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When I finished reading David Schoenbrod’s Saving our Environment from Washington: How Congress Grabs Power, Shirks Responsibility, and Shortchanges the People (Yale University Press 2005), I sat quietly for a moment trying to decide whether I should feel optimistic or pessimistic about our environmental future. Schoenbrod’s book addresses the question of whether our country’s method for dealing with the environment is effective. From seeing the environment’s effects on the urban poor while working at Bedford-Stuyvesant Restoration in Brooklyn, N.Y., to suing the Environmental Protection Agency (EPA) administrator on behalf of the Natural Resources Defense Council for violating the Clean Air Act, his experiences as an environmental advocate over the past 35 years greatly inform his writing and arguments. The book’s main premise is that Congress and President Richard M. Nixon created the EPA to shield themselves from criticism over environmental failures. Schoenbrod argues that the EPA has failed to work as promised. The problem, he says, was not the EPA itself but the false premises upon which it was built. One false premise was that environmental laws had to be imposed from some entity insulated from the political foibles of legislative politics and local government. Schoenbrod argues that these supposedly flawed institutions-specifically Congress and state and local legislatures-were the ones that actually made the hard choices that produced the most dramatic reductions in environmental harms such as air pollution and acid rain. In contrast, the EPA failed to react promptly to many threats because, when faced with controversy, as Schoenbrod laments, the EPA “often curls up like a frightened caterpillar.” Another false premise was that the EPA would base its regulations on science. As Schoenbrod demonstrates through his exposition of the lead-in- gasoline controversy, “science” is full of uncertainties because data can be “slanted” in favor of industry interests. Yet because the EPA’s legitimacy is premised on its speaking in the name of science, it carries on a very dangerous “science charade,” he says, in which it covers its political tracks by exaggerating the supposed certainty of science. The case for the EPA’s failure may be a bit overstated. One could argue that when the EPA was created in 1970, the nation was faced with major environmental problems and that, since its creation, our air is cleaner, our water is purer and our land is better protected. Even with my reservations, I found Schoenbrod’s book to be a truly motivating force for change. He proposes that our elected representatives follow two central principals: that government should be as close to home as possible; and that laws should be made by elected legislators rather than agencies. Specifically, he proposes that Congress leave pollution control to state governments unless the states would inflict significant harm on outsiders. State governments should similarly leave most pollution-control legislation to local governments unless the latter lack institutional competence. Finally, the federal government could participate in international solutions to international pollution problems. Schoenbrod proposes that legislators at every level should take responsibility for the environmental benefits they promise and the costs they impose by making the laws themselves. “For example,” he writes, “when Congress decides that a federal law is needed, the federal legislators should enact it themselves, rather than assigning that task to the officials of a federal administrative agency or a lower level of government.” Limiting role of EPA Under this proposal, the EPA would be limited to gathering information on pollution, its effects and options for its control; making this information public; proposing laws to Congress on pollution problems appropriate to federal control, along with assessments of their advantages and disadvantages; and enforcing the laws made by Congress. Local agencies would then consider the EPA’s information along with their own; provide their legislatures with proposed laws and assessments of their advantages and disadvantages; and enforce their laws. The result, he says, would be a revolutionary change in how we make environmental law, both in transferring power back to local governments and in pinning responsibility for the laws on the “lawmakers” who are accountable at the polls. Schoenbrod admits that his reforms face an uphill battle because the current system suits the best-organized interests in Washington by minimizing responsibility for legislators in Congress. He explains that if we want to change the entrenched system, what we need is a significant number of voters to come to believe that action is needed. Yet even with a shift in public opinion, a significant change in environmental law requires overcoming the inertia built into our legislative process, he says. He argues that what broke the logjam in 1970 was Earth Day and a competition for the environmental mantle among presidential aspirants. He proposes that a Democratic president who would come out for reform could be another logjam breaker. In the end, what are we left with? Schoenbrod’s overall proposal makes a great deal of sense because it forces our elected officials at all levels of government to take responsibility for the laws they pass. The problem is that there’s no predicting whether a logjam breaker is going to come along before it is too late. But knowing that people like Schoenbrod will continue to push for change, I am more optimistic now than before I read this book. Scott J. Slavick is an associate at Chicago’s Brinks Hofer Gilson & Lione, where he practices trademark, copyright, trade secret and unfair competition law.

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