Responding to the Attack on Environmental Regulation
How can we respond to such a fundamental attack on environmental rules and on the EPA? How can we respond to the Trump Administration’s effort to deconstruct the EPA through budget cuts? Let’s go back to the basics: No one likes being told what to do. Watch New Yorkers at a crosswalk, ignoring the “don’t walk” sign and you’ll see what I mean. But we live in a more crowded, complex and interdependent world, and our health, safety and welfare depend on effective regulation. The attack on regulation is about the balance between freedom and restraint. Effective regulation seeks to balance these goals. Sophisticated regulation requires change and adjustment and America’s systems of regulation can easily get stuck in place. The administrative state attacked by Trump advisor Steve Bannon can be an arrogant unthinking automaton. It can and should be improved but regulation is the price we pay for the benefits of jet travel, innovative construction materials, the internet, the smartphone, along with energy and water delivered to our homes as if by magic. EPA can be improved, but we will all suffer if it is eliminated.
Technology influences our behavior and those behaviors can cause us to harm ourselves and each other. The most recent example in the news is distracted driving. Highway accident rates, auto insurance rates and deaths are increasing as drivers look away from the road to see texts, maps and who knows what else on their smartphones and dashboards. If the only victims of distracted driving were the distracted drivers, it might not require action by government, but those of us sharing the road with these folks are in danger. Rules and regulations are needed to reduce the distracted driver’s freedom to text while driving. Someone has to enact the laws, provide the details in rules, develop new safety technology and ensure enforcement to reduce this danger.
From the beginning of the industrial age to the 1970s air pollution from factories, power plants and autos grew with the growth of our economy. But by 1980, we learned that we could increase our use of material goods, energy and autos while reducing pollution. All we needed to do was require companies to use technology to control pollution. American environmental regulation has been remarkably effective. And while some pollution was exported, most sources remained and improved their environmental performance. Since 1980, the absolute level of pollution in the United States has decreased. According to the EPA, from 1980 to 2015 the US GDP grew by 153%, our population grew by 41%, vehicle miles traveled grew by 106%, but air pollution declined by 65%. That is the definition of successful regulation. China and India would love to be able to make the same claims, but they have not yet implemented effective environmental regulation. U.S. water pollution and toxic waste releases have also been reduced over the past several decades. With the anti-regulation fever catching hold in our nation’s capital, we better be careful to protect the basic structure and fabric of our successful environmental law.
The image of freedom, of individuals and businesses doing what they want without fear of restriction or taxes is powerful and seductive. But we don’t live in log cabins surrounded by fields or forests. We live on top of each other or right next to each other and move around on congested planes, trains and automobiles. Our actions affect each other. We need rules to motivate constructive, socially responsible behavior. We need sufficient enforcement to ensure that people believe there might be sanctions if they do not follow the rules. And to keep the rules up to date we need to understand technology’s influence on our behavior and on our planet.
Rules on texting while driving couldn’t be developed until we invented cars and text messaging. Both technology and population are growing. Global warming would be less challenging on the planet of three billion people we had fifty years ago, instead of the world of nearly seven and a half billion people we have today. It should not be surprising that governments at all levels and in all places, are working to develop the capacity to manage the growing economic interactions of a growing population.
While its management could always be improved, EPA is one of the leaner federal agencies. Most of its 15,000 staff are in its ten regional offices, and its growth has been quite slow over the last several decades. In 1980, there were 13,000 staff at EPA; that grew to 16,300 in 1990 and 17,700 in 2000. But then it dropped to around 17,300 in 2010 and dropped further to about 15,400 in fiscal year 2016. In fact, EPA shrunk by 1,600 staff during President Obama’s time in office. I would argue that one reason for some of EPA’s inflexibility has been that its lack of staff resources did not allow it to develop the capacity needed to apply standards with sufficient flexibility.
One of EPA’s responses to its small staff and budget has been to delegate most regulatory oversight to state governments. State and local law and capacity has grown even as EPA’s has not. But EPA’s oversight of state and local action has often been rigid and unimaginative. We saw that here in New York during the effort to meet water quality standards with green infrastructure instead of traditional concrete and steel water pollution control construction. EPA was not confident that planting vegetation and relying on natural filtration processes could reduce the impact of nonpoint sources of water pollution or absorb the amount of rainwater needed to reduce combined sewage overflow. It took local and state officials a number of years to demonstrate the cost effectiveness of these innovations and for federal officials to agree to them. A larger EPA with a larger science budget could have moved more rapidly to conduct the studies needed to verify state and local claims.
The green infrastructure battle was over means rather than ends. Federal, state and local officials were all working hard to meet national water pollution control standards. Businesses and government knew that these standards must be met. The danger of an antiregulatory EPA Administrator is that in some states, the probability of enforcement will be reduced. While all states have needed to develop the legal and administrative capacity to implement federal environmental rules, some states take these rules more seriously than others. The threat of federal oversight only provides minimal quality control. While Michigan and EPA Region V dropped the ball on overseeing Flint’s water supply, there are many other examples of effective national regulatory oversight. In New York, California and probably a dozen other states, federal quality control is not needed; support for environmental protection is strong enough to ensure that national standards will be taken seriously.
The idea that environmental regulation costs jobs and depresses economic growth is fiction. Certainly, there are examples of businesses harmed by environmental regulation. But overall, the new technologies, new methods of production, and reductions of illness caused by environmental regulation provide far more economic benefit than cost. They also make our economy more efficient. For example, fuel efficiency standards encourage the development of new technologies and vehicles that use less fuel. Firms that buy these new, more efficient vehicles reduce their cost of doing business.
The attack on environmental regulation by the head of EPA is a remarkable nightmare. It will send a signal to some that cheating on the rules may be possible. Fortunately, in our federal system, state and local officials will be able to fill in if the federal government refuses to act. I expect that citizen suits, state attorneys general and environmental interest groups will play a larger role in environmental protection than ever before. I also expect that public opinion will continue to favor efforts to ensure that pollution does not poison public health or private property. The attack on environmental regulation will be rebuffed, but the cost will be high and our ability to respond to new threats will be reduced by our effort to maintain the level of environmental protection that is now in place.