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David Schoenbrod

Interview | When it comes to the environment, David Schoenbrod believes the EPA is the problem and democracy is the solution

Issue: "Narnia unleashed," Dec. 10, 2005

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).

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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.

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