In Need of No EPA or a Different EPA?

imagesCAAUKO6QOver at National Review, Josh Gelernter argues that we should consider abolishing the U.S. EPA – “Fixing the EPA
The $8-billion-a-year agency gives us a chance to see whether we need it at all.”  Pointing to the agency’s occasional over-zealotry involving implementing the Clean Water Act and the GOP’s inability to throttle back on the agency’s seeming affinity to expand its regulatory reach, Gelernter argues: 

The GOP wants to rein in the EPA, but, hitherto, the EPA has simply ignored its overseers’ oversight. This new EPA plan [to redefine navigable waters], after all, is subsequent to the Supreme Court ruling that the Clean Water Act gave the federal government power to regulate only waterways that constitute a “substantial nexus” of interstate commerce. So instead of laying out new hurdles for the EPA to circumvent, or ignore, the GOP should consider this:

In 1932, Chief Justice Brandeis wrote that a “state may . . . serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.” The essence of federalism. Next time the EPA’s budget comes up, the GOP should include a laboratory experiment: entirely exempt one state from EPA oversight.

You might say that Brandeis-lab theory doesn’t apply to the environment; after all, we all breathe the same air. But this wouldn’t mean exempting the lucky state from federal environmental-protection law; it would still be bound by the Clean Air and Water Acts, etc. So there wouldn’t be an explosion of pollution; the EPA, in theory, doesn’t make law, it implements and enforces it. This would be a test of whether or not individual states can be trusted to follow the law without an $8-billion-a-year middleman. I suspect they can. Anyway, they won’t have to start from scratch: There’s a lot of EPA precedent for interpretation — parts-per-million this, carbon dioxide that — and the states will inherit all of it, free to keep the rational parts and throw out the rest. After a two- or four- or six-year test, if everything has gone to hell, the feds can step back in and clean up the mess. If the Cuyahoga can be cleaned up, so could any damage a state might theoretically do to itself or its neighbors in the short-term absence of parental supervision. Anyway, what state would allow itself or its water to be Cuyahoga’d, now that every politician in the country is conversant in environmentalism?

Dismantling EPA is certainly not a unique argument to those on the political right, but nor is it a serious argument.  Yet Gelernter hits upon an idea that has merit and one that I’ve argued for years; that is, environmental protection must increasingly devolve to the states.  My good friend, Jonathan Adler, has long argued that neither EPA nor federal environmental law were ever really needed – See WaPo article, The fable of the burning river 45 years later.  My disagreement with Adler on this point revolves around timing more so than substance.  The serious environmental challenges we faced in early 1970s required strong federal intervention to help right the ship.   And even today, the federal Clean Water and Air Acts help guard against a race-to-the-bottom, i.e., the notion that some states and politicians will simply trade jobs and economic growth for environmental protection.

Perhaps, however, with our evolving understanding and collective awareness of the importance of healthy ecosystems on the public and the economy, we are nearing that point where states can and should be entrusted to play a greater role in fulfilling federal environmental obligations.  After all, the implementation of these federal laws are largely already delegated to the states.  But Gelernter suggests that we take an even braver step, one involving entirely exempting states from EPA oversight.

Interesting idea and one that has some appeal, but I would start with the premise that EPA’s oversight is not per se the problem.  The problem as I see it stems largely from the agency’s relationship with the states, its understanding of its role in environmental protection, and its unflattering tendency to think it knows best.  Over the last 20 years, and during my time at EPA, I’ve watched this relationship between EPA and the states ebb and flow.  At times, the relationship is healthier than others.  But when it’s healthy, more environmental protection gets done – it’s axiomatic.   It’s a fascinating dynamic to watch and is often influenced by EPA’s top leadership and whether or not the agency is willing to trust a state to experiment and take risks on doing things differently.  I’d dare say the relationship at the present time is strained and like a bad cold, and isn’t going to get any better as long as EPA continues to pick fights with the states over big things like climate change and federal water jurisdiction that are best left to Congressional action, not creative and fanciful agency interpretation.  This is not to say that tensions between EPA and the states are not inevitable or healthy.  They are, just as they are between any balance of powers.

Yet trust and respect are two-way streets, and for the Brandeis-lab option to work, not only must EPA trust the states, but the states must trust EPA to do what is right and within the agency’s statutory authority.  For the most part, states want clean air and water and often can achieve those desired ends through flexible and innovative approaches, but states are often confronted with stark and competing economic choices that do not always promote environmental protection.  Thus, I would caution against Gelernter’s belief that merely having more politicians “conversant in environmentalism” is a sufficient reason to supplant EPA.  It’s not.

To move toward a Brandeis-like model, which I think is an idea long overdue, won’t necessarily involve less EPA; rather, it requires a different EPA, an agency that plays the role of Inspector General, ready to shine the light on states and intervene where federal law and environmental protections aren’t being followed.  Playing the role of IG won’t make EPA any less unpopular with some, but it may actually achieve more environmental protection.   This model will also require EPA and the states to agree on environmental metrics and performance standards to enable EPA, as the federal environmental IG, to ensure that environmental laws are being followed and enforced.  As Ronald Reagan was fond of saying, trust but verify.

 

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