Saving Our Environment from Washington: How Congress Grabs Power, Shirks Responsibility, and Shortchanges the People
Adler, Jonathan H., Independent Review
* Saving Our Environment from Washington: How Congress Grabs Power, Shirks Responsibility, and Shortchanges the People By David Schoenbrod New Haven, Conn.: Yale University Press, 2005. Pp. x, 296. $28.00 cloth.
Can the United States have high levels of environmental protection without a strong federal Environmental Protection Agency (EPA)? The idea is heretical in environmentalist circles. Yet David Schoenbrod has emerged from within the environmentalist movement to make such a case in Saving Our Environment from Washington: How Congress Grabs Power, Shirks Responsibility, and Shortchanges the People. His approach challenges contemporary orthodoxy in environmental policy, but if he wins converts, the result might be vastly improved environmental protection.
As a young environmental activist, Schoenbrod believed centralized regulation was the key to environmental progress. As he recounts in the book, he assumed that powerful federal regulatory agencies staffed with disinterested bureaucrats and technical experts were the best hope for environmental protection. Removing key environmental policy decisions from the tumult of legislative politics was supposed to allow the experts within the EPA to adopt public-spirited measures to preserve environmental quality for current and future generations.
Fresh out of law school, Schoenbrod joined the Natural Resources Defense Council (NRDC), created to "do for the environment what the NAACP Legal Defense Fund had done for civil rights" (p. 22). From his position at the center of key environmental policy debates, he saw the regulatory process in all its glory-and it wasn't pretty. Whereas he once believed a federal regulatory agency "should have the power to make the environmental rules for the entire country" (p. 5), he now seeks to make environmental policy "less elitist and more accountable to ordinary people" (p. 8). Indeed, he wants to save the environment from the very institutions currently entrusted with its protection.
Schoenbrod's baptism came in his efforts to remove lead from gasoline. Although the lead phaseout is generally considered one of environmental law's greatest successes, Schoenbrod's experience in fighting the EPA over lead for nearly a decade was the beginning of his gradual disillusionment with contemporary environmental law. It was well known that sufficiently high exposure to lead can retard children's intellectual development and that leaded gasoline was a major source of exposure. After Congress adopted the 1970 Clean Air Act, the EPA seemed ready to act. Then politics intervened, and action was postponed. After years of litigation, the lead was finally taken out, but by foisting the lead issue onto the EPA, Congress avoided responsibility and delayed environmental progress.
In essence, this story can be repeated many times over. The Clean Air Act, as amended in 1990, is 450 pages long. Yet many of the law's requirements are not in the act itself, but in the 7,200 pages of implementing regulations adopted by the EPA, which in turn are supported by hundreds (if not thousands) of pages of rationales, guidance documents, and additional materials. And this is just one of many federal environmental statutes. It is no wonder some analysts compare federal environmental regulation to Soviet-style central planning. Schoenbrod, for his part, suggests another metaphor: the EPA is a "military organization." As he explains, "Top-down military organization is the logical consequence of thinking that the environmental captain should be insulated from accountability to the passengers of Spaceship Earth" (p. 62). Only the EPA can be trusted to delineate and enforce environmental mandates, so the EPA has the ultimate authority to determine what measures are enough and how clean is clean.
The EPA, however, is not as insulated from external pressure as some might hope. Faced with a series of rigid and impossible mandates-"the battle plan that Congress has told the EPA to execute is beyond its [the EPA's] capacity" (p. …