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Progressive Environmentalism: Principles for Regulatory Reform
Notes
1 See Virginia Postrel, "The Green Road to Serfdom," Reason, April 1990, pp. 22-28. back2 On the distinction between Progressive and Reactionary Environmentalism, see John C. Goodman and Richard L. Stroup, "Progressive Environmentalism: A Pro-Human, Pro-Science, Pro-Free Enterprise Agenda for Change," National Center for Policy Analysis, NCPA Policy Report No. 162, April 1991.back
3 Garrett Hardin, "Tragedy of the Commons," Science, Vol. 162, Nov. 11, 1968, pp. 1243-48. See also Garrett Hardin and John Baden, Managing the Commons (New York: W.H. Freeman & Co., 1977).back
4 Terry L. Anderson and Don R. Leal, Free Market Environmentalism (San Francisco: Pacific Research Institute for Public Policy, 1991), p. 68.back
5 Not all passenger pigeons were shot by humans. The ultimate cause of their demise was the destruction of their habitat.back
6 See the discussion in Walter E. Block, "Environmental Problems, Private Property Rights Solutions," in Block, ed., Economics and the Environment: A Reconciliation (Vancouver: Fraser Institute, 1990), pp. 307-08.back
7 Ibid., pp. 315-18. In India, elephants are domesticated and used as beasts of burden. In Africa, elephants are wildlife.back
8 Environmental Protection Agency, Unfinished Business: A Comparative Assessment of Environmental Problems, 1987.back
9 K. Land, Marc J. Roberts and Stephen R. Thomas, The Environmental Protection Agency: Asking the Wrong Questions (New York: Oxford University Press, 1990).back
10 See Goodman and Stroup, "Progressive Environmentalism: A Pro-Human, Pro-Science, Pro-Free Enterprise Agenda for Change."back
11 Peter Kirby and William Arthur, Our National Forests: Land in Peril (Washington, DC: The Wilderness Society and the Sierra Club, 1985), p. 4.back
12 John Baden, "Destroying the Environment: Government Mismanagement of Our Natural Resources," National Center for Policy Analysis, NCPA Policy Report No. 24, October 1986.back
17 Fred L. Smith Jr., "A Free-Market Environmental Program for the Soviet Union." " Paper presented to a Cato Institute conference Transition to Freedom: The New Soviet Challenge," September 10-14, 1990, Moscow.back
18 See Rodney Fort and John Baden, "The Federal Budget as a Common Pool Resource," in John Baden and Richard L. Stroup, Bureaucracy vs. Government: The Environmental Cost of Bureaucratic Governance (Ann Arbor: University of Michigan Press, 1981).back
19 i.e., the one whose jurisdiction completely encompasses the scope of the problem.back
20 See, for example, Kent Jeffreys, "Amending Superfund: Reform or Revanche?" Regulation, No. 1, 1994, pp. 72-79back.
21 See W. Michelle Simmons, "Rethinking the Safe Drinking Water Act," February 1995, Center for Policy Studies, Clemson University, Clemson, SC.back
22 See Kent Jeffreys, "Whose Lands Are Wetlands?" Journal of Regulation and Social Costs, March 1992, pp. 33-59.back
23 Estimate derived from "Regulatory Reform: Information on Costs, Cost-Effectiveness and Mandated Deadlines for Regulations," U.S. General Accounting Office, March 1995, citing Thomas D. Hopkins, "Federal Regulatory Burdens," RIT Public Policy Working Paper, 1993, Rochester Institute of Technology.back
24 "Environmental Legislation: The Increasing Costs of Regulatory Compliance to the City of Columbus," a report of the Environmental Law Review Committee to the Mayor and City Council of Columbus, May 13, 1991.back
25 Testimony of Tom Davis, chairman, Fairfax County, VA, Board of Supervisors, before the U.S. House of Representatives Subcommittee on Investigations and Oversight of the Committee on Science, Space and Technology, March 22, 1994.back
26 Susan M. Eckerly, "The Triple Threat of Government Red Tape," Commonsense, Vol. 1, No. 4, Fall 1994, pp. 65-78.back
27 For a critical assessment of the limits of cost-benefit analysis, see Robert Formaini, The Myth of Scientific Public Policy (Social Philosophy and Policy Center, Bowling Green, OH, and Transaction Books: New Brunswick, NJ, 1990).back
28 See, for example, Tammy O. Tengs et al., "Five Hundred Life-Saving Interventions and Their Cost-Effectiveness," Risk Analysis (in press) submitted for publication July 25, 1994.back
30 Ibid. The figures were derived from David M. Eddy et al., "The Value of Mammography Screening in Women Under Age 50 Years," Journal of the American Medical Association, Vol. 259, No. 10, March 11, 1988, pp. 1512-19; and M.M. Kristein "Economic Issues in Prevention," Preventive Medicine (1977) 6(2), pp. 252-64.back
31 John D. Graham, "Making Sense of Risk: An Agenda for the Congress," conference paper presented at the American Enterprise Institute, October 27, 1994, citing David M. Eddy, "Screening for Cervical Cancer," Annals of Internal Medicine, Vol. 113, 1990, pp. 214-26.back
33 Kent Jeffreys, "Science, Economics, and Environmental Policy: A Critical Examination," Alexis de Tocqueville Institution, August 11, 1994, pp. 1-13.back
34 See W. Kip Viscusi et al., Learning About Risk: Consumer and Worker Responses to Hazard Information (Cambridge, MA: Harvard University Press, 1987).back
35 See, for example, Aaron Wildavsky, Searching for Safety (New Brunswick, NJ: Transaction Books, 1988).back
36 Daniel K. Mitchell, "The Deadly Impact of Federal Regulations," Journal of Regulation and Social Costs, June 1992.back
37 Roger Bate, "Pick a Number: A Critique of Contingent Valuation Methodology and Its Application in Public Policy," Competitive Enterprise Institute, January 1994.back
38 Cesar V. Conda and Mark D. LaRochelle, "The New Populism: The Rise of the Property Rights Movement," Commonsense, Vol. 1, No. 4, Fall 1994, pp. 79-98.back
39 H. Jane Lehman, "A Changing Tide on Wetlands Decisions," Washington Post, January 18, 1992, Page E1.back
40 Jeffreys, "Whose Lands Are Wetlands?"back
41 Campion Walsh, "Companies Argue Moratorium Case in Court," Oil Daily, February 1, 1995.back
42 For a general overview of this issue, see Mark L. Pollot, Grand Theft and Petty Larceny: Property Rights in America (San Francisco: Pacific Research Institute for Public Policy, 1993).back
43 Whitney Benefits Corporation v. United States, 926 F. 2d 1169 (1991).back
44 Bill Richards, "Owls, of All Things, Help Weyerhauser Cash In on Timber," Wall Street Journal, June 24, 1992, p. 1.back
45 Eric Zuesse, "Love Canal: The Truth Seeps Out," Reason, February 1981, pp. 16-33.back
46 "Exaggerating Risk: How EPA’s Risk Assessments Distort the Facts at Superfund Sites Throughout the United States," Hazardous Waste Cleanup Project, Washington, DC, June 1993.back
47 Katherine N. Probst et al., Footing the Bill for Superfund Cleanups: Who Pays and How? (Washington, DC: Resources for the Future and the Brookings Institution, 1995).back
48 For an early critique of Superfund’s liability approach, see Richard Epstein, "The Principles of Environmental Protection: The Case of Superfund," Cato Journal, Vol. 2, No. 1, Spring 1982.back
49 See, for example, James Lis and Melinda Warren, "Reforming Superfund," Center for the Study of American Business, Policy Study No. 118, February 1994, pp. 11-12.back
50 This draconian approach to establishing liability under Superfund is widely criticized. Even a former administrator of EPA’s Superfund office, Don Clay, has condemned these liability provisions. "Strict, retroactive and joint-and-several liability isn’t fair," he says. William Tucker, "This Is No Way to Save the Earth" Reader’s Digest, June 1993, p. 176.back
51 Michael Fumento, "The Remediation of Superfund: Program Needs Way to Balance Costs, Benefits," Investor’s Business Daily, October 23, 1991; and Richard L. Stroup and Bradley Townsend, "EPA’s New Superfund Rule: Making the Problem Worse," Regulation, No. 3 (1993), pp. 74-75.back
52 U.S. Environmental Protection Agency, "Superfund Historical Performance, 2nd quarter, FY 1994" (draft).back
53 Quoted in William Tucker, "Superfund Sparks Industrial Flight," Insight, November 29, 1993, p. 9.back
54 Probst et al., Footing the Bill for Superfund Cleanups.back
55 Laura A. Mahoney, "Deriving Groundwater Cleanup Levels at Superfund Sites: Assessment of Current Federal Approach With Case Study," Proceedings of the Water Environment Federation 1992 Specialty Conference on Developing Cleanup Standards for Contaminated Soil, Sediment and Groundwater - How Clean is Clean? Alexandria, VA, 1992, p. 61.back
56 Gary G. Benanav, "At Last, Congress May Finally Clean Up Superfund," Wall Street Journal, May 3, 1994.back
57 General Accounting Office, "Federal and State Efforts to Protect Groundwater," cited in James Bovard, "The Real Superfund Scandal," Cato Institute, Policy Analysis No. 89, August 14, 1987, p. 9.back
58 J. Winston Porter, "Let the States Supersede Superfund," (letter), Washington Post, May 9, 1994.back
59 Probst et al., Footing the Bill for Superfund Cleanups.back
60 See, for example, Exaggerating Risk: How EPA’s Risk Assessments Distort the Facts at Superfund Sites Throughout the United States (Washington, DC: Hazardous Waste Cleanup Project, June 1993).back
61 James M. Strock, "Wizards of Ooze: Lawyers Shouldn’t Be the Only Ones Cleaning Up Under Superfund," Policy Review, Winter 1994, p. 42.back
62 Rachel Carson, Silent Spring (Boston: Houghton Mifflin Company, 1962).back
63 One recent estimate of total pesticide use in America indicated that herbicides accounted for 61 percent of the total, insecticides 21 percent, fungicides 10 percent and all others approximately 8 percent. Source: Shirley A. Briggs and the staff of the Rachel Carson Council, Basic Guide to Pesticides: Their Characteristics and Hazards (Washington, DC: Hemisphere Publishing, 1992).back
64 Donna U. Vogt, "Food Safety: Issues and Concerns Facing Congress," Science Policy Research Division, Congressional Research Service, Library of Congress, June 23, 1994, p. CRS-2.back
65 Dennis T. Avery, Global Food Progress (Indianapolis: Hudson Institute, 1991), p. 250.back
66 Avery, Global Food Progress, pp. 214-15.back
68 National Research Council, Pesticides in the Diets of Infants and Children (Washington, DC: National Academy Press, 1993), p. 13.back
69 Natalie Angier, "Chemists Learn Why Vegetables Are Good for You," New York Times, April 13, 1993, p. C1.back
70 Dr. Miller is Dean of the Graduate School of Biomedical Sciences, University of Texas Health Science Center at San Antonio, and a former director of the Food and Drug Administration’s Center for Food Safety and Applied Nutrition. Quoted in Avery, Global Food Progress, p. 136.back
71 See Bruce N. Ames and Lois Swirsky Gold, "Environmental Pollution and Cancer: Some Misconceptions," pp. 153-82 in Kenneth R. Foster et al., Phantom Risk: Scientific Inference and the Law (Cambridge, MA: MIT Press, 1993).back
72 From Mice to Men: The Benefits and Limitations of Animal Testing in Predicting Human Cancer Risk (New York: American Council on Science and Health, 1991)back
73 Ames and Gold, "Environmental Pollution and Cancer: Some Misconceptions."back
74 See Edith Efron, The Apocalyptics: Cancer and the Big Lie (New York: Simon and Schuster, 1984); also see Elizabeth M. Whelan, Toxic Terror: The Truth About the Cancer Scare (Ottawa: Jameson Books, 1985).back
75 Elizabeth M. Whelan, "Mouse Terrorism: Pseudoscience and the Regulation of Environmental Chemicals," Commonsense, Vol. 1, No. 3, Summer 1994, pp. 30-47.back
76 Under the FDCA, the EPA shares oversight responsibilities with the Food and Drug Administration (FDA).back
77 Michael Fumento, Science Under Siege: Balancing Technology and the Environment (New York: William Morrow and Company, 1993), pp. 45-55.back
78 For a complete analysis of this problem see National Research Council, Regulating Pesticides in Food: The Delaney Paradox (Washington, DC: National Academy Press, 1987); and Donna U. Vogt, "The Delaney Clause: The Dilemma of Regulating Health Risk for Pesticide Residues," Science Policy Research Division, Congressional Research Service, Library of Congress, November 9, 1992.back
79 This is governed by Section 408 of the FDCA.back
80 It makes no difference that people will dilute the concentrated chemicals before they are eaten, as when water is added to flour (concentrated) to produce bread dough (diluted) or when tomato paste (concentrated) is made into sauce (diluted).back
82 Fumento, Science Under Siege, p. 54.back
83 Vogt, "Food Safety: Issues and Concerns Facing Congress," in summary.back
84 See Keith Schneider, "Court Expands Pesticide Ban to Cover Many Used in Food," New York Times, July 9, 1992, p. A1.back
85 Vogt, "Food Safety: Issues and Concerns Facing Congress," at CRS-5.back
86 Margaret Kriz, "Taking Sides on Pesticides," National Journal, February 13, 1993, p. 428.back
87 Regulating Pesticides in Food: The Delaney Paradox, p. 12.back
88 Cited in Global Food Progress 1991, p. 134.back
89 National Research Council, Committee on Diet and Health, Diet and Health: Implications for Reducing Chronic Disease Risk (Washington, DC: National Academy Press, 1989), p. 695.back
90 For a detailed overview of the Endangered Species Act and its impact on private property owners, see Ike C. Sugg, "Caught in the Act: Evaluating the Endangered Species Act, Its Effects on Man and Prospects for Reform," Cumberland Law Review, Vol. 24, No. 1, 1993-94, pp. 1-78.back
91 Indeed, a recent DC Circuit Court of Appeals decision, now before the Supreme Court on a writ of certiorari (Sweet Home v. Babbitt, decided March 11, 1994, accepted by the Supreme Court on January 9, 1995), declared that using the ESA to block "habitat modification" by private landowners was "neither clearly authorized by Congress nor a reasonable interpretation" of the statute.back
92 See, for example, William K. Stevens, "Early Findings Link Threatened Owl to a Related Subgroup," New York Times, December 4, 1990, p. C4. See also Sugg, "Caught in the Act," pp. 52-53.back
94 Large populations of these species were later discovered, so the species were removed from protection.back
95 Randy Fitzgerald, "When a Law Goes Haywire," Reader’s Digest, September 1993, pp. 49-53.back
96 David Wright, "Death to Tweety," The New Republic, July 6, 1992, pp. 9-10.back
97 Larry McKinney, "Reauthorizing the Endangered Species Act - Incentives for Rural Landowners," in Wendy E. Hudson, ed., Building Economic Incentives into the Endangered Species Act: A Special Report from the Defenders of Wildlife, 2nd edition (Washington, DC: Defenders of Wildlife, 1993).back
98 Now that the resulting impact on private property rights is widespread and quite serious for many landowners, the ESA is being strenuously criticized. See Thomas Lambert and Robert J. Smith, "The Endangered Species Act: Time for a Change," Center for the Study of American Business, Policy Study No. 119, March 1994.back
99 Jonathan Tolman, "Of Mice and Men: A Look at the Endangered Species Act," Citizens for a Sound Economy Foundation, November 30, 1994.back
100 Sugg, "Caught in the Act," p. 53.back
101 Charles McCoy, "U.S. Will Designate 11.6 Million Acres in Northwest to Protect Owls, Tall Trees," Wall Street Journal, April 29, 1991, p. A8.back
102 "Natural Resources Conservation: Where Environmentalism Is Headed in the 1990s," Times-Mirror Magazines, National Environmental Forum Survey, June 1992, p. 24.back
103 392 F. Supp. 685, (D.D.C. 1975).back
104 "Wetlands: Their Use and Regulation," Office of Technology Assessment, PB84-175918, March 1984, pp. 37-38. back
105 T.E. Dahl, "Wetlands Losses in the United States, 1780s to 1980s," U.S. Department of the Interior, Fish and Wildlife Service, 1990, p. 6.back
106 A policy under which each acre of natural wetlands that is developed or destroyed must be replaced by at least one acre of man-made wetlands.back
107 Warren Brookes, "The Strange Case of the Glancing Geese," Forbes, September 2, 1991, pp. 104-12, at page 107.back
108 Jeffreys, "Whose Lands Are Wetlands?" at page 37.back
109 See Regulatory Guidance Letter, No. 90-9, "Wetlands Enforcement Initiative," December 17, 1990, U.S. Army Corps of Engineers.back
110 Richard Miniter, "Muddy Waters," Policy Review, Spring 1991, p. 72. See also Joseph A. Slobodzian, "Judge: Fine Cut 97.5%, but Pozsgai ‘No Hero,’" Philadelphia Inquirer, January 24, 1992.back
111 Lehman, "A Changing Tide on Wetlands Decisions."back
112 Gail Bingham et al., ed., "Issues in Wetlands Protection: Background Papers Prepared for the National Wetlands Policy Forum," The Conservation Foundation, 1990, p. 24.back
113 Of course, a legitimate threat of future harm could trigger legal action by private or public entities.back
114 See Kent Jeffreys, "Rethinking the Clean Air Act Amendments," National Center for Policy Analysis, NCPA Policy Backgrounder No. 107, October 16, 1990.back
115 Thomas C. Austin et al., "The Cost-Effectiveness of Further Regulating Mobile Source Emissions," Sierra Research, Inc., Report No. SR94-02-03, February 1994, p. 102.back
116 Cited in James C. McKinley Jr., "EPA Seeks Emissions Agreement for Northeast," New York Times, August 24, 1994, p. B5.back
117 In practice, this means alcohol derived from grain crops.back
118 P.L. Wyckoff, "Sanctions at Stake in Last-Ditch Effort on Auto-Test Mandate," Star-Ledger ( Newark, NJ), November 6, 1994.back
120 Amy B. Resnick, "State Sues EPA," Arlington Journal, January 10, 1995.back
121 Matthew L. Wald, "EPA to Allow Flexibility in Auto Emission Testing," New York Times, December 10, 1994.back
122 Patrick Bedard, "Shopping for Clean Air," Car and Driver, April 1995, pp. 110-15.back
123 Julie Overy, "EPA Mandates California Low-Emission Vehicles in Twelve States," press release, Office of the Governor, Commonwealth of Virginia, December 16, 1994.back
124 Patrick Bedard, "Still Smoggy: After All These Years," Car and Driver, April 1995, pp. 105-10.back