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Saving Our Environment from Washington

Saving Our Environment from Washington: How Congress Grabs Power, Shirks Responsibility, and Shortchanges the People

David Schoenbrod
Copyright Date: 2005
Published by: Yale University Press
Pages: 320
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  • Book Info
    Saving Our Environment from Washington
    Book Description:

    Congress empowered the Environmental Protection Agency on the theory that only a national agency that is insulated from accountability to voters could produce the scientifically grounded pollution rules needed to save a careless public from its own filth. In this provocative book, David Schoenbrod explains how his experience as an environmental advocate brought him to this startling realization: letting EPA dictate to the nation is a mistake.

    Through a series of gripping and illuminating anecdotes from his own career, the author reveals the EPA to be an agency that, under Democrats and Republicans alike, delays good rules, imposes bad ones, and is so big, muscle-bound, and remote that it does unnecessary damage to our society. EPA stays in power, he says, because it enables elected legislators to evade responsibility by hiding behind appointed bureaucrats. The best environmental rules-those that have done the most good-have come when Congress had to take responsibility or from states and localities rather than the EPA.

    With the passion of an authentic environmentalist, Schoenbrod makes a sensible plea for "bottom-up" environmental protection now. The responsibility for pollution control belongs not in agencies but in legislatures, and usually not at the federal level but rather closer to home.

    eISBN: 978-0-300-12891-8
    Subjects: Environmental Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-x)
  4. CHAPTER ONE Introduction: Then and Now
    (pp. 1-16)

    “Then” began late in 1975 at a dusty little airfield near San Juan, Puerto Rico. My traveling companion and I got into a one-engine plane and were flown west beyond the end of land and out over the Caribbean. We spotted our destination on the watery horizon, at first only the silhouette of a distant mesa and then a huge white rock. Its cliffs plunged two hundred feet to a narrow fringe of palms surrounded by sand, clear waters, and reefs. We flew the seven-mile length of the island, banked sharply around the far tip, plunged down the cliff, and...

  5. Part I Power

    • CHAPTER TWO Coming to the Environmental Movement
      (pp. 19-22)

      The draw of environmental advocacy was inevitable, but only in retrospect. My parents reared me to trust in farsighted and benevolent leaders dedicated to high-minded ideals and to aspire to be one of those leaders myself. In 1960 I made it to Yale College, where I was taught that important public decisions are best left to experts. That message went down easily because we were being trained to be those experts and President John F. Kennedy was surrounding himself with “the best and the brightest.”¹ Heeding the call of that knight in tailored armor, I set out to position myself...

    • CHAPTER THREE Congress Does Its Thing
      (pp. 23-28)

      In a high-profile ceremony on December 31, 1970, President Nixon signed the Clean Air Act Amendments of 1970 into law. The act’s author was Senator Edmund Muskie. Having also written the previous air and water pollution legislation, he was known in Congress as Mr. Environment. He was also the front-runner for his party’s presidential nomination, having been Hubert Humphrey’s running mate in 1968. Muskie hoped to ride to the White House in 1972 as the environmental champion.¹

      Bad news about the environment was good news for presidential candidate Muskie. The news about air pollution was particularly bad. Earth Day in...

    • CHAPTER FOUR Leaving the Lead In
      (pp. 29-38)

      My first case filed in 1972 charged the EPA administrator with violating the Clean Air Act by failing to protect young children from lead in gasoline. Getting the lead out occupied me and my colleagues for the rest of the decade.

      The lead story starts earlier. In the 1960s physicians discovered that lead was killing many children and crippling the brains of even more. At first it was thought that the fatal lead came from house paint, in which it was a common ingredient before 1950, but suspicion also turned to the almost two hundred thousand tons of lead that...

    • CHAPTER FIVE Failure and Success in Cleaning the Air
      (pp. 39-51)

      Lead made me doubt the wisdom of trusting in an environmental captain, but I was not yet convinced. Perhaps there was something special about lead, or we had botched the job. I began to consider how the EPA had fared with other pollutants. In 1970, the Clean Air Act had itself listed five pollutants—carbon monoxide, sulfur oxides, hydrocarbons, ozone, and particulate matter (soot and the like)—as harmful and coming from many sources. The EPA quickly added one more—nitrogen dioxides—but not lead. It issued air quality standards for these pollutants in 1971 and 1972, more or less...

    • CHAPTER SIX Growing Power
      (pp. 52-58)

      The EPA was born short on power and long on responsibility. Its responsibility was to clean the air before the end of the 1970s, but that required changes in traffic management, parking, motor vehicles registration, and land use as well as emissions from existing stationary sources. These were all functions of state and local government. The EPA lacked legal authority to force them to change how they performed these functions. Its only legal authority was to assume these functions itself, but for that it lacked both the staff and political legitimacy. Its first administrator, William Ruckelshaus, pushed as hard as...

      (pp. 59-64)

      The Clean Air Act commands the EPA not only to protect public health—the focus of the previous chapters—but also a lot more: to preserve air that is already clean, reduce acid rain, restore stratospheric ozone, improve visibility, and protect public welfare in general. Other statutes give it sweeping duties in regard to:

      water pollution

      pesticides and food safety

      garbage disposal

      noise pollution

      ocean dumping

      oil spills

      drinking water

      new chemicals

      storage, treatment, disposal, and transportation of hazardous wastes

      abandoned hazardous waste disposal sites

      asbestos in schools

      public notice of chemical releases and


      The EPA regulates large numbers...

  6. Part II Science

    • CHAPTER EIGHT What’s Science Got to Do with It?
      (pp. 67-73)

      We had forced the EPA to set an air quality standard for lead so that science would dictate how much to cut airborne lead. But what did science dictate? Everyone’s scientists—the EPA’s, industry’s, and NRDC’s—agreed that the air quality standard should be derived from the following commonsense approach: First, determinethe amount of lead children can tolerate in their blood. Second, subtractthe amount of lead in children’s blood that comes from sources other than air pollution. The difference is the maximum amount of lead that children can safely absorb from the air. Third, divide that amount by...

    • CHAPTER NINE Lois Swirsky Gold, Chemicals, and Cancer
      (pp. 74-83)

      Lois Swirsky Gold was in a bind. She needed pajamas for her daughter, but the only ones for sale contained the chemical “TRIS,” and it was known to cause cancer in laboratory animals. Federal regulators required children’s sleepwear to contain a flame retardant, and TRIS was the only one then available. To keep her little girl safe, she ordered TRIS-free long johns from Italy.¹

      Later, after regulators banned TRIS in 1977, Gold was left wondering how they had previously tucked the nation’s children into bed for the night with a carcinogen. She decided to write an article on the subject....

    • CHAPTER TEN Angus Macbeth and the Hudson River
      (pp. 84-94)

      Angus Macbeth and I go way back—Yale College, Oxford, Yale Law School, the NRDC—but his essence is captured by a single episode. When the newspapers were publishing transcripts of President Nixon’s conversations about covering up Watergate, NRDC’s New York office staff would squeeze into the reception room early in the morning to hear Angus read that day’s installment. We could have read it on our own. Most of us had. But it was good to hear Angus read it. Even for us Nixon-haters, the transcripts were a depressing blow to the high-minded expectations we had for the Oval...

    • CHAPTER ELEVEN Precaution and Policy
      (pp. 95-102)

      Put in its best light, the EPA’s insistence that GE dredge the Hudson can be seen as precautionary. Precaution makes sense in environmental regulation as it does in everyday life. Just as we should lock our doors against thieves who probably will not come in the night, so too should environmental regulators take sensible precautions on our behalf against harms that are potential but not proven. My own career as an environmental activist was inspired by this notion. In working to reduce lead in gasoline, my colleagues and I suspected on the basis of emerging scientific evidence that these additives...

  7. Part III Our Republic

    • CHAPTER TWELVE Coming Down to Earth
      (pp. 105-114)

      Before Rachel Carson, there was Aldo Leopold. Born in 1887, he was an early graduate of what was then called the Yale Forest School. It was dedicated to teaching how to make the supply of timber last, but his work in the field as a member of the U.S. Forest Service broadened his horizons. He came to believe that the United States should save some forests from logging altogether and forever. He worked successfully to get the Forest Service to establish wilderness areas.

      He is best known today for a book of enduring beauty,Sand County Almanac and Sketches Here...

    • CHAPTER THIRTEEN A Government of the People
      (pp. 115-123)

      The respect that my upstate neighbors demand for their opinions on public affairs is a remnant of an age in which all voters got such respect. There was a time in America when high officials were meaningfully accountable to ordinary voters and those voters were proud of their role and took it seriously.¹ This was the “government of the people” that Abraham Lincoln celebrated in the Gettysburg Address. How did this country get such a government and what happened to it?

      Those who gathered in Philadelphia in 1787 to design a new government came with heavy hearts. In 1776 they...

      (pp. 124-143)

      At their annual meeting in 1997, state environmental commissioners handed out T-shirts with the slogan “The states are not branches of the federal government.”¹ Environmental commissioners had not previously been known as champions of state sovereignty. Some of their predecessors had supported the federal mandates that forced state legislatures to give them bigger budgets and more power. The federal boons came at a price. The states were stuck with carrying out the EPA’s dictates even when they made no sense to those on the scene, and it fell to the commissioners to impose the EPA’s way of doing things. Angry...

    • CHAPTER FIFTEEN Vicki Been and Environmental Justice
      (pp. 144-154)

      Vicki Been was a law student that a professor does not forget. To the seminar on public interest litigation taught by Angus Macbeth and myself in 1983 she brought not only high intelligence and earnest purpose but also work experience with the American Civil Liberties Union. After graduation she clerked for Justice Harry Blackmun and is now a professor with a national reputation in land-use law.

      Been specializes in how government decides where to locate facilities, such as bus garages, that society needs but neighborhoods shun. Her interest in the subject comes naturally. She grew up in a uranium-mining town...

    • CHAPTER SIXTEEN Legislative Responsibility
      (pp. 155-166)

      Congress enacts all federal environmentalstatutes,but these statutes leave the making of most federal environmentallawsto the EPA. When the EPA makes laws, they are called “regulations.”

      The difference between Congress making laws and leaving that job to the EPA is critical.Lawsare the rules that control private conduct, such as a requirement that electric power plants meet certain emission limits.¹ In voting on such a law themselves, legislators would inevitably anger those voters who want a stricter, more protective law as well as those who want a weaker, less burdensome one. In leaving lawmaking to the...

  8. Part IV What We Lose

    • CHAPTER SEVENTEEN The Rights of Citizens
      (pp. 169-180)

      On January 17, 2001, Carol Browner announced that she had decided to adopt a new law lowering the limit on arsenic in public drinking-water systems. It would become official the next month but would give the water systems until 2006 to comply. Three days after her announcement, George W. Bush took office and immediately put on hold agency laws that had yet to become official so that his administration could reconsider them. Environmental groups charged that he had killed the arsenic law in return for campaign contributions from big mining and smelting companies. The press took up the charge and...

    • CHAPTER EIGHTEEN The Boon of Liberty
      (pp. 181-189)

      Senator Muskie recognized in 1970 the importance of leaving states free to deal with air pollution in ways “most responsive to the nature of their air pollution problem and most responsive to their needs.” Economic theory teaches that local knowledge is essential to efficiency. Experience teaches the same lesson. Witness the disaster of central planning in the Soviet Union. President Clinton and Vice President Gore promised to “reinvent government” in the belief that those closest to a problem can solve it better.¹

      Yet Congress often requires the EPA to impose a uniform standard on the entire nation, as in the...

    • CHAPTER NINETEEN The Appeal of Law
      (pp. 190-198)

      “A deep chesty bawl echoes from rimrock to rimrock, rolls down the mountain, and fades into the far blackness of the night.”¹ Thus begins one of Aldo Leopold’s gems. The essay harks back to his time as a young Forest Service officer in the southwestern United States. Out in the wild, he and his colleagues spotted a wolf and her gamboling cubs. “In those days we had never heard of passing up a chance to kill a wolf.” They fired. “We reached the old wolf in time to watch a fierce green fire dying in her eyes. I realized then,...

    • CHAPTER TWENTY The Joy of Doing
      (pp. 199-218)

      When we left Dan Wilson and Susan Knapp back in chapter 1, it was summer 1998, and they were worried that well-intentioned laws from the FDA and the EPA would drive them out of their orchard. Their experience with the FDA made me see EPA regulation in a new light, but I am getting ahead of the story.

      The FDA had gotten involved two years earlier, afterE. colicontamination in bottled fruit juice had sickened many people and killed an infant. The juice was produced by Odwalla, a large West Coast company, but the FDA began to consider regulating...

    • CHAPTER TWENTY-ONE Conclusion: Spaceship Earth without a Captain
      (pp. 219-232)

      The managers of the Kaiser’s forests decided in the late 1700s that the scientific way to produce saleable lumber was to replace the natural chaos with trees of the same species and age planted in rows. With trees lined up like soldiers on a parade ground, the managers could see everything worth seeing and control everything worth controlling, or so they thought.

      This “scientific forestry,” as it was called, spread through Europe and to the United States. Within Germany itself, the scientific approach spread from the forestry department to other departments. Department heads were expected to hand down rigorously specified...

  9. Notes
    (pp. 233-284)
  10. Acknowledgments
    (pp. 285-290)
  11. Index
    (pp. 291-296)
  12. Back Matter
    (pp. 297-298)