DC Confidential. David Schoenbrod
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have to be cut to protect health, and how to go about cutting the pollution, motorists would place most of the blame for any increase in the cost of gasoline on the agency rather than the legislators.
When the EPA began to develop the regulation to protect public health by cutting lead in gasoline, the petroleum industry sought help from members of Congress. Legislators—liberals as well as conservatives—quietly lobbied the agency to stop the regulation and it did. Because the statute had assigned the protection of health to the EPA, voters would place most of the blame for failing to protect children from lead in gasoline on the agency rather than the legislators.
The Clean Air Act instructed the EPA to cut lead to healthy levels by 1976, but the agency failed to meet this deadline. On behalf of environmental and antipoverty organizations, I personally filed lawsuits and won judgments on the basis of the agency having violated the law, but the action the agency produced in response fell far short of the statutory promise. Early in the litigation, the EPA’s deputy administrator, John Quarles, candidly told me that even if the court ruled in favor of the children whom I represented, the agency would drag out implementation so that the victory would have no impact. I ended up winning the suit and the victory did have some impact, but not nearly that which the statute promised. Forcing the EPA to take its time were the White House and members of Congress of both parties, who played both sides down the middle. The upshot was that children’s exposure to lead from vehicles increased over the first half of the 1970s.
For the EPA’s failure on lead, I initially blamed the Republicans who occupied the White House and therefore controlled the agency until 1977. When the Democrat Jimmy Carter became president that year, I hoped that his tough campaign talk on the environment would translate into tough action on lead. To the contrary, under President Carter the EPA reduced the already-weak protection of children that his Republican predecessors had issued.12
If the 1970 statute had openly decided how fast to cut the lead in gas rather than leaving the choice to the EPA, Congress itself would have required the lead to be taken out much more quickly than the EPA did. Public demand drove Congress to legislate on air pollution in 1970, just as public demand had driven it to legislate on civil rights in 1964. Of the air-pollution problems, the public cared most about the lead pollution from gasoline. Bumper stickers of the time read “GET THE LEAD OUT.” Of course, the pressure to cut lead would have run up against resistance from industry, but that happened with new cars, too, and the result was a 90 percent cut in emissions by 1975. Moreover, the auto industry had much-more power than the chief opponents of cutting lead in gasoline—the lead-additive makers and the small refiners. In my opinion, if Congress had decided how much to cut lead in gasoline, by the mid-1970s the reduction would have been, at the very least, 50 percent.
By leaving it up to the EPA to decide how much lead to cut from gas, Congress delayed getting most of the lead out by at least a decade. Based upon EPA calculations of the health benefits of eventually eliminating lead in gas, this delay cost approximately fifty thousand lives (about the number of American deaths in the Vietnam War), and so severely injured the brains of a hundred thousand other people that their IQs fell below seventy.13
This ending may seem too awful to be credible, but consider this: In 2016, President Obama declared a state of emergency because one-twentieth of the children of Flint, Michigan, had blood lead levels above five micrograms. In the 1970s, virtually 100 percent of New York City’s children had blood lead levels above that level, and the average blood level in children across the United States was three times that level. The great bulk of these children got their lead primarily from gasoline, which is what led to the EPA’s finding that removing lead from gasoline produced big benefits.
The legislators left the hard choice of how much lead to cut in gasoline to the EPA rather than making it themselves because handing it off was better for them. If Congress had made the decision, its members would have faced blame, both from voters who wanted more protection of health and from voters who wanted lower burdens. That would have been a “hard choice.” In contrast, by telling the EPA to “protect health,” legislators from both parties feigned making a hard choice and got credit for protecting health but in fact shifted the blame for the burdens and failure to protect health to the EPA. That’s the trick.
The members of Congress did not agree on what to do about pollution, but they did agree that they should get credit and not blame. That’s why they voted for the Clean Air Act almost unanimously. The legislators neither rose above their differences nor dealt with them openly but rather hid them, which of course stifles open debate.
If Congress had to make all the hard choices in 1970, it might not have passed a Clean Air Act. Yet, as chapter 8 explains, my proposal is not to require members of Congress to make these choices when enacting regulatory statutes but instead to require them to vote on the major regulations the regulatory agencies later produce. Having already passed the Clean Air Act and many other regulatory statutes, they lack the nerve to repeal those statutes.
The needless deaths resulting from lead added to gasoline in the twentieth century are now history, but the Clean Air Act still costs lives today, even though it also does much good.
The EPA tells us about the good. The Clean Air Act did get rid of lead in gasoline in the end and will continue to do more good. By 2020, the statute as amended in 1990 will halve the emissions coming from the pollutants that harm our bodies. The most harm comes from fine particulates in the air we breathe. The particulates are so tiny—several thousand of them could fit inside the period at the end of this sentence—that they get deep into our lungs and pass into our blood. According to the EPA, halving them will prevent at least 200,000 heart attacks; 255,000 bronchitis cases; and many other diseases each and every year. If the EPA is correct, the average American thirty-year-old will live one year longer as well as many years healthier as a result of the reduction, and the cost of halving pollution is paltry, only one-thirtieth the value of the benefits.14
Moreover, according to the EPA’s interpretation of the science, cutting the emissions by another half would likely have proportionate benefits. So, for example, cutting pollution by three-quarters rather than a half would add another half year to the life of the average thirty-year-old. The technologies needed to do so already exist. (All of these assertions are based upon the Obama administration’s conclusion that cutting pollution will have proportional benefits down to low levels of pollution, and the Bush II administration also reached a similar conclusion.)15 Nonetheless, the agency still says the Clean Air Act will cut pollution by a half, rather than three-quarters.
In sum, the EPA can count the extra lives that it could save, but can’t under the current Clean Air Act. The reason is that to take advantage of something-for-nothing trickery, Congress has built two false assumptions into the statute and left them there.
False Assumption 1: “All air pollutants have safe levels.” Congress in 1970 instructed the EPA to reduce pollution below the level at which it harms health. This instruction is based upon the assumption that for each pollutant, there is a level above zero at which it does no harm to human health. Yet, in 1970, Senator Muskie believed that assumption to be false. As he later stated, “Our public health scientists and doctors have told us that . . . air pollution [at any level] is harmful,” adding that the Clean Air Act is based on the assumption that there is a threshold below which pollution does no harm, “although we knew at the time it was inaccurate.”16
This assumption was a politically convenient lie. It enabled legislators to instruct the EPA to set mandatory air-quality goals at “safe levels” and achieve those goals regardless of the cost. While this instruction led them to claim they had made the “hard choices” needed to protect health, this was gibberish. The only safe level for many pollutants is zero, or so close to zero that achieving it would cost so much that even eco-ardent legislators would freak out.17
This assumption is still in the statute. To avoid imposing politically impossible costs, the EPA under every presidential administration claims to comply with the statute, but each continues to violate it by setting the goals at