Friday, April 22nd will be Earth Day 2022 in the United States and around the globe. With “Invest in Our Planet” as its theme, Earth Day 2022 focuses additional attention on Environmental, Social, and Governance (ESG) as an important metric for evaluating activities that may impact human health or the environment. This is the first in a series of publications by Bradley’s Environmental Law team in recognition of Earth Day 2022. This first article will examine the more than 50 year history of Earth Day as well as the progress made in addressing environmental concerns in the United States. The second article will focus on the origins of the ESG metric as well as the status of various efforts to standardize how ESG issues are measured. The final article will give practical guidance on how to create or refine an ESG program.
There was no Environmental Protection Agency at the time of the 1970 Earth Day. The EPA was established in December 1970 by executive order. The Clean Air Act is not the only environmental regulatory program that Congress created and oversees by EPA (and the other federal agencies). Many of these programs can be traced back the initial Earth Day and a growing awareness of environmental issues that could have an impact on human health or the environment. The Clean Water Act, the Endangered Species Act, the Safe Drinking Water Act, the Toxic Substances Control Act (TSCA), the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), and the Oil Pollution Act (OPA) are all “command and control” type programs that tried to solve environmental pollution issues by regulating or restricting activities or mandating specific actions.
Although none of these federal laws achieved the goals set at the time they were passed, each one of them has worked to some degree to improve the environment, prevent harm to human health, or hold those responsible for polluting accountable for the clean-up or the costs of cleaning up. One of the goals of Clean Water Act was to make all water bodies fishable and swimable. Although this goal has not been achieved, the number waters that aren’t suitable for swimming or fishing continues to decline. Even though this goal may never be met, the Clean Water Act has had an important impact on the quality and control of domestic and industrial wastewater in the United States.
Often, deficiencies in initial environmental programs became obvious and new programs or refinements to existing programs were created. The history of TSCA is a good example of this. At the time TSCA was passed in 1976, a decision was made to “grandfather” most existing chemicals from TSCA’s regulatory structure. In June 2016, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Chemical Safety Act) significantly amended TSCA and provided a pathway to evaluate the chemicals that were previously grandfathered.
After some of the obvious environmental problems with air, water, and land pollution were addressed, EPA and other environmental agencies focused on pollution prevention programs – programs designed to eliminate or reduce pollution at the source. EPA established programs to prohibit or limit certain activities. In federal programs, environmental programs were also adapted to address persistent issues even after certain practices had been controlled or eliminated by environmental laws and regulations.
As we will see next week, the progression, evolution and adaptation of environmental laws and regulations has fostered many of the metrics currently used to evaluate a company’s ESG performance.
