Is EPA Really Essential?

“Just abolish EPA.”  I heard it again this week from a friend, when discussing the agency’s renewed focus on enforcement.  It’s a common refrain from those who believe that not even Dr. Frankenstein could have created dreamstime_m_6553919a more effective job-crushing monster.  And it’s something you typically hear from the libertarian or tea party elements of the political right, although occasionally from the left, but for vastly different reasons.

My friend and I chatted about her new year’s wish, to which I objected and countered, and after a while I had honed in on her primary objection, which is that EPA is a regulatory agency and is very fond of regulating.   And she is right about that.  Regulating is precisely what EPA, and other agencies like it, was created to do – like a heat seeking missile in search of a new target.  And it is always in search of new and more things to regulate.   That’s not a moral judgment, it’s a fact.   Think about it, when was the last time a regulatory agency voluntarily closed its doors , concluding its mission of regulating had reached a useful end.   Never happened, and never will.   That’s not the way bureaucracies work, particularly regulatory ones, like EPA, with the infinite capacity and desire to regulate.

Every year, tens of thousands of new pages of regulations are added to the code of federal regulations.   More often than not, regulations take away, not add, what were otherwise liberties and freedoms once exercised by someone.   And there’s a whole lot of regulating going on.   In 2012, for example, Congress passed 127 laws, which resulted in the adoption of 3,708 new rules (CEI 2013).  Each of those 3,708 rules carry consequences for non-compliance. Violations of laws and regulations can carry heavy price tags, sometimes compensatory, sometimes punitive.  Like gravity is to a functioning earth, regulations are to a healthy, functioning society.  But when does regulating go too far, moving from being good to bad?  I suppose it depends upon where one sits and one’s definitions of “good” and “bad”.   However, in the case of EPA, at the outer edges of its authority, “bad” is when regulations either fail to protect the environment and public health, as envisioned by Congress, or, alternatively, when they threaten to erode deeply cherished freedoms and liberties, as envisioned by the Founding Fathers.  In some cases, it’s less a problem of the laws and regulations themselves than interpretation of those laws where, when ambiguity or areas of gray abound, the decisions of an activist court or agency agenda has similar consequences.

In August of 2011, the NY Times ran a piece and asked several prominent thinkers “What if Republicans Closed the EPA.”  Marlow Lewis Jr. of CEI, Jonathan Adler of Case Western, and Peter Lehner of NRDC.   Although the title itself reveals the NYT’s political bias – the GOP will never shutdown the EPA, good grief – it’s good piece and well worth the read.  

But as I argued to my EPA-loathing friend, the agency is necessary to regulate the risks to the environment and humans from an increasingly complex world filled with many environmental risks and uncertainties.   This isn’t to say that radical transformation of the agency isn’t needed – it is – but the EPA is critical for monitoring daily human existence that pose innumerable threats to quality of life.  EPA is also needed to serve as leveling the playing field among our 50 state republic.  As Peter Lehner argues, EPA is like “a cop on the beat” – policing not only the game but how well the game is being played and the governing rules.  Federal environmental law serves as the national floor below which we, as a nation, have agreed is not desirable.  EPA serves as the inveterate junkyard dog, charged with fiercely protecting those grounds, ensuring that we as a nation achieve the lofty goals the Clean Air and Water Acts, and don’t dip below the floor.  If we don’t like our laws and believe they no longer serve our best interest, we should change them.  But for now, these are the laws we have and someone must ensure they are enforced.

There are those who believe EPA should be relegated to the dustbin of history and there are others, like my friend, Jonathan Adler, who, while not advocating for the demise of EPA, advocate (and thoughtfully so) for a radical transformation of the agency and the way we, as a country, deal with environmental pollution.  

Yet opposing the Environmental Protection Agency, by itself, is not a serious environmental policy.  If Republican candidates are serious about reducing regulatory burdens while maintaining the nation’s historic commitment to environmental conservation, they need to articulate an alternative environmental vision more consonant with conservative values.

Adler often argues that federal environmental laws are unnecessary, the “Fable of Federal Regulation,” as he calls it.   Here’s the gist of his argument:

Contrary to common perceptions, many measures of environmental quality were already improving prior to the advent of federal environmental laws. The Environmental Protection Agency’s first national water quality inventory, conducted in 1973, found that there had been substantial improvement in water quality in major waterways during the decade before adoption of the federal Clean Water Act, at least for the pollutants of greatest concern at the time, organic waste and bacteria (Freeman 1990, 114).

Throughout the 1950s and 1960s, state and local governments began to recognize the importance of environmental quality and adopted first-generation environmental controls. Some states’ efforts were more comprehensive and more successful than others, and different states had different priorities. Environmental protection did not always trump health care, education, or other local concerns. Nonetheless, by 1966, every state had adopted water pollution legislation of some sort.

A similar pattern of state and local action preceded federal regulation in other areas as well. Federal regulation of wetlands, for example, began after a federal district court interpreted the Clean Water Act to require it in 1975. But state and local regulation had begun much earlier. In 1963, Massachusetts became the first state to regulate wetland development, modeling its initial efforts on preexisting local rules. By 1975, all fourteen states in the continental United States with more than ten percent of their land area in wetlands adopted wetland protection measures (Adler 1999).

The story of air pollution control follows a similar pattern. Cincinnati and Chicago became the first cities to adopt effective smoke control ordinances in 1881, and action by cities increased dramatically after the Second World War. In some cities, such as Pittsburgh, the business community played a leading role in supporting such regulation. State regulations followed in much of the country.

Indeed, the rate of improvement for some pollutants was greater before the adoption of federal controls than after. Robert Crandall (1983, 19) of the Brookings Institution found that pre-federal air pollution control efforts were more successful than is typically assumed, as have Indur Goklany (1999) and Paul Portney (1990, 51) of Resources for the Future.

Why didn’t states act even earlier? In the 1950s, let alone the 1910s or 1930s, environmental issues did not yet rank as high as concerns for economic development, technological progress, and other social ills. Many things recognized as environmental problems today were of little concern 30 or 50, let alone 100, years ago. An industrial river was often seen as a sign of progress; the prismatic pools of oil and chemicals on the water’s surface were a sign of prosperity, not of waste and abuse.

Policy makers at all levels of government knew little about the health effects of pollution and paid them little heed. While many environmental problems are obvious in hindsight, the nature and extent of these problems were not always readily apparent at the time. Wetlands are appreciated for their tremendous ecological value today, but for much of the nation’s history they were deemed nuisances, and the federal government subsidized their destruction. Insofar as environmental protection was an item on the public agenda before 1969, concern focused on sanitation and drinking water, not recreational or aesthetic values. Once the demand for greater pollution control emerged, action began.

Jonathan goes on to explain why he believes federalization of environmentalism came to be, primarily an alignment of stars, including some highly public environmental catastrophes at a time of greater environmental awareness.   His arguments are cogent and persuasive, and while I’m in agreement with many, if not most, they ultimately fail in my view.   Here’s why.  Environmental pollution and over-exploitation of natural resources don’t stop at political boundaries.  That’s why we have international treatise to protect migratory waterfowl and interstate compacts to facilitate understandings and agreements among states.   While there are many problems with our current environmental laws as my friend David Schoenbrod points out here, at Better Tools Needed to Resolve Transboundary Pollution, EPA is needed to ensure environmental laws passed by Congress are working effectively, as best they can.    Do I think the agency makes lots of mistakes?  Yes.  Too big and slow at times to embrace needed change?  Uh-huh.  Micromanages the states too often?  You bet.  Grossly overreaches at times?  Indeed it does (just read this latest example, EPA overrides Congress, hands over town to Indian tribes).  But, despite all its faults, the agency is essential for safeguarding the environment for my children and those who come after long-faded memories.   But EPA must be willing to change and adapt to new ways of doing things that respect liberties, freedoms, and property rights that are truly enduring and bring about real and lasting sustainability.

As my friend, Tracy Mehan, penned in his thoughtful 2-part essay on “Who Owns the Environment“:

Reconciling the common and private interests does require sustained rational thought and constructive private or political, i.e., governmental, action. The challenge for proponents of free market environmentalism is to define or evolve property rights in environmental and ecological amenities in such a way as to minimize over-exploitation of resources, internalize externalities, minimize governmental intervention in the private sector, enhance liberty, and provide incentives for improvement and restoration of ecosystems. In the process such solutions can also save money, reduce bureaucracy, and  improve the quality of life for all.

The single most compelling argument for maintaining property rights as a bulwark against both encroachments on personal liberty and despoliation of the environment is the dark legacy of the Soviet Union which left in its wake maybe the world’s most polluted landscapes. We await the final verdict on China. In Soviet-era Russia, the state owned everything and, driven by Marxist ideology, overrode any restraints on economic development at the expense of human health and ecology.

To improve the quality of life for all, including environmental protection, means balance and carefully guarding against the perils of what I call the bureaucratization of environmentalism, eliminating incentives that motivate and propel individual actors and, collectively, society, to reach the right decisions.

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