A Law Unto Themselves
It's always an ambitious task to argue that a seemingly technical abuse of the Constitution is responsible for much of what is wrong with American democracy. Yet David Schoenbrod more than meets the challenge in "Saving Our Environment From Washington" (Yale University Press, 296 pages, $28). With personal anecdote and scientific fact, Mr. Schoenbrod makes a compelling case that, by delegating lawmaking responsibility to government agencies, Congress has imposed huge costs on the economy and bad choices on the environment.
This was probably not what the Framers had in mind. The "nondelegation" clause of the Constitution—Article I, Section 1—states unequivocally that federal laws must be passed by Congress. But all too often today Congress merely sets vague goals and then delegates to regulatory bureaucrats—who are, by definition, unaccountable to the people—the task of deciding what, specifically, industries and individuals must do. When the bureaucrats make controversial decisions—decisions painful to various voter constituencies—congressmen and senators complain, of course. But in fact, Mr. Schoenbrod notes, they like this system. It allows them to pass feel-good laws while blaming someone else for their effects.
Undefined terms and goals fill all sorts of environmental statutes. The Clean Air Act of 1970, for example, contained only one provision that actually stated the law: the requirement that car makers reduce emissions of three particular pollutants by 90%. The rest of the act asked the head of the newly created Environmental Protection Agency to identify the most important air pollutants, to set limits on their permissible presence in the air and to take steps to get them below the limits. That's a lot of regulatory discretion.
By giving the EPA such power, Congress "appeared to put environmental protection in the hands of a scientific elite," Mr. Schoenbrod writes. At the time, "Spaceship Earth" was an idea much in vogue. Mr. Schoenbrod himself was then an attorney for the Natural Resources Defense Council (NRDC) and thus intimately familiar with the logic: "Ships must, of course, be run by expert captains, not the passengers or their elected representatives." The EPA became the captain and crew of the spaceship's American section.
The result? Insulated from accountability, the EPA dragged its feet on established threats, like lead, while imposing costly rules that restricted chemicals like PCBs, for which there was—and is—little scientific evidence of danger.
Mr. Schoenbrod has touched on these themes before, in "Power Without Responsibility" (1993). The striking aspect of his new book is the story he tells of his own journey from supporter to critic of the Spaceship Earth theory of environmental law. His first step toward disenchantment was seeing, as an NRDC lawyer, the EPA's personnel up close. "The EPA had not come from Starfleet Academy," he notes, "but rather was an amalgam of the federal government's preexisting environmental programs," then part of the Department of Health, Education and Welfare. In short, the bureaucrats were real people with real incentives, just like politicians and voters—but unanswerable to the public.
The next educational step, for him, was the decision to buy a farm in upstate New York. Mr. Schoenbrod was surprised by the wisdom of his rural neighbors. He movingly describes how a local logger changed his mind about forestry practices by showing him, among much else, that sometimes cutting down particular trees can benefit the forest. (It sounds like a simple observation, but it is the kind of thing that bureaucrats, with their sweeping mandates, often don't allow for.) Mr. Schoenbrod also looks at the local reaction to a number of environmental decisions, such as the EPA's ordered dredging of the Hudson River because of the small risk of PCBs. The intent was to protect the health of local communities, but upstate landowners opposed the dredging by a ratio of more than 2 to 1.
Though Mr. Schoenbrod concentrates on the environment, this is not the only area where Congress's delegation of its lawmaking role has caused problems. The Sarbanes-Oxley corporate reform act of 2002, for instance, requires CEOs to certify, and auditors to attest to, "internal controls"—without ever defining what an internal control is. The law directed that task to a quasiprivate accounting board, whose definition is so broad that the requirement is costing the economy billions of dollars a year.
What is to be done? Mr. Schoenbrod would like to see the states do more. In particular, he hopes that the states -- closer to the people affected by any law or regulation—will take over some areas of environmental policy. It is a promising line of thought, but Mr. Schoenbrod at times puts too much faith in, say, state and local voter initiatives to preserve "open space" without noting that such initiatives often limit land availability and raise the prices of housing. The whole environmental regime is rife with such perverse incentives and unintended consequences. Mr. Schoenbrod might have given more attention to the role that property rights and free markets can play in balancing the needs of the environment and the economy.
Still, his overall message is urgent enough. Whether or not there is indeed a Spaceship Earth, the U.S. is a vessel whose smooth operation depends on laws made by citizens through their elected representatives, not on the wayward judgments of an elite.