Legislating Ideals



By David Schoenbrod

Around 1970, the government began to go beyond enforcing society's norms and began imposing intellectually generated ideals on society. As a graduate of Yale Law School in 1968, I was a part of this process. My contemporaries and I were instrumental in helping to launch the Environmental Protection Agency, as well as the Natural Resources Defense Council and other "public interest" environmental groups. We felt fully entitled to remake society.

We wanted new kinds of statutes that would force agencies to bend society to our ideals on a timetable. One of the first of the kind of statutes we wanted was the 1970 Clean Air Act. It became the prototype for many statutes regulating both the environment and other fields.

Under the Clean Air Act, the EPA was not left to regulate in the public interest but rather was mandated to achieve an ideal to protect the health of all Americans from all harmful pollutants by the end of the 1970s without regard to cost. As a young attorney at the Natural Resources Defense Council, I saw my role as forcing EPA to live up to this ideal.

A quarter century of experience, however, has taught me that in enacting ideals, Congress does only half the job of making law. It does the popular part (creating rights such as the right to clean air) and shuns the unpopular part (imposing corresponding duties such as limiting emissions on specific kinds of plants) (Schoenbrod 1993, 58Ð59).

In doing this, Congress disengages itself from the interests that must give way if the ideals are to be realized. An example was New York State's 1973 plan to implement the ideal of the Clean Air Act in New York City. One strategy was to impose tolls on the bridges over the Harlem and East Rivers. The tolls would produce the money needed to improve mass transit and thereby encourage commuters to leave their cars at home.

When a new governor and a new mayor refused to implement the plan, my colleagues and I at the Natural Resources Defense Council got a court order requiring implementation. In protest, all the members of the Brooklyn congressional delegation marched across the Brooklyn Bridge and vowed to amend the act to get rid of the tolls.

I rushed down to Washington to defend the Clean Air Act, but discovered that only two members of the New York City delegation would even consider opposing the amendment. One represented a district in which most of the voters already rode transit rather than cars, anyway. The other said that he supported tolls on bridges-except on those bridges leading to his district. The legislators from Brooklyn were for a right to clean air, but they were opposed to imposing duties to deliver the right-as if there can be rights without duties. A private person who behaved that way would be diagnosed as schizophrenic.

By legislating ideals, Congress can evade the procedural checks that would keep it from acting rashly. However, when efforts to temper these rash promises by new legislation are made, procedural checks stop any change. Besides, once Congress legislates an ideal, interest groups grow up around it and defend it. A legislated ideal is almost as hard to take back as a slap in the face.

As my generation of petulant young elitists came to understand the ways of power, we learned the trick of using the magic wand of idealism to obtain power. The trick was to put off the hard choices to another time or place. Thus, the 1970 Clean Air Act could be enacted because neither clean air nor the laws needed to produce it would have to be produced now. The deadline was, instead, 1977.

When 1977 arrived with the ideal unachieved, the EPA theoretically had the power to shut down factories and close gas stations on a massive scale. But the EPA was not about to exercise that power. Why? If it did, it would lose all its power. Instead, it deigned to allow society more time if the agency's power was increased.

So, in the Clean Air Act of 1977, the EPA and its allies allowed the 1977 deadline to be eased to 1982 for some pollutants and 1987 for others, in exchange for vast increases in the EPA's power. After the 1977 and 1982 deadlines proved impossible, the EPA allowed the deadlines to be eased out as far as 2010 in exchange for still greater increases in power. The agency will decide on a case-by-case basis whether to give states and cities more time to meet the goal. Thus, the EPA and the president will have tremendous leverage on governors and mayors.

The growth in the EPA's power can be roughly gauged by the growth in length of the Clean Air Act- from 8 double-spaced typed pages in 1965, to 76 pages in 1970, to 272 pages in 1977, to 718 pages in 1990. Yet the vast increases in federal government power typified by the Clean Air Act can't be justified by good results. The air people breathe is much cleaner today not because of the ideal handed down from Washington, but because society wanted it so.

State and local governments had responded to the demands of voters for cleaner air long before the federal government got involved (Goklany 1997, 47). At the federal level, the most important step that Congress took in 1970 was to enact a rule of conduct, not some abstract ideal, to cut emissions from new vehicles. Public support for cleaner air would have brought many further steps at all levels of government. But instead of enacting other concrete laws in response to popular demand, Congress enacted its grand ideal.

You might think that people would worry less about pollution now, since a national EPA is standing guard and Americans have paid $1,850 per household annually throughout most of the 1990s to achieve clean air (Schoenbrod 1998, 12). But according to opinion polls, the public is more worried about the environment now than it was in the 1970s (Kempton, Baster, Hartley 1995, 4). This is because the EPA is in the business of getting the public to worry about our "failure" to attain unattainable ideals. (Melnick 1984, 123).

Indeed, 68 per cent of the public tell pollsters that most other people don't worry enough about the environment (Darnay 1992, 844). Here is the ultimate irony. The voters who succeeded in getting government to do something substantial about pollution have been convinced by that government that people like themselves are too dumb to care about their own health. Government by ideal creates a state-literally, a state of mind- in which we feel we must be put in the hands of nurses. By sowing self-doubt, the state increases its power.

Our legal system used to discourage anti-social activity quite differently. As a rough generality, if you acted wrongly but caused no harm, you paid token damages or nothing. No harm, no foul. If you did cause damage, you paid for it, but were not punished unless you did something society judged awful. So long as you avoided awful conduct, you could act as you wished but were responsible for the consequences.

In contrast, the Clean Air Act, and the many other statutes modeled on it, allow a federal agency to run major segments of civil society on quasi-military lines running from Congress down through the EPA to states and ultimately the regulated entities. Operating this chain of command entails compiling a great mountain of statutes, regulations, guidance documents, plans, permits, and reports.

The point of this system is power, not environmental quality. This became clear to state environmental commissioners a few years ago. Prior to the 1996 election, the commissioners persuaded EPA Administrator Carol Browner to let them negotiate with agency staff to "reinvent government." Four months of hard bargaining produced a 16-page agreement allowing the states to deviate from rigid federal requirements when the EPA agrees that such innovations would save money and not harm environmental quality.

Once the election was over, the EPA official in charge of the talks killed the deal. In a "Dear Reinvention Ombudspersons" letter, Deputy Administrator Fred Hansen wrote that the states would be allowed to try only "minor, and I stress minor, changes." Moreover, the EPA would decide how the state-generated savings would be spent.

The EPA won't loosen its grip on state and local government because environmental policy might go the way of welfare-state experiments could lead to a wholesale devolution of power. Our air and water would be just as clean but the EPA would not be in the driver's seat.

In sum, legislation by ideal is unkind to people and their society.

References

Darnay, Arsen. 1992. Statistical Record of the Environment. Detroit: Gail Research.

Goklany, Indur M. 1997. The Federal Role in Improving Air Quality in the United States. Prepared for presentation at the American Society for Environmental History Conference on Government, Science and the Environment, Baltimore, March 6Ð9.

Kempton, Willet, James S. Baster, Jennifer A. Hartley. 1995. Environmental Values in American Culture, Cambridge: MIT Press.

Melnick, R. Shep. 1984. Pollution Deadlines and the Coalition for Failure. Public Interest 75: 123Ð34.

Schoenbrod, David. 1993. Power Without Responsibility: How Congress Abuses the People Through Delegation. New Haven, CT: Yale University Press. ---. 1998. Time for the Federal Environmental Aristocracy to Give up Power. St. Louis: Center for the Study of American Business.

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David Schoenbrod is a professor of law at New York Law School and an adjunct scholar with the Cato Institute
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