ENVIRONMENTAL CONTROLS Should Be Turned Over to the States

USA Today (Society for the Advancement of Education), May, 1999 by David Schoenbrod

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.