Of fables and federalism: a re-examination of the historical rationale for federal environmental regulation.

• Author: Andresen, William L.
• Position: III. An Examination of the Claims for State Regulatory Success Prior to 1970 through VI. Conclusion, with footnotes, p. 660- 679

1. The Claims

   In 2001, Professor Richard Revesz published a controversial article that attempted to refute the conventional view that the primary engine of environmental regulation ought to be at the federal level due to a number of public choice pathologies that encumber effective regulation at the state level. (297) In doing so, he took issue with the claim that the states had been ineffective environmental regulators prior to the environmental decade of the 1970s. (298) His argument cited three studies dealing with air pollution, which he claimed suggested that the "states [had] responded vigorously to those air pollution problems that were understood at the time." (299) In 2005, Professor Jonathan Adler cited the same three studies as "evidence of significant environmental improvement prior to the adoption of federal environmental regulation." (300) He then went further and suggested that the record provides "ample reason to question the assumption that lessening federal environmental regulatory authority necessarily results in lessened environmental protection." (301)

   Robert Crandall of the Brookings Institution authored the earliest study upon which both Revesz and Adler relied. (302) Crandall used EPA monitoring data that had been reported by the Conservation Foundation in 1982. (303) The data was drawn from ninety-five monitoring sites for total suspended particulate matter (304) between 1960 and 1971 and from thirty-two sites for sulfur dioxide concentrations from 1964 to 1971. According to this data, the average concentration of particulate matter fell 2.3% per year in the 1960s, and sulfur dioxide concentrations fell at an annual rate of 11.3% from 1964 to 1971. (305) While Crandall admitted that the data was "fragmentary" and not very reliable, (306) he nevertheless declared that they revealed an "interesting trend" (307) that suggested "[a] system of state air pollution policies could have been equally or more effective" than a federal program. (308)

   In 1990, Paul Portney of Resources for the Future picked up on the same EPA data. (309) Despite his cautions that one "must be leery of trends based on such a small number of sites," he declared that the data was "important" since it indicated that, rather than deteriorating, air quality was actually improving before the 1970 Amendments were enacted. (310) The data, according to Portney, called into question the notion "that states and local governments would never impose the controls necessary to achieve healthful air." (311) While acknowledging that it was "arguable whether local governments acting alone" could actually have made progress after 1970, he urged that the "accomplishments" of state and local authorities "prior to 1970 should not be ignored." (312)

   Finally, Indur Goklany, currently a policy analyst with the U.S. Department of the Interior, published a book in 1999 that largely focused on pre-1970 air pollution trends. (313) With respect to particulates and sulfur dioxide, he reported, in part, on the same data that Portney and Crandall used. (314) Goklany, however, added more data to the mix. This data was apparently generated by the Mitre Corporation from raw EPA monitoring data and was reported by the Council on Environmental Quality (CEQ) in 1971. (315) The data for particulates included one set for sixty urban sites from 1957 to 1970 and twenty rural sites from 1958 to 1970. According to this data, particulate emissions fell from 121 [micro]g/[m.sup.3] to 102 [micro]g/[m.sup.3] in the urban areas, and rose from 23 [micro]g/[m.sup.3] to 37 [micro]g/[m.sup.3] in the rural areas. (316) To counter the rural data, Goklany also mentioned the existence of EPA data from eighteen non-urban monitoring stations for the period of 1960 to 1971 that revealed no overall trend because a decline early in the period was offset by an increase from 1968 to 1971 that "may have been attributable to decreased rainfall." (317) He also mentioned sulfur dioxide data that was found in the 1971 CEQ report. Based on that data from twenty-one urban monitoring stations, Goklany reported that the mean annual concentration had dropped about 40%, from 69.4 [micro]g/[m.sup.3] in 1962 to 42.5 [micro]g/[m.sup.3] in 1969. (318) All of this empirical data demonstrated, according to Goklany, that there had been "broad improvements in air quality before federalization" and that the improvements in total suspended particulates and sulfur dioxide "were especially noticeable in urban... areas." (319)

   Goklany appears to have recognized that there may be some problems with this data. He stated, for instance, that monitoring stations are not always representative of broader conditions and that meteorological conditions, such as variable rainfall from year to year, can cast doubt on trend analyses. (320) He also discussed a number of economic and technological developments, such as the switch from coal to natural gas by many urban homeowners and the switch from coal to diesel fuel by the nation's railroads, as important factors in reducing smoke concentrations in many American cities. (321) Nevertheless, he declared that state and local regulations were responsible for improving urban sulfur dioxide levels in the 1960s, (322) and partially responsible for improvements in urban particulate levels in the 1950s and 1960s. (323) The impact of state and local regulation, combined with the rapid growth in the number of state and local air programs during the 1960s, indicate, according to Goklany, that "the race-to-the-bottom rationale is intrinsically flawed." (324) Thus, any "devolution of air pollution control to the states [would be] unlikely to result in rollback of the air quality improvements of the past few decades." (325)

2. A Closer Look at the Air Quality Data upon Which the Claims Are Based

   The data that all these commentators rely on provides no support upon which to draw broad conclusions about the effectiveness of state and local regulation or to spin theories about the likely consequences of devolving significant regulatory authority to the states.

   The original source of the data that was primarily relied upon by all of these commentators (326) appears to have been an EPA air quality trends report that was published in 1973. (327) According to the report, the composite average of total suspended particulate matter decreased from approximately 110 [micro]g/[m.sup.3] in 1960 to 85 [micro]g/[m.sup.3] in 1971, a drop of about 20%, at a group of ninety-five urban monitoring stations. (328) For sulfur dioxide, the drop in the composite average at thirty-two urban monitoring stations was over 50%, from 55 [micro]g/[m.sup.3] in 1964 to approximately 25 [micro]g/[m.sup.3] in 1971. (329) The non-urban particulate trends were drawn from eighteen monitoring sites between 1960 and 1971 and revealed no significant change. (330) All of the data came from EPA's National Air Surveillance Network (NASN) sites. (331)

   The urban NASN sites were located in central business districts at locations that were as comparable as possible to sites in other cities. (332) No more than one site was located in any city, (333) a fact that casts significant doubt on the representative nature of the data. As the CEQ noted in its report on NASN data, "differences in site location will result in major differences in reported concentrations." (334) In fact, many readings from non-NASN sites, often downwind from major polluters, were "higher by an order of magnitude" than downtown NASN data, "especially for gaseous pollutants" such as sulfur dioxide. (335) Therefore, as EPA stressed, "it should not be assumed that the selected site was representative of the urban area as a whole," (336) especially for the worst-case scenarios found in "heavily industrialized portions of many cities." (337) The non-urban monitoring stations, eighteen in total across the entire nation, were generally located in parks, (338) and thus do not appear to be representative of either rural or suburban areas with pollution problems. Data, moreover, was often missing. The EPA report chose to analyze a subset of ninety-five monitoring stations for particulates because they were the only stations that had at least one data point in each three-year period spanning the twelve-year scope of the overall project. (339) Consequently, the particulate data may not reflect substantial spikes or declines that may have occurred in those years in which the data is missing. The sampling protocols, moreover, were not especially rigorous in those early days. The NASN stations operated on only twenty-six randomly selected days per year. (340) In the early 1970s, EPA increased the minimum frequency of sampling for particulates and sulfur dioxide to once every six days, for a total of sixty days per year. (341)

   The validity of this data, therefore, is highly suspect. The number of sampling locations was extremely small; they were not necessarily representative of either urban or non-urban areas; the data was often incomplete; the periods of time analyzed were not extensive; and the sampling methodology at the time was crude compared to modern monitoring standards. (342) EPA admitted as much when it wrote "that the difficulties in generating valid trend analyses at this time are due ... to the incompleteness and uncertainties that pervade the available data base." (343) An additional problem affecting the reliability of this data was the possible impact of weather, especially precipitation, upon the readings taken at the monitoring stations. EPA explained in its 1973 report that rainfall can remove pollutants from the air by processes such as absorption, coagulation, and washout. (344) In addition, the agency noted that dry conditions can increase particulate concentrations, a problem especially in arid areas of the American West. (345) The report, moreover, pointed to lower rainfall levels in certain places, namely in portions of the West and...