A road map for environmental law in the twenty-first century: follow the Oregon trail.

   Oregon is a national model for promoting strategies that protect open
   spaces and encourage smart growth. These are lessons that should be
   employed on a national level and implemented in the twenty-first century.
   In this Essay, Senator Wyden and Joshua Sheinkman share the many strategies
   used by Oregon to promote smart growth and protect its valuable open
   spaces. They then introduce a few examples undertaken on the national level
   that demonstrate how transportation and energy policies can work together
   to further environmental policies. They conclude that transportation and
   energy policies that promote smart growth and protect open spaces are the
   vehicles of development and preservation that should be used in the new
   millennium.

In many areas around the country, the November 1998 election was a national wake-up call about the importance of protecting open spaces and promoting smart growth. But for Oregon, these goals have been part of out state growth management laws for nearly thirty years.(1)

Protecting open space preserves Oregon's scenic treasures--the majestic mountains, the high desert plateaus, and the dunes of Oregon's coast. Providentially, it also protects Oregon's economic base. Without strong open-space protections in place, much of Oregon's productive farm and forest lands would be vulnerable to stripmalling or condo-mania.(2)

Oregon recognizes that for growth management to work, it's not enough to make certain areas off limits to growth and tell people they cannot build there. We also have to make the areas where we want growth to occur more attractive to developers by creating the essential infrastructure for development. Oregon's transportation, planning, and construction efforts reinforce these smart growth strategies.(3) Oregon does not just give lip service to these strategies. We actually put our money where our mouth is by providing funding for highways, sewer systems, and economic development that ensures growth occurs where we want it.

Oregon's approach to managing growth has benefits for our citizens not only where they live and breathe but also in their wallets. The flip side of protecting open space is that it helps promote more compact, smart growth that is less costly to municipalities and their taxpayers.(4) Oregon may be the best model anyone has come up with yet for how the economy and the environment can grow together. But that does not mean we cannot build on and improve the model. And certainly we can do more at the national level to build environmental goals into federal transportation, energy, and economic development policies.

We have seen a few examples at the federal level of how transportation and energy policies can work together with and be vehicles for furthering environmental policies. The Clean Air Act Amendments of 1990(5) require transportation projects in nonattainment areas(6) to conform to the state's implementation plans for achieving air quality standards in order to receive federal funding.(7) This requirement prevents conflict between transportation projects and environmental goals. The Intermodal Surface Transportation Efficiency Act of 1991(8) took this a step further by creating the Congestion Mitigation and Air Quality (CMAQ) program that provides federal funding for projects that help achieve or maintain air quality standards.(9) And the Energy Policy Act of 1992(10) achieved a "regulatory trifecta" by creating an alternative fuel vehicle program that simultaneously promotes energy, environmental, and transportation policy goals.

Most recently, the Transportation Equity Act for the 21st Century (TEA-21)(11) included two initiatives to better align transportation and environmental policies. The Transportation and Community System Preservation Program,(12) which we authored, created the first federal incentives for good local growth management by providing grant funding to states and communities that want to integrate their transportation programs with their environmental protection and growth management strategies.(13) During the first round of grants, Oregon received over one million dollars for two projects to fight sprawl through transportation planning--$500,000 for METRO (the Portland Metropolitan Service District) to complete urban reserve planning in areas recently added to the urban growth boundary,(14) and $600,000 for the Willamette Valley Livability Forum to create models of future land use decisions to help manage growth in the valley.(15) TEA-21 also established a coordinated environmental review process for highway construction projects to get better coordination among the various transportation and environmental agencies involved in reviewing these projects.(16)

These recent initiatives establish a foundation for fully incorporating environmental considerations into transportation, energy, and economic development policies for the next millennium. Instead of first designing infrastructure and then trying to figure out how to square it with environmental requirements, as often happens, these initiatives can develop win/win solutions that accomplish both environmental and infrastructure objectives as part of an integrated, smart growth decision-making process.

As any environmental engineer will attest, an emission control system that is designed and built into the manufacturing process at the front end will yield better environmental performance than one that is at the end of a plant's smokestack.(17) Applying a similar approach to developing our environmental policies could also yield superior performance.

With the notable exceptions of the Clean Air Act Amendments of 1990,(18) the Safe Drinking Water Act Amendments of 1996,(19) and the Food Quality Protection Act,(20) major environmental legislation has essentially been stymied in Congress throughout the 1990s. Considering how new environmental initiatives fared in Congress the past few years, an approach that builds in environmental concerns at the front end of economic policy making may be the only realistic way to advance environmental protection, at least in the short term. For example, with the help of the Environmental Defense Fund and the Farm Bureau, we are now working with Senator Conrad Burns (R-Mont.) to authorize federal sewer infrastructure funding to be used for water conservation projects.(21) At the end of the day, there is no question Congress will be a major player in enacting major infrastructure laws. Cutting ribbons is always popular.

Furthermore, there is no question that every time Congress focuses on an infrastructure bill, there has to be new emphasis on improving our environment and quality of life. For example, the recently enacted Water Resources Development Act(22) includes unprecedented funding for wetland and ecosystem restoration in the Columbia River through authorization of the Columbia Channel Deepening project, along with $5 million to help improve water quality in the Columbia by reducing sewer overflows in Astoria.(23)

As we move into the twenty-first century, we need to take a broader view of how we can achieve environmental goals. When the U.S. government improves and builds new roads, sewer lines, and water projects or restructures how we get energy for our homes and businesses, it can be equally, if not more, significant than new environmental legislation.

As we look ahead at the beginning of a new millennium and to what we can accomplish, we can gain an important perspective by looking further back than the last thirty years of environmental law to the early years of this century. In 1911, before the concept of "environmental laws" even existed, Oregon Governor Oswald West took what was then a radical step toward protecting the Oregon Coast by declaring the state's beaches a public highway.(24)

Just as our ancestors looked to Oregon as an Eden of economic opportunity in the last century, people throughout the country now see Oregon as fertile soil where both a healthy environment and a healthy economy can grow together. As we head into the twenty-first century, Oregon's approach to smart growth can be a road map for the nation, demonstrating that the economy and the environment can go hand-in-hand instead of head-to-head.

SENATOR RON WYDEN(*) AND JOSHUA SHEINKMAN(**)

(*) A.B. 1971, Political Science, with distinction, Stanford University; J.D. 1974, University of Oregon School of Law; lawyer; member, Iowa and American Bar Associations; elected to the 97th Congress on Nov. 4, 1980; reelected to each succeeding Congress, through 1998; elected to the United States Senate to fill the seat vacated upon resignation of Senator Bob Packwood; elected to a six-year term in November 1998.

(**) Joshua Sheinkman is counsel to Senator Ron Wyden and has been his advisor on environment, energy, and transportation policy since 1993. Mr. Sheinkman earned his law degree in 1987 from New York University School of Law, where he was an editor of the Review of Law and Social Change. He graduated cum laude from Harvard College in 1982.

(1) Various scenic easements and Oregon's ecologically sustainable development initiative are fine examples of proactive growth management. See, e.g., OR. REV. STAT. [subsections] 197.005-197.860 (1997) (mandating a statewide program applying ecologically sustainable development to land use planning); OR. REV. STAT. [subsections] 271.715-271.795 (1997) (regarding local implementation of growth easements); OR. REV. STAT. [subsections] 390.316-390.368 (1997) (preserving farmland in the Willamette Valley); OR. REV. STAT. [subsections] 390.805-390.925 (1997) (preserving areas adjacent to Oregon's rivers through the Scenic Waterways Program).

(2) As stated by Tom McCall during the address at the opening of Oregon's 57th Legislative Assembly,

   [t]here is a shameless threat to our environment.... Sagebrush subdivision,
   coastal "condomania" and the ravenous rampage of suburbia in the Willamette
   Valley all threaten to mock Oregon's status as the environmental model for
   the nation.... The interests of Oregon for today and in the future must be
   protected from the grasping wastrels of land.

Tom McCall, Address at the Opening of Oregon's 57th Legislative Assembly (Jan. 8, 1973), in CHARLES E. LITTLE, THE NEW OREGON TRAIL: AN ACCOUNT OF THE DEVELOPMENT AND PASSAGE OF STATE LAND USE LEGISLATION IN OREGON 7 (1974). The legislature responded to this address by adopting a Comprehensive Land Use Planning Coordination Program. See OR. REV. STAT. ch. 197 (1997).

(3) One of Oregon's Comprehensive Land Use Planning Coordination mandates was to develop state-wide planning goals and guidelines. OR. REV. STAT. [section] 197.225 (1997). Goal 5 concerned natural resources, scenic and historic areas, and open spaces. OR. ADMIN. R. [section] 660-015-0000 (1999); see OREGON DEP'T OF LAND CONSERVATION & DEV., OREGON'S STATEWIDE PLANNING GOALS & GUIDELINES (1996)(available at <http://darkwing.uoregon.edu/~pppm/landuse/GOALS/Goal_5.html>). Goal 2 concerned land use planning. OR. ADMIN. R. [section] 660-015-0000 (1999); see OREGON DEP'T OF LAND CONSERVATION & DEV., supra (available at <http://darkwing.uoregon.edu/~pppm/landuse/GOALS/Goal_2.html>).

(4) See Matthew W. Ward et al., National Incentives for Smart Growth Communities, 13 NAT. RESOURCES & ENV'T 325, 325 (1998) (discussing the costs of sprawl).

(5) Pub. L. No. 101-549, 101 Stat. 2399 (amending Clean Air Act, 42 U.S.C. [subsections] 7401-7671q (1994 & Supp. III 1997)).

(6) "Nonattainment areas" are regions that have failed to meet the national ambient air quality standards established under the Clean Air Act. See 42 U.S.C. [section] 7407(d) (1994) (concerning designation of air quality control regions). For a review of the nonattainment area regulatory scheme, see Theodore L. Garrett & Sonya D. Winner, A Clean Air Act Primer: Part I, Envtl. L. Rep. (Envtl. L. Insto 101,59, 101,63, 101,73-83 (Mar. 1992).

(7) 42 U.S.C. [section] 7506(2) (1994).

(8) Pub. L. No. 102-240, 105 Stat. 1914 (codified in scattered sections of 23 U.S.C., 49 U.S.C., and other titles of U.S.C.).

(9) 23 U.S.C. [section] 149 (1994).

(10) Pub. L. No. 102-486, 106 Stat. 2776 (codified in scattered sections of 16 U.S.C., 25 U.S.C., and 42 U.S.C.).

(11) Pub. L. No. 105-178, 112 Stat. 107 (1998) (codified in scattered sections of 23 U.S.C.).

(12) Id. [section] 1221, 112 Stat. at 221.

(13) See 144 CONG. REC. S5403-04, S5406 (May 22, 1998) (statement of Sen. Wyden).

(14) Federal Highway Admin., U.S. Dep't of Transp., Report to the Senate Committee on Environment and Public Works [and] the House Committee on Transportation and Infrastructure: Status Report No. 3, April 1999-June 1999 (last modified Nov. 15, 1999) <http://www.fhwa.dot.gov/discretionary/fadi9120.htm>.

(15) Id.

(16) [section] 1309, 112 Stat. at 232.

(17) STANLEY E. MANAHHAN, ENVIRONMENTAL SCIENCE AND TECHNOLOGY 109 (1997).

(18) Pub. L. No. 101-549, 101 Stat. 2399 (amending 42 U.S.C. [subsections] 7401-7671q (1994 & Supp. III 1997)).

(19) Pub. L., No. 104-182, 110 Star. 1613 (codified at 42 U.S.C. [section] 300(g)-(j) (1994 & Supp. III 1997)).

(20) Pub. L. No. 104-170, 110 Stat. 1489 (1996) (codified as amended in 7 U.S.C. [section] 136 and 21 U.S.C. [section] 346 (1994 & Supp. III 1997)).

(21) See S. 188, 106th Cong. (1999).

(22) Pub. L. No. 106-53, 113 Stat. 269 (1999).

(23) Id. [section] 502 (f)(38), 113 Stat. at 337.

(24) See KATHRYN A. STRATON, OREGON BEACHES, A BIRTHRIGHT PRESERVED 11 (1977).