When David Schoenbrod was an attorney for the Natural Resources Defense Council, he believed that an unelected "environmental captain," such as the EPA, should make the country's environmental rules.
Now he takes the opposite view. The professor at New York Law School and adjunct scholar at the Cato Institute argues that elected legislators should make all environmental law and that the EPA often fails to be an objective, scientifically guided rulemaker.
Mr. Schoenbrod explains why his views changed and how democracy would produce better environmental protection in his book, Saving Our Environment from Washington: How Congress Grabs Power, Shirks Responsibility, and Shortchanges the People (Yale University Press, 2005).
WORLD How did your own experiences make you question the wisdom of having an "environmental captain" in Washington?
SCHOENBROD What awoke me was, in a word, "lead." In 1970, Congress passed the Clean Air Act because voters demanded action to protect them from pollution, especially lead in gasoline. But, in the statute, Congress declared lofty goals and left the making of the rules to the environmental captain at the EPA. Almost as soon as Congress passed the statute, both liberal and conservative members, acting at the behest of lead additive makers and small refiners, started pressuring the EPA to go slow on lead. The EPA complied.
What got the lead out in the end was not Congress' mandate. In 1970, Congress required that new cars made from 1975 onwards use unleaded gasoline. The reason was to protect the pollution control equipment in these cars rather than to protect people from lead. Lead emissions went down slowly as these old cars gradually went to the junkyard. By 1985, leaded gas was no longer profitable for the big refiners. They lobbied President Reagan's EPA to ban leaded gas rather than leave this dwindling market to small refiners. The EPA complied.
I am convinced that we would have gotten faster protection if Congress had not passed the rulemaking buck to the EPA. In that case, with voters demanding action in 1970, Congress would have had to enact a rule reducing the lead in the gasoline used by old cars. That rule would have taken most of the lead out by 1975. Instead, Congress declared victory while shifting responsibility to the EPA, which did little for years. The upshot: Children absorbed a lot more lead from the early 1970s through the mid 1980s. The resulting deaths and disabilities, estimated according to the way the EPA figures lead's impact, approach the American casualties in Vietnam.
WORLD What role do you think the federal government should have in environmental protection?
SCHOENBROD There are millions of pollution sources. The federal government should regulate only the very small fraction of them that states cannot regulate on their own without hurting other states or other countries. The chief candidate for federal control would be large plants that do much of their harm out of state, such as electric generators.
WORLD If we leave environmental protection to democracy, is there a danger that voters will not understand the importance of some environmental concerns?
SCHOENBROD Congress empowered the EPA on the theory that only a national agency that is insulated from accountability to voters could produce the scientifically grounded pollution rules needed to save a careless public from its own filth.
But, the best environmental rules-those that have done the most good-have come when Congress had to take responsibility or from states and localities, but not the EPA.
For example, on emissions from new cars, acid rain, and specially hazardous air pollutants, real progress came only after Congress passed the buck to the EPA, it stalled, voters complained, and then Congress stepped in to make hard choices. In each of these instances, the environmental captain failed and democracy worked.
The people at the EPA are well-intentioned, but Congress has given them an impossible job-to regulate thousands of pollutants coming from millions of sources across a diverse country-and without the legislators having tackled the really hard choices such as how to balance environmental and economic concerns and how to allocate the cleanup burden among polluters.
WORLD Why do you think it is vain to hope that science can provide definitive guidance for environmental policy?
SCHOENBROD The science on the health effects of pollution is full of uncertainties. Even if the EPA precisely understood the health effects, it would still face questions of priority, such as whether to eliminate a small health effect at a large cost. So, the EPA must base its rules on policy as well as science and so they inevitably reflect politics. Indeed, no EPA administrator has been a hard scientist from the agency's establishment in 1970 through 2004. In 2005, President Bush did appoint a scientist, Stephen L. Johnson.
WORLD What is the "precautionary principle," and what is wrong with it?
SCHOENBROD To support their policy preferences that have no basis in science, some environmentalists invoke the "precautionary principle." It dictates leaving things "natural" unless there is proof positive that the unnatural way is safe. It sounds both sensible and scientific, but in fact is neither. Science shows that eliminating risks can itself produce risks. As Jane E. Brody wrote in The New York Times: "The millions or billions spent in compliance and enforcement might be better used in ways that would save many more lives, and sometimes the cost is not worth the potential benefit. I say 'potential' because in many cases, the risks involved are only hypothetical, extrapolations from studies in laboratory animals that may have little or no bearing on people.
"Remember, too, that 'natural' is not necessarily safer, and just because something is manufactured does not make it a potential hazard. Nature is hardly benign. Arsenic, hemlock and, despite its current medical applications, botulism toxin are wholly natural but also deadly."
WORLD How is this principle rooted in a particular set of religious beliefs?
SCHOENBROD Nature inspires awe. As Isaiah puts it, "Holy, holy, holy is the Lord of Hosts, the whole earth is full of His glory."
When the "Age of Reason" made it unfashionable in some circles to believe in God, many people skipped "the Lord" and deemed the earth holy. They had shifted their religious attachment from a transcendent deity to the nature around them.
Environmentalists who espouse the precautionary principle have, in effect, embraced a religious doctrine holding that humans left nature's ways and now stand in peril unless we return to them.
The key question in the case of the environmental doctrine is, what is "natural"? Apparently, it does not include human society as we have it today for, otherwise, everything would be natural. The natural is apparently the earth before homo sapiens improved upon Stone Age technology (in which case, the precautionary principle tells us to get rid of modern dentistry and central heating because both entail risks).
There is much to be said for caution in altering natural systems. They are difficult to understand. Misunderstanding can produce grave harm. The harm can be irreversible. But neither science nor the scientific pretense of the rigid precautionary principle can settle our environmental disputes. Common sense must also play a role, and in it there should be a prudent dose of the precaution that sensible people take in dealing with suspected dangers.
WORLD Your description of "the joy of doing" sounds a lot like the biblical concept of calling, in which God equips each person with the skills and at least the potential passion for certain vocations. How does the EPA undermine this joy of doing?
SCHOENBROD Many people want the joy of doing that can be found in farming or a small business. A majority (56 percent) of Americans dream of starting their own business and another 10 percent already do so. Their primary reason is "doing something you love" far more than "being your own boss" or to "get rich."
EPA staffers want to do the right thing, but they end up squashing small businesses. They pay more to comply: $3,328 per employee for firms with fewer than 20 employees versus $717 for firms with more than 500 employees. Large corporations can afford to hire their own lawyers and experts to impress their concerns on regulators in Washington. Little firms and farms can't. They would do better with elected state and local legislators who are closer to home and want their votes. Before the EPA's advent in the 1970s, small plants were gaining market share from large ones. The trend has since reversed.
Small businesses and farmers have an even more basic problem-deciphering the regulatory requirements. While giant corporations have in-house environmental staffs to decode regulatory complexity, the small fry grope in the dark. Regulation by a single state or locality would be simpler and more understandable.
WORLD Why do big businesses often support costly environmental regulations?
SCHOENBROD Major corporations can pass most of the costs-of pollution control equipment and of the legal work and lobbying-along to the public in the form of higher prices. The largest firms use their sophisticated lobbyists to seek regulations that put competitors at a disadvantage. For instance, big refiners pushed for eliminating all the lead from gasoline in order to give themselves an edge over small refiners. Firms use environmental law to restrict the entry of competitors and subject them to higher costs. No wonder that, when EPA announces new regulatory initiatives, the stock prices of established firms sometimes go up.
WORLD You describe the political benefits the current system holds for members of Congress. (They can appear to help the environment while blaming the EPA for the cost of environmental protection.) What will it take to persuade Congress to give up something so politically helpful?
SCHOENBROD The great majority of ordinary Americans (68 percent) tell pollsters that the public does not care enough about the environment. Think about it. Most people think most people don't care enough about the environment. We do care enough. The problem is that we have been convinced we don't. Once we get that sorted out, voters will come to understand that Congress has designed a system that is perfect for its members and bad for us. Then, its members will feel the heat and change the system to suit our needs rather than their ambitions.