Clearing the air.(Saving Our Environment from Washington: How Congress Grabs Power, Shirks Responsibility, and Shortchanges the People)(Book Review)

Saving Our Environment from Washington: How Congress Grabs Power, Shirks Responsibility, and Shortchanges the People, by David Schoenbrod (Yale, 320 pp., $28)

CAN you imagine a world in which the Environmental Protection Agency "could no longer issue air quality standards" or "regulate hazardous pollutants"; in which "the federal government would exit entirely from some areas of regulation, such as drinking-water safety [and] almost entirely from many other areas, such as the cleaning up of abandoned hazardous-waste sites"?

David Schoenbrod can. A former litigator for the Natural Resources Defense Council (NRDC), a very litigious national environmental organization, he now finds himself an adjunct scholar at the libertarian Cato Institute--which sought him out, offering him support and a policy forum on his road to Damascus. In this new book, Schoenbrod articulates his bracing vision of a new regime of environmental protection. He depicts the dysfunctional relationship between Congress and the EPA, in which legislators pass incredibly ambitious, even unattainable, mandates and then delegate the hard part to the EPA, which has to write specific laws in the guise of administrative rulemaking: "This arrangement lets members of Congress profit from the environment issue on the cheap and ... gives them a personal stake in expanding the federal environmental-regulation franchise."

Schoenbrod says that while "lawmaking by the EPA is inevitably political"--not necessarily in the partisan sense, but in the sense of legislative and prudential--"the agency is forced to dress up its politics as science." As a card-carrying environmentalist, Schoenbrod views this charade as an impediment to environmental progress. He cites a couple of examples --removing lead from gasoline, and controlling acid rain through an innovative cap-and-trade program-in which real progress came about only when Congress specifically legislated, instead of delegating decision-making to the EPA. Absent such clear legislative direction, the EPA tends to bog down in the political and technical swamp inside the Beltway: "The EPA was born short on power and long on responsibility."

Schoenbrod shares the view of many scholars, be they New Left historians or free-market economists, that large corporations often "capture" the regulated agencies in such a way as to limit competition, basically controlling the game through massive deployments of lawyers, lobbyists, and friendly politicians. Congressional buckpassing has created a gargantuan regulatory bureaucracy. In just one environmental statute, the Clean Air Act, specific commands from Congress increased from 8 pages in 1965 to 450 pages in 1990; implementing regulations under the same law now run to 7,200 pages, not counting technical and other supporting or "guidance documents." Schoenbrod could very well have cited Tocqueville's famous description of a power that "covers the surface of society with a network of small, complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate."

Besides insisting that Congress legislate rather than delegate, the author is passionate in his call for devolving more environmental responsibility to the states and local governments. He introduces autobiographical elements about how he came ...