Since it seems impossible to update our environmental laws in this era of partisan poison, the Obama Administration has been working to use existing laws to update old rules. Updates like these were anticipated by many of our environmental laws, which included provisions that assumed that technologies and economic practices would evolve over time and new rules would be needed. For example, greenhouse gases were recently defined as air pollutants and the Supreme Court required EPA to regulate them under the Clean Air Act. Now EPA has turned to an update of some of the rules issued under federal water pollution laws.
According to Coral Davenport's report in last week's New York Times:
The E.P.A. proposed the rule, known as Waters of the U.S., last March. The agency has held more than 400 meetings about it with outside groups and read more than one million public comments as it wrote the final language. The rule is being issued under the 1972 Clean Water Act, which gave the federal government broad authority to limit pollution in major water bodies, like Chesapeake Bay, the Mississippi River and Puget Sound, as well as streams and wetlands that drain into larger waters. But two Supreme Court decisions related to clean water protection, in 2001 and in 2006, created legal confusion about whether the federal government had the authority to regulate the smaller streams and headwaters...E.P.A. officials say the new rule will clarify that authority, allowing the government to once again limit pollution in those smaller bodies of water -- although it does not restore the full scope of regulatory authority granted by the 1972 law. The E.P.A. also contends that the new rule will not give it the authority to regulate additional waters that had not been covered under the 1972 law. People familiar with the rule say it will apply to about 60 percent of the nation's waters.
Since water sources drain into each other, efforts to regulate pollution in "major" lakes and rivers require the regulation of pollution in smaller streams, tributaries and wetlands. Unfortunately, none of the Supreme Court Justices are hydrologists, and their 2001 and 2006 rulings did not reflect this basic fact of environmental science; their rulings (excuse the pun) muddied the waters.
As Davenport and others have reported, the interest group reaction to EPA's new rule has been intense. The American Farm Bureau Federation believes it will reduce the value of farmland dramatically. The usual ideologues are making the usual noises about big, intrusive government and job-killing regulations. Some time down the road (or should I say downstream?) when we all end up paying additional billions to treat our drinking water and clean up toxic wetlands and waterways, these same special interests will complain about wasteful government spending.
Environmental protection is typically about smaller costs up front, at least when compared to huge costs once pollution has occurred and remediation must take place. It's pay me now or pay me later. Cleaning up the oil spilling into the ocean by Santa Barbara will cost much more than preventing the leak would have cost. But of course, preventing the leak would require more "overreaching by government" and "job-killing regulations."
We pay for this ideological idiocy. Ask BP now that they are spending $20 billion to clean up the Gulf of Mexico if they wished they'd spent a few million more to better manage their drilling contractors. The complaint that regulations prevent economic growth is an old one and is just as fictitious now as it has ever been. Auto manufacturers once claimed that seat belts and catalytic convertors would bankrupt their businesses. Bar owners in New York City once complained that banning smoking would destroy their business. I see lots of cars on the road and more people in New York City's bars than ever. People like safe, less polluting cars and it turns out that the market for smoke-free bars was larger than the one for smoke-filled bars.
Before EPA was created in 1970, economic growth and pollution were both increasing rapidly. By 1980, after regulation kicked in, pollution started to drop and, with few exceptions, economic growth and pollution reductions have continued ever since. While some regulations are misguided, typically bad rules are corrected before they do much damage. But in an increasingly complex world economy, the free market cannot function effectively without clear and reasonable rules. At some point, we will need to drop this absurd mindset that all rules are bad and start focusing on improving the regulatory structure to maximize benefits and minimize costs. The day of complete freedom for businesses to operate any way they want never really existed, but certainly in today's high-tech, highly-networked, global economy, such freedom is not even remotely possible.
People who manage global businesses understand this, expect rules, and hope to influence their development or manipulate their implementation to their competitive advantage. In fact, the absence of rules, or in the case of the U.S., state-by-state rules, can create confusion and uncertainty that makes business operations complex and difficult to manage. Nevertheless, conservative extremists are attempting to delegitimize rulemaking and governance itself. This anti-authoritarian impulse is deeply problematic. The world is filled with dangers. Everything from global terror to toxic waste poses threats to human health and wellbeing. Rules of law apply to many aspects of our economic and social life. The alternative to a world of law is not a world of freedom but a world of chaos, terror and danger.
A very active effort underway in congress is to attach bans on environmental regulation to statutes needed for the government to function. The threat of a presidential veto is one of the few remaining weapons that environmental advocates still possess to resist these destructive measures. The right wing is also trying to prevent regulation by starving EPA of funding for inspections, environmental monitoring, research, and enforcement. The Toxic Substances Control Act is so under-funded that it typically takes many years for new chemicals to be tested for regulation.
Conservatives will discover, as their great hero Ronald Reagan learned over 30 years ago, that support for protecting the environment runs deep in the American political culture. Polling measures the ebb and flow of this political support, but it is a mistake to assume that Americans do not care about clean air and clean water. They assume that government is taking care of this problem. Just as they assume that the police and military will keep them safe, Americans assume that government will prevent the poisoning of their air, water and food. When the public sees the government losing interest in environmental protection, support for the environment spikes in the polls.
The right wing attack on environmental regulation is a fundamental political mistake. Conservatives are correct in assuming that Americans mistrust big organizations and powerful institutions, but they should remember that the public counts on these powerful organizations to protect them. Attacking government inefficiency and overreach is often a popular political message, but attacking government practices that protect the health of American families is a losing one. American environmental law was born in a bipartisan partnership. This past week, Columbia's Earth Institute posted a video of a semester-long class taught last year on the origins of our environmental law by Leon Billings and Tom Jorling, the Republican and Democratic senate staff leaders who worked across the aisle to help develop these path-breaking laws. We once knew how to be the world's leader in developing creative and cost-effective environmental rules. We should learn from our own history and figure out a way to end the war on the environment and move forward once again.