchasing, including sources of electricity. Large automobile manufacturers such as Ford,¹⁵⁶ General Motors, and Toyota are already requiring their suppliers to be certified to ISO 14001 by 2002-2004, and "green procurement" policies are being implemented by companies that choose to use environmental criteria as a basis for the purchase of supplies.¹⁵⁷ Other large companies and the government may require their suppliers, contractors, and service firms to adopt an EMS.¹⁵⁸ Service firms that adopt systems now will be better prepared to compete for business in the future. If such firms can offer reduced rates for environmental services to their customers based upon how much money they have saved from EMSs, or simply reduce their rates for environmentally friendly customers, service companies can play a key role in the development of environmental excellence.

The Hughes Approach

The Hughes Electronics Corporation, a wholly owned subsidiary of General Motors, has a sophisticated EMS that requires Hughes products to be designed and manufactured in a "safe, energy efficient and environmentally responsible manner."¹⁵⁹ Hughes "strives to reduce, reuse, or recycle materials wherever practical before considering disposal."¹⁶⁰ "Inventory tracking systems and Hughes material suppliers are used to manage material storage to reduce the amount [31 ELR 10101] stored at Hughes facilities."¹⁶¹ Just-in-time deliveries result in the reduction of hazardous materials inventory and a reduction in hazardous wastes associated with disposal of overstocked and expired materials.¹⁶² "Hughes Commuter Services offer assistance and incentives to employees including ridepool and vanpool registration, subsidized public transit sales, ridematching, a bike program and an emergency ride assistance program."¹⁶³

Alternative Dispute Resolution

Finally, it is possible to develop EMSs that contain mechanisms for employees to learn how to identify and eliminate environmental liability on the part of the organization, or its third-party vendors and subcontractors. Employees can use the EMS to minimize adverse consequences to the organization and be rewarded for their proactive efforts. The same systems can also be used to reduce the likelihood that disputes will arise, either internally within the organization or externally.¹⁶⁴ EMSs can identify and solve festering environmental problems before disgruntled employees accuse the organization of environmental violations. Alternative dispute resolution mechanisms can be built into EMSs to resolve conflicts either before or after they emerge. Employees can be trained to use mediation skills to resolve problems before they become disputes. In this way, employees can use their training to reduce the likelihood of environmental violations and minimize impacts of the organization on the ecosystem. A systems approach to environmental management can reduce these risks.

Conclusion

There is an extraordinary change occurring in the level and intensity of interest by government agencies, municipalities, and higher learning institutions regarding EMSs. These institutions, and others, including service firms, are beginning to comprehend that EMSs are not just for the heavily regulated U.S. industries who have been adopting the systems approach to reduce or eliminate environmental noncompliance. They are joining a wide range of other organizations, scattered throughout the world, who are endeavoring to improve their overall environmental performance and improve organizational performance by integrating environmental strategies into organizational development. New government programs, coupled with innovative approaches to environmental management, will lead to better environmental conditions for everyone.

Companies that have not yet decided to implement an EMS should be particularly mindful of these new positive developments. Proactive companies can create EMSs to have greater economic success, achieve positive reputations in the marketplace, and, most importantly, reduce their regulated and nonregulated environmental impacts. EMSs that focus solely on environmental compliance do not provide a sufficient return on the investment. A better company is not one that has committed the least number of environmental violations, or prevented the most number of environmental crimes. Rather, it is one with sustainable environmental performance that continuously improves. A company's environmental performance should be measured on the basis of energy efficiency, materials intensity, toxics reduction, waste minimization, and efficient use of land. All of these factors enhance performance and embrace the theory of natural capitalism. EMSs are intended to achieve superior environmental results, and should be judged that way.

1. John Voorhees is an attorney in the Denver office of Patton Boggs LLP and is Chief Legal Officer of Quest Management International, an environmental consulting firm based in Denver that designs and installs environmental management systems. He is the co-author of JOHN VOORHEES & ROBERT A. WOELLNER, INTERNATIONAL ENVIRONMENTAL RISK MANAGEMENT. ISO 14000 AND THE SYSTEMS APPROACH (1998). The views expressed in this Article are those of the author, and not necessarily those of Patton Boggs LLP, Quest Management International, or their clients.

2. Exec. Order No. 13148, 65 Fed. Reg. 24595 (Apr. 26, 2000), ADMIN. MAT. 45117. This Executive Order mandates that all federal agencies adopt EMSs for, inter alia, pollution prevention purposes.

3. For example, the city of Roanoke, Virginia, recently pleaded guilty to Resource Conservation and Recovery Act (RCRA) criminal violations resulting from a federal-state investigation of the city's improper handling of hazardous waste at its Public Works Service Center. Government officials complained that Roanoke "failed to develop an environmental compliance program for the Public Works Department and other municipal departments, leaving employees untrained in environmental requirements." Roanoke Pleads Guilty to RCRA Criminal Violations, VA. ENVTL. COMPLIANCE UPDATE, Feb. 2000. Roanoke will pay a $ 125,000 fine, develop and implement an EMS, and spend $ 475,000 on supplemental environment programs designed to promote environmental education and protection. Id.

4. See Lisa C. Lund, Project XL: Good for the Environment, Good for Business, Good for Communities, 30 ELR 10140 (Feb. 2000) (explaining the negative perceptions of EPA's XL (excellence and leadership) reinvention program). Lund's Dialogue traces the history of Project XL and demonstrates convincingly that with 50 projects in the "formal pipeline" there is increased credibility, renewed interest by potential sponsors, new project ideas being floated to EPA, and project results that are meeting or exceeding commitments. Id. at 10149.

5. See U.S. EPA, Environmental Auditing Policy Statement, 51 Fed. Reg. 25003 (July 9, 1986), ADMIN. MAT. 35001 (available from the ELR Document Service, ELR Order No. AD-3216).

6. See Linda Richenderfer & Neil R. Bigioni, Going Naked Into the Thorns: Consequences of Conductingan Environmental Audit, 3 VILL. ENVTL. L.J. 71 (1992).

7. See U.S. DOJ, FACTORS IN DECISIONS ON CRIMINAL PROSECUTIONS FOR ENVIRONMENTAL VIOLATIONS IN THE CONTEXT OF SIGNIFICANT VOLUNTARY COMPLIANCE OR DISCLOSURE EFFORTS BY THE VIOLATOR (1991), ADMIN. MAT. 35399 (available from the ELR Document Service, ELR Order No. AD-505); U.S. EPA, GUIDANCE ON EPA'S EXERCISE OF INVESTIGATIVE DISCRETION FOR ENVIRONMENTAL CRIMES (1994) (available from the ELR Document Service, ELR Order No. AD-3418). The government's memoranda and guidance documents served very useful purposes in instructing businesses who had actually violated environmental laws how the government was likely to react to those violations. They also provided a road map for environmental criminal defense attorneys to instruct clients who have been notified, by the execution of a search warrant and other means, what was in store for them as the federal criminal investigation of their businesses began to unfold. Neither businesses nor their lawyers used these documents to develop EMSs. In fact, in many cases these documents had the opposite effect, namely of encouraging businesses to "hunker down" and deal with their environmental problems privately with great reluctance to adopt a more open system to improve their environmental performance.

8. EMSs have traditionally been created and implemented by companies in this country who are seeking primarily to avoid environmental violations. There are essentially four sets of circumstances that have led companies to implement EMSs in the United States over the last decade: (1) companies that have never had a system, do not have a violation, and want to prevent future violations and/or wish to reduce their environmental impacts and improve their environmental performance; (2) companies that need to implement an EMS because they have discovered that violations have occurred, or may be occurring, or are worried that violations may occur in the future; (3) companies that have committed an environmental violation known to the government and must adopt an EMS to achieve compliance before EPA or the DOJ takes action; and (4) companies that have violated civil or criminal environmental statutes and are implementing EMSs as a condition of a consent decree or sentence of the court.

9. For an excellent discussion of the use of EMSs to resolve complex civil and criminal environmental cases, see WILLIAM L. THOMAS ET AL., CRAFTING SUPERIOR ENVIRONMENTAL ENFORCEMENT SOLUTIONS (Envtl. L. Inst. Monograph 2000), available at http://www.eli.org.

10. Several legal scholars have urged EPA to consider public policy changes that would encourage businesses to implement EMSs for more reasons than merely to assure compliance. See, e.g., Paula C. Murray, Inching Toward Regulatory Reform—ISO 14000: Much Ado About Nothing or a Reinvention Tool, 37 AM. BUS. L.J. 35 (1999); Paulette L. Stenzel, Can the ISO 14000 Series Environmental Management Standards Provide a Viable Alternative to Overcome Regulation?, 37 AM. BUS. L.J. 237 (2000).

11. U.S. SENTENCING COMMISSION GUIDELINES MANUAL § 8C2.5(f) (1991). According to the U.S. Sentencing Commission,

[an] effective program to prevent and detect violations of law means a program that has been reasonably designed, implemented, and enforced so that it generally will be effective in preventing and detecting criminal conduct. Failure to prevent or detect the instant offense, by itself, does not mean that the program was not effective.

U.S. SENTENCING GUIDELINES MANUAL § 8 A 1.2, application n.3(K).

12. In 1996, the National Center For Preventive Law published a code of "Corporate Compliance Principles" to assist organizations in achieving compliance for the most common areas of law that apply to corporations, including: antitrust and other fair trade laws; government procurement and contracting; political contributions and lobbying; protection of company assets; accurate books and records; securities and insider trading; money laundering and other currency transactions; environmental issues; labor relations and employment discrimination; sexual harassment; intellectual property; substance abuse; product liability; consumer protection and consumer fraud; workplace safety; conflict of interest and gifts; commercial bribery; regulatory and international issues; and consent decree compliance. NATIONAL CTR. FOR PREVENTIVE LAW, CORPORATE COMPLIANCE PRINCIPLES 49 (1996).

13. An advisory group was appointed by the Sentencing Commission to draft Corporate Sentencing Guidelines for environmental violations. The draft guidelines were issued on November 16, 1993, see 24 Env't Rep. (BNA) 1378 (1993), but were never promulgated by the Sentencing Commission, and were roundly criticized for having no incentives for business to create proactive programs to prevent unintentional violations. See Kevin A. Gaynor & Thomas R. Bartman, Here's the Stick, But Where's the Carrot? The Draft Environmental Sentencing Guidelines, 8 Toxics L. Rep. (BNA) 898 (1994).

14. When businesses employed compliance programs to discover incipient violations of law, many resorted to self-disclosure, using federal and state audit policies, to avoid criminal penalties. Self-disclosure became problematic in some state cases when EPA overfiled against companies that had settled with state environmental enforcement agencies and tensions mounted between federal and state enforcement officials regarding the enactment of state audit privilege statutes. See Jerry Organ, Environmental Federalism Part I: The History of Overfiling Under RCRA, the CWA, and the CAA Prior to Harmon, Smithfield, and CLEAN, 30 ELR 10615 (Aug. 2000). This disharmony contributed to the length of time it took business leaders to recognize that EMSs might also be used for purposes other than regulatory compliance (e.g., waste minimization, energy efficiency, and pollution prevention).

15. U.S. EPA NETWORK FACT SHEET, ISO 14000: INTERNATIONAL ENVIRONMENTAL MANAGEMENT STANDARDS 1 (1995).

16. Id.

17. Id.

18. 61 Fed. Reg. 54061 (Oct. 16, 1996). The CEMP is an outgrowth of Exec. Order No. 12856, Federal Compliance With Right-To-Know Laws and Pollution Prevention Requirements, 58 Fed. Reg. 41981 (Aug. 6, 1993), ADMIN. MAT. 45059.

19. Id. at 54063.

20. U.S. EPA, PROPOSAL FOR USING VOLUNTARY ENVIRONMENTAL MANAGEMENT SYSTEMS IN STATE WATER PROGRAMS (Jan. 14, 1997) (on file with author). EPA stated that:

The use of comprehensive EMSs as a supplement to traditional approaches for ensuring environmental protection has not been a major point of discussion in developing public policy. Therefore, federal and state agencies must proceed carefully in evaluating whether these systems are indeed a useful tool for improving environmental performance, including compliance.

Id. at 4.

21. Id. at 5.

22. Id. at 6.

23. U.S. EPA, ENVIRONMENTAL MANAGEMENT SYSTEMS DEMONSTRATION PROJECT FOR MUNICIPALITIES AND COUNTIES (undated) (on file with the author).

24. Id. at 1, EPA decided to use a nonprofit organization, the Global Environment and Technology Foundation (GETF), to assist in providing training and other forms of assistance to a select group of municipalities and counties interested in establishing EMSs based upon ISO 14001.

25. Commission for Environmental Cooperation Council, Res. 97-05, quoted in 63 Fed. Reg. 12095 (Mar. 12, 1998).

26. Id.

27. Id.

28. TECHNOLOGY TRANSFER & SUPPORT DIV., NATIONAL RISK MOMT. RESEARCH LAB., U.S. EPA, ISO 14000 RESOURCE DIRECTORY (Oct. 1997) (EPA/625/R-97/003).

29. Fred Hansen, U.S. EPA, Coordination of EPA Programs Involving Environmental Management Systems, at www.epa.gov/reinvent/notebook/emsmeml.htm (last modified Dec. 16, 1997).

30. Id. at 2.

31. U.S. EPA, Position Statement on Environmental Management Systems and ISO 14001 and a Request for Comments on the Nature of the Data to Be Collected From Environmental Management System/ISO 14001 Pilots, 63 Fed. Reg. 12094 (Mar. 12, 1998).

32. Id. at 12096.

33. Id.

34. EPA defines pollution prevention as

any practice which—(i) reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream, or otherwise released into the environment (including fugitive emissions) prior to recycling, treatment, or disposal; and (ii) reduces the hazards to public health and the environment associated with the release of such substances, pollutants, or contaminants.

Pollution Prevention Act of 1990, 42 U.S.C. § 13102, ELR STAT. PPA § 6603.

35. 63 Fed. Reg. at 12096.

36. Id. It is possible, according to EPA, that there are hidden costs and benefits that could be used to help organizations identify and understand the costs and benefits that may have traditionally been overlooked by management. Id.

37. Id.

38. See U.S. EPA, AIMING FOR EXCELLENCE (1999) (EPA 100-R-99-006), available at http://www.epa.gov/reinvent.

39. Id. at 12 (Action Item 2).

40. See http://www.epa.gov.oeca/innovative/approaches.html.

41. These areas included compliance assistance, compliance incentives, innovations in information and accountability, and enforcement approaches.

42. Id. at 13.

43. Id.

44. Id. at 13-14.

45. Id. at 14.

46. CAROL M. BROWNER, ADMINISTRATOR, U.S. EPA, DEVELOPMENT OF A NATIONAL PERFORMANCE TRACK PROGRAM AND AWARDS PROGRAM 1 (Feb. 23, 2000).

47. U.S. EPA, Summary of Performance Track Proposal 1 (Mar. 9, 2000), available at http://www.epa.gov/performancetrack.com.

48. BROWNER, supra note 47, at 1-2.

49. U.S. EPA, ACTION PLAN FOR PROMOTING THE USE OF ENVIRONMENTAL MANAGEMENT SYSTEMS 3 (2000), available at http://www.epa.gov.ems and from the ELR Document Service, ELR Order No. AD-4565. This Article discusses the most important of the Action Plan's goals and elements.

50. Id.

51. Id. at 3. In earlier drafts, EPA cautioned that the proposed actions and their associated time lines are ambitious and, accordingly, the Agency may not be able to complete them in light of resource constraints and other priorities. Such caution is not expressed in the final document.

52. Id. at 5.

53. Id. at 6.

54. Id. An EMS service center can provide training and other forms of education to organizations that are interested in adopting EMSs with a focus on municipalities and small businesses.

55. Id. at 6.

56. Id.

57. Id. at 7.

58. Id. The National Biosolids Partnership, a not-for-profit alliance of the Association of Metropolitan Sewerage Agencies, the Water Environment Federation, and EPA, is initiating a demonstration pilot project involving 25 biosolids organizations from throughout the United States to develop an EMS template for this industry based upon ISO 14001. See National Biosolids Partnership Developing 14001—Type EMS, ENVTL. MGMT. REP., Aug. 2000, at 9.

59. ACTION PLAN, supra note 50, at 8. EPA wants to play an active role in promoting the use of EMSs and in educating a broader range of local government stakeholders about the benefits of EMSs.

60. Id. at 10.

61. Id. at 11.

62. Id. at 12.

63. Id.

64. Id. at 13.

65. Id. at 14.

66. Id. at 15. EPA has agreed to help organize at least one international workshop aimed at expanding the international dialogue on opportunities and concerns relating to promoting EMS through public policy and regulation. EPA is considering organizing that workshop in Asia. Id. at 17.

67. Id. at 18.

68. Id. at 19.

69. Unfortunately, the draft plan was not published in the Federal Register, publication might have fostered a greater response from interested persons and organizations. The comments described herein were forwarded to the author by David Guest of EPA. Because some of the comments were received anonymously and there was no agreement with the others that their comments would be published, the comments are summarized here without attribution.

70. Internationally, in excess of 18,000 companies have achieved ISO 14001 certification as of Oct. 5, 2000. See ISO 14001/EMAS REGISTERED COMPANIES (2000), available at http://www.ecology.or.jp/isoworld/english/analy14K.htm. The United States, with 840 registrations, ranks slightly ahead of Australia but is far behind world-leader Japan, which has 3,992 registrations. Nevertheless, "most large U.S. manufacturing firms and thousands of small and medium-sized firms are working toward certification." Stenzel, supra note 10, at 262 (citing David R. Sasseville, Comparison of ISO 9000 and ISO 14000 for SMEs (available from the author at Environmental Management Practice, KPMG Peat Marwick, LLP, Boston, Mass.: e-mail: dsasseville@kpmg.com). As these EMSs reach maturity and start producing statistics regarding economic benefits, including reduced costs, EPA will have industry-specific data to assess the viability of the these systems. Ultimately EPA will be merging data developed from the implementation of government EMSs with businesses' experience in evaluating the benefits of these systems.

71. See Suellen Terrill Keiner, Getting Done What Needs to Be Measured, ENVTL. F., Mar./Apr. 2000, at 37.

72. Stenzel, supra note 10, at 268. See also Joseph F. DiMento & Francesco Bertolini, Green Management and the Regulatory Process: For Mother Earth Market Share and Modern Rule, 9 TRANSNAT'L LAW. 121, 148 (1996) ("Generally, green management may assist the firm in making more cooperative its relationships with public regulators independent of instrumental concern with specific proposed regulation or enforcement.").

73. See ACTION PLAN, supra note 50, Elements 1, 3, 4, and 10.

74. See id. Elements 1, 5, 6, 9, and 10.

75. Keiner, supra note 72, at 37.

76. See Shelly Metzenbaum, Information Driven, ENVTL. F., Mar./Apr. 2000, at 26. Ms. Metzenbaum concludes that "more research is needed to refine understanding of the EMS and industry characteristics that would warrant a policy that rewards or mandates the use of an EMS. Without such research, using EMSs as a policy tool is premature." Id. at 30.

77. See ACTION PLAN, supra note 50, Elements 5 and 6.

78. See id. Element 4.

79. Id. Elements 1 and 7.

80. See Exec. Order No. 13148, supra note 2. Two years before President Clinton signed the Executive Order, the General Service Administration (GSA) created an environmental program entitled Planet GSA to encourage its 14,200 employers—who spend $ 50 billion each year in goods and services—to reduce collectively GSA's environmental impacts. GSA's Administrator launched an awards program, an employee education program and partnerships with 25 "customer agencies" to support GSA initiatives which include: buying green (purchasing recycled, energy-efficient and environmental products and services); building green (building, modernizing, and altering federal facilities using sustainable design principles); driving green (promoting and expanding the use of alternative-fueled vehicles and commuting strategies such as carpooling and teleworking); and saving green (promoting energy and water conservation in federal facilities). See U.S. GSA, GREENING OUR GOVERNMENT 44-45 (Jan./Feb. 2000).

81. Id. § 204-205.

82. Id. § 206.

83. Id. § 207.

84. Id. § 401(a), (b).

85. Id. § 401(b).

86. Id. § 501 (Toxics Release Inventory/Pollution Prevention Act Reporting); § 502 (Release Reduction: Toxic Chemicals); § 503 (Use Reduction: Toxic Chemicals, Hazardous Substances, and Other Pollutants); § 504 (Emergency Planning and Reporting Responsibilities); § 505 (Reductions in Ozone-Depleting Substances).

87. Id. § 801(a). The Executive Order has exceptions for national security interests for a specific period of time that may exceed one year. The Executive Order requires each agency to "strive to comply with the purposes, goals, and implementation steps in this order" "to the maximum extent practicable, and without compromising national security." Id. § 801.

88. Presentation of Danny Freemen, Environmental Engineer, Eglin Air Force Base, Florida, June 6, 2000, EPA-MSWG meeting in San Diego.

89. Presentation of Robert Espinosa, Acting Supervisor of the Environmental Planning and Compliance Office of the Naval Aviation Depot, North Island, San Diego, June 6, 2000, EPA-MSWG meeting.

90. Presentation of John H. Bridges III, Environmental Programs Analyst, June 6, 2000 EPA-MSWG meeting.

91. The Postal Service was recently honored by the National Recycling Coalition for using post-consumer recycled materials in its stamps, building "green" post office buildings, and purchasing more than $ 160 million of products with recycled content.

92. U.S. POSTAL SERV., CASE STUDY, SUBURBAN MARYLAND FACILITY ISO 14001 IMPLEMENTATION 1 (Nov. 1999) (on file with author).

93. The EMS group identified steps to reduce the environmental impacts of the use and maintenance of Postal Service vehicles; increased the scope of recycling programs; defined operational, environmental, and financial performance measures so management and craft employees could identify program success and challenges; and used an activity-based costing system to capture the costs and benefits of implementing and managing an EMS. Id. at 3.

94. Countdown to ISO 14001 Under Way at Three NASA Sites, ENVTL. MGMT. REP., Sept. 2000, at 1.

95. Id. at 10.

96. Id.

97. Environmental Policy Statement, as Amended by Sutton Council 1 (June 1995) (on file with author).

98. See http://www.isems.vic.gov.au.

99. Id.

100. Id.

101. In 1999, the Lester B. Pearson International Airport in Toronto, Canada, became the first airport in the world to attain ISO 14001 registration. Registered Airport in Canada Uses EMS to Cure Unwanted Birds, ENVTL. MGMT. REP., Sept. 2000, at 8.

102. U.S. EPA, FINAL REPORT, EMS PILOT PROGRAM FOR LOCAL GOVERNMENT ENTITIES I (2000).

103. Id. at 2. None of these municipal governments created an EMS that would cover all city operations and impacts.

104. Id. at 2-3.

105. Id. at 57.

106. Id.

107. See http://www.getf.org/muni.htm.

108. Penny Bondea, Living Lightly on the Earth, GREEN@WORK, Jan./Feb. 2000, at 48.

109. Id. at 49.

110. PAUL HAWKIN ET AL., NATURAL CAPITALISM 108 (1999).

111. Id. at 10-11.

112. Id. at 107. See also Cooling Chicago, Starting With a Garden on the Roof of City Hall, N.Y. TIMES, Oct. 28, 2000, at A7.

113. Scientists Watch Cities Generating Their Own Weather, N.Y. TIMES, Aug. 15, 2000, at C1.

114. NATURAL CAPITALISM, supra note 117, at 108-09.

115. Id. at 107.

116. William Kroenberg III, Controlling the Potential for Environmental Losses, 3 CORP. ENVTL. STRATEGY 81, 82 (1996).

117. U.S. EPA, ENVIRONMENTAL MANAGEMENT GUIDE FOR SMALL LABORATORIES 1 (1998) (EPA 233-B-98-001).

118. Companies Join University Lab Study Sequestration, BUS. & ENV'T, Sept. 2000, at 10.

119. Id.

120. See EPA Warns Colleges on Compliance; Regions Pursuing Enforcement Actions, 31 Env't Rep. (BNA) 1583 (July 28, 2000) [hereinafter EPA Warns]; Poison Ivy League? Some Universities Are Real Dumps, WALL ST.J., Jan. 17, 2000, at A1 [hereinafter Poison Ivy League?].

121. EPA Warns, supra note 127, at 1583.

122. Poison Ivy League?, supra note 127, at 10.

123. EPA Warns, supra note 127, at 1583.

124. Keyin Lyons, Creating Environmentally Sensitive Contracts at Rutgers University, 3 CORP. ENVTL. STRATEGY 67 (1996).

125. Id. at 68. According to Dr. William T. Engel of the University of Florida, a speaker at the recent EPA panel, see supra note 130, his school assisted the Orange County, Florida, school system in their design and implementation of an EMS system after the system had been penalized by EPA for RCRA violations.

126. Presentations of Dr. John Fitch, Florida Gulf University, at the June 5, 2000 EPA-MSWG meeting, San Diego, Cal., and at the EPA EMS Conference for Universities and Colleges, Sept. 26, 2000, Tyngsboro, Mass.

127. MARK C. SCOTT, THE INTELLECT INDUSTRY xi (1998).

128. NATURAL CAPITALISM, supra note 117, at 52.

This figure includes 3.5 billion pounds (920 million square yards) of carpet landfilled, 3.3 trillion pounds of carbon in CO₂ gas emitted into the atmosphere, 19 billion pounds of polystyrene peanuts, 28 billion pounds of food discarded at home, 360 billion pounds of organic and inorganic chemicals used for manufacturing and processing, 710 billion pounds of hazardous waste generated by chemical production, and 3.7 trillion pounds of construction debris.

Id.

129. Id. at 89.

130. Trish Hall, And the Walls Came Tumbling Down, N.Y. TIMES, Dec. 13, 1998, § 6 (Magazine), at 84.

131. Alcoa Co., Corporate Center Building Design Features 2 (undated) (on file with author).

132. Id. at 2.

133. Amory B. Lovins et al., A Road Map to Natural Capitalism, HARV. BUS. REV., May/June 1999, at 149. "Since a typical office pays about 100 times as much for people as it does for energy, this increased productivity in people is worth six to 16 times as much as eliminating the entire energy bill." Id.

134. Id. Healthy work habits lead to greater worker productivity. According to a recent Danish study, typists increase their output by 6% in offices with cleaner air and natural light that reduces fatigue. See Michelle Conlin, Is Your Office Killing You?, BUS. WK., June 5, 2000, at 114. In France, by law, each workstation is required to have access to natural light. Most European building codes require all workers to have access to a window "since artificial light tires people just as much as artificial air." Id. at 124.

135. Hall, supra note 138, at 86.

136. Lovins et al., supra note 141, at 149. In one recent study, the authors concluded that "industrial ecology promoters can help companies find ways to add value or reduce costs both within their own production processes and up and down the supply chain." Daniel C. Esty & Michael E. Porter, Industrial Ecology and Competitiveness, 2 J. INDUS. ECOLOGY 35 (1998). Regarding two-sided copying, for example, Esty and Porter noted that:

Using two-sided copying to produce a document will reduce paper flow. But if the document must be edited, and editorial productivity drops as a result of having to flip the two-sided copier back and forth (as the authors of this piece assert), then the emphasis on reducing material flow, in this case paper, will come at the expense of a much more scarce and valuable resource: analytical time.

Id. at 41.

137. See WRI Commits to Zero CO₂ Emissions, GREEN@WORK, Jan./Feb. 2000, at 10.

138. Id. at 10.

139. See New Economy, New Environmental Benefits, GREEN@WORK, Jan./Feb. 2000, at 9 (quoting JOSEPH ROMM, THE INTERNET ECONOMY AND GLOBAL WARMING: A SCENARIO OF THE IMPACT OF E-COMMERCE ON ENERGY AND THE ENVIRONMENT (2000)).

140. Id.

141. Id.

142. James Messelbeck & Michael Whaley, Allergan's Strategic Approach to Environmental Excellence, 4 CORP. ENVTL. STRATEGY 39 (1997). An EMS would frequently stimulate such approaches.

143. Id.

144. Id.

145. Id. at 37-38.

146. Id. at 39.

147. Id. at 39.

148. Id. at 40. Allergan defines "leadership" as "an externally focused initiative emphasizing the communication of our improving EH&S Performance"; "prevention" is characterized by "reaching into manufacturing and business processes to identify, prioritize and implement pollution prevention and safety risk reduction opportunities"; and "baseline compliance" is deemed to be full compliance.

149. Presentation of Joseph E. Shefchek, Chairman, Utility Solid Waste Activities Group Remediation Waste Committee, Corporate Environmental Officer, Alliant Energy Corporation, EPRI/GRI Conference on the Management of Former MGP Sites, May 31, 2000, New Orleans, La.

150. Jeff S. McDaniel et al., The Environmental EVA: A Financial Indicator for EH&S Strategists, 7 CORP. ENVTL. STRATEGY 125 (2000); Stanley J. Feldman et al., Does Improving a Firm's Environmental Management System and Environmental Performance Result in a Higher Stock Price?, ICF Kaiser International Inc. (undated) (unpublished manuscript), at http://www.innovestgroup.com/library.html; William L. Thomas, Taking Stock: New Methods Emerge to Assess Financial Gains by Environmental Leaders, TRENDS (A.B.A. Sec. on Env't, Energy, and Resources), Sept./Oct. 2000, at 1.

151. Betting Furrer et al., Climate Change and Finance: New Business Opportunities, 7 CORP. ENVTL. STRATEGY 138 (2000).

152. Id. at 139, Exh. 1.

153. Id. at 141. These mechanisms include joint implementation, which involves investments in greenhouse gas reduction projects by industrialized countries and countries with economies in transition; clean development mechanisms, which include investments in greenhouse gas emissions reduction projects by industrial and developing countries; and international emission trading, which involves the trading of emission credits. Id. at 141, Exh. 5.

154. Orley Kuntz, Volvo's Holistic Approach to Environmental Strategy, 7 CORP. ENVTL. STRATEGY 161 (2000).

155. Id. at 160.

156. The National Recycling Coalition recently honored Ford Motor Corporation for (1) issuing worldwide recycling guidelines to its suppliers and engineers; (2) equipping a high volume vehicle with recycled tire content; (3) using recycled housing carpet in its vehicles; and (4) recycling plastic parts from previous vehicles into new cars.

157. Stenzel, supra note 10, at 270 (citing Takao Ogawa, ISO 14001 for Medium and Small Enterprises 12 (1998) (Georgia Tech Univ. Center for Int'l Bus. Educ. and Res. Working Paper No. 98-002)).

158. It has been suggested that the federal government require ISO 14001 certification as a "special standard of responsibility" for federal contractors. See Laurent Hourcle & Fredrick J. Lees, Applicability of ISO 14000 Standards to Government Contracts, 27 ELR 10071, 10073 (Feb. 1997). Once the government begins to implement EMSs for its facilities it is likely it will expand requirements of its contractors to be more proactive and responsible regarding environmental protection.

159. HUGHES ELECTRONICS CORP., ANNUAL REPORT, ENVIRONMENTAL HEALTH AND SAFETY 16 (1999).

160. Id. at 17.

161. Id. at 17.

162. Id.

163. Id. at 20.

164. Employees at the Inn of the Anasazi in Santa Fe, New Mexico, are trained in conflict resolution and provide it to community organizations as a free service. NATURAL CAPITALISM, supra note 117, at 85. These same employees are paid for two hours' volunteer work a week when they "choose to sign a 'Right Livelihood' agreement authorizing them to undertake ecologically responsible work in the name of the hotel." Id.