A veteran environmentalist tells vivid tales of the environmental wars and arrives at a surprising conclusion.
|Publisher:||Yale University Press|
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About the Author
David Schoenbrod is trustee professor, New York Law School, and adjunct scholar, Cato Institute. During his tenure as an attorney for the Natural Resources Defense Council, he initiated litigation to force the EPA to reduce lead in gasoline and other environmental cases of particular importance to minorities and the poor.
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Saving Our Environment from WashingtonHow Congress Grabs Power, Shirks Responsibility, and Shortchanges the People
By David Schoenbrod
Yale University PressCopyright © 2005 David Schoenbrod
All right reserved.
Chapter OneIntroduction Then and Now
"Then" began late in 1975 at a dusty little airfield near San Juan, Puerto Rico. My traveling companion and I got into a one-engine plane and were flown west beyond the end of land and out over the Caribbean. We spotted our destination on the watery horizon, at first only the silhouette of a distant mesa and then a huge white rock. Its cliffs plunged two hundred feet to a narrow fringe of palms surrounded by sand, clear waters, and reefs. We flew the seven-mile length of the island, banked sharply around the far tip, plunged down the cliff, and stopped with a jerk on a tiny strip of grass hidden in the palms. This was Isla de Mona.
The pilot kept the engine running as he quickly passed us the food and water. We had to bring our own because no one lived here. There were only a few campers-a Commonwealth of Puerto Rico forest ranger near the strip and a family somewhere far down the beach. The pilot said goodbye and took o, leaving us in stillness and silence. We searched out a campsite and met our neighbors, the Mona Iguanas. Tinted red and purple with spiky backs,they look like dragons but are only four feet long and eat plants, not maidens.
I had come to Mona for a reason. Lawyers from the Puerto Rico bar association had asked me-a lawyer at the Natural Resources Defense Council, a private environmental advocacy group-to bring a lawsuit to stop the island from being turned into a massive petroleum complex. Major oil companies would bring crude oil from Iran, Iraq, and other Persian Gulf countries to Mona in supertankers and refine it there. The gasoline and products would then be transshipped in regular tankers to established ports in the eastern United States. This home of the Mona Iguana and more than a hundred other endangered and unique species, rightly known as the Galapagos of the Caribbean, would become a smelly eyesore.
Mona was surely not the most appropriate site on the eastern seaboard for such a project, but newly strengthened environmental laws had made it all but impossible to build a supertanker port or refinery in anyone's backyard. Mona's attraction was that it was no one's backyard. Yet, to our Puerto Rican clients, Mona was their Grand Canyon, and the "Superpuerto," as it was called in the Puerto Rican press, epitomized colonialism in modern guise.
American environmental laws apply in Puerto Rico. The hope of the Superpuerto's sponsors was that no one in Puerto Rico could put together sufficient legal resources to mount a serious challenge, at least until after the project was too far along to stop. They made it an elusive target by keeping the particulars of their plans secret. But our team of Puerto Rican and mainland attorneys was able to piece together enough facts to file a detailed complaint. We moved the district court judge to act, but he never responded. When we called his strange silence to the attention of the Court of Appeals in Boston, a new judge was assigned and he made it clear that he would decide. At this point the sponsors of the Superpuerto announced that it would be abandoned, but not, they said, because of our lawsuit.
Now I had come to Mona to savor what we had worked to save. We dove among the pristine coral reefs and, from under the clump of palms that was our home, watched brilliant suns and soft moons. One day I hiked to the top of the mesa and, looking out over the expanse of land and sea, I thought of my work as bringing together justice and beauty. In short, I felt altogether satisfied with myself-a sure sign of danger.
The next evening, the weather changed. O the spit of land on which we camped, tall banks of dark clouds collided and billowed higher. The sea rose and the waves boiled. Just then, newly hatched turtles popped out of the beach and raced toward the water. Their timing felt perfect, was perfect, but I knew nothing of their natural clocks and was utterly surprised. The baby turtles struggled to surmount the rues in the sand and wobbled toward crashing waves. No sooner had the first few won my heart and been swept out to sea, than gulls and hawks spotted the moving feast and swarmed to eat their fill. Like a youngster watching Bambi, I was appalled. I tried to chase the predators away, but the task was hopeless. I could taxi this or that little turtle to the sea, but they hated being picked up and were now emerging by the thousands and most were being eaten. I stopped, took a breath, and realized that the birds and turtles had been at this for ages. Just who did I think I was to interfere? I went back to the camp and made a fire, and it grew dark.
The next morning, it was still dark and even more foreboding, the wind fierce and cold. The forest ranger came by to tell of a radio message warning of worse to come. We had been ordered to evacuate on boats that would be sent to get us at dawn the following day. That night, the tiny populace of the island camped together. It turned out the family down the beach was that of the former oil company executive who had been in charge of the Superpuerto project. Our previous opponent now had a face, and he seemed decent enough. If he knew we had been opponents, he did not say, nor did I. This was no time for a confrontation.
At the dark dawn, he and his family boarded the spiffy yacht on which they had come. The forest ranger got on a modern police launch sent out to fetch him, but not before putting us on an old trawler that had been fishing o Mona. The yacht and the police launch, with their sleek hulls and powerful motors, seemed like safer bets in a storm, but they would not take us. I remembered from researching the case that the Mona Passage was notoriously dangerous in a storm.
The winds were too fierce for the fishermen to hoist their sails. An auxiliary engine barely pushed us through the towering waves. For me, the choice was to go below deck, where the diesel fumes made me sick to my stomach, or to stay above deck, where the spray chilled me to the bone. Above I could at least see the threat. I wanted to ask the crew, "Will we make it?" but they seemed far too busy pumping water out of the creaking wooden hull. I could tell from the looks on their faces that we probably would if the engine did not quit.
As the trawler chugged along, I reflected that these fishermen had had more at stake in the Superpuerto fight than anyone. Oil spills might have ruined their fishing; oil refineries might have employed their children. But no one had ever asked them whether they wanted the project or our opposition to it. They had been treated like children, but now I was huddled on the deck at their feet, helpless as a babe, my life in their capable hands. I had fallen a long way from the heights of the Mona mesa. Sick to my stomach, I asked myself-I really did-"Isn't there some way that ordinary people such as these fishermen could have a meaningful say on environmental decisions so vital to them?" I was not enough of a romantic to believe that such matters could be decided in New England-style town meetings and too much of a skeptic to believe that sessions in which government and corporate bureaucrats hear out the locals would be more than charades.
When we landed in the little port of Mayaguez that afternoon, the piers were lined with anxious faces. Upon stepping ashore, we learned that the police launch, whose passengers I had envied, had hit a reef and had gone down with all aboard. A kind family took us to their home, gave us hot soup, and put us to bed. I was asleep before the winter sun had set.
I awoke the next morning not quite believing how near death we had come. I made my way back to New York, putting out of my mind for the moment the question posed by the Mona Passage: How could environment policy be made less elitist and more accountable to ordinary people? I believed, as I had all along, that the appointed administrator of the Environmental Protection Agency (EPA) sitting in Washington should have the power to make the environmental rules for the entire country.
That was then.
"Now" is the writing of this book. It began almost a quarter century later. If I had to pick a date and a place, it would be July 11, 1998, on a hilltop in an apple orchard in upstate New York. Dan Wilson and Susan Knapp are getting married among the apple trees they tend, as his parents did before them. In their thirties, Dan and Susan are of a cohort that says, "We are all environmentalists." They are sophisticated ones, too. She has worked for the California Coastal Commission. He chairs the board of the local natural history museum and wildlife sanctuary. His mother has a doctorate in biology, and his brother is a cancer researcher at a major medical school.
After the ceremony, the wedding party gathers down by the cider barn to toast the couple with their own cider. As almost everyone knows, the Food and Drug Administration (FDA) is considering whether to issue a rule making its sale a crime.
The FDA says the juice of apples is dangerous unless pasteurized. The parents at the wedding are neither ignorant of the FDA's concerns nor uncaring about their children, who are enjoying the cider with them. Some among them can explain precisely why the risk of drinking this cider is smaller than other risks that FDA experts regularly let their own children run. We also know that Dan and Susan worry about whether an FDA mandate to pasteurize would turn the orchard into a losing proposition. The kind of pasteurization equipment they can afford would make their cider taste more like canned apple juice. There would be no future in that.
They also worry that a new federal statute , the 1996 Food Quality Protection Act, has empowered regulators to control how they grow apples. Under it, the EPA has signaled that it will tightly control most of the chemicals that they use. In deciding how to use chemicals, they must take account of complex variations in weather, pests, and microclimates in order to produce a crop that is not only safe, but will also yield a decent livelihood. They could make more money if they gave up farming, but they love it. With an agency sitting in Washington setting out to issue national rules dictating how they deal with local conditions, what they fear will slip through their fingers is not only their livelihood, but also the enjoyment that they get from farming. A few nights before the wedding, sitting at our kitchen table, Dan said, "I can imagine the day when my closest relation to growing apples will be buying them in the supermarket." Susan nodded. What a tragedy that would be. They express their artistry and friendship through the orchard and the many activities that take place around it. They are a focus of our rural society. Their quitting farming would leave a hole bigger than a barn.
Dan and Susan's fears are widely shared. The day after their wedding, I fly down to Washington to address the state presidents of the American Farm Bureau Federation. They had supported the Food Quality Protection Act. They know that the wrong pesticides, or the right pesticides wrongly applied, can be harmful. They had been told by their representatives in Congress that the EPA would base its regulation of farmers on long-standing and commonsensical scientific practices. But, now that it has the power, the EPA, they tell me, is changing its mind about how the act will work, and the result will be that many widely used chemicals will be eliminated. These farm leaders represent a powerful constituency, yet they feel powerless to protect themselves from what they consider a regulatory juggernaut.
The farm leaders wonder, as I had in the Mona Passage, whether environment policy could be made less elitist and more accountable to ordinary people. Now I have an answer. It is twofold.
First, states and localities rather than the federal government should make the rules controlling almost all pollution sources. The federal government should step in only when states, left to their own devices, are likely to allow significant harm to be done beyond their own borders. The result would be that federal government would make the rules for only a small fraction of sources, generally the largest ones. Today, in contrast, the EPA controls the regulation of millions of farms, businesses, and government activities, regardless of how localized their impact may be. This is why the EPA, whether measured by staff, budget, or impact, now runs the nation's largest regulatory regime.
Second, at every level of government, elected legislators should make the pollution control rules. Today, in contrast, appointed functionaries at the EPA and its state counterparts acting under its supervision make most of the rules.
My answer is, of course, not the least bit new. Our Constitution sought to guarantee a republic in which government would be as close to home as possible and there would be no taxation without representation or, for that matter, regulation without representation. In that republic, new rules could come only in statutes on which our elected representatives would vote. That, for our representatives, is the rub. They would be stuck with direct, personal responsibility for the costs as well as the benefits of the rules. Better for the legislators is a system in which they pass statutes ordering the EPA to make the rules necessary to clean the earth. In that way, the legislators can say they passed a "law" to clean the earth while shifting to the EPA the blame for the costs of making it so. The EPA often lacks the political muscle needed to deliver the rules that would achieve the environmental goals in the statutes, but that presents no political problem for the legislators. They can blame the EPA for the failure.
This arrangement lets members of Congress profit from the environment issue on the cheap and so gives them a personal stake in expanding the federal environmental regulation franchise to include issues plainly within the competence of state and local government. Congress will let go of local environmental problems only if its members take responsibility for the environmental laws, and they can take responsibility only if Congress lets go of local environmental problems.
When I became an environmental advocate, I regarded questions about the constitutionality of the EPA's power as the last refuge of polluters, and I litigated accordingly. I wanted to uphold the public interest in the present rather than the constitutional ideals of the past. Experience has since taught me that those constitutional ideals are the safest road to the public interest, including the public's deeply felt interest in a clean earth.
Because it was experience that opened my eyes, this book starts with the experiences that persuaded me to change my mind about what Congress has done. These stories, and the essays intertwined with them, lead the reader along the following path.
Part I of the book traces the EPA's rise to power and what became of that power. Rachel Carson published Silent Spring in 1962. It broadened public concern about the environment. The next year Congress passed a largely symbolic statute called the Clean Air Act, which called for states and localities to regulate pollution. From 1963 to 1968, the number of states with air pollution laws went from sixteen to forty-six. The burdens imposed varied greatly and were small by modern standards, but they were enough to prompt the auto industry and then the coal mining industry to try to check the state and local response to grassroots demands. The solution they hit upon was to get Congress to amend the Clean Air Act to put a national agency in charge of making air pollution laws. Congress complied in the mid-1960s. The agency, a part of the Department of Health, Education, and Welfare, made it harder for states and localities to respond to the growing environmental concern.
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Table of Contents
1. Introduction: Then and Now....................1
Part I. Power 2. Coming to the Environmental Movement....................19
3. Congress Does Its Thing....................23
4. Leaving the Lead In....................29
5. Failure and Success in Cleaning the Air....................39
6. Growing Power....................52
7. The EPA Today....................59
Part II. Science 8. What's Science Got to Do with It?....................67
9. Lois Swirsky Gold, Chemicals, and Cancer....................74
10. Angus Macbeth and the Hudson River....................84
11. Precaution and Policy....................95
Part III. Our Republic 12. Coming Down to Earth....................105
13. A Government of the People....................115
14. Home Rule....................124
15. Vicki Been and Environmental Justice....................144
16. Legislative Responsibility....................155
Part IV. What We Lose 17. The Rights of Citizens....................169
18. The Boon of Liberty....................181
19. The Appeal of Law....................190
20. The Joy of Doing....................199
21. Conclusion: Spaceship Earth without a Captain....................219