GUEST EDITORIAL The myths of

environmental regulation Conventional wisdom suggests that the system of

environmental regulations and permits in the U.S. necessarily causes significant delays and increased costs in project development. This belief may reflect a basic misunderstanding of how the structure of en­vironmental permitting and regulation actually works.

Compliance with environmental laws and their accompanying regulations is often uncoordinated and confusing to companies unaccustomed to any public participation in their planning processes. When projects have faltered, environmental regulations have sometimes unfairly borne the blame. Recent events in Washington have demonstrated, however, that environmental regulation and permitting are here to stay. The only relevant question for regulators and applicants alike is whether that process will be ratio­nal, efficient, expeditious, and fair.

The myths of environmental regulation are twofold: 1) that compliance will necessarily create increased costs and lengthy delays in a project's completion and 2) that it is better not to disclose and candidly assess any negative environmental aspects of the project unless and until forced to do so.

A consequence of these fears is a frequent tendency on the part of project proponents to gloss over poten­tially harmful environmental impacts and to fail to examine reasonable alternatives to the project. No path could be more hazardous to a project's environ­mental compliance. As many planners have learned by costly experience, truly controversial projects simply cannot escape close environmental scrutiny by the public and the courts. The only question is when that scrutiny will occur—early in the process when the problems are manageable, or late in the process, when the escalating cost and delay can be fatal.

Recent studies by the Conservation Foundation and other organizations have confirmed that project delays are more often the product of uncertainty and poor planning by both companies and agencies than of difficulties in actual technical compliance with envi­ronmental laws. Furthermore, a project need not be environmentally "perfect" in order to pass environ­mental muster. For example, a key to understanding the National Environmental Policy Act (ΝΕΡΑ) is to recognize that ΝΕΡΑ seeks to achieve substantive environmental goals through a series of procedural steps, such as providing for adequate public partici­

pation. Courts readily seize upon procedural flaws in the ΝΕΡΑ process, but seldom question the substan­tive decisions of agencies.

Corporate and other planners are often reluctant to invite public or government participation in the early planning stages of a project. This reluctance may stem from a belief that too much disclosure, particu­larly before the proposal is final, might flag contro­versial issues for project opponents and give too much attention to the negative environmental aspects of the project. To the contrary, meaningful and public con­sideration of all viewpoints and potential alternatives and coordination of all procedural requirements are essential in minimizing the costs of delays associated with environmental compliance. This effort should be not just a PR exercise to sell the project, but a genuine consideration of these concerns at an early stage, when legitimate environmental interests can be accommo­dated most easily and at least cost.

One practical mechanism addressing these concerns is the voluntary Joint Review Process (JRP), an ex­periment in Colorado and other states to coordinate all of a project's environmental permitting and to en­sure early and meaningful public involvement. A JRP-type procedure should be attractive to companies, regulators, and environmentalists alike because: 1 ) it reduces uncertainty and inefficient planning in the permitting process; 2) the formal record it creates reduces the likelihood of successful lawsuits and their accompanying delays; and 3) it raises and addresses legitimate environmental issues early, when they are more likely to be accommodated.

Careful planning, close attention to procedures, and meaningful public participation cannot solve all problems of environmental permitting, nor can they prevent suits from being brought by determined op­ponents of new projects. However, they do offer the prospect of relief from costly, unnecessary delays in the permitting process and from prolonged litigation.

0013-936X/83 /0916-0395A$01 .50 /0 © 1983 American Chemical Society Environ. Sci. Technol. Vol. 17, No. 9, 1983 395A

ES&T

Don G. Scroggin practices environmental law at the Washington. D.C., law firm of Beveridge & Diamond, P.C.