Academic journal article UCLA Journal of Environmental Law & Policy

The Failure of EPA's Water Quality Reforms: From Environment-Enhancing Competition to Uniformity and Polluter Profits

Academic journal article UCLA Journal of Environmental Law & Policy

The Failure of EPA's Water Quality Reforms: From Environment-Enhancing Competition to Uniformity and Polluter Profits

Article excerpt

Since 1970, pollution control in the United States has centered on national level regulatory approaches built on federal command-and-control regimes. Enacted in reaction to well-publicized "failures" of markets, common law, and state and local regulation such as the "killer smogs" of the 1950s and 1960s (1) and the "burning" of Cleveland's Cuyahoga River in 1969, (2) modern environmental statutes shifted authority away from states, local governments, and private property holders to the national government.

Nationalization has its costs, however. In particular, the top down approach risks transforming the goal of environmental regulation from the laudable one of protecting and enhancing environmental quality to the less laudable one of special interest rent-seeking. Centralized decision making lowers the cost of capturing agencies (there is only one to capture) while increasing the benefits (capturing one is capturing all). Shifting decisions to the national level, therefore, increases the incentives for capture unless institutional safeguards are added. Recent water quality regulatory initiatives by the federal Environmental Protection Agency threaten to transform water pollution control and make rent-seeking more prominent.

Air pollution controls have been especially subject to rent seeking rules that have retarded progress and increased the cost of pollution controls implemented, all to the benefit of special interests. (3) On the other hand, water quality pollution control regulations have been relatively immune from rent-seeking because their decentralized implementation prevented polluting special interests from using national level regulations to override local interests in clean water. At the same time, competition among states and localities has limited local special interests' ability to gain concessions from state governments. Recent "reforms" of EPA's water quality program, however, threaten the delicate balance that has produced water quality improvements. (4) We argue that water quality is better improved by further decentralizing water pollution control efforts rather than by increasing centralization. Because EPA's recent regulatory changes move water pollution control in precisely the opposite direction, we contend that they should be significantly modified or abandoned.

Section I reviews the history of federal and state regulation of water quality and highlights the delicate balance of authority that has emerged between various levels of government. Section II examines why federalism is particularly important in water quality efforts. Section III summarizes the EPA's recent water quality regulatory initiatives. Section IV offers alternatives to EPA's approach, emphasizing common law and property rights solutions to continuing water quality problems.

I. EVOLVING FEDERALISM IN WATER QUALITY REGULATION

Water pollution regulation in the United States has long been a matter for a federal-state partnership. The modern Clean Water Act largely relies on a "command-and-control" approach to limiting the discharge of effluent in waters through permits. Due to differences in implementation, the top-down command lines in water pollution control have been less clear than in other areas of pollution control. (5) These differences emerged because although the Clean Water Act gives the federal EPA authority over technology-based standards, it also gives the states authority over the issuance of permits. (6) The degree of federal control over state permit programs, an issue that has generated substantial litigation over the years, (7) has remained unclear. (8)

Although early federal water pollution control measures required states to take some minor specific actions, such as designating water bodies as suitable for recreation, propagation of aquatic life or other specific classifications, the first major federal legislation on the subject, the Water Quality Act of 1965, left water quality issues primarily to the states. …

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