Administrative Reform from a Land Use Perspective: Creating Positive Environmental Externalities

The current regulatory state of our environmental laws and agencies provides an elaborate blending of inequitable results and unsustainable environmental policies. The purpose of this essay is to highlight some of these concerns from the road-less-traveled, a land use perspective. In doing so, this essay proposes that a more regionally focused administrative perspective in our environmental agencies could result in beneficial environmental outcomes in the future.Ultimately, this essay concludes that the cause of these discrepancies result from a misapplication of land-use policies and deference to oil and gas companies that was generally accepted thirty years ago, but such application is outdated and should not prevail in the present. Although we as society would like a “mulligan” to go back and start over, that is not going to happen. The most realistic solution involves modifying the processes of regulatory agencies, and couching more environmental decisions in local communities who will assist in implementing basic land-use policies in making large-scale-environmental decisions from a local perspective.Part II of this essay provides a brief overview of the uranium-mining business, and the regulatory matters that outline the environmental standards in the industry. Part III of this essay argues that the while the Goliad court incorrectly reasoned the issues in that case, the decision reflects one of many examples of judicial deference to the industry. The holding contradicts sound environmental policies. Part IV takes a deeper examination — comparing to Goliad — of the recent conflicts arising from TCEQ’s flexible-permit program as part of its State Implementation Plan (SIP), and the resulting petition by Texas to review EPA findings that the SIP violated federal minimum standards. Next, Part V criticizes the value that the concept of “chemistry becoming commerce” adds to our environmental and economic sustainability. Chemistry becoming commerce represents the legal reality that our environmental agencies base standards on commercial similarities in this industry, rather than environmental outcomes. In Part VI, this essay considers the policies surrounding environmental regulation with an examination of where they originate. This essay concludes that land-use law at the local-government level has a strong impact on environmental policies, despite actually having a narrow range of powers to affect change. Further, the author examines how the doctrines of state sovereignty and cooperative federalism have affected our environmental laws and agencies. This section will discuss the recent proposals for change by former TCEQ Commissioner Kathleen White, which strongly supports the propositions of this essay. In addition, this section will examine what this essay concludes is the future of environmental regulation: local agencies such as groundwater conservation districts. Finally, Part VII discusses the need for a cultural change, towards the ultimate goals underlying this entire essay, of environmental and economic sustainability. This essay concludes a reevaluation of our regulatory agencies and a shift towards placing more powers in the hands of local governments are the appropriate first steps.