June 30, 2008

on the question of environmental compliance costs

By on the question of environmental compliance costs

Freelance writer Ed Quillen recently wrote an op-ed on Colorado mining interests' fight against proposed drilling regulations in the Denver Post, and Ted Zukoski offered praise for Quillen's piece today at unEARTHED, the Earthjustice environmental blog.  Both Quillen and Zukoski take issue with the audacity of the Colorado Oil and Gas Association and the Colorado Petroleum Association campaign to let Colorado citizens know that the drilling measures may affect their economy.  Zukoski suggests that working with the Colorado Division of Wildlife under the proposed rules is a cost-free proposition:

While the proposed rules could require certain companies to cease operations for 90 days during winter months, those rules will only impact companies that refuse to work with the Colorado Division of Wildlife to fashion development plans. In other words, if you refuse to take reasonable steps protect wildlife, you may have to pay a price for that. Work with the wildlife experts, and you have little to fear.

Discussing a full-page ad put out by COGA and CPA, Quillen opines that the threat of job losses really isn't that big of a deal:

"But there is not a single word in the new regulations," we read, "dealing with the impact of these shutdowns on the 10,700 workers who will lose their jobs and the local communities that will suffer."

Wait a minute. At worst they would be laid off for three months before returning to work. They wouldn't "lose their jobs."

Quillen's comment regarding job security (and the underlying assumption that mining companies will invest despite being unable to use their property for 1/4 of a year) speaks for itself.  As for Zukoski's suggestion that costs are incurred only when mining companies choose not to consult with state agencies, the reality is in fact different.  While those who regulate do not bear the burden of the rules they enact, those who produce (that is, any business owner, small or large) will note that any state-mandated consulting, environmental or otherwise, results in increased time and monetary expenses.  Not only do these increased expenses affect the ability to keep employees on the payroll, but consumers are sure to be affected as well by higher prices. 

The costs of environmental compliance are real and can sometimes do more harm than good.  (For more on this phenomenon as it relates to the Endangered Species Act, see Ike C. Sugg's 1993 article, "Caught in the Act: Evaluating the Endangered Species Act, Its Effects on Man and Prospects for Reform" (available at 24 Cumb. L. Rev. 1 (1993)), as well as Professor Jonathan Adler's more recent analysis, "Money or Nothing: The Adverse Environmental Consequences of Uncompensated Land Use Controls.") Moreover, the debate is not simply about "jobs versus environment" but instead involves a host of other factors affecting society's well-being.

Even if it were that simple, to suggest that the concern about jobs is "artificial" and a "canard" would be naive and short-sighted.  The Supreme Court's 1978 decision interpreting the Endangered Species Act, for all its other faults, recognized that environmental regulations do not come without costs–according to TVA v. Hill, in undertaking Section 7 consultations, endangered species are to be protected, "whatever the cost."  In arguing in favor of "reasonable regulations," environmental groups should strive to be as honest, rather than asserting that there is "little to fear" in working with environmental agencies.

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