ENVIRONMENT AND ENERGY DECEMBER 14, 2004
Michael Leavitt announced yesterday that he will leave the Environmental Protection Agency after just 14 months at the EPA's helm and become George W. Bush's secretary of Health and Human Services. Whether the former Utah governor is the right choice for that job will now be debated, but before Leavitt punches out at the EPA, let's contemplate why he is departing after such a short stay. He is departing because he realized that environmental regulatory reform is currently impossible. Neither the left nor the right will allow it.
Leavitt was a governor, and governors are like little presidents. They issue orders and heels snap; their hometown press is usually good; no one is above them in the organizational chart. Bush has named two governors to run the EPA, Christine Whitman and Leavitt. Both soon discovered to their frustration that an EPA administrator is not a little president. Members of Congress constantly hector the EPA, usually in melodramatic faux-outrage; the actual president does not give the EPA the time of day; the East Coast media methodically and I think deliberately twist EPA reporting in the most negative possible terms, desperately trying to make the agency look bad. This is bipartisan; the East Coast media desperately tried to make Clinton's EPA administrator Carol Browner look bad, and she was a four-star super-competent leader who deserved great press.
Equally, EPA administrators discover that environmental law is extremely prescriptive, spelling out in acute detail what they can or cannot do, leaving administrators almost no discretion. Whitman, for instance, determined that General Electric should be held liable to the tune of about $500 million for PCBs released into the Hudson River. Assume for the sake of argument that the fine was justified (though the releases were legal at the time). The extremely prescriptive Clean Water Act mandated that Whitman could only use the money for removing the chemicals from the river. So an elaborate Hudson dredging operation is now gearing up, though PCB levels in the river were already declining naturally anyway, and though it's possible the dredging will backfire by stirring up PCBs that sunk into sediment. The $500 million fine from General Electric could have been far better used to revitalize Hudson River towns or buy land for preservation in the watershed areas that supply New York City drinking water--a thousand more constructive uses suggest themselves. But under law, Whitman had to impose dredging: Essentially, she was required to order that the money be wasted. These kinds of things are pretty frustrating to governors.
Browner, who served eight years, and Whitman in her almost three years both dreamed of reforming the EPA and revising environmental legislation to add flexibility and common sense. United States environmental law is very successful--all forms of pollution except greenhouse gases have been declining for decades--but too cumbersome. Browner and Whitman both left frustrated by the limits of EPA reform, owing to the prescriptive legislation and to the many judges' writs that are issued to EPA administrators under the terms of those laws. Environmental protection could continue to be effective while costing much less, which would free up resources for action against global warming. But under current law, cost-effective environmental protection is often discouraged.
Leavitt too arrived dreaming of EPA reform. He liked to talk of enlibra, a Latin word that means to seek balance. Leavitt used enlibra concepts for environmental regulation in Utah, and things went reasonably well. (When he was nominated enviros denounced Leavitt's record, but remember, enviros denounced Al Gore.) Once in Washington, Leavitt found he had little authority to order common-sense or cooperative approaches to environmental protection--generally, legislation barred this. Browner had the same experience in the 1990s, when she started an initiative for cooperative regulation, only to discover that there were hardly any instances in which she could use it: Usually, someone could sue to demand cumbersome letter-of-the-law regulation. Leavitt spent a year at EPA talking about enlibra and realized he would never get past the stage of talk.
Illusions of the right and left are aligned to prevent environmental regulatory reform, which would require legislation to move through Congress. On the right, the Republican nut-case faction in the House continues to claim that environmental protection is destroying the economy, though there is zero evidence of this: Pollution has declined as the economy has grown very nicely in the last 20 years. But the phony idea that environmental protection hurts the economy is a cherished belief of right-wing nuts, who have considerable influence in the House. They would try to sabotage any sensible reforms of environmental legislation by adding Trojan horse provisions designed to undo the laws.
Over on the chardonnay-circuit left, the cherished illusion among Democrats and editorial writers is that George W. Bush is trying to destroy environmental law and engaging in sinister rollbacks of existing legislation. Neither is true, but both claims have proved effective in Bush-bashing and MoveOn-style fundraising. Bush has not rolled back any major environmental law--he couldn't, since Congress has not enacted any major environmental legislation during his presidency!
There is a lot to disagree with in Bush's energy policy, such as his inaction on global warming and his decisions about land-use management, mainly in Western states. But Bush has also made several strongly pro-environmental decisions for which he receives no due. Bush endorsed a Browner plan to require that diesel fuel be reformulated to reduce pollution; he imposed a Whitman plan to require big reductions in emissions from the diesel engines of buses and trucks; he backed a Council of Environmental Quality plan to compel Midwestern power plants to reduce emissions that blow toward the East Coast. Taken together, these three Bush decisions will result in a dramatic new round of reductions in air pollution, especially reduction of the diesel byproducts that recent epidemiology suggests are the leading public-health concern in environmental regulation. (That the Northeast elite press never mentions any of this is the main reason I think journalists are deliberately distorting their case regarding Bush and the environment, as opposed to just bungling the story.) John Kerry, honorary Democrat James Jeffords, and others in the Senate constantly claim for the cameras that Bush is a menace to the environment. There's no way they would let environmental regulatory reform move on the Hill, if only to prevent Bush from ending up with the credit for doing something good.
Consider congressional reaction to Bush's Clear Skies legislation, introduced in 2002. The White House proposed to make a roughly three-quarters future reduction in smog-forming pollutants from power plants and factories by creating a system of tradable permits. Tradable permits to reduce acid rain, an idea enacted by Congress in 1991, have been spectacularly successful, cutting the problem quickly and cheaply--this is the reason you never hear about acid rain anymore. Bush's idea was to take the concept that worked spectacularly well at cutting acid rain and extend it to all forms of air pollution, except greenhouse gases.
What happened? Democrats, enviros, and editorialists violently denounced Clear Skies; Jeffords basically said he would fight it to the last man; the legislation went nowhere. It was true that the goals of Clear Skies were little different from future reduction targets under the existing language of the Clean Air Act. But here's the rub: The existing, extremely prescriptive language of the Clean Air Act almost always leads to litigation. The Clean Air Act has been highly successful in the sense of reducing pollution, but unsuccessful in the sense of imposing needless process costs and delays. Existing law requires power plants and factories to negotiate pollution reductions on a case-by-case basis, and allows lawsuits about the agreements; on average, it takes about a decade to get a Clean Air Act ruling through the courts. The Clear Skies trading program would have swept all that away, replacing it with a simple permit-trading system modeled on the acid-rain reduction program, which worked fast and cheaply because it was worded to avoid litigation.
So whatever you think of George W. Bush, in 2002 his administration proposed a clean-air legislation reform that would have accelerated reductions in pollution while cutting costs. For reasons of political theater, Democrats and enviros were opposed to a bill to reduce pollution, while Tom DeLay and his nut-case faction continued to claim that environmentalism is ruining the country. You'd want to flee, too, from a job where the political dynamic is this far removed from reality. The EPA has had five consecutive good administrators: Lee Thomas at the end of the Reagan presidency, Bill Reilly under Bush 41, Browner under Clinton, and Whitman and Leavitt under Bush 43. But why, in the current political environment, would a top person even want this job?
Gregg Easterbrook is a contributing editor for The New Republic specializing in public policy issues.
By Gregg Easterbook