Debating the Problems That Underlie Pollution Control Problems

Michael McCloskey

Editors' Summary: As environmental regulations and litigation grow in complexity, the debate surrounding pollution control issues becomes more technical and specialized. As a result, the fundamental questions and assumptions that underlie pollution control problems sometimes go unarticulated. The author asserts that these underlying issues — such as how risk averse we should be, how we should weigh environmental protection and cost, who should be responsible for the cost of cleaning up pollution — should be brought into the open and explicitly addressed in broad public debate, especially on the occasion of an election year and new presidential administration. To take the first step in establishing a framework for this debate, the author sets forth what he sees as the two basic opposing positions in environmental policy: the "go-slow" approach to environmental regulation, and the "tough regulation" position.

[18 ELR 10413]

Waste management and pollution control controversies are sprouting up all over the world. Central American countries turn back barges filled with waste from Philadelphia. West African nations are demanding that Europeans retrieve the toxic wastes they deposited on African shores. The West Africans have taken hostages and seized ships as they denounce "toxic terrorism." Pacific islanders fear being used as a dumping ground for nuclear wastes. These third world nations see themselves as the victims of a colonialist mentality that views them as acceptable places to dump the wastes from affluent societies. Likewise, citizens of the Soviet Union see themselves as victims of a nuclear technology that they were assured was safe, and they are anxious over how soil contaminated by the Chernobyl accident will be handled.

These issues sound familiar to Americans because the problems and the terms of debate are not very different from what we encounter in the United States. Here, issues involving hazardous wastes, toxic materials, and air and water pollution are mired in recrimination and confusion. There seems to be little structure or order to the debate. Discussion takes place in a number of isolated arenas: locally, in confrontations over toxic dumps; nationally, among members of the small corps of specialists who understand the legal and scientific terms of art; and on Capitol Hill, among the lobbyists for industry and environmental groups.

Almost no debate takes place over the underlying policies that guide the Environmental Protection Agency (EPA) in implementing its statutory programs. To many interested observers, EPA's programs are an enigma, shrouded in incredible technicalities. Only lawyers, chemists, and engineers can begin to decode their content; few connected with EPA and other federal regulatory agencies speak in intelligible language. Constructive policy debate is further hampered by the fact that competing policies are not articulated clearly. On one hand, environmentalists tend to think that policies have already been set by statute and that there is nothing left to discuss. On the other hand, those who generate pollution are reluctant to lay out their set of policy alternatives. Perhaps they want to avoid the reality of the policies embedded in the statutes, and as a strategy they prefer to represent the whole question as a matter of sound research and prudent administration, rather than public policy.

The result is extremely unfortunate — the public is denied the opportunity to participate in a comprehensible debate over fundamental policy. Broad public policy could be the connective tissue to hold together the skin and bones of the corpus of environmental programs. A policy debate could be cast in terms that would invite participation, allow people to understand why certain courses are being pursued, and assist in distinguishing among matters of science, bureaucratic behavior, policy, and pure political ideology. Better and more consistent decisions could be made if they were driven by a coherent set of policy choices.

Without any roadmap to the policy debate, few can join in, and the issues get played out in separate places by different rules, with no coherence provided by consistent [18 ELR 10414] policy. At the local level, environmentalists and neighborhood activists seem to do well in pressing their point over ad hoc cases. Nationally, environmentalists have done well in shaping the statutory framework. However, generating industries may have done better in recent years in shaping what EPA actually does and in enlisting allies in the academic community to think in terms that it finds congenial. Actions in court may represent something of a draw.

We have an opportunity to rescue ourselves from aimlessness and incoherence in this election year. The election process at the national, state, and local levels is an excellent forum for heightened environmental debate. Moreover, a new presidential administration can provide a clean slate for forging regulatory policy and legislative leadership. In an attempt to move toward the needed policy debate, I will sketch out what I believe are the main lines of argument over public policy with respect to pollution programs, and particularly managing toxics and hazardous wastes. The more we can understand the principles that guide this work, the better we can make sense of it, or work for sensible change. It is a disservice to democratic process to have the critical issues languish in the dark.

"Go-Slow" Approach

Proponents of a "low-cost, go-slow" approach are critical of tough regulations; they are the waste generators and those who sympathize with them in the current administration in Washington. The following are policy inferences that I have drawn from listening to them, reading their speeches, and studying the writings of academics sympathetic to their position.

Little Problem

The go-slow view begins by denying that there is much of a problem. Its adherents assert that environmental problems are exaggerated, and that levels of pollution today are far less than they were a century ago. Particularly with respect to toxics, they contend that there is little evidence that people have actually been harmed. With respect to the hazards of Superfund sites, they assert that most of the dangers are imaginary and that people are reacting to their own fears. They ask, "Where is the proof of injury?"

They suggest that the perception of a problem arises out of the fact that science can now measure smaller and smaller fractions of chemicals in the environment. They argue that firms are not polluting more, but instead we are measuring more of minute traces of chemicals that inevitably get about. They assert further that such minuscule fractions have a negligible impact upon public health. In other words, they are essentially harmless. While there may be some tests showing these chemicals can produce cancer and other maladies in animals, they do so only at incredible levels of concentration, and in any event there is no sure way of concluding that those chemicals will produce the same results in human beings.

They believe that the public is being led by environmentalists and the press into a near hysteria over make-believe chemical threats and that a nearly irrational "chemophobia" has broken out. They see the public as wanting a risk-free environment with respect to chemicals, without facing up to the trade-offs inherent in enjoying the benefits of chemistry. They point to the impossibility of achieving zero levels of pollutants in the environment. They challenge requirements that they remove extremely minute quantities of chemicals from the environment when little seems to be gained, and they continually ask, "How clean is clean?" — in other words, where do we draw the line and stop?

Scientific Verification and a Presumption Against Regulation

Those who urge that we "go slow" believe that there is too much clamor for hasty solutions that are not supported by valid research. With problems of such complexity, regulatory programs should not get out ahead of the science; Congress deceives itself if it thinks that solutions can be dictated by fiat just because they are being pressed to act. If programs unwisely plunge ahead, the problems may be made worse instead of better. Pollution may merely be moved around in a circle — from one medium to another, such as from the air to the ground to the water — in the haste to do something (the so-called cross-media pollution problem).

Too many pollution control programs, they say, really represent a delusion that waste matter can disappear and that it doesn't have to go somewhere. They argue that regulation is presently guided by the "strategy of the cork" in pollution control, where we try to stop up all the outlets with regulatory corks to bring pollution to an end. However, that strategy won't work because the pressure will burst forth somewhere. Society, they contend, must become more tolerant of living with pollution as the cost of modern life; there will always be some pollution, and it has to go somewhere.

They reflect on the fact that quite a bit of pollution has already been cleaned up and that further efforts are going to be very expensive. The costs of removing the last few increments of pollution go up exponentially. Some controls now required, they aver, don't even remove much pollution or materially change the quality of the ambient air or water.

They believe that much of the continued push for more reduction in pollution levels really represents an anti-business mentality and political agenda. As evidence for that, they point to the lack of commitment in the environmental community to pursue programs to address public health threats from such problems as radon, indoor air pollution, and nonpoint source runoff where there is no corporate villain to attack.

As a point of departure for alternatives to what they regard as imprudent overregulation, they believe all programs must begin with what they call "good science." Good science means patient, long-term research to establish absolutely firm foundations for identifying what is harmful and what is not; chemicals should be presumed innocent until evidence to the contrary is beyond doubt, and industry should be regarded as a partner in this research effort.

Risk Assessment and Cost Efficiency

The go-slow position views EPA as being in the risk management business, the central tool of which is risk/benefit analysis, a process whereby the risks and benefits [18 ELR 10415] of a given activity are calculated in dollars and compared. This is a highly technical process drawing upon the disciplines of economics, engineering, and public health to produce equations that indicate what, if anything, should be done to control the activity. If the risks are sufficient to justify pollution controls, then proponents of this approach believe that the least costly method of control should be used.

Those in the go-slow camp are quite concerned about cost efficiency in combatting pollution. They want resources to be focused on problems where the highest payoff can be obtained in terms of benefits to public health. For example, they would suggest shifting funds from cleaning up uranium mill tailings (to which few may be exposed and which, they argue, are relatively expensive to clean up) to dealing with residential radon problems (to which many more people are exposed and which are arguably easier to remedy). The fear is that United States industry cannot be competitive internationally if it is forced to unreasonable lengths in dealing with pollution problems. They oppose standardized, across-the-board approaches, and they bridle at the fact that EPA administrators have so little discretion in custom-designing solutions. They criticize Congress for specifying so many fixed standards and deadlines. They see EPA working best when it can vary its approach according to case-by-case analyses to find individually tailored solutions with the best payoffs, such as when it uses incentives instead of controls; or where it specifies standards of performance rather than the use of given technologies. They urge that Superfund cleanups be tailored to the characteristics of each site, based upon local evaluations of risks and benefits and payoffs. However, in general they prefer to leave it to the market to discover and produce new technologies that can be used to avoid the need for changes in public behavior, because they believe that the market is more efficient than any form of regulation. For example, they look to oxygenated fuels to carry the burden of reducing urban smog, instead of governmental attempts to reduce auto traffic.

Tough Regulators

"Tough regulators" represent the opposite policy perspective. The environmentalists, and the neighborhood activists allied with them, are immensely frustrated. They see this society as facing a toxics crisis, with little being done about it.

Enormous Problem, Little Action

Tough regulators see modern society as awash in an ocean of chemicals, but they feel that they didn't give their permission to be involuntarily immersed in this chemical bath. They believe that few of the chemicals have been rigorously tested by impartial experts for their safety; they regard testing by chemical companies as self-serving and suspect. They see these problems spreading all over the world as trade and industrialization grow.

Environmentalists see the health threats as real, not imaginary. They look to studies in the scientific literature that support their view. For example, they believe that as many as 40,000 people die each year from uncontrolled sulfur dioxide fumes in American air. Belts with elevated cancer levels have been identified around major industrial regions, as in New Jersey and in Louisiana. Worldwide, as many as 40 million more deaths each year are predicted as a result of the damage that freon-type chemicals have done to the stratospheric ozone layer. And the 10 percent of all cancers that some researchers have attributed to environmental pollution are those that are involuntary, not the result of choosing to smoke or eat or drink certain things.

With respect to damage from hazardous waste dumps, tough regulators are concerned with preventing injury, not waiting to verify it. They want to make sure that the toxics deposited in dumps do not reach air or water to contaminate them and their children. However, they believe that it may already be too late to prevent some harm; it is quite possible that children playing on old dump sites may have already been contaminated and that the long latency period for cancer is now running. Moreover, the prospect of these injuries has already reduced the property values of those who live nearby, and perhaps done untold harm to nonhuman life in the vicinity. In some cases, it is clear that wells providing drinking water have been contaminated. Tough regulators are not reassured by the fact that often the chemicals are present in only small concentrations, since some organisms can accumulate and concentrate toxins, and these can pass into the human food chain. For instance, dioxin is subject to such bioaccumulation where individually minute quantities in the environment can be built up into stronger concentrations. In addition, environmentalists are concerned that for some cancers there are no known safe thresholds; for every quantity of the toxic chemical at large in the environment, some cancers will result, and the more of the chemical, the more cancers are likely to be produced. Environmentalists believe that the history of reassurances invites skepticism. Substances once thought safe are constantly being found to be dangerous; there was a time when everyone thought it safe to put radium on watch dials. Allowable safe dosage levels are continually being reduced for things such as x-rays; yesterday's assurances from so-called experts about safe levels proved to be wrong. As science advances, the general trend is toward reducing estimates of safe exposure limits.

Go-slow adherents and tough regulators evaluate the mood of the public differently. What the chemical industry regards as hysteria, environmentalists see as public outrage at being subjected to unwanted risks. In addition, they see the public as moving into an even greater sense of outrage now that global natural systems, such as the ozone layer, have been jeopardized needlessly, affecting both their health and the earth's biota.

Facing this crisis, environmentalists believe, is an EPA that is immobilized, neutralized by industry, and unable to do its work. They look to the numbers. In 18 years, EPA has been able to set standards for only 6 of the 86 known toxics in industrial air emissions. Of the 600 chemicals in pesticides suspected of causing cancer or birth defects, EPA has banned only 32, and is investigating only a couple of dozen each year. With 20 percent of the drinking water supplies of this country possibly contaminated with chemicals, EPA has set limits for only 2 of the chemicals. EPA has regulated only 10 percent of the potentially dangerous types of hazardous wastes, and only a handful of the tens of thousands of hazardous waste dumps have been cleaned [18 ELR 10416] up. With respect to waste sites that EPA has tackled recently, cost factors rather than health standards have controlled the approach. As many as three-fourths of toxic waste dumps are thought to be leaking into groundwater.

Erring on the Side of Health and Safety

With the stakes so high, tough regulators believe that we should err on the side of health and safety. They believe that where animal studies indicate that a substance may be dangerous, we should not postpone regulatory and public health actions until a way to achieve air-tight verification of the chemical's effects on humans is found. In many cases, animal tests to determine whether a chemical causes cancer are the best recourse we have. It would be unthinkable to experiment with human lives. While only inferences can be drawn, animals can be chosen for similarities with human physiology; past experience shows that such inferences are usually warranted. Environmentalists point out that the use of heavy doses is an established technique to mimic the effect of absorbing low doses over a long period of time. Research would be too expensive and slow if one had to wait for long periods of normal exposure. In addition, they assert, we should heed the results of public health surveys showing elevated rates of disease in certain localities; the nature of the pollution control field is that, characteristically, many adverse effects are slow to reveal themselves and do so only through such surveys. Epidemiology is a process of statistical inference, not cause-and-effect proof. Many pollution effects occur through long causal chains, affect only portions of populations, and have delayed effects with long latency periods.

Practical action has to be taken in the public health field, and the pollution field too, long before all of the details of cause/effect relationships are firmly established. The environmental position is that reasonable inferences drawn from toxicology and epidemiology can provide the foundation for prudent precautions. When the chemical industry demands iron-clad proof, it is trying to confuse notions of guilt from criminal law with the prudent practice of public health. Public health has proven itself, and its work in the environmental field should not be forced into the procrustean bed of criminal law. Indeed, environmentalists charge that the cry for "good science" is really but a cover for the demand for definitive proof of the case against each and every chemical — a demand that leads to paralyzing inaction as studies go on endlessly to build cases that can stand up in court. In fact, the call for so-called "good science," therefore, is the opposite of the good practice of public health; it is a corruption of sound public health practice.

Acceptable and Unacceptable Risks Distinguished

Tough regulators realize that society has benefited from modern industrial life and advances in chemistry. But they have the sense that unreasonable risks have been taken haphazardly for little gain in public well-being. They acknowledge that modern life has its own unique risks that must be managed by each of us. For example, we all live under the threat of the atom bomb; we take risks when we choose to drive, and when we live in cities with high crime rates; some choose to take risks in their diet and by smoking, while others do not. However, environmentalists believe that each of us wants to keep the cumulative burden of risks on us from growing too high and that some risks are unacceptable. Our own strategies for survival are thrown askew when someone imposes burdens on us that we had not counted on, especially since we are not just exposed to one kind of toxic but many of them on repeated occasions. And many of us may have special susceptibilities that we hardly understand. Tough regulators are not asking for a risk-free environment. Instead:

* they are asking for the right to decide which risks they want to assume, and they do not want risks from chemicals buried in small type or hidden behind technical terms no layman can fathom;

* they do not want to be surprised by risks in completely unexpected places — like risks in the neighboring lot or in foods they assumed were always safe;

* they do not want to be exposed to catastrophes they cannot avoid — to situations like Chernobyl or Bhopal;

* they do not want innocents who cannot understand or make choices to be hurt — their children or generations to come;

* they do not want natural systems to be weakened for trivial purposes like foam packages for fast foods;

* they do not want irreversible changes to occur in atmospheric systems that protect them against skin cancer;

* they do not want risks being taken whensuitable alternatives and substitutes exist merely because it serves some firm's bottom line;

* they want competent authorities to decide whether the risk is necessary, and if so whether there is a fair distribution of benefits as well as risks; and

* they want to feel that there is someone who is incorruptible in charge of the process, and they want the right to participate.

Morality, Logic, and Cost

Environmentalists believe that much of the public sees these issues in moral terms. The public thinks it is not moral for an entrepreneur, on its own volition and for its own profit, to take risks with other people's lives and health without their consent; the entrepreneur and the people affected may not share the same assumptions about public benefits. It is even worse when the entrepreneur hides the hazards, or misleads the public with claims of safety. Even where it is established that the majority benefits from an undertaking with toxic risks and that there are no real alternatives, some environmentalists find it morally offensive to sacrifice the lives and health of those in the minority. Is it right to expose small communities to doses of dioxin from incinerators built to solve the problems of cities? The moral problems compound when those affected are powerless and not consulted.

A judgmental process of weighing equities, searching for alternatives, protecting minorities, and striving to be guided by ethical principles is a far different process than applying some mathematical model of risk/benefit analysis. Tough regulators strongly believe that ethics and equities cannot be quantified and reduced to equations, and that the idea that risk/benefit analysis and benefit/cost studies [18 ELR 10417] are a science is an illusion. Rather, they are exercises in judgment, weighed down by critical assumptions and shot through with uncertainties. But these exercises are esoteric ones that keep the public at bay and create the illusion of objectivity and fact. Few can penetrate them to learn how and whether the critical assumptions have been skewed. In the years of dealing with benefit/cost calculations for water projects, environmentalists have become convinced that most of these exercises are skewed and self-serving; they are playgrounds for those who would lie with statistics. They turn soft and speculative data into hard numbers that look like facts, and gloss over missing data.

The moral dimension is more strongly present in decisions concerning the introduction of new chemicals into the environment, than in decisions involved in cleaning up old sources of contamination. The former lies as much in the moral realm as in the practical one. The latter is much more of a practical exercise, particularly when no responsible party can be found; the availability of resources may help determine just how far cleanup efforts can go.

With regard to the cleanup of toxics already in the environment, what is the most logical way to proceed? To environmentalists, the question of "How clean is clean?" really leads off into the wrong direction. It implies that efforts have gone to unreasonable extremes and that cleanups are going to extraordinary lengths to search out every last bit of contamination to destroy it. Yet, in reality, the opposite is true — hardly a beginning has been made. Most of the chemicals have not been investigated, most of the needed standards have not been set, and most of the sites have not been cleaned up. All one can say is that a lot of paperwork has been processed and a not inconsiderable amount of money spent.

Those who would urge us to go slow charge that money is being misallocated on toxic problems, and their answer would be to shift public attention and governmental efforts away from the toxic waste cleanup toward problems such as radon contamination. In other words, their approach would shift the emphasis to where no responsible firm is in sight and the public purse would have to assume the costs; they would let all of those who create toxic problems off the hook. Environmentalists believe that this would be neither moral nor logical.

Instead, environmentalists would hold those who create toxic problems liable for cleanup costs and damages. This is expressed in the principle that "the polluter pays" — the polluters should bear the cost of cleanup since they created the problems. They should absorb pollution control costs internally as costs of doing business and reflect it in prices. That will set proper signals for consumption; consumers will pay the real costs of obtaining the product.

When the polluter pays, funds from the public treasury are not being allocated; private funds are. It is misleading to suggest that these private funds could be available to be reallocated to dealing with problems of radon and indoor air pollution. One reason environmentalists have not yet marshalled programs to attack those problems is the difficulty of finding funding to address them, as well as the lack of clarity about the solutions. Environmentalists see it as ironic that those who complain that EPA's efforts are already too ambitious and complex would have the Agency take on complex new programs.

Tough regulators note that those who complain about overly complex programs seem to champion the exceedingly complex analyses involved in risk/benefit quantification and benefit/cost studies. Such persons also want more attention to the complexities of tackling cross-media pollution, which has been an ideological hobbyhorse of conservative theoreticians from the outset. One possible reason for returning so much to the question of cross-media pollution is that it gets at the question of who is left "holding the bag" of pollution. Present programs compel polluting industries to remove pollution, for instance, from the air with scrubbers; they then are caught with the sludge from the scrubbers, which they don't know what to do with. Although this phenomenon may have environmental implications, it appears that industry's interest in it is driven first and foremost by its cost implications for the polluting firms.

Laments over the "strategy of the cork" feed on stories over mountains of sludge that will engulf the country. But tough regulators say that these laments wrongly assume that the quantity of waste per unit of production is fixed and cannot be reduced. Production process changes and innovations can often substantially reduce the quantity of waste produced, just as energy conservation has reduced energy use per unit of production. Indeed, more progressive firms have found ways to convert what were once waste products into valuable items for sale.

Those who assert that EPA is in the business of managing risk would have it spend its time weighing the aspirations of industry against the needs of public health and ecology. Environmentalists maintain that this is not EPA's mission. Rather, they say, the Agency is there to reduce pollution and protect public health and ecology; the Commerce Department exists to advance American industry. EPA's job is to assure that the products and processes used by American industry are safe — that they do not pose a threat to public health or other biota. There should be no right to produce products or use production processes that pose such risks if there are ways to avoid or eliminate the risks; where that is not possible (where alternatives do not exist) and the products are necessary and important, then some process of balancing interests and equities may be appropriate. But the risks to public health should not be traded off against every whim of the marketplace.

Tough regulators point to past experience, and say that those who would give EPA ample discretion ignore the lessons of history. When discretion exists, it is always used on the side of inaction. It is invariably used to rationalize delay, and delay means more time in which the public bears burdens of injurious pollution. When Congress sets standards and deadlines, the process moves; otherwise, administrators are immobilized by industry lobbying. In the early years of pollution control, when we lacked uniform standards applying to all emitters, we had endless negotiating toward the lowest common denominator: if someone else were subject to less stringent requirements, why should my firm have to do more? Water pollution levels did not go down as long as administrators spent their time going in circles in regional enforcement conferences. While uniform standards may sometimes result in achieving water and air quality that exceeds the standards, environmentalists caution us to remember that those are minimum standards and will usually have to be tightened over the course of time. No loss in public welfare has occurred, only a gain.

While we could all hope that incentives for voluntary [18 ELR 10418] action would suffice, environmentalists say that the job has proven to be too big to rely on voluntary measures alone. The tonnage reductions needed simply can't be achieved in that way. The environmental movement is not wedded to any one mechanism for achieving pollution reduction goals, but it does insist on achieving them — it wants effective programs. While effectiveness could in theory be achieved by setting forth performance standards alone, it is sometimes necessary to require particular technologies in order to hasten their commercialization and to bring their price down (through economies of scale in production).

Tough regulators charge that those who claim that cleanup costs always go up in pursuit of the last increments of pollution with ignoring the fact that sometimes costs go down in a broad sense, as new control technology is brought on line and economies of scale begin to operate. Scrubbing costs today are far lower than they once were. Moreover, post mortem studies of control experiences have shown that total control costs are usually overestimated. Consequently, the competitive position of American industry is not affected that much; moreover, some studies show that the most socially responsible firms are also usually the most profitable ones. And finally, the last increments of pollution are sometimes the most deadly; that is the case with types of air pollution where tiny particles affect the lungs the most.

The whole issue of cost is often a matter of confusion. The environmental position is that cost is relevant in determining whether the resources can be marshalled to remedy an undesirable condition, but cost should not be considered in determining what standards are necessary to protect human health; that is a purely factual matter to be decided by public health experts. Once the protection of public health requires a given level of pollution control, then it is relevant to ask what is the most economical way of doing it — i.e., achieving that exact level of pollution reduction and associated public benefits. However, environmentalists say that in practice many of those who so admire use of "least cost" strategies want to pursue the least effective means of control. For example, they want factory workers to wear gas masks rather than eliminating noxious fumes that harm both workers and the community.

Finally, tough regulators maintain that the talk about focusing programs on areas producing the highest payoff ignores a number of things. It ignores the fact that most federal environmental programs require that the polluter pay; public funds are used only sparingly. Moreover, proponents of the "highest payoff" theory rarely make explicit the underlying premise of their view, with which environmentalists strenuously disagree: that real people's health may be sacrificed on the altar of expediency where no overriding public necessity requires it.

Conclusion

Obviously, people will differ over which side of this debate has the stronger case. Since I am an environmentalist, I have stated my own view at greater length. But I do think it is important to elevate the level of debate above seeming technicalities — to draw the focus toward the underlying points in contention and the principles that will make the difference. Broad debate, especially in an election year and in the early days of a new administration, can and should shape the solutions we seek to environmental problems. I invite others — in industry and the public at large — to join in.

Mr. McCloskey is Chairman of the Sierra Club. This Dialogue is adapted from a speech delivered to the Missouri Waste Control Association in Columbia, Missouri, in July 1988.