Free and Green: A New Approach to Environmental Protection

By Adler, Jonathan H. | Harvard Journal of Law & Public Policy, Spring 2001 | Go to article overview

Free and Green: A New Approach to Environmental Protection


Adler, Jonathan H., Harvard Journal of Law & Public Policy


I. INTRODUCTION

There has been substantial environmental progress over the past several decades. Air and water quality, in particular, have improved, while the United States and other nations have reached unprecedented levels of prosperity. The apparent environmental successes of the past thirty to forty years, however, should not blind us to the deficiencies of the dominant approach to environmental protection. Today's environmental programs will not be able to continue the trend of environmental improvement. We have reached the limits of centralized environmental regulation. Indeed, in some cases we have already surpassed those limits and environmental programs themselves stand as the greatest obstacles to continued cleanup and conservation:

* The federal Superfund program,(1) created in 1980, was supposed to facilitate the rapid cleanup of abandoned hazardous waste sites. Instead, Superfund projects are plagued by excessive costs, litigation, paperwork, and delay. By 1996, the average Superfund cleanup took over a decade as cleanup costs escalated.(2) As of June 30, 1999, the Environmental Protection Agency ("EPA") claimed to have cleaned up half of the over 1,200 sites on the National Priorities List ("NPL") -- the EPA's official list of the most hazardous waste sites -- yet fewer than 200 had been actually taken off the list.(3) While Superfund is slow and costly, it is not at all clear that it does much to protect public health. According to one recent study, the target risk levels used for cleanups are more a function of politics than of scientific analysis.(4) Even accepting the EPA's overcautious assumptions, the mean cost per cancer case averted at a site is over $10 billion.(5) As if this were not bad enough for neighboring communities, fear of liability discourages local investment or redevelopment near designated sites. Instead, companies avoid these "brownfields" and increasingly opt to site facilities in rural or other undeveloped areas, increasing America's industrial footprint.(6)

* The Clean Air Act ("CAA")(7) mandates the use of various fuel additives in gasoline, including oxygenates, which increase the oxygen content of fuels. Congress included the oxygenate provisions to placate special interests, particularly the ethanol lobby.(8) Adding oxygenates to fuel increases the price of gasoline but does not do much to help clean the air. In some cases, oxygenates can reduce emissions of one pollutant at the expense of increasing another. Worse, the most widely used oxygenate, methyl tertiary butyl ether ("MTBE") has been linked to widespread water contamination.(9) In the state of Michigan alone, some 500 wells are contaminated with MTBE.(10) This is hardly the only time the CAA has produced perverse environmental results. Provisions in the 1977 legislative amendments, for example, were designed to benefit regional coal producers at the expense of their competitors, and air quality suffered as a result.(11)

Enacted in 1973, the Endangered Species Act ("ESA")(12) was supposed to bring species back from the brink of extinction. Yet in nearly thirty years, fewer than thirty of over 1,000 domestic species have been taken off the endangered and threatened species lists. Of these, more have been delisted by reason of extinction than because of recovery due to the ESA's protections.(13) One problem is that regulatory protection for endangered species discourages habitat conservation on private land. Stringent land-use restrictions make ownership of endangered species habitats a liability instead of an asset. The presence of a listed species can freeze the use of private land, barring everything from home construction and timber cutting to farming and clearing firebreaks. Faced with this risk, landowners respond accordingly. Indeed, there is increasing evidence that landowners preemptively destroy potential habitat rather than risk federal regulation.(14)

These are but a few examples of the harms caused by existing environmental programs, each of which costs the American people billions of dollars per year.

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