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18 ELR 10195 | Environmental Law Reporter | copyright © 1988 | All rights reserved Failure of the Environmental EffortBarry CommonerBarry Commoner is director of the Center for the Biology of Natural Systems at Queens College in Flushing, New York. Dr. Commoner is a graduate of Columbia University and received an M.A. and Ph.D. in biology from Harvard. His books include Science and Survival, The Closing Circle, The Power of Poverty, and The Politics of Energy. This Dialogue is adapted from an address presented at a seminar series sponsored by the United States Environmental Protection Agency in January 1988. The enactment of the National Environmental Protection Act (NEPA),1 and the creation of the Environmental Protection Agency (EPA) to administer it in 1970 marked a turning point in the recent environmental history of the United States. Beginning in 1950, new forms of environmental pollution appeared and rapidly intensified: smog, acid rain, excess nitrate and phosphate in water supplies, pesticides and toxic chemicals in the food chain and our bodies, and dangerous accumulations of radioactive waste. Then, in 1970, pressed by a newly aroused public, Congress began a massive effort to undo the damage. Now, nearly 20 years later, the time has come to ask an important and perhaps embarassing question: How far have we progressed toward the goal of restoring the quality of the environment? The answer is in fact embarassing. Apart from a few notable exceptions, environmental quality has improved only slightly, and in some cases has become worse. Since 1975, when most of the consistent environmental measurements began, overall improvement amounts to only about 15 percent. (See accompanying Tables I, II, III.) And at least in the case of air emissions (other than lead), since 1981 — the advent of the current Administration — the annual rate of improvement has dropped from 1.52 percent per year to only 1.16 percent per year.
Source: OFFICE OF AIR QUALITY PLANNING AND STANDARDS, U.S. EPA, NATIONAL AIR QUALITY AND EMISSIONS TRENDS REPORT, 1984 (1986); OFFICE OF AIR QUALITY PLANNING AND STANDARDS, U.S. EPA, NATIONAL AIR QUALITY AND EMISSIONS TRENDS REPORT, 1985 (1987); COUNCIL ON ENVIRONMENTAL QUALITY, 15TH ANNUAL REPORT (1984); U.S. EPA, LAKE ERIE INTENSIVE STUDY, 1978-79, FINAL REPORT (1984). Although the massive national effort that began in 1970 has failed to restore the quality of the environment — or to even come close to that goal — the record shows that success is possible. In a few scattered instances, pollution levels have been significantly reduced, by 70 percent or more: lead in the air; DDT and PCBs in wildlife and people; mercury pollution in the Great Lakes; strontium 90 in the food chain; and in some local rivers, phosphate pollution. These few successes explain the far more common failures. Each of these pollutants has been effectively controlled not by high-tech devices, but by simply stopping its production or use. Air emissions of lead have declined by 86 percent because much less lead is now added to gasoline and therefore there is that much less in the environment. The environmental levels of DDT and PCBs have dropped sharply because their production and use have been banned. Mercury is much less prevalent in the environment because it is no longer used in manufacturing chlorine. Strontium 90 has decayed to low levels because we and the Soviet Union have had the simple wisdom to stop the atmospheric nuclear bomb tests that produce it. The lesson of both the few successes and the far more numerous failures is the same: environmental pollution is a nearly incurable disease, but it can be prevented. Environmental degradation is built into the technical design of the modern instruments of production. A high-compression car engine is not only high-powered, but a smog generator. A farm that uses chemical fertilizers and pesticides is not only highly productive, but also an uncontrollable source of water pollution. A trash-burning incinerator not only produces energy, but dioxin as well. The environmental hazard is just as much an outcome of the facility's technological design as is its productive benefit. High compression is the cause of both the auto engine's power and its production of nitrogen oxide, which triggers smog. The extensive use of fertilizers and pesticides accounts for productivity of the modern farm — and for the pollution of rivers and groundwater as well. The same combustion process that extracts energy from trash also [18 ELR 10196] releases the chemical precursors that then combine to produce dioxin. Most of our environmental problems are the inevitable result of the sweeping changes in the technology of production that transformed the U.S. economic system after World War II: the new large, high-powered, smog-generating cars; the shift from fuel-efficient railroads to gas-guzzling trucks and cars; the substitution of undegradable and hazardous petrochemical products for biodegradable and less toxic natural products; the substitution of fertilizers for manure and crop rotation and of toxic synthetic pesticides for ladybugs and birds. By 1970 it was clear that these changes in the technology of production are the root cause of modern environmental pollution. Now this conclusion has been confirmed by the sharply divergent results of the effort to clean up the environment. Only in the few instances in which the technology of production has been changed — by eliminating lead from gasoline, mercury from chlorine production, DDT from agriculture, PCB from the electrical industry, and atmospheric nuclear explosions from the military enterprise — has the environment been substantially improved. When production technology remains unchanged, and an attempt is made to trap the pollutant in an appended control device — the automobile's catalyst or the power plant's scrubber — environmental improvement is at best only modest, and in some cases (such as nitrogen oxides) nil. When a pollutant is attacked at the point of origin, it can be eliminated; once it is produced, it is too late. Unfortunately, the legislative base of the U.S. environmental program was created without reference to the origin of the crisis that it was supposed to solve. Our environmental laws do not discuss the origin of environmental pollutants — why we have been afflicted with the pollutants that the laws were designed to control. Not that theories weren't offered to the legislators. Some ecologists told them the country and the world are polluted because there are too many people, using more of the planet's resources than it can safely provide. A different point of view was heard from as well, but with a good deal of skepticism. I well remember the incredulity in Senator Muskie's voice during NEPA hearings when he asked me whether I was really testifying that the technology that generated post-World War II economic progress was also the cause of pollution.2 I was. Because environmental legislation ignored the origin of the assault on environmental quality, it has dealt only with its subsequent effects. And, having defined the disease as a collection of symptoms, the legislation mandates only palliative measures. The notion of preventing pollution —the only measure that really works — appears but fitfully in the environmental laws and has never been given any administrative force. This fundamental fault in our environmental laws has had a major impact on the operation of the agency that is chiefly responsible for administering and enforcing them — EPA. The failed effort to deal with the automobile's most notorious environmental impact — photochemical smog — is an instructive example. That failure was recently commemorated on December 31, 1987, when dozens of urban areas were once again allowed to miss the deadline for meeting ambient air standards for carbon monoxide and ozone. Why has the effort to rid the environment of its automotive nemesis, which has generated a mass of environmental analyses, emission standards, administrative rulings, and litigation, nevertheless only ended in failure? For more than 20 years we have understood the origin of photochemical smog: the high-compression engines introduced after World War II to drive the suddenly enlarged American cars necessarily run hot; they therefore convert oxygen and nitrogen in the cylinder air to nitrogen oxides. Once out the exhaust, nitrogen oxides are activated by sunlight and react with airborne fuel and other hydrocarbons — many of them otherwise relatively benign — to produce ozone and the other noxious components of photochemical smog. EPA has tried to deal with the smog problem by aiming at everything except the crucial target: the engine's production of nitrogen oxides. The effort is largely designed to reduce emissions of the bewildering array of hydrocarbon sources. It has clearly failed; nitrogen oxide emissions have increased in the last decade, not only perpetuating smog but becoming a major source of acid rain as well. Suppose, now, that guided by the few environmental successes, we seek to control automotive smog at its origin, the production of nitrogen oxides. The goal would be zero production of nitrogen oxides by cars and the complete elimination of this dominant source of smog. It is worth noting that this approach accords well with a corresponding approach to health: prevention of disease rather than curing or simply tolerating it. The preventive approach to disease is the source of some of the major advances in public health. The classical example is smallpox; widespread use of a preventive measure — vaccination — has now completely eradicated the disease. A zero incidence has actually been attained world-wide. Like smallpox, the great majority of the assaults on the environment are, in fact, preventable. After all, nearly all of them — the major exception [18 ELR 10197] is natural radiation — have been created, chiefly since 1950, by introducing inherently polluting forms of production technology. They are not the result of natural processes but of human action, and human action can once again change the technologies and undo their harm. Is this approach to the automotive smog problem really practical? Can smogless engines that do not produce nitrogen oxides be built? They can. Indeed, they have been. Every pre-World War II car was driven by such an engine; that's why the country was then free of smog. In fact, nitrogen oxide production can be prevented without giving up the American car's precious over-powered engine (which is, nevertheless, a good idea). The so-called "stratified charge" engine can do just that. According to a 1974 National Science Foundation (NSF) study, prototypes were then already operating in Detroit, and tests showed that the engines would meet the 90 percent reduction in nitrogen oxide emissions required by the Clean Air Act Amendments. But, according to the NSF report, the engine would need to be considerably redesigned, requiring new fuel injector, fuel pump, ignition spark-plug system, cylinder head, piston, intake, and exhaust manifolds. Unlike the addition of a catalytic converter to the exhaust system of the existing engine, this would mean extensive retooling in the manufacturing plants. According to the report, had the auto industry decided in 1975 to take this course, the stratified charge engine could now be driving most U.S. cars — and automotive nitrogen oxide emissions would have been sharply reduced instead of increasing. In sum, the goal established by the 1970 Clean Air Act Amendments could have been met — but only if EPA had confronted the auto industry with a demand for fundamental changes in engine design. EPA was unwilling to take on this task. EPA's reluctance to tell the automobile industry what kind of engine it should build has helped to undermine the goal of the Clean Air Act. There are other examples of how pollution can be attacked at its source — and thereby prevented. Had American farmers been required to reduce the present, often unproductively high, rate of nitrogen fertilization, nitrate water pollution would now be falling instead of increasing. If farms were required to shift from blindly repeated pesticide applications to integrated pest management, the rising level of pesticide pollution could be checked. If the railroads and mass transit were expanded; if the electric power system were decentralized and increasingly based on cogenerators and solar sources; if the pitifully small percentage of American homes that have been weatherized were increased — fuel consumption and the attendant air pollution could be sharply reduced. If brewers were forbidden to put plastic nooses on six-packs of beer; if supermarkets were not allowed to wrap polyvinyl chloride film around everything in sight and then stuff it into a plastic carrying bag; if McDonalds could rediscover the paper plate; if plastics were cut back to things where they are really needed, say, artificial hearts or video tape — then we could push back the petrochemical industry's toxic invasion of the biosphere. Of course, all this is easier said than done. I am fully aware that what I am proposing is no small thing, easily accomplished by bureaucratic fiat. It means that sweeping changes in the major systems of production — agriculture, industry, power production, and transportation —would be undertaken for a social purpose: environmental improvement. As I have pointed out in explicit detail elsewhere,3 this represents social (as contrasted with private) governance of the means of production — an idea that is so foreign to what passes for our national ideology that even to mention it violates a deep-seated taboo. It is not my purpose here to argue the merits of undertaking such a sweeping change in the country's deeply felt concept of political economy. Rather, I am interested in discussing the consequences, especially for EPA, of our failing to address the issue of environmental quality in these fundamental, if highly disturbing, terms. But first I wish to at least mention a major consequence that lies outside the realm of the environment but is related to it — the efficiency of the national economy. By now it is depressingly clear that the U.S. productive system, despite its past gains, is in a state of decline. Among the nations of the world, the United States has, for example, one of the lowest rates of annual improvement in a fundamental economic parameter — productivity. A good deal of this decline derives from the fact that the new, highly polluting post-World War II production technologies were based on large-scale, centralized, capital- and energy-intensive facilities. The country's overall economic efficiency is now heavily encumbered by the low capital productivity of these technologies (i.e., low output per unit of capital invested, as for example in a nuclear power plant as compared to a cogenerator), and their low energy productivity (i.e., low output per unit of energy used, as for example, in truck freight as compared to railroad freight). But the technological changes [18 ELR 10198] that reduce environmental impact can also improve economic productivity. Decentralized electric power systems, for example, by reducing fuel consumption, improve not only air pollution, but the economic efficiency of power production as well. Now let us turn to the impact on EPA of the taboo against social intervention in the production system. Let me begin by reiterating the most immediate effect. The major consequence of this powerful taboo is the failure to reach the goals in environmental quality that motivated the environmental legislation of the 1970s. The present, largely unsuccessful regulatory effort is based on a now well-established process. First, EPA must estimate the degree of harm represented by different levels of the numerous environmental pollutants. Next, some "acceptable" level of harm is chosen (for example, a cancer risk of one in a million) and emission and/or ambient concentration standards that can presumably achieve that risk level are established. Polluters are then expected to respond by introducing control measures (such as automobile exhaust catalysts or power plant stack scrubbers) that will bring emissions or ambient concentrations to the required levels. If the regulation survives the inevitable challenges from industry (and in recent years from the Administration itself), the polluters will invest in the appropriate control systems. Catalysts are appended to the cars, and scrubbers to the power plants and trash-burning incincerators. If all goes well — as it frequently does not — at least some areas of the country and some production facilities are then in compliance with the regulation. The net result is that the "acceptable" pollution level is frozen in place. The industries, having heavily invested in equipment designed to just reach the required level, are unlikely to invest more in further improvements. The public, having been told that the accompanying hazard to health is "acceptable," is likely to be equally satisfied. Some optimistically inclined people will look upon exposure at the acceptable level as a kind of guarantee of health. Others, perhaps aware of the linear relation between pollution level and the risk to health, will conclude that we are doing as much as we can and will, in most cases, accept the remaining risk fatalistically. Clearly this process is the inverse of the preventive, public health approach. It strikes not for the continuous improvement of environmental health, but for the social acceptance of some, hopefully low, risk to health. In a way this is a return to the medieval approach to disease, when illness — and death itself — was regarded as a debit on life that must be incurred in payment for original sin. Now we have recast this philosophy into a more modern form: some level of pollution and some risk to health is the unavoidable price that must be paid for the material benefits of modern technology. The preventive approach aims at progressively reducing the risk to health; it does not mandate some socially convenient stopping point. The medical professions, after all, did not decide that the smallpox prevention program could quit when the risk reached one in a million. In contrast, the present regulatory approach, by setting a standard of "acceptable" exposure to the pollutant, erects an administrative barrier that blocks further improvement in environmental quality. This is, I believe, a major cost of our failure to confront the environmental crisis at its source. How do you decide when to stop, where to set the standard? The current fashion is called risk/benefit. Since the pollutants' ultimate effect can often be assessed by the number of lives lost (from cancer caused by an environmental carcinogen, for instance), the risk/benefit analysis requires that a value be placed on a human life. Some economists have proposed that the value should be based on a person's lifelong earning power. It then turns out that a woman's life is worth much less than a man's, and that a black's life is worth much less than a white's. In effect, the environmental harm is regarded as smaller if the people it kills are poor — a standard that could be used to justify situating heavily polluting operations in poor neighborhoods. And, in fact, this is an all too common practice. Thus, thinly veiled by a seemingly straightforward numerical computation, there is a profound, unresolved moral question: Should poor people be subjected to a more severe environmental burden than richer people, simply because they lack the resources to evade it? Since in practice the risk/benefit equation masquerades as science, it deprives society of the duty to confront this moral question. It seems to me, therefore, that one result of failing to adopt the preventive approach to environmental quality is that the regulatory agencies have been driven into positions that seriously diminish the force of social morality. What happens when, by whatever means, standards are set but — for the reasons described earlier — the required control measures fail to achieve them? Something has to give way. Consider the scandalous situation in air pollution. In 1970 the Clean Air Act Amendments called for a 90 percent reduction in urban carbon monoxide, hydrocarbon, and ozone levels, setting a 1977 deadline for achieving this goal. The penalty for failure is severe: loss of federal funding for development projects. In 1977, with compliance not even in sight, the deadline was moved to 1982; and when that was also missed, the deadline was once more delayed, to December 31, 1987. Now, with urban areas in which nearly 100 million people breathe substandard air still in noncompliance, they will be given up to 25 more years to comply. So, step by embarrassing step, because we are unwilling to adopt the measures that can prevent air pollution, enforcement of the laboriously constructed standards evolves into a distant hope. It hardly requires a sociological survey to determine the response to this retrogressive policy: the polluters can justify their inaction and the public its apathy. It erodes the integrity of regulation and diminishes the public faith in the meaning of environmental legislation. This, too, is the price we pay for failing to attack environmental pollution at its origin. Confronted with such environmental failures, regulatory agencies have become remarkably creative about finding new ways to retreat. The latest one is the Humpty Dumpty approach. You will remember that in Through the Looking Glass Alice gets into an argument with Humpty Dumpty, who claims that the word "glory" means "a nice knockdown argument." When Alice objects to this arbitrary redefinition, Humpty Dumpty says: "When I use a word it means just what I choose it to mean." Alice replies: "The question is whether you can make words mean so many different things." Humpty Dumpty's response is unanswerable: "The question is, which is to be master." I am afraid to say that Humpty Dumpty's free-wheeling [18 ELR 10199] linguistic philosophy has begun to take hold in regulatory circles. Not long ago, for example, when tests of fly ash from trash-burning incinerators showed that it was sufficiently contaminated with toxic metals to qualify as a "hazardous substance," the New York State Department of Environmental Protection issued a remarkable pronouncement: Metal-contaminated fly ash is not a hazardous substance, it was declared, but a "special waste." Of course, this was not just a silly linguistic exercise. It meant that, unlike an ordinary hazardous substance, fly ash need not be consigned to an expensive Class I landfill —an additional cost that, according to a New York State official, might cripple the incinerator industry. EPA and other regulatory agencies have put a great deal of effort into defining a "hazardous substance."4 Clearly the public must rely on the integrity of this definition in dealing with Superfund sites and a whole range of contaminated materials. The linguistic detoxification of fly ash may be a handy expedient for New York State — which may soon be emulated by EPA as well. But with Humpty Dumpty in charge, the public has good reason to doubt who is really the "master" that decides what environmental regulations mean. The loss of public confidence is another price that we pay for the failure to regulate the cause of environmental pollution instead of its symptoms. Another hazard is that conflicts between the stated goals of environmental regulation may be resolved at the expense of the facts. A number of EPA divisions have done this country and the world a great service by devising and operating wonderfully effective fact-gathering systems, for example, on air pollution and toxic substances. One of the most effective EPA programs, which uniquely meets EPA's mandate under the Toxic Substances Control Act "to assess chemical risk to the U.S. population,"5 is the Office of Toxic Substances' National Human Adipose Tissue Survey. The latest survey provided, for example, data on the distribution of dioxins and furans in the adipose tissue of the general population. These data enabled us at the Center for the Biology of Natural Systems at Queens College to show that the cancer risk from this general dioxin exposure was even higher than risks used by EPA to trigger regulation of airborne carcinogens under Clean Air Act § 112.6 I was aware, at the time, that this posed a dilemma for EPA: to be consistent, EPA would need to regulate the sources of dioxin — largely, trash-burning incinerators — an action vigorously opposed by the incinerator industry. Clearly the adipose tissue data were an enormously valuable way of directly assessing toxic risks, a valuable factual counterweight to the shaky assumptions so often involved in indirect risk assessments. Recently, a way of seemingly resolving this dilemma has been discovered: canceling the survey. This is perhaps the most pernicious consequence of the current misdirected regulatory approach — the attempt to shield ourselves from difficult facts by destroying the instrument that produces them. None of us are ready to prescribe what should be done to remedy the environmental failure. This will require the courage to challenge the taboo against even questioning the present dominance of private interests over the public interest. It will require good science and wise policies. But, I suggest that we know how to begin — by an open public discussion of what has gone wrong, and why. That is the necessary first step on the road toward realizing the nation's unswering goal — restoring the quality of the environment. 1. 42 U.S.C. §§ 4321-4370a, ELR STAT. NEPA. a. Measured as amount emitted per year. c. Change in percentage of people with PCB body fat levels greater than 3 ppm. 2. For a discussion by Mr. Muskie of his experiences as the first chairman of the Senate Subcommittee on Air and Water Pollution and his views on the problems in implementing the laws passed in the 1970s, see Muskie, Reflections on a Quarter Century of Environmental Activism: On Postponing Deadlines, Second-Guessing the Congress, and Ignoring Problems Until It Is Too Late, 18 ELR 10081 (Mar. 1988). 3. Commoner, A Reporter at Large: The Environment, THE NEW YORKER, June 15, 1987. 4. See, e.g., EPA Regulations for Identification and Listing of Hazardous Waste, 40 C.F.R. § 261 (1987). 5. 15 U.S.C. §§ 2601-2654, ELR STAT. TSCA. 6. Commoner, Shapiro, & Webster, The Origin and Health Risks of PCDD and PCDF, 5 WASTE MANAGEMENT AND RESEARCH 327 (1987). 18 ELR 10195 | Environmental Law Reporter | copyright © 1988 | All rights reserved |