Regulations from the Executive in Need of Scrutiny Act

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Chairman Coble, Ranking Member Cohen, Members of the Subcommittee, thank you for inviting me to testify today.

As you know I now am a professor at New York Law School and a visiting scholar at the American Enterprise Institute. Previously, through most of the 1970s, I was one of the principal attorneys at the Natural Resources Defense Council. In that capacity, I headed the campaign of environmental and anti-poverty organizations to protect children from lead in gasoline.

Lead in gasoline: a tragedy illustrating the need for Congress to take responsibility

Congress passed the Clean Air Act in 1970 because the public demanded protection. The pollution that worried voters most came from lead in gasoline. Lead was known to poison children. The bumper stickers read: "GET THE LEAD OUT."

In the 1970 legislation, Congress did take responsibility for a rule that would eventually reduce lead exposure, but the reason was not to protect children. The act authorized the EPA to require that new cars made from 1975 onward use only lead-free gas. The reason was that Congress had decided that auto manufacturers must, from 1975 onwards, include pollution-controlling devices in their cars. The device of choice, the catalytic converter, cut many pollutants, but not lead--in fact, lead would ruin it. For Congress to require motorists to pay for the device and then let it be ruined by leaded gas would look foolish.

Legislators could not tell voters in 1970 that this rule to protect pollution control devices and their own reputations was sufficient to protect children from lead. Children would still be exposed to lead from gasoline for many years after 1970. The rule did not even take effect until the 1975 cars became available. Even then, pre-1975 cars would still use leaded gas and in 1975, there would be roughly 100 million such cars using leaded gas. Many of them would remain on the road emitting lead well into the 1980s.

So Congress in 1970 had to do more to satisfy the demand to protect children from lead. But lawmakers could not simply ban leaded gasoline forthwith; voters also wanted cheap gasoline, and adding lead reduces slightly the cost of refining it. Congress was caught between voters' demand to protect children and voters' desire to keep gas cheap.

When Congress is faced with a controversial choice, it often follows a two-step plan. It (1) announces a lofty goal, but (2) orders an agency to achieve the goal, thus letting the agency take the heat for failing to achieve it or the painful steps necessary to do so. Congress danced this two-step with lead. It (1) announced that a health-based air quality standard for lead must be achieved by May 1976 and (2) ordered EPA to establish the rules to achieve that standard by the deadline.

After passing the statute, diverse members of Congress--Democrats and Republicans, liberals and conservatives--lobbied the EPA, often on the quiet, to do nothing about the leaded gasoline used by the pre-1975 cars. Other members complained about the failure to protect health. As often happens when an agency is caught in such a cross fire, the EPA went into a stall.

In late 1972, my colleagues and I at the Natural Resources Defense Council won a decision against the EPA that prompted it, at last, to issue a rule to reduce the amount of lead in gasoline used in the pre-1975 cars. This victory was followed by many others. Yet, those legal victories did not translate into any reductions in lead for many years. In fact, the amount of lead used in gasoline increased slightly from 1970 to 1975. Meanwhile, the May 1976 deadline to protect health was approaching.

When Jimmy Carter won the presidential election in 1976, I hoped that his tough campaign talk on the environment would translate into tough action on lead. But, to the contrary, President Carter eventually ordered the EPA to weaken the already weak lead reduction schedule adopted by his Republican predecessors.

Fortunately, lead in gasoline began to decline in the late 1970s, mostly because the pre-1975 cars were being replaced by new cars that could use only unleaded gasoline rather than anything the EPA was doing to protect health. By 1985, so many of the old cars had gone to the junkyard that the large oil companies found it unprofitable to continue distributing leaded gasoline in addition to the unleaded variety. But they did not want to drop leaded gas on their own, for fear of losing market share to small refiners who would still sell it. So Big Oil asked Ronald Reagan's EPA to ban lead additives to gasoline on the grounds that it is dangerous to health, and the agency complied. The EPA finally got tough on lead, but only after powerhouse corporations, protecting their bottom lines, got involved.

If Congress in 1970 had not given the EPA the responsibility to make the hard choices on protecting health from lead, Congress would still have had to do something in response to the popular demand to protect the children. Congress would have had to enact a rule cutting lead in gasoline, but that rule would have been a compromise, getting rid of more than half of the lead over the next several years with further reductions to come. After all, in the same statute, Congress had required the powerful auto industry to reduce emissions 90 per cent by 1975.

The reason that Congress did not enact a rule to cut lead in 1970 is that legislators would have been criticized on two fronts: by voters who wanted all the lead out right away and other voters upset by a small rise in gas prices. So, instead of enacting such a law, which would been good for the American people, legislators enacted a statute avoiding responsibility that was perfect for themselves.

The upshot is that lead came out of gasoline much more slowly than if Congress had made the hard choice itself. As a result, massive numbers of children, especially inner-city children, died and or had their IQs reduced below 70. Using EPA data on the health effects of lead in gasoline, I estimate the scale of the disaster in a book published by Yale University Press.1 Suffice it to say that the body count from Congress's evading responsibility was on the scale of American casualties in the War in Vietnam.

The lead in gasoline is far from the only instance to suggest that the people fare better when the elected lawmakers take responsibility. The most striking advances under the Clean Air Act have come when Congress did take responsibility. For example, Congress in 1970 took responsibility for requiring auto manufacturers to cut emissions from new autos by 90 percent. Then, in 1990, Congress took responsibility for requiring power plants to cut sulfur emissions by 50 percent and for phasing out completely stratospheric ozone destroying chemicals. In contrast, where Congress left responsibility for the hard choices to the EPA, as it did with hazardous air pollutants in 1970, the agency was unable to deal with the great bulk of them for 20 years until Congress acted in 1990. Yet, Congress often evades responsibility in legislating on the environment. As EPA's first general counsel, John Quarles, put it, the statutes provide "a handy set of mirrors--so useful in Washington--by which a politician can appear to kiss both sides of the apple."

Opponents of REINS claim that the bill is biased against health, safety, and other sorts of regulatory protection. Weirdly, they name the elimination of lead from gasoline as an example of the kind of protection that REINS would block. The environmental experience falsifies such scare tactics. Indeed, as this experience shows, less responsibility for agencies and more responsibility for Congress can well translate into more protection for the beneficiaries of regulation.

Furthermore, because REINS would ensure that the big, hard choices would come back to Congress, REINS gives legislators an incentive to come up with a compromise in the first place rather than instruct an agency to produce the best of everything for everyone. . .

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David Schoenbrod is a visiting scholar at AEI.


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