Aspiration 19801990

During the 1970s, when politicians discovered that being in favor of the environment won votes, Congress enacted, among other statutes, the Clean Air Act of 1970, the Occupational Safety and Health Act of 1970 (OSHA), the Endangered Species Act (CAA) of 1972, the Safe Drinking Water Act of 1974, the Toxic Substances Control Act of 1976, and the Resource Conservation and Recovery Act of 1976. These laws were aspirational—one might say, demagogic—because they set lofty but often vague and unrealistic goals, calling, for example, for safe thresholds for pollutants for which no such thresholds exist. The Ocean Dumping Act of 1972 prohibited ocean dumping—but did not say where the wastes should go instead. The Clean Water Act of 1972 required the restoration and maintenance of the "chemical, physical, and biological integrity of the Nation's waters." There is still no agreement on what these words mean.

The rhetorical objectives of laws enacted during the 1970s, which are strong enough to warm the heart of the most ardent environmentalist, soon became fictions as deadlines passed, violations were not monitored or prosecuted, and the agencies fought uphill political and legal battles to make whatever gains they could, given their limited resources. On those rare occasions when the regulatory agencies threatened to enforce a statute to its full extent, Congress could be counted on to weaken it. In 1973, when a court ordered the Environmental Protection Agency (EPA) to bring California into compliance with the Clean Air Act, for example, administrator William Ruckelshaus responded with gasoline rationing, since nothing less draconian would do the job. Congress intervened by extending deadline after deadline; they, too, passed unmet.

Some might regard the aspirational and draconian goals of environmental statutes as cynical: By promising environmentalists the moon, these statutes provided scant direction about how to solve conflicts on earth. OSHA requires the workplace to be as safe from hazards as feasible, but the government has regulated only about one hazardous substance per year. The Fish and Wildlife Service avoided drastic effects in applying the Endangered Species Act by failing to list species and by approving inadequate plans to protect those that were listed. This was often as much as was politically possible given the opposition of those who would rather "shoot, shovel, and shut up" than to dedicate their property to zoological ideals. The draconian wording of the statutes at least gave agencies a strong legal foothold when they could muster the political will to act.

The late and unlamented Delaney Clause of the Food, Drug and Cosmetic Act prohibited in prepared food any trace of a pesticide that can be shown to induce cancer when administered in massive doses to laboratory animals. It was rarely enforced. New methods of detection showed that every box, bottle, or can of food contains a trace of some carcinogen, so defined. Rather than close down the food industry, officials used dodges, such as a de minimis risk exemption, to skirt the law. Political factors—a congressional or presidential election, for example—did wonders in softening regulations in key districts; industry and other interest groups, moreover, knew how to use campaign contributions and their friends in Congress to chasten agency zeal in applying the law.

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