Magazine article The American Conservative

The Best of Intentions

Magazine article The American Conservative

The Best of Intentions

Article excerpt

Much speculation has emerged over what the forthcoming Donald Trump administration will do for environmental protection. While many liberals and environmentalists fear Trump will cause substantial harm to the environment, there is ample reason to believe that his election poses a unique opportunity to reset the way we think about and respond to environmental challenges.

As a former U.S. EPA water official, I have spent years working with a wide variety of stakeholders, eco-entrepreneurs, companies, utilities, and environmental and conservation groups to advance environmental protection. And I have seen firsthand many of the great strides the country has taken since the Nixon era, which saw the enactment of those seminal federal environmental statutes, the Clean Water and Clean Air acts. The environment and public health are largely better off for that.

However, while our rivers no longer catch fire, the challenges we face today, such as "dead zones" in the Gulf of Mexico and Chesapeake Bay and pharmaceutical drugs increasingly found in our water supply, are perhaps even more vexing because of the ubiquitous and distributive nature of these problems. As well, our nation's aging water and wastewater systems, while some of the best in the world, are showing signs of deterioration and posing risks to human health and the environment.

While climate change will remain an intractable political issue into the foreseeable future, we should be able to find agreement on the need to fix other things. But to make progress on many environmental issues we must recognize the impediments to progress and be willing to change the status quo.

There is a serious structural problem when it's easier to obtain agency approvals to destroy a wetland than it is to obtain approvals to restore that same wetland. But unfortunately, that's the upsidedown reality we live in today.

You may ask how this can be. Prior to the advent of modern environmental law, societal decisions and actions were largely informed by commonlaw property rights, where neighbors were guided by the principle of "do no harm" and no trespass. Under a common-law regime, neighbors were accountable to neighbors for any environmental harm they caused. But this regime was eventually supplanted by statutory law, based largely on the legal principle of strict liability and the increased role of administrative law, meaning governmental intrusion.

Federal environmental laws were passed with good intentions, but unfortunately many of them have resulted in many unintended consequences that impede environmental progress. This is not to suggest we should jettison them, but they do require modernization to bring about more common sense and better results. Some anecdotes illustrate the point.

Take, for example, the story of a "bridge to somewhere," involving a seemingly simple replacement of a stream culvert in a suburban Maryland community where my family and I reside. For years, the small perennial stream that bisects our neighborhood has been ravaged by flashy storm flows caused by impervious land that no longer breathes.

The goal of the project was simple: to replace the aging culvert with an environmentally friendly pedestrian bridge. Groups like Trout Unlimited have long advocated the removal of harmful culverts that block the movement of anadromous fish and other aquatic critters. What should have been a relatively simple and straightforward infrastructure project conducted over the course of several months turned into a three-year debacle, overshadowed by dozens of federal, state, and local reviews and approvals and reams of bureaucratic red tape.

The myriad of reviews and delays resulted in the culvert removal costing the community three times what the project should have cost, not to mention the civic frustration. For years, the community had engaged in self-help, patching and repairing the culverts without agency approvals and permits. …

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