The Environmental Regulation Agency
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

Something very peculiar happened in early March. After Congress fumbled in its efforts to revise the Clean Air Act, with partisan scuffles killing reform in committee, the Environmental Protection Agency announced that it had picked up the football, run it back into the end zone, and spiked it. Congress couldn’t decide how to limit sulfur dioxide emissions, so the EPA did it. By agency decree, sulfur dioxide emissions from eastern states must drop by 70% in the next decade and nitrogenous oxide emissions need to decline by 60%.
Whether you think the EPA scored a touchdown for the good guys (by saving our children from dirty air) or for the bad guys (by needlessly hampering businesses that drive our economy), it was still a strange sight. How can an agency made up of scientists and civil servants usurp elected legislators?
David Schoenbrod, the author of a new and well-timed book, has the answer. “Saving Our Environment From Washington” (Yale University Press, 380 pages, $28) is a scorching brief against the EPA and Congress’s capitulation to it. The law professor and adjunct fellow at the Cato Institute believes that Congress and the EPA have made a destructive pact. Environmental protection is supported broadly but, generally, small groups always despise specific regulations. To fend these groups off, Congress fecklessly passes bills that mandate environmental changes; then the EPA actually writes the laws.
This system fails, the author argues, because the EPA is a big bureaucracy and the top officials there can’t be voted out. Worse, it’s a big bureaucracy that knows that passing strict rules gives it yet more power and influence. The result is an organization that creates “burdens that sap not only our monthly budgets and retirement savings but also values more precious than dollars – democracy, liberty, justice, and … joy.”
Mr. Schoenbrod’s solution is green federalism: Elected state officials should set environmental laws. His heroes are the little people trying to survive the EPA’s heavy hand. The ever-changing, and seemingly capricious, regulations meted out by Washington stifle Mr. Schoenbrod’s charming small farm protagonists and nearly drive them out of business.
The best portions of this book are always localized. For example, the author describes the efforts of small farmers to survive EPA and Food and Drug Administration regulations that mandate cider be treated in very specific ways to kill bacteria. Local control is better, Mr. Schoenbrod asserts, because “apple farmers in northeastern New York face different challenges from corn farmers in New York or apple farmers in Oregon.”
Unfortunately, however, the story Mr. Schoenbrod tells undermines his thesis in a fairly obvious way. What if environmental regulations on apple cider were set at state levels? Oregon might say that all cider must be pasteurized; New York might say that it cider needs to be put under ultraviolet light; California might decree that farmers freeze apple juice four times and melt it six. Fine for small local growers, these regulations would baffle national companies.
Mr. Schoenbrod surely could have dealt with this critique more thoroughly; his failure to do so points to the larger failing of this book. In nearly every chapter, Mr. Schoenbrod repeats his thesis: EPA bad, state governments good. His method is to lay out his thesis and then to support it with shallow reasoning in many different ways: Here’s how my thesis explains the EPA’s decision to force General Electric to clean up the Hudson; here’s how it explains the failures of the environmental justice movement. This book thus barely exceeds the sum of its parts.
There’s a reason for our current system: Everyone wants clean air and safe apple juice, but the effects of regulations that are good for the nation at large also always create some local harm, riling up people who then lobby hard to change the laws. Each reform hits somebody hard, and more localized lawmaking empowers those people to lobby and change the laws. The EPA thus acts as a stand-in to defend the interests of the public, which benefits generally from regulations but doesn’t know enough about the specifics of any particular law to challenge the outraged locals. The public won’t engage on the specifics and won’t stop these small groups from gaining excessive power. Under what Mr. Schoenbrod proposes, maybe we’d have better laws for dealing with cider. But maybe we’d have no laws.
I suspect the latter is close to what the author, like many federalists on other fronts, really seeks. This suspicion is fueled heavily by his repeated invocation of his past work for the National Resources Defense Council, his oddly placed quoting of Aldo Leopold, and an introductory section which serves almost entirely to make the point that he likes the wild and knows how to make a campfire. “Some of my best friends are environmentalists,” he seems to be saying.
Ultimately, Mr. Schoenbrod is persuasive on the problem, but not the remedy. We need a better EPA, one more in tune with local concerns, one that involves market economics more deeply in its regulations. But we don’t need a radical transformation to green federalism.
Mr. Thompson last wrote for these pages on Supreme Court Justice Harry Blackmun.