Looking Backward: A Historical Perspective on Environmental Regulations
by Jack Lewis
[EPA Journal - March 1988]
Since EPA's founding in 1970, the Agency's regulatory powers and responsibilities have been the subject of intense debate. Much of that debate has been specific to EPA and the problems it handles: protection of public health and restoration of the natural environment. There is, however, a larger context: nothing less than the role of the federal government at large, and how that role should be defined and redefined as the nation's needs change.
Before we examine the major themes of the regulatory debate as they relate specifically to EPA, let's take a quick and very broad look at the historical context from which modern-day federal regulation has evolved.
The United States has come a long way since the drafting of the Constitution in 1787, a very long way indeed. The heavily urbanized and industrialized world power of 1988 would be unrecognizable to the Founding Fathers. If farmers, bankers, and merchants of 1787 could be resuscitated for a debate with today's presidential candidates, nearly all would sound libertarian to modern ears: fiercely hostile to any centralization of government, and adamantly protective of the rights of private individuals and local magistrates. Still fresh in their minds was the stinging indignity of enslavement to British rulemaking and taxation.
A central theme in the writings of Tom Paine and other firebrands of the day was the youth of the American republic and its happy freedom from the complexities of law and regulation characteristic of ancient Britain. Two hundred years later, it is hardly surprising to see the United States - and its governmental bodies at all levels - exhibiting many of the traits of a polity grown old, the tendency toward "gridlock" once vilified under other names by colonial pamphleteers.
Of course, there is a clear cut difference between federal regulations and their colonial antecedents of the 1700s: ours are the products of a democratic process, forms of restraint that we as a people have chosen to assume. That they should appear alien to the average citizen, and in some cases incomprehensible, is largely a reflection of the fact that they have been written by experts for experts in a society that demands scientific standards of precision even in statements about uncertain or unpredictable trends.
It was not always thus. Between the formulation of the U.S. Constitution and the Civil War, state and local governments were zealously protective of their prerogatives. The federal bureaucracy remained minuscule in scale, and its laws often resembled treaties among sovereign powers more than modern-day statutes. Economic expansion was the order of the day, and all levels of government hastened to distribute "sweetheart" franchises and charters to the builders of turnpikes, canals, and railroads. Virtually no effort was made to "regulate" any form of capitalist enterprise.
What little restraint the country was willing to throw in the path of progress took the form of the common law traditions the United States had inherited from its mother country, Great Britain. U.S. common law gave citizens the right to take legal action as a means of protecting themselves against nuisance or harm. If the court's ruling went in their favor, they could obtain compensation for injuries sustained.
Some common law actions from this era led to judicial rulings that "regulated" the activities of isolated transgressors against the environment or the public health.
War is another way of redressing grievances, as America's Civil War illustrates: the hard-won victory of the north was the triumph of industry and city over agriculture and slavery. For the next 35 years, during the so-called "Gilded Age," all-out competition raged among increasingly gigantic utilities, railroads, and other industries. Their lobbyists in fast-growing Washington saw to it that general and permissive grants replaced the exclusive franchises of the slower paced and more genteel antebellum world. The individual citizen was more and more a tiny David confronted with the monoliths of private enterprise.
The federal government, too, was beginning to grow, albeit at a much slower pace. Its powers were not really exercised, however, until the turn of the century when leaders, such as President Theodore Roosevelt, started using the federal statute book to shield U.S. citizens from the unbridled impact of "progress" run amok. Lawmakers decided it was impossible to turn back the clock to laissez-faire competition. Monopolies were a fact of American life, and the best that the federal government could do as to set up administrative commissions to control their worst abuses. First railroads, then public utilities, and other large-scale business entities fell under the purview of newly created federal commissions - ancestors of today's regulatory agencies.
One of President Roosevelt's favorite causes was the protection of America's wilderness territories. The conservationist mentality - given its first voice in the mid-19th century by Henry David Thoreau - had become much more popular by 1901 thanks to widely read nature writers such as John Muir. Roosevelt, himself a great outdoorsman and personal friend of Muir, used his presidential power to double the number of national parks almost quadruple the national forest area: steps that gave a firm foundation to the conservationist tradition that, along with the parallel traditions of common law and public health, was so integral to the founding of EPA.
The public health tradition also took a giant step forward during this same period. In the first years of the 20th century, preventive federal statutes were written to regulate the quality of food, drinking water, and sewage treatment.
At first de facto, then de jure, the U.S. Marine Hospital Service - an organization dating back to 1798 - gradually expanded its functions to deal on a centralized basis with broad issues of public health. In 1902, Congress re-named it the "U.S. Public Health and Marine Service," a name that was further altered in 1912 to the "U.S. Public Health Service" (PHS).
A large part of the PHS's early work had to do with the prevention of waterborne disease, such as typhoid; in later years, that mission was expanded to include standard-setting for air quality in the industrial workplace. These early PHS water and air standards became the prototype for the first federal water and air programs of the 1950s and 1960s - both of which originated at the PHS. Lawmakers and health professionals in the states were also heavily influenced by precedents set by the PHS.
The Great Depression of the 1930s launched a new and even more activist phase in the evolution of the federal government. The New Deal policies of President Franklin Roosevelt caused a substantial increase in the size and power of the federal bureaucracy. Severe economic hardship opened the way for public works projects that regenerated the nation's infrastructure, and in doing so led to improvements in the quality of U.S. drinking water, sewage treatment, and other services vital to public health. The Civilian Conservation Corps put some of the jobless to work on improvement projects in wilderness and forest areas.
In addition, New Deal leaders stressed the importance of national coordination and planning, objectives that were unrealizable without an increasingly intrusive range of federal statutes and regulations...and ever larger and more comprehensive bureaucratic entities. For example, in 1935 President Roosevelt opted for consolidation rather than diversification by assigning federal regulation of the trucking and busing industries to the Interstate Commerce Commission, which had been established in 1885 to control the railroads. Furthermore, he decreed that the regulatory actions of all U.S. commissions should be tailored to the achievement of national policy goals.
Coordination and planning of a military and economic nature had a major trial run during World War II. To some extent, this successful experiment in federally run mobilization laid the groundwork for the ambitious environmental statutes assigned to EPA one by one in the 1970s. At the very least, the idea was driven home that the federal government could regulate and coordinate disparate types of behavior to meet national policy goals.
By the 1950s, other factors were fostering a new regulatory climate. The unbridled growth of the nation's booming chemical, plastics, petroleum, automotive, aviation, and munitions works was creating highly visible forms of pollution. As a result, the traditional method of individuals seeking redress of environmental grievances under the common law became inadequate.
The problem was not so much the quantity of environmental actions under the common law: it was their sheer difficulty from a legal standpoint. Expert witnesses could be found to argue both sides of any case, to the consternation and confusion of judges and juries. Also, quite a few cases involved tri-state and bi-state metropolitan areas, such as New York City and Chicago, with a crazy quilt of conflicting state laws and local ordinances.
Not only citizens but the industries they were suing grew impatient with the lack of a priori environmental standards, both legal and scientific. Some states formed advisory commission to offer technical advice to concerned parties. From more and more quarters came the suggestion that the federal government should step in and determine exactly what were "safe" levels of various pollutants.
Several federal programs were set up both to perform research on air and water pollution and to establish national standards. Their impact was blunted by several deficiencies, some of which were immediately apparent while others came to light only later. The Federal Water Quality Administration (FWQA) was formed in 1965. The National Air Pollution Control Administration (NAPCA) - although not given that name until 1968 - originated as a research body in 1955 and had also acquired some standard-setting powers by the mid-1960s. Both FWQA and NAPCA were at first part of the Public Health Service, which was - as its name suggests - more committed to public health than to environmental protection.
The FWQA broke off from the PHS in 1966 and became part of the Department of the Interior. Since pesticides were already the concern of the Department of Agriculture, a pattern of administrative fragmentation along the narrow lines of single media (air, water, etc.) was being perpetuated at the very time when ecological themes of inter-relatedness were arising to challenge the limitations of earlier modes of thought.
The predominant climate from which EPA's predecessor programs arose was, in fact, not ecological at all, but firmly entrenched in decades-old public health traditions. The Public Health Service has a pattern of not intervening in any problem unless invited by state officials; this did little to foster strong enforcement. The preventive, pragmatic, disease-specific nature of PHS traditions, though it had its own rationale in the public health sphere, was simply not interventionist enough to lead the fight for restoration of the biosphere. And this was a goal that had become extremely fashionable in the wake of Silent Spring's publication in 1962.
The U.S. Environmental Protection Agency, formed in December 1970, was a hybrid of all these multifarious and frequently conflicting patterns. The fledgling Agency was saddled with a tremendously difficult regulatory mission: How should ecological goals be balanced with those related to public health and the common law rights of the individual? How should the atmosphere of public and media hysteria be dispelled? How should scientific findings be interpreted and correlated - and their gradations of uncertainly communicated to lawmakers, reporters, and citizens?
The regulatory challenge was so great, in fact, that it is hardly surprising that EPA quickly became and today remains involved in many of the most controversial issues in the federal government. Yet the Agency has made important progress over the past 17 years: great strides have been made in cleaning up America's air and water. Especially the highly visible forms of desecration that fueled the crisis mentality of the 1960s. The persistent, organochlorine pesticides of two decades ago, such ad DDT, have been largely eliminated, and good progress is being made in dealing with abandoned hazardous waste sites.
The challenges of the future involve extremely important but less visible problems of cross-media pollution, stratospheric ozone depletion, radon contamination, and protection of air and water supplies against ever-proliferating types of toxic chemicals in trace concentrations. Continued progress on such problems will be incrementally more expensive to the U.S. government and U.S. society than the gains made during EPA's first decade and a half: a 15-year period that has coincide with economic and energy problems totally unanticipated in 1970. Crises in those areas introduced constraints that spawned the "regulatory reform" movement of the late 1970s and the 1980s: an effort to divest the federal government of many of its recently assumed regulatory responsibilities and to let state and local governments as well as business take up the slack.
Yet, despite growing concerns over the size and cost of the federal government, public-opinion polls indicate that the American people are as firmly committed as ever to the fulfillment of EPA's public health and environmental goals. Unfortunately, in many cases, the public's evaluation of what most needs fixing - an opinion EPA must under law solicit and consider - does not always square with expert scientific analyses of the most pressing dangers confronting the health of the nation's citizens and their natural environment. As a result, controversy continues over the appropriate direction and scale of EPA's future regulatory mission.
Ideal preconditions for a more coherent and successful future seem today as elusive as they have always been: EPA's laws are still reauthorized and amended one at a time in a manner inimical to cross-media and unified-field ecological thinking. As a result, EPA managers have become adept in bringing cross-media and cross-program perspectives to bear in their day-to-day implementation of the Agency's statutes.
Ingenious adaptation to administrative challenges will become ever more imperative in the years ahead. EPA's legally assigned tasks have always seemed to dwarf its resources. As the nation's lawmakers strive to resolve the problem of the deficit, EPA managers will have to make sure they and their co-workers learn new ways to improve their effectiveness as regulators.
Fortunately, sophisticated computer hardware and software are already making it easier for federal regulators to stay abreast of huge volumes of data. Even so, there can be no technological substitute for dedication and farsighted thinking on the part of EPA managers and scientists as the Agency faces both the foreseen and the unforeseeable challenges of its third decade.
Lewis was an Assistant Editor of EPA Journal.