ENVIRONMENTAL CONTROLS Should Be Turned Over to the States

The Federal government has seized the environmental issue from the states, set an obligatory regulatory agenda down to the farm and septic tank level, and harnessed the states to do the Federal bidding. In the process, governors, mayors, state legislators, and town council members have lost the power to resolve even the most local of environmental issues. These state and local officials must follow instructions that come down from Washington instead of responding to the wishes of the voters who elected them --the people most directly concerned.

The Federal instructions evolve through complex interplay among members of Congress, their staffs, the president, the vice president, the staffs of the White House and the surrounding presidential and vice presidential complexes, the political appointees at the top of the Environmental Protection Agency (EPA), the agency's 18,000 permanent employees, and the other centers of power in Washington. Those most involved with Federal environmental regulations include businesses that must control emissions or whose products may have environmental impacts, companies that sell pollution control services, and public-interest groups. It would be naive to suppose that any of this cast of characters is immune to the temptation of putting self-interest above principle. If Americans are to have any faith in the Federal instructions, it is not because only the virtuous have a hand in their writing.

No elected official is directly responsible to local voters for Federal regulations. Congress and the president enact idealistic statutes that deflect the hard choices. Regulations are handed down later on the EPA's letterhead. Only after the EPA applies them in local cases does anyone know what pollution control strategies must be implemented, what forms must be filled out, and what permissions must be secured. By that time, members of Congress and the president are so far up the chain of command that they escape political responsibility. Thus, an unaccountable elite--a Federal environmental aristocracy--holds the reins of power in resolving local environmental issues. The upshot is that voters have no meaningful control over how the Federal government dictates the solution to the environmental problems in their own backyards. Perhaps that is why the public, in opinion polls, supports shifting power over environmental protection from Washington to the states and cities.

Even if all members of that aristocracy were driven by the most altruistic of motives, they would fail to provide sensible solutions to local environmental issues. The Federal instructions are meant to apply all across the country. However, the nation is extremely diverse. There are huge differences between the large numbers of local environments, industries, facilities within any one industry, and sources emitting pollution at any one large facility. The EPA's instructions must apply not just to air pollution, but to a dizzying array of other environmental issues.

No organization could hope to deal sensibly with such complexity. As a result, the Federal takeover of environmental law imposes vast waste and needless regulatory complication, yet sometimes fails to clean up local environmental problems expeditiously. The popular desire for a clean environment can be realized with far more common sense by returning control of local environmental issues to state and local governments. The EPA still would have a job to do, but it would be limited to Federal business.

The national takeover of environmental protection virtually destroys accountability to the public. This is so for three reasons. First, attempting to protect the nation's environment from one central location--Washington, D.C.--is such a massive undertaking that Congress has a ready excuse for failing to discharge its constitutional obligation to make law. Instead of enacting the environmental law in statutes, Congress enacts statutes that tell the EPA to make the law by promulgating regulations. Thus, the law is. made by bureaucrats, rather than legislators directly accountable to voters.

Second, voters upset about how a state or local government has handled an environmental problem can have a real impact in the next election. When the decisions on local issues are dictated by Washington bureaucrats, the same voters' concerns will count for far less in a national election.

Third, by imposing Federal mandates on state and local governments, Congress and the president take credit for the benefits of environmental programs. Blame for the concomitant costs, however, are placed on the EPA or state and local officials.

Popular revulsion at such Federal opportunism resulted in the passage of the Unfunded Mandates Reform Act of 1995, an attempt to keep Congress from imposing requirements on state and local governments without providing the necessary funds to implement them. In other words, if Washington politicians take credit for the benefits promised by a new mandate, they also must take responsibility for the costs to lower levels of government of carrying out the mandate.

However, this leaves in place all the preexisting statutes that authorize Federal agencies to impose mandates. Thus, the EPA can continue to impose new requirements so long as it acts under statutes enacted before the 1995 act. In reality, the act exempts all important environmental statutes.

Moreover, it does not stop Congress from requiring states to impose costs on private citizens. Congress still can mandate states to regulate or tax without taking responsibility for the costs. The Federal government still can make state and local officials take the blame for making citizens spend money out of their own pockets. The most important mandates in Federal environmental statutes require states to regulate the private sector. For example, the requirement that states adopt implementation plans under the Clean Air Act is a Federal requirement to regulate.

There are numerous cases of Federal environmental statutes that mandate state taxes. For instance, Title V of the Clean Air Act amendments of 1990, requiring air polluters to secure permits from states, is a mandate to tax. Prior to 1990, most polluters did not have to get permits, though they had to comply with emission limitations. Now, polluters must obtain a permit and pay a "permit fee" at a level that the EPA deems sufficient to fund the bulk of the state's air-pollution control program, not just the cost of issuing the permit. The "permit fee" is a tax in disguise. While state pollution officials previously had to get approval for their budgets from state legislators who had to take responsibility for the taxes needed to fund the budgets, unelected Federal officials supplant the budgetary and taxing authority of elected state officials.

Limiting the EPA

The framers of the Constitution believed that issues should be left with states and their subdivisions, unless they are demonstrably incompetent to handle them. The same spirit should guide Congress today. It should leave pollution control to state and local governments except where they are demonstrably incompetent. As a result, the EPA would have only three tasks to perform.

First, it should provide information on environmental problems. The EPA should gather and publicize data on pollution levels and their consequences, both on the national and the local level; evaluate pollution control technology; draft model state environmental laws; and publish policy studies that states could use in considering whether to enact such laws. By providing this information, the Federal government would help states avoid wasteful duplication of each others' efforts and ensure the free flow of information to states, their subdivisions, and voters. It is important to emphasize that this Federal role is limited to providing information. It would be up to state and local governments to decide whether to enact the Federal recommendations.

Second, the EPA should propose to Congress rules of conduct to deal with pollution when state environmental controls fail to stop unacceptable interstate pollution or Federal properties require special protection, such as the Grand Canyon. This is not to say that the Federal government should establish rules to control all "interstate pollution." If that were so, all pollution would have to be regulated Federally because all emissions, even those from a home furnace, put some molecules across the state line. Since most of the effects from most pollution sources are felt in-state, however, individual states are motivated adequately to regulate most pollution.

Even when there is much cross-border pollution, as where two states border on the same lake, the states may deal with the issue through an interstate compact or less formal means of cooperation. Congress could encourage such cooperation by enacting the proposal of Thomas W. Merrill of the Northwestern University School of Law calling for a "golden rule of interstate pollution." Each state legally must protect citizens of other states as they protect their own. Disputes over interstate pollution that states do not prevent individually could be settled by negotiations between the states or, failing that, by Federal courts enforcing these general rules. Thus, the Federal government would provide general rules establishing the respective obligations of the states on cross-boundary pollution. The states then would regulate local sources within those parameters.

The states, acting alone or through interstate compacts, as well as general rules enforced by courts, should address most interstate pollution adequately. If unacceptable problems remain, they should not warrant Congress to control all interstate pollution. Rather, Congress should tailor its response to the problematic region or industry. Where, however, the Federal government is concerned about some Federal resource that needs special kinds of protection from pollution, such as the visibility in the national parks, and a state fails to provide that protection, there is reason for Congress to act.

Third, the EPA should propose rules of conduct to Congress for goods, such as new cars, when state-by-state regulation would erect significant barriers to interstate commerce. In no circumstance should the Federal government mandate state action. In the limited circumstances where there is a Federal job, the Federal government should do it. Otherwise, the temptation for Congress to play the mandate game would be too great.

Applying these rules would contract the Federal role radically. Take air pollution, for example. Federal control is pervasive, either through direct regulation or mandates to the states. Under this proposal, states would be under no Federal mandates and the Federal role would, in the first instance, be limited to new cars and enacting general rules of the sort recommended by Merrill. Instead of assuming that interstate pollution would not be controlled adequately, the Federal government should watch what is done by the states and courts and be prepared to step in if it appears that any unacceptable interstate harm might occur.

Water pollution--whether of rivers, lakes, or aquifers--could be handled analogously. There is no substantial interstate impact and no substantial risk of patchwork regulation resulting from state control of such issues as the safety of drinking water, pollution from underground storage tanks or abandoned hazardous waste sites, asbestos in schools or other buildings, radon in houses, or lead paint or plumbing in housing. These are important issues, but not Federal ones.

This proposal suggests that many Federal programs should be largely eliminated, with a remnant still operated by the Federal government. For example, it no longer should regulate the storage and disposal of hazardous waste under the Resource Conservation and Recovery Act. The effects are almost entirely intrastate. On the other hand, there would be unacceptable interstate harm if wastes from one state were dumped illegally in another. The Federal government could continue to provide a system to track hazardous waste shipments to the proper disposal site. The system could be mandatory for interstate shipments, with states given the option of requiring it for intrastate shipments.

EPA objections

I first suggested such a radical reduction in the national role for pollution control at a conference attended largely by EPA officials and former EPA officials (whose law practices are built upon their knowledge of the agency's inner workings). They reacted as if I had released a mouse under their chairs. However, they posed only three arguments, each of which reveals much of what is wrong with the Federal environmental aristocracy.

First, they maintained that many state pollution-control agencies are short of staff. Of course, their concept of the "work that needs to be done" is based on their belief that the cascade of words from the Federal chain of command actually is useful. Much of Federal environmental officials' time is spent telling state and local officials what to do and checking that they do it.

Under my proposal, a large portion of the EPA's 18,000 staffers could be dispensed with. Perhaps some of them could be sent to the states, but that may not be necessary once the Federal chain of command is gotten rid of. Even now, state and local governments mount the majority of enforcement actions.

The EPA loyalists further argued that it takes the national government to stand up to locally powerful industries. Sometimes, of course, the neighbors of a plant are reluctant to see it regulated to the point of purity for fear that the company will go bankrupt. The Federal environmental elite wants the power to "bomb the village to save it" (to use Vietnam War-era parlance).

A plant also might get its way because it has local political leverage. The implication is that the national government is controlled by the nationally virtuous. Yet, concentrated interests can buy "access" in Washington just as they buy "clout" on Main Street. The difference exists only in the minds of those who wish to see the center of power stay where they have their power--in the District of Columbia.

While the state and local political playing fields are not perfectly level, at least people know the score. It would be hard to find an Arkansan who does not know that the Tyson poultry company has clout in Little Rock. At the Federal level, though, the workings of concentrated interests are shrouded by the remoteness, size, and complexity of the Federal government.

Finally, the EPA loyalists claimed that state governments are not competent to produce sound regulations. Because the former EPA officials took part in writing the agency's contributions to the Federal Register, they would seem to be throwing stones from a glass house. EPA regulations and guidelines are opaque, arcane, elliptical, repetitive, and evasive. EPA staffers blame these problems on legislative and administrative constraints. Be that as it may, the Federal environmental protection house still is glass, regardless of who built it.

Moreover, if the state agencies are viewed as weak, the EPA is too muscle-bound to act with dispatch. It takes the agency years to transform new information about the dangers of pollution and options for pollution control into a change in the law because it must go through an exhaustive internal process, interagency review, a rule-making proceeding, more intra- and interagency review, and then judicial review. These time-consuming procedures are thought necessary because the final product has the force of law. With the EPA proposing the laws to Congress and the states, thereby leaving the judgment calls to them, there would be no need for a drawn-out process before new information could be peer-reviewed and made public.

In the downsized EPA that I envision, the agency, stripped of fiat power, could retain a leadership role only by convincing states to adopt its proposals because of their timeliness, quality, and sensibility. That is how the private organization that proposes the Uniform Commercial Code and other uniform laws to the states attains its influence. Americans need an EPA that succeeds by earning its leadership, not by bringing the states down to mind-numbing mediocrity.

Mr. Schoenbrod, professor of law, New York Law School, is former senior attorney for the Natural Resources Defense Council.

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