Environmentally Correct

Although he still considers himself an environmentalist, law professor David Schoenbrod’s [pictured] embrace of free market approaches to protecting the environment are viewed with suspicion in the halls of higher education.

“There has been a real shift but it has not been pervasive,” says Dr. Schoenbrod, a law professor at New York University. Some noted liberals from academe have voiced agreement with some of Dr. Schoenbrod’s calls for market-based solutions to protecting the environment and giving back to states the authority to do so. Before he ascended to the Supreme Court, Stephen Breyer was one of these firebrands.

Nonetheless, Dr. Schoenbrod admits that “the mass weight of academia” weighs in against ideas such as the ones he expresses in his new book, Saving Our Environment from Washington: How Congress Grabs Power, Shirks Responsibility, and Shortchanges the People (Yale University Press, 2005). “From the technical types I get agreement,” Dr. Schoenbrod told me at a recent seminar at the libertarian Cato Institute here in Washington, D. C. “From the law professors I get squeamishness.”

“Members of Congress needlessly increase the economic pain of environmental gain,” Dr. Schoenbrod notes.

The market-based approach in acid rain regulation that Congress concocted discriminates against new plants. “The system as we have it now is unnecessary,” Dr. Schoenbrod says. “It is tough on small businesses and farmers.” The compliance costs of environmental regulations are four times higher for small firms than for larger companies.

Never one to follow the academic pack when factual research led him elsewhere, Dr. Schoenbrod also wrote the book Democracy by Decree: What Happens When Courts Run Government, also published by the Yale University Press.

Dr. Schoenbrod has tenure. He also has a background in environmental law that stretches back to the 1970s when he served as counsel to the National Resources Defense Council (NRDC) and worked to get the federal government to ban leaded gas.

His experience in that crusade convinced him that, contrary to a belief popular in the Ivory Tower, neither Congressional Acts nor Environmental Protection Agency (EPA) regulations are the best engines to achieve the change sought by activists. “Congress shirks its responsibility by declaring lofty goals then delegates the details to the EPA or some other federal agency,” Dr. Schoenbrod says.

“Congress would not grab power if it could not shirk responsibility,” Dr. Schoenbrod concludes. “How many local problems would Congress address?

“My guess is none.”

In its first 30 years of existence, the EPA dealt with intrastate problems within states rather than interstate ones between two or more of the 50 United. Although the latter would seem to be more national in scope and hence worthy of the agency’s attention, the border disputes that go with controversies that cross state lines are conflicts that the agency would rather not involve itself in.

The U. S. Congress, for example, ordered the EPA to formulate rules to switch from leaded to unleaded gas by May 1976. Meanwhile, from 1970 to 1975, the use of leaded gas actually increased. In 1972, the NRDC sued the EPA in district court to get the agency to formulate the rules. Only in 1985 did the fuel environmentalists love to hate begin to disappear when large refineries asked the EPA to ban leaded gas to protect themselves from competition from small refineries.

By this time, the large refineries could afford to comply with the rules. The smaller ones could not.

As Dr. Schoenbrod relates, most environmental laws grow in a five-step process:

1. Congress passes a law.
2. Congress passes details of the law onto the EPA or some other agency.
3. Nothing happens.
4. Voters complain.
5. Congress passes a tougher law.

For its part, the EPA issues five major rules a year, although many minor ones, Dr.
Schoenbrod reports. “Go back and read Silent Spring,” Dr. Schoenbrod advises. “Rachel Carson blames pollution on the federal government.”

“Today, support for environmental protection is broader than ever,” Dr. Schoenbrod says. The perceived “race to the bottom” among states seeking to avoid environmental regulation is the rationale for Congress grabbing power in this area, Dr. Schoenbrod explains. Yet, as the Not in My Backyard movement shows, there is usually a “race to the top,” in which lawmakers and agencies try to take credit for environmental regulations while avoiding blame for their expensive side effects.

Upon taking office, President Reagan famously declared, “There is no limit to what you can accomplish if you don’t care who gets the credit for it.” Commentator M. Stanton Evans wryly observed that the credo of some members of the administration seemed to be, “There is no limit to the amount of credit that you can claim if you don’t care what is accomplished.”

That sort of credit-taking is all too pervasive in Washington.

Malcolm A. Kline is the executive director of Accuracy in Academia.