After several decades of significant but incomplete successes, environmental protection in the United States is stuck. Administrations under presidents of both parties have fallen well short of the goals of their environmental statutes. Schoenbrod, Stewart, and Wyman, distinguished scholars in the field of environmental law, identify the core problems with existing environmental statutes and programs and explain how Congress can fix them. Based on a project the authors led that incorporated the work of more than fifty leading environmental experts, this book is a call to action through public understanding based on a nonpartisan argument for smarter, more flexible regulatory programs to stimulate the economy and encourage green technology.
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About the Author
David Schoenbrod is professor at New York Law School, former attorney for the Natural Resources Defense Council, and visiting scholar at the American Enterprise Institute. Richard B. Stewart is professor at NYU School of Law and is former chairman of the Environmental Defense Fund. Katrina M. Wyman is professor of law at NYU School of Law.
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Breaking the Logjam
Environmental Protection That Will Work
By David Schoenbrod, Richard B. Stewart, Katrina M. Wyman, Deborah Paulus-Jagric
Yale UNIVERSITY PRESSCopyright © 2010 David Schoenbrod
All rights reserved.
Coping with Complexity The Schooling Fish
The federal environmental statutes frustrate protection of the environment by requiring agencies to use methods that are unworkably centralized and complex. The Clean Air Act is one example among many. It commands the Environmental Protection Agency (EPA) to use exacting regulatory systems with the admirable goal of protecting us from each pollutant at each point in the country. The systems must take account of emissions caused by not only power generation and manufacturing, but also the design of vehicles, the driving habits of motorists, the layout of highways and mass transportation, the operation of every sort of building from hospitals to homes, excavation, farming, auto-body repair, dry cleaning, and many other activities. These systems limit emissions from many kinds of sources, including the industrial processes within particular factories. As a practical matter, specific limits often apply to different smokestacks within a factory, and factory managers frequently feel constrained to use the pollution-control technology that regulators had in mind in setting the limits.
Other statutes follow this same hierarchical method. They require the EPA to adopt highly prescriptive controls to reduce water pollution, clean up old toxic-waste dumps, prevent further releases of toxic wastes, regulate pesticides, oversee the introduction into commerce of new chemicals, assure that tap water is safe, and more. These systems, too, must achieve their objectives in all places and with regard to all relevant pollutants, hundreds of which science has identified.
This way of pursuing environmental goals far exceeds the EPA's capacity. In 1995 the two-time EPA administrator William Ruckelshaus wrote: "Any senior EPA official will tell you that the agency has the resources to do not much more than ten percent of the things Congress has charged it to do." The problem is that the job is so big, not that the resources are so scant. The EPA has substantial forces at its disposal. Its staff numbers almost twenty thousand, making it the largest federal regulatory agency. In addition, Congress has endowed it with statutory powers to conscript a substantially larger number of state officials to enforce EPA requirements.
As a result, the EPA administrator sits atop a hierarchical chain of command that reaches down through various headquarter offices to regional offices, states and localities, and finally businesses and other targets of regulation. Detailed orders go down the chain of command, and detailed reports are required to come back up. This is a hierarchical system of control, par excellence.
The fundamental barrier to getting the job done is that Congress has charged the EPA with dealing with a complex environment through a method of regulation that is defeated by complexity. Even if Congress gave EPA a blank check to bulk up its staff, the chain of command would still end in a small group of leaders at the very top. No matter how brilliant, they would still have only so much brain power to process information and to devise detailed prescriptions in an effort to dictate to a complex and constantly changing mass of activities across a vast and diverse country.
We can pursue our environmental goals more effectively and efficiently by adopting less rigid and cumbersome methods. How to do so is suggested by the way schools of little fish scribe the contours of a coral reef and evade predators. Their environment is complex and dangerous. The reef has myriad contours, many with jagged edges; predators come in many forms and from many angles. Yet, these ever-changing threats evoke fast responses within the school. The fish in their hundreds or thousands respond quickly, seemingly as a single body, continually creating patterns of breathtaking beauty. Were a choreographer to chart the movements through which a corps de ballet might imitate the fish, the dancers would need weeks of rehearsal to turn the choreographer's prescriptions into a dance that replicates the school's ripples and shimmers. Yet, the fish, with no choreographer, no rehearsals, and small brains, coordinate effortlessly and respond almost immediately.
The fish are not dancing or aspiring to beauty; they are just trying to survive and flourish. But, to carry out group tactics to evade predators yet avoid collisions, they need to coordinate, and they can do so well and quickly because of, rather than in spite of, having no choreographer. What turns the fish into a school is individual fish responding to each other rather than to a leader. As Professor Iain Couzin observes, "Individuals tend to maintain a personal space by avoiding those too close to themselves; group cohesion results from a longer-range attraction to others; and animals often align their direction of travel with that of nearby neighbours. ... By adjusting their motion in response to that of near neighbours, individuals in groups both generate, and are influenced by, their social context—there is no centralized controller.... Close behavioural coupling among near neighbours ... allows a localized change in direction to be amplified, creating a rapidly growing and propagating wave of turning across the group." So, when some fish in a school evade an approaching predator, the whole school responds.
The norm that determines how individual fish move relative to their neighbors means the fish work as a network. By network, we mean a group of entities—be they fish, humans, or computers—linked by a norm that allows them to coordinate. So, for example, a standard protocol allows many computers to communicate and thus makes them into a network.
It is essential that the fish work as a network rather than as a hierarchy. A hierarchy can't be any smarter than the leaders on top, which is fine when the leaders are intelligent and the environment relatively simple, but not when it is complex. A network can, in contrast, be much smarter and more observant than any of its individual members because information is gathered and processed at many points. Not only can a network of fish adapt faster than a brilliant choreographer can dictate to a corps de ballet, but a network of personal computers can outperform a mainframe, and a network of buyers and sellers—that is, a market economy—can generally allocate scarce resources more efficiently than a hierarchically directed economy, even if the chief of central planning is a genius. Similarly, a hierarchically controlled infantry can effectively focus great fire power in a simple context such as an open plain, but in the complicated context of a dense jungle it may lose out to more lightly armed commandos trained to function as a network.
A network is not, however, better than a hierarchy for every challenge. Infantry would blow away commandoes on an open plain. Moreover, as the recent economic crisis has reminded us, regulators have a vital role to play in enforcing norms necessary to keep a market network from breaking down. In fact, we often combine network and hierarchical organization, the right combination changing with the challenge and the time. Hierarchical generals dictate the standards of operations for networks of commandoes and order them to achieve specified objectives.
In 1990, Congress successfully used a network to deal with a long-festering environmental problem, acid rain. The legislators felt pressure to cut the sulfur dioxide emissions from power plants that caused the problem but hesitated because a solely hierarchical approach would have effectively required the plants to install specific pollution-removal equipment at a price that would raise electricity rates sufficiently to anger voters. Legislators from the states where the plants were located wanted the cost to be shifted to electricity consumers in the downwind states that complained about acid rain. Legislators from those states disagreed. Cheaper ways were often available, but figuring out the right combination for each power plant —and the even more daunting challenge of finding a cost-efficient allocation of the cleanup burden among plants—was too complex and too fraught with distributional controversy for hierarchical regulation. By the end of the 1980s, this regional conflict had prevented the EPA and Congress from taking any meaningful action for more than a decade, despite mounting criticism.
The breakthrough came in 1990, when Congress mandated an alternative to traditional hierarchical regulation that was supported by every living American Nobel Laureate in economics and some environmentalists. Instead of dictating how much sulfur dioxide each plant could emit or what equipment it should install, Congress created a straightforward standard of conduct: each power plant must have a government-issued allowance for each ton of emissions. Congress gave these allowances in proportion to a plant's past fossil fuel usage, permitted them to be bought and sold, and ensured that the total amount of allowances available would be capped, with the cap declining over time to ensure that overall emissions from power plants would be 50 percent lower than 1980 levels by 2010. This approach is called "cap and trade" because the government caps the total amount of allowances and permits them to be traded. The declining cap forces reductions in total emissions. The trading of allowances means that the reductions can take place at the plants that can accomplish it most cheaply. Because allowances command a positive price in the trading market, firms face continuing incentives to find better and cheaper ways to reduce their emissions and make a profit by selling excess allowances.
Now, almost two decades after 1990, it is clear that cap and trade was a success. It vastly simplified the governmental job by outsourcing to the market the choice of who cuts pollution. Yet, cap and trade is far from laissez-faire. Just as a school of fish must skirt a jagged reef, so too must power plants in the aggregate bring total sulfur dioxide emissions down to the declining cap. But just as no one tells each fish just how to skirt the reef, no one tells each power plant how or where to reduce the pollutant. In both cases, a network decides how to adapt. What holds the pollution control network together is the standard Congress created: allowances whose possession permits a plant to emit a quantity of sulfur dioxide.
Congress was able to break the logjam on acid rain only because cap and trade promised to cut the cost of doing so and thereby eased the regional conflict between upwind and downwind states. Cap and trade is, in fact, delivering on its promise. By 2007, sulfur dioxide emissions had gone down 43 percent from 1990 levels, at costs substantially lower than under traditional command regulation. Electricity consumers, plant owners, and their stockholders saved many billions of dollars. The cost savings were possible because plant operators rather than EPA officials got to decide which sources would reduce emissions. This enabled plants to make the cuts at the places and by the methods that cost the least. In contrast, regulators lack the information to do so. Moreover, because allowances trade at substantial prices, the drive for profits would spur innovations to cut emissions. In contrast, hierarchical regulation provides neither flexibility nor incentives for green innovation. Yet, the entire cap-and-trade program is run by fewer than fifty people at EPA.
The success of cap and trade on acid rain has helped produce a broad consensus in the United States for making it, or another network approach, such as a tax on greenhouse gas emissions, the centerpiece of any regulatory program to deal with climate change. Europe has already adopted a cap-and-trade approach despite initial skepticism. In the United States, the House of Representatives in 2009 passed a bill that includes a cap-and-trade program for regulating greenhouse gases, although it also contains strong hierarchical controls as well. A market-based network approach is necessary for climate change because it is an especially complex and costly problem. Because of the diversity among us and the dynamic character of our economy and society, cutting greenhouse gases will require innovations not only in how electricity is generated but also in how transportation and much else is fueled, the design and operation of homes and workplaces, the distances between them, how agriculture and forestry are carried out and still more arrangements. The changes cannot come through the one-size-fits-all rules that hierarchical regulatory systems tend to use. Cap and trade and other economic incentive systems are powerful but efficient tools because they send a price signal to every consumer of energy that says "cut your contribution to greenhouse gases or pay."
The same logic that supports market-based network approaches for acid rain and climate change should lead to their application to other complex environmental problems. Federal statutes, however, still mandate the cumbersome hierarchical approaches that Congress adopted in the early 1970s, when modern environmental protection was in its infancy. Congress, of course, did not set out to lumber agencies with impossible jobs. In 1970, when it enacted what still remains the basic structure of the Clean Air Act, little thought had been given to cap and trade or other network approaches. Meanwhile, the hierarchical approach achieved some substantial progress at first. At the outset, regulators went after obvious ways to cut pollution, such as requiring large factories to install affordable technology on smokestacks. Since then, however, the regulatory job has gotten much more complicated. With the low-hanging fruit having been picked, additional reductions require regulatory measures that are more far reaching, complex, and difficult. They require more expensive control technologies, altering the internal operation of industrial processes, and going after smaller sources. Moreover, the number of pollutants has grown from a handful to hundreds, and the number of pollution sources that need to be regulated to achieve environmental goals has mushroomed as well. Also, concern has broadened from pollutants released into the air and water to include those released into the ground and contained in products.
The EPA has dealt with this growing complexity the only way it could—by bureaucratic means. The upper levels of the environmental chain of command lay on orders in copious detail, not only through regulations but through lengthy "guidance documents," as illustrated above. These federal documents, however, represent only the tip of the regulatory iceberg. Additional layers below include state plans, statutes, regulations, and permits, all orchestrated by federal law. But not all decisions come from on high. Plant operators are allowed to make proposals and can litigate. State regulators and federal regional offices have a degree of discretion on some issues. The system is, however, essentially top-down.
This bureaucratic system tends to mandate uniform solutions when there are smarter ways to approach local conditions that would bring more environmental gain for less economic pain. So narrow is the focus on regulating even small emissions from a plant in highly specific terms that much larger emissions from the same plant are sometimes missed altogether. This hierarchical system also breeds litigation. Environmentalists frustrated by delay and lack of progress bring suits to force EPA to act faster. Industry, burdened by a plethora of complex and often dysfunctional controls, sue EPA to obtain some relief.
The hierarchy-heavy approach has come close to reaching its limits on some environmental problems. It is widely understood that we cannot achieve our increasingly ambitious goals with the old statutes.
Pollution, wastes, and chemical hazards are not the only environmental problems that hierarchical regulation has failed to solve. Take the depletion of ocean fish. Regulators responsible for some fisheries in federally controlled parts of the oceans announce that, once the total catch of a particular fish by commercial boats reaches a certain limit for the year, they will ban fishing for the rest of the year. In response, boats race to catch a lot in a hurry before the limit is reached. During the resulting derby, boats may fish around the clock and regardless of weather. When the Alaska crab fishery was regulated in this way, exhausted crews working in bad weather were killed and injured in such numbers that it inspired a television series, The Deadliest Catch. Meanwhile, with the entire year's catch reaching processors in a short period, the prices fishermen received plummeted. Speaking at the conference out of which this book grew, David Festa, an advocate from the Environmental Defense Fund, explained that this approach is "why virtually all of the fisheries around the world are being driven to over fished status." The best hope, one that Festa favors and that is discussed in Chapter 6, is for regulators to empower a network of fishing-boat operators to decide how to stay within the annual cap by giving them tradable permits in a share of the catch.
At the same conference, a parallel account came from John Leshy, a veteran of the Natural Resources Defense Council and a law professor. Federal agencies allow ranchers to graze over a vast expanse of public lands, over a quarter billion acres, located mostly in western states. Despite their theoretically broad regulatory powers, federal agencies fail to stop the ranchers from grazing so many head of livestock that the land is stripped of vegetation, the soil eroded, and the streams muddied. The overgrazing has gone on for decades, including the eight years when Leshy served by appointment of President William Clinton as chief lawyer at the Department of the Interior. To reduce the overgrazing, Leshy favors introducing a new market element into the grazing permits that would allow conservationists to buy and retire them. Chapter 6 will also discuss this and other property right-like approaches to conserving natural resources.
Network tools, although they come in many varieties, as the reader will see, should never fully supplant hierarchical regulation, or anything like it, but we need a much bigger dose of them in the mix because it is naive to suppose that the many failures of the hierarchical approach will be overcome simply by waiting for voters to elect a president with more environmental zeal. Such failures have persisted through presidential administrations of many different stripes. The president and Congress are subject to political pressure not just from factory owners but from farmers, consumers, employees, ranchers, and other voters, all of whom are affected by the wasteful costs and rigidities imposed by hierarchical regulation.
Excerpted from Breaking the Logjam by David Schoenbrod. Copyright © 2010 by David Schoenbrod. Excerpted by permission of Yale UNIVERSITY PRESS.
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Table of Contents
Preface: The Logjammed Congress ix
1 Coping with Complexity: The Schooling Fish 3
2 How We Got Lost in Complexity: The Mistaken Squirrel 19
3 Principles of Reform: The Adapting Beaver 33
4 Climate Change: The Combustible Rock 57
5 Air Pollution: The Old Body 73
6 Lands, Waters, and Other Natural Resources: The Organized Ant 99
7 Smarter Government: The Tool-Wielding Monkey 117
8 Breaking the Logjam: "My Antelope" 145