Practical Environmentalism vs. Romantic Environmentalism (2002)
Practical Environmentalism vs. Romantic Environmentalism
with Steven Hayward
AEI Environmental Policy Outlook, July 2002
This issue introduces the Environmental Policy Outlook, a monthly essay on trends and controversies in environmental policy. We will explore the paradox of apocalyptic, ideologically charged political rhetoric surrounding an issue that is, after all, a matter of strong popular consensus, massive public investment, and conspicuous practical progress. Can the environmental movement come to grips with its successes and provide leadership rather than resistance to the evolution of better environmental policy? Is its uncompromising posture just a political tactic—or is it the harbinger of a new “universal environmental ethic” that might in time modify or displace the established institutions of liberal individualism, private property, and representative democracy?
Common Sense and the Environment: A House Divided
That the environment should be a source of extreme ideological fractiousness and bitter partisan division is a mystery from a common-sense point of view. When the environment rose to the top of the public policy agenda in the late 1960s and early 1970s, it was widely regarded as a consensus issue around which long-term bipartisan action would ensue. No public constituency favors polluted air, fouled rivers, and wasted habitat. The conservative governor of Calfornia, Ronald Reagan, joined the environmental bandwagon on the first Earth Day in 1970 and declared “the absolute necessity of waging all-out war against the debauching of the environment.” Barry Goldwater was a member of the Sierra Club.
In the practical world the consensus over the environment has endured and deepened since the first Earth Day; environmental management proceeds step by step in countless ways on the national and local level and addresses real problems with increasing sophistication and agility. A fog of rhetoric and confusion, however, shrouds the reality because environmentalism, which is too often thought of as a uniform monolith, is a house divided against itself.
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The Kyoto Treaty Deserved to Die (2001)
The Kyoto Treaty Deserved to Die
The American Enterprise, September 2001
President Bush’s firm rejection of the Kyoto Protocol on Climate Change put the final nail in the coffin of a doomed project. By 2012, the agreement would have required the leading industrial nations to reduce their “greenhouse gas†emissions to levels below 1990 totals (regardless of population growth and economic transformations in the various countries), and would have exempted China and other developing nations entirely (despite the fact that their growing emissions would have swamped the reductions from the developed nations). Long before President Bush acted, this approach had been rejected by the U.S. Senate in a vote of 95-0, which is why President Clinton never submitted the treaty for ratification. Nor had any other major nation adopted the agreement when implementation negotiations collapsed amidst acrimony and name-calling in November 2000.
The failure of the Kyoto Protocol was both inevitable and desirable—inevitable because it required the impossible, desirable because it stood in the way of feasible, effective climate-change policies. Those who framed the agreement treated global warming as a well-understood, immediate problem—indeed as an incipient crisis. This view produced a program of drastic short-term controls on emissions of CO2 and other gases, which in turn produced irresoluble economic conflicts, both among the developed nations that negotiated the agreement and between the developed and developing nations.
The key features of the climate change debate are large degrees of uncertainty and a long time horizon. Although it is fairly well-established that the Earth’s atmosphere has warmed somewhat (one degree Fahrenheit) during the past century, it’s not clear why this happened. The warming may have been due to human impositions (the burning of fossil fuels and other incidents of industrial growth), or to natural solar or climate variations, or to some of each. Whatever the causes, we don’t know if future warming trends will be large or small, or whether the net environmental and economic consequences (including both beneficial and harmful effects) may be large or small.
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Smoke and Smears (2000)
Smoke and Smears
with Steven Hayward
The Weekly Standard, October 30, 2000
In the closing weeks of the presidential campaign, Vice President Al Gore is returning to the theme that Texas has become an abysmal place to live under Governor George W. Bush. It is a hard case to make–Texas is today the fifth-fastest growing state and fifth in net influx of Americans from other states, and Bush is one of the nation’s most popular governors.
Gore’s earlier attacks on the governor’s education record were set aside following the release in July of a comprehensive RAND study showing that student proficiency in math and reading has been improving more in Texas than in any other state. His subsequent assertions about the number of Texans lacking health insurance seem to have fizzled as well (it turns out that the number of uninsured has been falling in Texas while rising in the nation as a whole). That leaves environmental quality, where the vice president and his ad writers have leveled a fusillade of dramatic allegations about increasing pollution in Texas’s cities and streams. But the ecoscare attacks are as unfounded as the others.
Environmental quality presents rich opportunities for misleading data and rhetoric. Measuring air and water pollution involves a host of variables: One can measure pollution by emissions or by the quality of the air and water, and measurements of air and water quality depend on the placement of monitors, the use of peak versus average levels, and adjustments for population exposure and for the widely differing health and amenity effects of different kinds of pollution. Rankings of states are much more problematic than rankings for school performance or health care, because all states that are more urbanized and industrialized have higher pollution levels. Texas accounts for 60 percent of the nation’s petrochemical production capacity and 25 percent of its oil refining, and it is the only state with two metropolitan areas among the nation’s top ten (Houston and Dallas-Ft. Worth). Measured by simple gross quantities, Texas, California, and New Jersey will have “more pollution” than most other states under any circumstances; the rest of us can enjoy the products of their industries without having to bother so much with the pollution-control challenges.
Gore’s charges exploit these opportunities to the hilt, combining misleading statistics with a few outright fabrications to create an impression that bears little relationship to reality. The charges, however, are easy to debunk, and it is surprising that they have been reported with little scrutiny by media that have otherwise grown wary of the vice president’s loose ways with facts.
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Ozone and the Constitution at the EPA (1999)
Ozone and the Constitution at the EPA
with Randall Lutter
AEI On the Issues, July 1999
A recent court decision that struck down Environmental Protection Agency air quality standards on constitutional grounds has revealed a serious problem with the Clean Air Act. The act directs EPA to set air standards that “protect public health,” but this gives the agency too little legislative guidance where low levels of pollution present some health risks. The constitutional problem would be solved if EPA set standards that balanced health benefits against the costs of achieving them. An examination of one aspect of EPA’s standards shows how the agency’s aversion to considering costs can be bad for the environment as well as the Constitution. In May 1999, the U.S. Court of Appeals for the District of Columbia Circuit blocked the Clinton administration’s national air quality standards for ozone and particulate matter, which had been issued with great fanfare in July 1997. The decision, American Trucking Associations v. U.S. Environmental Protection Agency, is a victory for constitutional democracy over bureaucracy. The court found that EPA’s standards amounted to sheer, unbridled policy judgments—expressions of bureaucratic willfulness rather than applications of policies articulated in the Clean Air Act. EPA thereby ran afoul of the “non-delegation doctrine,” which courts use to enforce the Constitution’s assignment of “all legislative powers” to Congress.
The court decision was based on other considerations as well, including EPA’s failure to consider research, including work by one of us (Lutter), showing that atmospheric ozone has significant health benefits. But it is the constitutional issue that has shaken Washington’s rulemaking industry to its foundations. Judges routinely strike down regulations for being “arbitrary and capricious” (a catch-all standard of administrative law), but a constitutional holding is another matter—it casts doubt on the authorizing statute itself, not just on an agency’s application of the statute. If upheld by the Supreme Court, American Trucking could have profound implications for regulatory programs affecting telecommunications, financial markets, and much else. It could curtail Congress’ ability to declare itself for clean air, safe products, low prices, and other velleities while leaving the real and frequently controversial policy choices—that is, the lawmaking—to unelected officials and civil servants and the hordes of lawyers that attend and assist their every move.
When EPA announced its new air quality standards, it cited reams of scientific evidence about health problems associated with airborne ozone and particulate matter. It also offered detailed estimates of the likely consequences of different levels of both pollutants. But when it came to explaining its decision—why it chose certain levels rather than others as national standards—EPA simply said that higher levels than the ones chosen would allow more serious and more certain harms to public health, while lower levels would avert less serious and less certain harms. The Court of Appeals found that this was not merely “arbitrary” but vacuous: it fell short of the constitutional requirement that regulatory decisions be based on “intelligible principles” derived from statutory policies. If EPA could not come up with any such principles, the court suggested, then the statute itself must be unconstitutional.
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Wizards of Ozone (1999)
Wizards of Ozone
The Weekly Standard, June 21, 1999
In May, the U.S. Circuit Court of Appeals for the District of Columbia blocked the Clinton administration’s air-quality standards for ozone and particulate matter. The decision, American Trucking Associations v. U.S. Environmental Protection Agency, is a victory for democracy over bureaucracy. The court found that EPA’s standards amounted to sheer unexplained policy judgements–an expression of bureaucratic willfulness, rather than an application of the Clean Air Act. EPA thereby ran afoul of the “non-delegation doctrine,” which courts use to enforce the constitutional clause giving “all legislative powers” to Congress.
The court held that in setting its air-quality standards, EPA had not been guided by any “intelligible principles” derived from the act. The executive branch’s power is too great, said the court, if the regulators are “free to pick any point between zero and a hair below the concentrations yielding London’s Killer Fog” (which resulted in 4,000 deaths in one week in 1952). When de facto legislative power resides in the executive branch, accountability and the separation of powers are undermined.
But EPA’s clean-air rules are not simply a case of executive-branch usurpation (or legislative-branch abdication). They reflect a deeper problem involving rigid legislation and fluid science.
In 1970, when Congress directed EPA to set air-quality standards “requisite to protect the public health” with an “adequate margin of safety,” it assumed that epidemiologists and biologists could determine “threshold” levels of pollution dividing serious health risks from negligible risks. That assumption, we now know, was wrong. For ozone, EPA’s Scientific Advisory Board reported in 1996 that there is no threshold below which health risks disappear. Instead, as ozone declines to natural background levels, ozone-related respiratory problems decline more or less continuously. For particulate matter, EPA could not determine whether a threshold exists.
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