Look Ahead

For thirty years, Congress and the executive branch have engaged in what psychologists call enabling behavior. Like an alcoholic and his or her spouse, Congress and the executive agencies may quarrel, but at a deeper level they have been in league with each other. By letting deadlines pass, accepting reasonable progress in lieu of compliance, substituting reduced risk for statutory zero risk standards, and otherwise failing to enforce legislation, agencies such as EPA spared Congress the unpleasantness of making hard choices and allowed it to parade itself as the defender of nature, personal rights, purity, and so on. Congress in turn gave the agencies autonomy—the ability to work the law as they liked—within the tolerance of the courts.

In the spirit of the civil rights movement, environmentalists enforced landmark legislation by confrontation and litigation, primarily by suing EPA and other agencies for evading draconian statutes, such as the Delaney Clause. In 1992, the Ninth Circuit Court held that the EPA exceeded its statutory authority by allowing a de minimis risk standard in conflict with the language of the Delaney Clause. (Les v. Riley, 1992). The decision implied that food must be absolutely free of chemical additives, including pesticide residues, as the law requires, even if as a result no food could be produced or sold in the United States.

Congress responded by repealing the Delaney Clause and enacting a more flexible policy, the Food Quality Protection Act of 1996, in its place. This result whet the appetite of industry groups who hoped that if environmentalists prevailed in other suits, Congress might be forced to repeal other aspirational statutes. Industry lawyers began to argue that the CAA, for example, taken literally, prohibited all air pollution—and thus nearly all economic activity—or, if, taken in any other way, delegated the entire burden of lawmaking to executive agencies and derivatively to the courts. This would involve an unconstitutional delegation of legislative authority to other branches of government.

When in 1997, EPA tightened the air quality standards for particulate matter and ozone, the D.C. Circuit Court, in American Trucking Association v. Whitman (1999), in response to an industry legal challenge, remanded the regulation to EPA on the grounds that neither the statute nor EPA's interpretation of it provided an intelligible principle necessary to channel the authority Congress delegated to the executive agencies. In reviewing this decision in 2001, the Supreme Court refused to declare the CAA unconstitutional on the grounds that it delegated the tough tradeoffs—and thus legislative authority—to the agencies. The Court and others recognized, however, that EPA has yet to determine a stopping point for regulation, that is, a point at which emissions are safe enough.

Some commentators argue that EPA should regulate emissions to the knee of the curve, referring to a graph in which the x-axis represents pollution reduction and the y-axis represents cost. The idea is that the government should require firms to reduce pollution to the point at which the costs of controlling the next unit increase exponentially or go asymptotic. In addition, agencies can encourage new technologies that may push the knee of the curve ever farther out along the pollution-control or the x-axis.

Other commentators argue that the most efficient controls on big sources of pollution are mostly in place, and it is small polluters, indeed, individual households, that hold the key to reducing pollution by becoming more energy-efficient. The reluctance of Americans to replace incandescent with fluorescent bulbs, to drive cars with greater fuel economy, to install better thermostats, windows, insulation, and so on, indicates the extent of the problem. Throughout the 1970s and 1980s, Americans blamed others—particularly large corporations—for their environmental woes, but it is apparent that the behavior of individuals has to change. The motto of the environmental movement has become more and more pertinent since cartoonist Walt Kelly's Pogo coined it: "We have met the enemy, and he is us."

Conquering Fear In The 21th Century

Conquering Fear In The 21th Century

The Ultimate Guide To Overcoming Fear And Getting Breakthroughs. Fear is without doubt among the strongest and most influential emotional responses we have, and it may act as both a protective and destructive force depending upon the situation.

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