David Schoenbrod

Power Without Responsibility

When it passed the 1970 Clean Air Act, Congress acted as if it had to take 'a stick to the states.' Congress was both self- serving and wrong. Industry urged Congress to pass the 1965 and 1967 acts to inhibit strong state regulation of in-state polluters. Nonetheless, the biggest reductions in sulfur emissions were enacted by the states before, rather than after, the 1970 act. Even in the 1980s the states led the national government in implementing new methods of pollution control. According to Robert Crandall, 'assertions about the tremendous strides the EPA has made are mostly religious sentiment.'

In any event, each state should be able to strike its own balance between environmental quality and economic development or between other threats to the public and the costs of reducing those threats. In one interesting example, William Ruckelshaus, as EPA administrator, faced a tough decision about how to regulate arsenic emissions. The agency was under a court order to set arsenic standards, and the regulations it proposed would have impact exclusively on a Tacoma copper smelter. Its emissions of 310 tons of arsenic per year posed a serious health risk. Even if the smelter installed fairly good pollution controls, experts argued, it would still create a significant risk of lung cancer; cutting emissions further might drive the smelter out of business and deprive up to 800 people of their jobs. Ruckelshaus undertook to educate local citizens about the choice before him and asked for their advice. National environmental groups criticized him for suggesting that health concerns could be balanced against employment concerns. The people from Tacoma, however, generally appreciated his gesture.

The Tacoma case poses the question of whether national policy should trump the preferences of those whose health and jobs are at stake. The local government in Tacoma imposed tough sulfur dioxide regulations that resulted in the company shutting the smelter down. Should states opt for high environmental quality, they also may attract employers for whom environmental quality is important, as has been the case in Vermont and some other states. Other states or cities will opt for lower environmental quality in favor of retaining jobs. Allowing different locales to pursue different preferences is supposedly a strength of federalism.

States should have the power to make these and similar choices in the various fields of regulation, unless we have a good reason to distrust state government more than we distrust national government. Two hundred years ago James Madison argued that interests were less likely to capture the national government than state governments because the nation is larger and more diverse than the states, but most modern states surpass the entire original thirteen in population and diversity.

State governments may appear more susceptible to concentrated interests when the federal government requires them to achieve popular objectives. The state legislators then must impose the regulations or levy the taxes needed to deliver upon the federal legislators' promises. Former New York City mayor Ed Koch said of a mandate to provide transportation for the handicapped passed while he was Congressman, 'I voted for that. You'd be crazy to be against that. When you are a member of Congress and you are voting a mandate and not providing the funds for it, the sky's the limit.'

The federal government looks less 'progressive' when it has to pay the cost. In the cleanup of toxic waste dump sites under the Superfund program, Congress must take the blame for levying most of the taxes to pay for the program, while state politicians reap benefits for demanding that the national government do more to protect the public. A truer test of the comparative abilities of federal and state governments to deal with problems arises when each acts on its own initiative without involving the other. From 1970 to 1990, as an example, while the federal government listed only 8 air toxics, various states regulated over 700.

The federal requirement that state and local governments remove much of the asbestos in public schools nicely illustrates how blame-shifting and credit-claiming drive the decision to adopt federal rules. Some of that asbestos presents an acute threat to health, some a small threat, and some a threat so minuscule that removing it actually increases the risk. Regardless of the threat, removal is expensive. A wise decision requires weighing the costs and benefits of asbestos removal in each individual school. Instead of leaving the decision to individual school boards or the states, Congress enacted a statute delegating to EPA power to mandate asbestos removal.

Why did Congress take the decision away from local school boards? Surely not because asbestos in schools threatens people in other states, nor because varying decisions about its cleanup would be a substantial factor in the siting of factories. Nor does it make any sense to believe that members of Congress care more about schoolchildren than do their own parents and local officials. The answer cannot be that the federal government knows more about the problem, because then the appropriate solution would be federal advice rather than a federal requirement.