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The Fable of Federal Regulation

  • Jonathan Adler
  • You’ve heard the story. Industrialization and economic growth laid waste to the American environment through much of the twentieth century. Common lawbased environmental protections were ineffective, and state and local governments were unable or unwilling to address environmental concerns. As a result, environmental quality was in continuous decline until comprehensive federal legislation was adopted in the late 1960s and early 1970s. The infamous 1969 Cuyahoga River fire and the massive oil spill off the coast of Santa Barbara focused public attention on the nation’s environmental plight and helped spur the passage of needed federal environmental laws.

    This is the conventional account of the origins of federal environmental law. It is a story often told to explain how the nation moved from a mix of property-based, common law rules and state and local regulations to a sprawling federal regulatory apparatus. But it is wrong. The conventional narrative of the origins of federal regulation is a fable.

    Contrary to common perceptions, many measures of environmental quality were already improving prior to the advent of federal environmental laws. The Environmental Protection Agency’s first national water quality inventory, conducted in 1973, found that there had been substantial improvement in water quality in major waterways during the decade before adoption of the federal Clean Water Act, at least for the pollutants of greatest concern at the time, organic waste and bacteria (Freeman 1990, 114).

    Throughout the 1950s and 1960s, state and local governments began to recognize the importance of environmental quality and adopted first-generation environmental controls. Some states’ efforts were more comprehensive and more successful than others, and different states had different priorities. Environmental protection did not always trump health care, education, or other local concerns. Nonetheless, by 1966, every state had adopted water pollution legislation of some sort.

    A similar pattern of state and local action preceded federal regulation in other areas as well. Federal regulation of wetlands, for example, began after a federal district court interpreted the Clean Water Act to require it in 1975. But state and local regulation had begun much earlier. In 1963, Massachusetts became the first state to regulate wetland development, modeling its initial efforts on preexisting local rules. By 1975, all fourteen states in the continental United States with more than ten percent of their land area in wetlands adopted wetland protection measures (Adler 1999).

    The story of air pollution control follows a similar pattern. Cincinnati and Chicago became the first cities to adopt effective smoke control ordinances in 1881, and action by cities increased dramatically after the Second World War. In some cities, such as Pittsburgh, the business community played a leading role in supporting such regulation. State regulations followed in much of the country.

    Indeed, the rate of improvement for some pollutants was greater before the adoption of federal controls than after. Robert Crandall (1983, 19) of the Brookings Institution found that pre-federal air pollution control efforts were more successful than is typically assumed, as have Indur Goklany (1999) and Paul Portney (1990, 51) of Resources for the Future.

    Why didn’t states act even earlier? In the 1950s, let alone the 1910s or 1930s, environmental issues did not yet rank as high as concerns for economic development, technological progress, and other social ills. Many things recognized as environmental problems today were of little concern 30 or 50, let alone 100, years ago. An industrial river was often seen as a sign of progress; the prismatic pools of oil and chemicals on the water’s surface were a sign of prosperity, not of waste and abuse.

    Policy makers at all levels of government knew little about the health effects of pollution and paid them little heed. While many environmental problems are obvious in hindsight, the nature and extent of these problems were not always readily apparent at the time. Wetlands are appreciated for their tremendous ecological value today, but for much of the nation’s history they were deemed nuisances, and the federal government subsidized their destruction. Insofar as environmental protection was an item on the public agenda before 1969, concern focused on sanitation and drinking water, not recreational or aesthetic values. Once the demand for greater pollution control emerged, action began.

    If neither state and local failures nor ever-deteriorating environmental quality caused the adoption of federal regulation, what did? I suggest that four factors played a role.

    First, the nation’s environmental consciousness increased dramatically during the post-World War II period, particularly in the 1960s. Despite substantial progress, significant environmental problems remained, many of which had gone unrecognized for decades. As America became more affluent, the demand for environmental quality increased dramatically. At the same time, best-selling books such as Silent Spring popularized the notion that modern industrial activity posed a mortal environmental threat. This environmental awareness really began in the 1960s, culminating in the first Earth Day in 1970 and the passage of numerous federal environmental statutes.

    A second factor is the nationalization of American politics-a phenomenon encouraged by the growth of the national media. The Santa Barbara oil spill, the 1969 Cuyahoga fire, and other environmental events in the 1960s and 1970s became national events because they could be broadcast nationally. Even though earlier river fires caused millions of dollars in damage and killed many people, they were not national events. Stories, and more importantly pictures, of such events were now distributed widely. Even if conditions were improving locally, one could always find a picture in a newsmagazine or on the nightly news to suggest that somewhere else environmental conditions were getting worse.

    A third factor was that arguments for federalism and local control fell into disrepute just as there was a call for greater federal regulation. Federalism and “states’ rights” were often seen as smokescreens designed to preserve racial segregation-and in many cases this perception was accurate. Although there were legitimate constitutional principles at stake, the association of federalism with racism delegitimized these principles for a generation. Appeals to state autonomy simply did not have the legitimacy they once had in American politics. If a state couldn’t be trusted to protect its citizens, how could it be trusted to protect its land, air, water, and wildlife?

    A fourth, and often overlooked, factor is rent-seeking-the search for favors by special interest groups. Economic and regional interests could gain by shifting environmental policy to the federal level. Perhaps the most prominent example is the adoption of federal vehicle emission standards. Once California started down the road to stringent emission standards for new automobiles sold within the state, the nation’s automakers became concerned that other states could follow suit, resulting in a proliferation of varying state standards. Detroit pushed for federal automobile standards to preempt such state standards (Elliott et al. 1985). This is not an isolated example. In many other areas, ranging from the regulation of coal-fired power plants to standards for evaporative emissions from paint, large national corporations and regional interests have benefited from the imposition of national standards.

    The oft-told explanation for federal environmental legislation—that ever-deteriorating environmental quality made federal regulation necessary—does not fit the historical record. Rather, a mix of factors led to the adoption of federal environmental laws, even though environmental quality was already improving in many respects. With a better understanding of the sources of federal regulation, perhaps we can reevaluate the current federal role and explore alternative means of ensuring environmental protection.

    Adler, Jonathan H. 1999. Wetlands, Waterfowl, and the Menace of Mr. Wilson: Commerce Clause Jurisprudence and the Limits of Federal Wetland Regulation. Environmental Law 29:41-54.
    Crandall, Robert W. 1983. Controlling Industrial Pollution: The Economics and Politics of Clean Air. Washington, DC: Brookings Institution.
    Elliott, E. Donald, et al. 1985. Toward a Theory of Statutory Evolution: The Federalization of Environmental Law. Journal of Law, Economics & Organization 1: 330-33.
    Freeman, A. Myrick, III. 1990. Water Pollution Policy. In Public Policies for Environmental Protection, ed. Paul Portney. Washington, DC: Resources for the Future, 97-149.
    Goklany, Indur. 1999. Clearing the Air: The Real Story of the War on Air Pollution. Washington, DC: Cato Institute.
    Portney, Paul R. 1990. Air Pollution Policy. In Public Policies for Environmental Protection, ed. Paul Portney. Washington, DC: Resources for the Future, 27-96.

    Jonathan H. Adler is associate professor and associate director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law. In 2004 he was a Julian Simon Research Fellow at PERC. This essay is adapted from a longer article forthcoming in the Case Western Reserve Law Review.

    Visit Jonathan Adler’s Website

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