THE ENVIRONMENTAL SOURCE

SECOND EDITION

EDITED BY ANGELA LOGOMASINI, PH.D.

COMPETITIVE ENTERPRISE INSTITUTE The Environmental Source 2008

Edited by Angela Logomasini, Ph.D.

Competitive Enterprise Institute Competitive Enterprise Institute 1001 Connecticut Avenue, NW, #1250 Washington, D.C. 20036 Ph: (202) 331-1010 Fax: (202) 331-0640 http://cei.org

Copyright © 2008 by Competitive Enterprise Institute Table of Contents

General Topics A Vision for Environmental Policy 3 Environmental Trends 7

Agricultural Biotechnology Agricultural Biotechnology Overview 17 Agricultural Biotechnology Regulation 23

Chemical Risk Chemical Risk Overview 37 Cancer Trends 43 The True Causes of Cancer 51 Endocrine Disrupters 57 Methylmercury Science 65

Clean Air Act Clean Air Act Overview 75 The Clean Air Act and High Gasoline Prices 79 Mercury and Regulation 83 Energy Automobile Fuel Economy Standards 91 Accessing Energy Resources on Public Lands 97

Global Warming An Issue of Science and Economics 107

International Policy International Policy Overview 123 Population 125 The Convention on Persistent Organic 129 REACH: The EU’s Chemical Policy 135 The Strategic Approach to International Chemicals Management 141 International Fisheries 147

Lands and Wildlife Measuring the Scope of Federal Land Ownership 155

Pesticide Regulation Regulation Overview 165 Food Quality Protection Act 169 and Agriculture 175 Pesticides and Public Health 181 Pesticides in Schools 187

Safe Drinking Water Act Safe Drinking Water Act Overview 195 Arsenic 201 Chlorine and Disinfection Byproducts Rule 207 Radon 211 Rural Drinking Water 215 Lead in Drinking Water 219

Solid and Solid and Hazardous Waste Overview 225 Superfund 227 Brownfields 233 Interstate Waste Commerce 239 Toxics Release Inventory 243 Solid 251 257 General Topics

A Vision for Environmental Policy

Fred L. Smith

As America begins to address the problems nessee Valley Authority, the Bonneville Power of the 21st century, few issues loom as large Administration, subsidized grazing and for- or as contentious as environmental policy. estry, or unsustainable western water policies, The debate, however, is not new: it builds on government programs emphasized expanded policy debates on the environment that evolved supply—regardless of costs to the environment throughout the 20th century. and to society. During that century, two different policy Partly as a reaction to these problems, pre- attitudes dominated. In the first half, the focus cautionary policies dominated the second half was on promotional policies. The role of gov- of the century. These policies tended to focus ernment, it was argued, was to “assist” in the on preserving and conserving everything and rapid development of resources—forests, miner- to emphasize the value of the status quo over als, energy, and water. Government would either change. That emphasis led to the enactment of own or regulate these “national” resources, and the Endangered Species Act and to the establish- taxpayers would subsidize their development. ment of wilderness areas, nonattainment poli- The results of these interventionist policies cies, smart growth, and other antidevelopment were detrimental to the environment. Lawmak- programs, as well as to a general disregard for ers tended to neglect both the risks and the the impact of such programs on local economic costs of such development. Whether the Ten- conditions.

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America is ready for an integrative environ- inflexible. Under the new regime, some states— mental vision. In The Environmental Source, most notably Wisconsin and Michigan—ex- the Competitive Enterprise Institute outlines plored a variety of welfare alternatives. Some steps that would advance that vision. The mag- of these initiatives worked well, encouraging nitude of this reform, however, cannot be un- further reform, and eventually resulted in the derestimated: thoughtful analyses and effective bipartisan federal welfare reform bill enacted communications strategies will be essential. in 1996. Many policy proposals have focused on ele- Environmental policy is at an earlier stage. ments such as cost-benefit analyses, sound sci- To date, little public attention has been paid ence, and risk assessment. To the American pub- to creative private efforts to improve envi- lic, however, these approaches often seem cold ronmental conditions or to the responsibility and uncaring. Reformers are asked, “How can of the federal government itself for harmful you put a price tag on the environment? Don’t conditions. you care about the children?” Technocratic Environmental policymakers must recog- answers to these concerns cause policymakers nize the importance of these private efforts. to appear out of touch and, on occasion, even For instance, they could allow extended leases heartless. or outright ownership of offshore reefs or cre- Yet there is a morally defensible, principled ate private fishing rights in rivers, while also vision—one that appeals to American values providing incentives, rather than penalties, for without sacrificing free-market principles or promoting environmental conservation. Ac- environmental ideals. Taking the environment tions such as these would empower individu- seriously means also taking private property als to play a positive role in environmental and other market institutions seriously. protection.

The Welfare Reform Model A Balanced Approach to Environmental Risk In crafting an environmental reform pro- gram, we should look to areas where positive Another aspect of the environmental ques- change already has been undertaken. Welfare tion is how to manage risk. Again, we must reform, for example, resulted from extensive move beyond the biases that have characterized research as well as from a series of measures the promotional and the precautionary ap- that encouraged state flexibility. proaches of the 20th century. The institutional Author Marvin Olasky played a key role framework for making decisions about proj- in changing perceptions of these issues. He ar- ects and technologies that should go ahead or gued that while there might be a role for federal be delayed or blocked must be established by welfare programs, the primary hope for people those who face the risks of innovation and of dependent on them rested in the revitalization stagnation. of America’s decentralized system of state and Precautionary regulations now dominate voluntary institutions. the rate and direction of technological change Like today’s environmental policy, federal in many areas—biotechnology, environmental welfare programs were highly centralized and cleanup, power technology, pest control—and

4 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Introduction have focused exclusively on the risks that change Many of these victims are children. Those might pose to some environmental value. They who have demonized the use of pesticides— have placed little emphasis on the risks posed DDT (dichloro-diphenyl-trichloroethane) in by the failure to innovate. Such risks (while un- particular—have exacerbated the plight of seen) may be far more significant economically these victims.4 and environmentally. Current pollution policy tends to rely on Principles for Successful centralized bureaucracies mandating a zero-risk Environmental Policy world. Ignoring the impossibility of their goal, proponents of this approach view a zero-risk This book contains a number of recom- world as one with zero technology, zero indus- mendations to guide America’s environmental try, and zero human-made chemicals. The result policy. The recommendations are based on the is an antitechnology bias, whereby groups and following principles: agencies seek to deny the use of new products until they can be proven safe. They call this po- • Economic growth is key to environmental sition the precautionary principle.1 Because no protection. Wealthier nations have greater one can prove a negative, the principle slows resources to protect the environment and, adoption of new technology. thus, are better able to achieve the level of For example, some environmental activists environmental protection desired by all. By want to eliminate risks to children by regulat- contrast, poor nations lack resources and ing pesticides, but they neglect the far greater must struggle to meet basic needs. risks posed by the pests themselves. A report by • Environmental risks must be examined in a the Institute of Medicine warns that pesticide balanced, risk-risk institutional framework. regulation is making it harder to control vector- Many activities—operating a factory, trans- borne disease risks that now appear to be on porting materials, using technology—carry the rise.2 environmental risks with them, but delay- These attitudes can have fatal results for ing, blocking, or eliminating such activities people in the developing world. Annually, also carries environmental risks. at least 1 million people die and more than • The government should “do no harm” when 500 million people suffer from malaria.3 it comes to the environment. In addition to providing perverse incentives, numerous government programs adversely affect the 1. This definition is one of many interpretations. For environment. For example: excessive gov- more information on the precautionary principle, see Julian Morris, Rethinking Risk and the Precautionary ernment dam projects have harmed wildlife; Principle (London: Butterworth Heinmann, 2000). farm subsidies have promoted overfarming, 2. Institute for Medicine, Emerging Infections: Micro- and mismanagement of public lands has bial Threats to Health in the United States (Washington, contributed to forest fires. DC: National Academies Press, 1992). 3. World Health Organization, “Malaria,” Fact Sheet 4. Richard Tren and Roger Bate, When Politics Kills: No. 94, Geneva: World Health Organization, updated Malaria and the DDT Story (Washington, DC: Competi- May 2007), http://www.who.int/mediacentre/factsheets/ tive Enterprise Institute, December 2000), http://www. fs094/en/index.html. cei.org/pdfs/malaria.pdf.

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• Private property owners are better stewards Conclusion of resources than are public officials. The principle is simple: if an individual owns a Environmental policy in the 20th century resource, he or she has a stake in its man- swung between promotional and precautionary agement and protection, and cares for it approaches. Throughout, policymakers neglected accordingly. Government property lacks the ability of private parties to advance envi- individual stewards and is managed by the ronmental values. As a result, streams, airsheds, dictates of politics, which usually lead to aquifers, and wildlife have suffered far more environmental damage. harm than otherwise would have occurred. • Private property owners should be com- Elements of a private environmental protec- pensated for regulatory takings. Private tion system already exist, helping empower people property is the essential element for conser- to play a direct role in environmental conserva- vation and the key to the American dream. tion. The challenge, as in welfare reform, is less Federal, state, and even local bureaucracies to proscribe than to empower. It is not to decide threaten that dream by restricting private the optimal, but to encourage exploration and in- management. At a bare minimum, govern- novation and to unleash the creative energies of ment agencies should compensate land- the American people toward solving our environ- owners when regulations reduce property mental problems. We believe the policies outlined values. in this book will move us closer to that ideal.

6 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Environmental Trends

Jennifer Zambone (with updates by Angela Logomasini)

For the past 30 years, prognosticators have • In 1900, the average life expectancy in the predicted an imminent environmental apoca- United States was 50 years.1 Now it is 77.9 lypse. Comparing actual events to the predic- years.2 tions reveals a different picture. • Cancer mortality has declined sharply since 1990 because of a precipitous decline in Human Life Span lung cancer. Mortality caused by all forms of cancer besides lung cancer has declined The prognosticators often suggest that mod- since 1950.3 ern human-made chemicals undermine public health. Yet as chemical use has increased, the 1. Steven Moore and Julian L. Simon, It’s Getting Better lives of humans have lengthened: All the Time (Washington, DC: Cato Institute, 2000), 26. 2. Arialdi M. Miniño, Melonie Heron, and Betty L. Smith, “Deaths: Preliminary Data for 2004,” Health E-Stats, Na- tional Center for Health Statistics, Hyattsville, MD, April 19, 2006, http://www.cdc.gov/nchs/products/pubs/pubd/ This brief provides only a sampling of key environmen- hestats/prelimdeaths04/preliminarydeaths04.htm#fig1. tal trends. For additional information, see the other 3. Brad Rodu and Philip Cole, “The Fifty-Year Decline topical briefs in The Environmental Source, particularly of Cancer in America,” Journal of Clinical Oncology 19, the sections on air, water, drinking water, population, no. 1 (2001): 239–41. See also the brief on cancer trends, pesticides and agriculture, and chemical risk. also in The Environmental Source.

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Land ers, have created a worldwide boom in food production:8 Today some complain that we are carelessly destroying our habitat by destroying natural • The United States feeds three times the num- resources at ever-increasing rates. The data in- ber of people that it fed in 1900, but it uses dicate otherwise: 33 percent less farmland to do so.9 • Worldwide, the amount of food produced • In the early part of the 20th century, peo- per acre has doubled in the past 50 years. ple cut down twice as many trees as they Even though global population increased by planted. Today the United States grows 36 250 percent in those years, the amount of percent more trees than it harvests.4 cropland increased by only 90 percent.10 • Some researchers estimate that there are • Enough food exists to distribute more than more trees in North America now than four pounds to each person on Earth every when Columbus arrived in 1492.5 day.11 • Part of the reason for this surge in forest • Fewer people died from famine in the 20th growth is decreased dependence on wood century than they did in the 19th century, for fuel and construction. Per capita, Ameri- even though the world population was four cans now consume half the wood they con- times greater at the close of the 20th century sumed in 1900.6 than at its beginning.12 • In the six forest inventories taken between 1950 and the present, net forest growth in Wildlife the United States, the world’s number one timber producer, always exceeded harvests.7 Making land more productive through modern agricultural practices has freed more Food Production land for wildlife uses:13

Changes in agriculture, such as improved • The number of documented animal extinc- plants and the use of pesticides and fertiliz- tions has declined since 1930.14

8. Dennis Avery, “Saving the Planet with Pesticides,” in True State of the Planet, ed. Ronald Bailey (New York: 4. Roger A. Sedjo and Marion Clawson, “Global For- Free Press, 1995), 50–82. ests Revisited,” in The State of Humanity, ed. Julian Si- 9. Moore and Simon, It’s Getting Better All the Time, mon (Cambridge, MA: Blackwell, 1995), 328–45. 94. 5. Ibid. 10. Ibid., 196. 6. Lynn Scarlett, “Doing More with Less: Dematerial- 11. Ibid. ization—Unsung Environmental Triumph?” in Earth Re- port 2000, ed. Ronald Bailey (New York: McGraw-Hill, 12. Ibid., 8. 2000), 42. 13. Avery, “Saving the Planet with Pesticides,” 71–73. 7. Roger A. Sedjo, “Forests: Conflicting Signals,” in 14. Stephen R. Edwards, “Conserving Biodiversity,” in True State of the Planet, ed. Ronald Bailey (New York: True State of the Planet, ed. Ronald Bailey (New York: Free Press, 1995), 177–209. Free Press, 1995), 212.

8 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Environmental Trends

• Three-fourths of all species extinctions have • Sulfur dioxide emissions decreased by 47 occurred on islands. Very few extinctions percent between 1980 and 2006.21 have occurred in continental tropical forest • Particulate matter (size at 10 micrograms habitats.15 per liter) emissions decreased by 38 percent • Seventy-five percent of the land on every between 1980 and 2006.22 continent except Europe is available for • Particulate matter (2.5 micrograms per liter) wildlife.16 emissions decreased by 44 percent between 1990 and 2006.23 Air Quality • Carbon monoxide emissions decreased by 50 percent between 1980 and 2006.24 In the past 20 years, air quality in the United • Lead emissions decreased by 96 percent be- States has undergone impressive improvements: tween 1980 and 2006.25

• Between 1990 and 2002, toxic air emissions These changes can all be attributed to the declined by 35 percent.17 Clean Air Act, right? Not necessarily: as Paul • According to the U.S. Environmental Protec- Portney, president of Resources for the Future tion Agency (EPA), between 1970 and 2006, notes, it is “extremely difficult to isolate the gross domestic product increased by 203 effects of regulatory policies on air quality, as percent, vehicle miles traveled increased by distinct from the effects of other potentially im- 177 percent, energy consumption increased portant factors, because some measures of air by 49 percent, and the U.S. population grew quality were improving at an impressive rate by 46 percent. During the same time period, before 1970.”26 Indur Goklany, an analyst at total emissions of the six principal air pol- the U.S. Department of the Interior, expands on lutants dropped by 54 percent.18 this point in Clearing the Air. Through analy- • Nitrogen dioxide emissions decreased by 41 sis of emissions per capita per unit of the gross percent between 1980 and 2006.19 national product (GNP), Goklany reveals that • Volatile organic compound emissions de- the cleanup of the air began well before the pas- creased by 51 percent between 1980 and sage of the Clean Air Act. In fact, Goklany esti- 2006.20 mates that about 70 percent of the reduction of emissions per unit of GNP occurred before the federalization of clean air. Economic growth 15. Ibid., 218. and new technologies, as well as state and local 16. Ibid., 223. 17. U.S. Environmental Protection Agency, “Air Emis- 21. Ibid. sions Trends—Progress Continues in 2006,” Washington, DC, EPA, http://www.epa.gov/airtrends/econ-emissions. 22. Ibid. html. 23. Ibid. 18. Ibid. 24. Ibid. 19. U.S. Environmental Protection Agency, “Air Trends: 25. Ibid. Basic Information,” Washington, DC, EPA, http://www. 26. Paul R. Portney, “Air Pollution Regulation,” in Public epa.gov/airtrends/sixpoll.html. Policies for Environmental Protection, ed. Paul R. Portney, 20. Ibid. (Washington, DC: Resources for the Future, 1990), 40.

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laws, brought about this reduction in pollution, also has complained about the deficient data which likely would have continued even if the and practices.31 federal government hadn’t intervened.27 In the past 30 years, the United States has spent almost $600 billion on improving water quality, so it would be surprising if water quality hadn’t improved in those decades,32 especially The EPA’s National Water Quality Inven- as industrial has decreased con- tory (NWQI) provides the best available data siderably since 1980. The discharge of toxic or- for water quality. According to the EPA report, ganics and metal plummeted by 99 percent and 46 percent of the lakes and ponds sampled, 47 98 percent, respectively, and the discharge of percent of the estuaries and 55 percent of the organic wastes fell by 46 percent.33 Just as the streams and rivers are clean enough for any lack of overall data quality hamstrings a true use.28 However, there are severe problems with assessment of water quality, it also obscures the these data. Unlike air quality data in the United evaluation of water pollution remedies. States, water quality data lack “consistent measurement standards to enable evaluation Drinking Water of progress over time.”29 The number of water bodies assessed—indeed, the estimated number The quality of U.S. drinking water has im- of water bodies—in a state varies widely from proved dramatically since the beginning of the year to year. The EPA itself admits that the 20th century, thanks to technology developed by data collected under its own NWQI “cannot the private sector and implemented by private be used to determine trends in national water utilities and local governments. By the time the quality or to compare water quality among the federal government began to regulate drinking individual states.”30 The U.S. Geological Survey water, the private sector and local governments had largely addressed the most serious water problems. The development of chlorination to disinfect water has particularly transformed 27. Indur M. Goklany, Clearing the Air: The Real Story water quality: of the War on (Washington, DC: Cato In- stitute, 1999), 133–39. Goklany does give some credit • As one researcher notes, “disinfection ranks to federal law for the amount and pace of the pollution with the discovery of antibiotics as one of reduction occurring after 1970. the major public health accomplishments of 28. U.S. Environmental Protection Agency, “Water the 20th century. In terms of risk, chlorina- Quality Conditions in the United States: A Profile from the 1998 National Water Quality Inventory,” EPA8- 41-F-00-006, Washington, DC, EPA, June 2006, http:// www.epa.gov/305b/98report/98summary.pdf. 29. Laura Steadman, “Water Quality,” in Index of Lead- 31. Ibid. ing Environmental Indicators 2000, ed. Steven Hayward, 32. Ibid., 31. Elizabeth Fowler, and Laura Steadman (San Francisco: 33. Steven Hayward, Erin Schiller, and Elizabeth Fowler, Pacific Research Institute for Public Policy, April 2000), eds., 1999 Index of Leading Environmental Indicators 29, http://www.pacificresearch.org. (San Francisco: Pacific Research Institute for Public Pol- 30. Ibid. icy, April 1999), 28–29, http://www.pacificresearch.org.

10 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Environmental Trends

tion has allowed people to live long enough • Recent evaluations demonstrate that proven to worry about cancer.”34 reserves of natural gas and oil are larger • Since the 1880s, when local engineers and than they were 30 years ago.37 industry introduced chlorination, deaths • Since 1929, it has taken 1 percent less en- in the United States related to waterborne ergy each year to produce the same amount causes dropped from 75 to 100 per 100,000 of goods and services. By 1989, the amount people to less than 0.1 deaths per 100,000 of energy needed to produce $1 of GNP was annually by 1950.35 50 percent less than the amount of energy • In 1900, 25,000 people in the United States needed 60 years earlier.38 died from typhoid and cholera. Because of water disinfection programs, typhoid killed Population only 20 people in 1960. Today typhoid deaths in the United States are practically Since 1798, when the Reverend Thomas nonexistent.36 Malthus wrote An Essay on the Principle of • The inability of developing nations to af- Population, if not before, doomsayers have pre- ford basic sanitation and disinfection means dicted that the sheer number of people in the that the quality of drinking water remains world would destroy the Earth. Not only have a serious environmental and public health these dire predictions failed to acknowledge concern in many areas. Such realities show the positive contributions that human capital that development and subsequent wealth has made to our lives, but they also have been creation are critical to achieving environ- proven wrong time and time again. And as hu- mental goals and public health. mans provide for themselves, trends in popula- tion growth are beginning to level off: Energy • The world population growth rate has Improved exploration and extraction tech- dropped to 1.3 percent a year from its peak niques have increased the size of fossil fuel re- of 2.2 percent in the 1960s.39 serves and lowered the price of energy during • Demographers believe that half of the the 20th century: world’s population lives in countries that

34. I. H. Suffet, “Drinking Water Quality,” in Southern 37. Jerry Taylor and Peter Van Doren, “Soft Energy California Environmental Report Card 2000, ed. Rich- versus Hard Facts: Powering the Twenty-First Century,” ard Berk and Arthur Winer (Los Angeles: University of in Earth Report 2000, ed. Ronald Bailey (New York: California–Los Angeles Institute for the Environment, McGraw-Hill, 2000), 121. 2000), http://www.ioe.ucla.edu/publications/report00/ 38. Ibid., 192; see also, Eugene Gholz and Daryl G. html/drinkingquality.html. Press, Energy Alarmism The Myths That Make Ameri- 35. Michael J. LaNier, “Historical Development of cans Worry about Oil, Policy Analysis no. 589 (Wash- Municipal Water Systems in the United States, 1776 to ington, D.C.: Cato Institute: April 5, 2007), http://www. 1976,” Journal of the American Water Works Associa- cato.org/pubs/pas/pa589.pdf. tion 68, no. 4 (1976): 177 39. Nicholas Eberstadt, “World Population Prospects 36. Jefferson Parish Water Department, Jefferson Parish for the Twenty-First Century: The Specter of ‘Depopula- Annual Water Quality Report (Jefferson, LA: Jefferson tion’?” in Earth Report 2000, ed. Ronald Bailey (New Parish Water Department, 2001. York: McGraw-Hill, 2000), 66.

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have subreplacement fertility levels. Fertility or incentive-based programs, such as Wetland rates also are falling in countries that have Reserve, Waterfowl Management Plan, and above-replacement rates. Total fertility rates Partners for Wildlife, restored 208,000 acres. in Asia and Latin America have declined by Thus, economic incentive programs, and not half since the 1960s.40 regulatory measures, led the way to no net loss of wetlands.44 Wetlands Future Challenges Despite claims that fewer and fewer wet- lands exist, trends are far more positive: Despite these gains, legitimate environmen- tal and human problems exist, particularly in • Status and Trends of Wetlands in the Con- the developing world: terminous United States, 1986 to 1997, a report by the Fish and Wildlife Service of • Air pollution remains a serious issue in the Department of the Interior, estimates countries where the technologies of en- that the annual loss is 58,500 acres, an 80 ergy production lag those of the developed percent reduction compared with loss in the world. Of particular concern is indoor air previous decade.41 pollution. Many people in poor countries • The National Resources Inventory of the still use biomass fuels, such as wood, as the United States Department of Agriculture energy source in houses without adequate found an average annual net loss from all ventilation. Such practices have severe ef- sources of 32,600 acres of wetlands.42 fects on the health of those populations.45 • When the buffered uplands that form part • Unclean drinking water and inadequate of the wetlands ecosystem are taken into ac- sanitation also remain major problems in count, the results are even more heartening: the developing world. Four billion children the United States seems to have achieved no a year contract diarrhea; 2.2 million die. net loss of wetlands.43 Estimates indicate that improved water and In 1995, regulatory programs restored about sanitation would reduce the number of cases 46,000 acres of wetlands. However, voluntary of diarrhea by at least one-fourth.46

40. Ibid. 41. Thomas E. Dahl, Status and Trends of Wetlands in the Conterminous United States 1986 to 1997 (Wash- 44. Ibid., 1–2. ington, DC: U.S. Department of the Interior, Fish and 45. Nigel Bruce, “Indoor Air Pollution: A Neglected Wildlife Service, 2000), 9, http://training.fws.gov/library/ Health Problem for the World’s Poorest Communities,” Pubs9/wetlands86-97_lowres.pdf. Urban Health and Development Bulletin 2, no. 2 (1999): 42. U.S. Department of Agriculture, National Resources 21–29. See also Ksenhya Lvovsky, “Health and the En- Inventory (Washington, DC: National Resources Con- vironment,” Strategy Paper no 1. (Washington, D.C.: servation Service, 2000), 8, http://www.nrcs.usda.gov/ World Bank: October 2001), 5-6. TECHNICAL/NRI/1997/summary_report/. 46. World Health Organization, Global Water Sup- 43. Jonathan Tolman, Swamped: How America Achieved ply and Sanitation Assessment 2000 Report (Geneva: No Net Loss (Washington, DC: Competitive Enterprise WHO and UNICEF, 2000), http://www.who.int/water_ Institute, April 1997), 2. sanitation_health/monitoring/globalassess/en/, 2.

12 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Environmental Trends

• Vector borne disease continues to be an- Recommended Readings other detriment to the health of people in the developing world.47 Malaria alone kills Bailey, Ronald. Global Warming and Other more than 1 million people a year, most of Eco-myths. Roseville, CA: Prima Publish- whom are children. According to the World ing, 2002. Health organization that amounts to a child Hayward, Steven. Index of Leading Environ- dying from malaria 30 seconds.48 mental Indicators 2006: The Nature and Sources of Ecological Progress in the United History demonstrates that answers to these States and the World. Washington, D.C.: problems are to be found not through more inef- American Enterprise Institute, 2006, http:// fective regulatory programs, but through increas- www.aei.org/books/filter.all,bookID.854/ ing human potential. Wealthier is healthier for book_detail.asp people and for the environment. And the fastest Moore, Steven, and Julian L. Simon. It’s Get- way to make a nation wealthy is not by restrict- ting Better All the Time. Washington, DC: ing commerce and trade, but by freeing it. Cato Institute, 2000.

47. Duane J. Gubler, “Resurgent Vector-Borne Diseases as a Global Health Problem,” Emerging Infectious Diseases 4, no. 3 (1998): 442–50, http://www.cdc.gov/ ncidod/eid/vol4no3/gubler.htm. 48. World Health Organization, “Malaria,” Fact Sheet No. 94, Geneva: World Health Organization, updated May 2007), http://www.who.int/mediacentre/factsheets/ fs094/en/index.html.

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Agricultural Biotechnology

Agricultural Biotechnology Overview

Gregory Conko

Every year, millions of people worldwide die food is most needed, so that today’s subsistence from starvation and nutritional deficiencies. Al- farmers can use agriculture for their own eco- though these challenges remain significant, we nomic development and (2) to increase per-acre are making some progress. During the past 50 yields so that the amount of food harvested can years, agricultural technologies have increased rise without having to bring undeveloped land food availability and caloric intake on a per into agricultural production. capita basis in nearly every nation of the world. Technology has transformed agriculture, Much is left to be done, however. Some 740 medicine, and other industries; the record of million people go to bed daily on empty stom- agricultural progress during the past century achs, and nearly 40,000 people—half of them speaks for itself. Those countries that developed children—die every day from hunger or mal- and embraced improved farming technologies nutrition-related causes.1 Two significant and have brought unprecedented prosperity to their interrelated challenges are (a) to increase farm people, made food much more affordable and productivity in less developed countries, where abundant, helped to stabilize farm yields, and reduced the destruction of wild lands.2 But con- 1. Per Pinstrup-Andersen and Rajul Pandya-Lorch, eds., The Unfinished Agenda: Perspectives on Overcoming Hun- 2. Norman Borlaug, “Ending World Hunger: The Prom- ger, Poverty, and Environmental Degradation (Washington, ise of Biotechnology and the Threat of Antiscience Zeal- DC: International Food Policy Research Institute, 2001). otry,” Plant Physiology 124 (October 2000): 487–90.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 17 The Environmental Source tinued technological development—including, chrysogenum mold to produce penicillin or the in many cases, the use of agricultural biotech- addition of natural enzymes to laundry deter- nology—is crucial if we want to further reduce gents. Biotechnology also could describe many starvation and malnutrition and meet the needs traditional types of plant breeding. Recently, of growing populations while also lightening however, the term has come to represent only humankind’s environmental impact. the most advanced recombinant DNA (rDNA) Unfortunately, misperceptions about bio- techniques. In this policy brief, biotechnology technology—known variously as bioengi- has the latter, more specific meaning. neering, gene splicing, genetic modification, Agricultural biotechnology uses advances in and recombinant DNA (deoxyribonucleic genetics and cell biology to move useful traits acid) technology—have led to activist calls from one organism to another. Scientists scan for heavy restrictions or outright bans. In the the genome of various organisms—most often United States, the introduction of new bioen- other plants or microorganisms—to identify gineered crop varieties has slowed in the past individual genes that produce useful traits. The few years because of duplicative and costly genes are then cut out of the host organism’s regulations and because of farmers’ concerns DNA and moved to the genome of a crop plant, that they would be unable to sell harvested thereby transferring the useful trait. A gene from bioengineered crops in major export markets. the harmless soil bacterium Bacillus thuringi- In Europe and parts of Asia, antibiotechnology ensis allows plants to better protect themselves movements are strong and have succeeded in from insect pests.4 Other genes help farmers generating stringent national regulations and more effectively combat weeds, plant diseases, international trade restrictions. While indus- and environmental stresses such as poor soils trial nations are already using forms of innova- and temporary drought.5 Biotechnology also tive agricultural technologies and may be able has been used to improve the nutritional qual- to absorb the costs of such restrictive policies, ity of staple foods like corn and rice by adding people in less developed countries will pay a healthful vitamins and minerals.6 Unfortunately, high price for imprudent regulation because many of these plant varieties remain uncom- many continue to suffer from food shortages mercialized due to excessive regulatory burdens and malnutrition. and politicized approval processes. The scientific literature is filled with hun- What Is Biotechnology? dreds of peer-reviewed studies describing the

The term biotechnology has been used for 4. Janet Carpenter, Allan Felsot, Timothy Goode, Mi- nearly 100 years to describe any application of chael Hammig, David Onstad, and Sujatha Sankula, living organisms to create consumer or indus- Comparative Environmental Impacts of Biotechnology- trial products.3 That definition encompasses old Derived and Traditional Soybean, Corn, and Cotton and new processes such as the use of Penicillium Crops (Ames, IA: Council on Agricultural Science and Technology, 2002). 5. Ibid. 3. Henry I. Miller and Gregory Conko, The Franken- 6. Dean Della Penna, “Nutritional Genomics: Manipu- food Myth: How Protest and Politics Threaten the Bio- lating Plant Micronutrients to Improve Human Health,” tech Revolution (Westport, CT: Praeger, 2004). Science 285, no. 5426 (1999): 375–79.

18 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Agricultural Biotechnology

safety of bioengineered crops and foods. And lower insecticide use.11 Not surprisingly, farm- a review of 81 separate research projects, con- ers have a very favorable view of biotech seeds. ducted over 15 years and funded by the Euro- By 2006, 61 percent of all corn, 89 percent of all pean Union found that bioengineered crops and soybeans, and 83 percent of all upland cotton foods are as safe for the environment and for grown in the United States were bioengineered human consumption as conventional ones— varieties.12 and in some cases even safer, because the ge- Unremarkably, most commercially available netic changes in the plants are much more pre- biotech plants were designed for farmers in the cise.7 This confidence has been validated by the industrial world. However, the increasing adop- excellent safety record of biotech crops and the tion of bioengineered varieties by farmers in less food derived from them since their commercial developed countries over the past few years has introduction more than a decade ago.8 shown that these farmers can benefit at least as In 2005, 8.5 million farmers in 21 countries much as, if not more than, their counterparts in planted more than 220 million acres with bio- industrial countries.13 engineered crops—primarily soybeans, cotton, The productivity of farmers everywhere is corn, and canola.9 It’s easy to see why. In 2001 limited by crop pests and diseases—and they are alone, biotechnology-derived plants increased often far worse in tropical and subtropical re- U.S. food production by approximately 4 bil- gions than in temperate zones. About 20 percent lion pounds, saved $1.2 billion in production of plant productivity in the industrial world— costs, and decreased pesticide use by about 46 but up to 40 percent in Africa and Asia—is lost million pounds.10 They have improved air, soil, to insect pests and pathogens, despite ongoing and water quality as a consequence of reduced use of copious amounts of pesticides.14 The tillage, less chemical spraying, and fuel savings, European corn borer destroys approximately 7 and they have enhanced biodiversity because of percent, or 40 million tons, of the world’s corn crop each year—a sum equivalent to the annual food supply in calories for 60 million people.15 7. Charles Kessler and Ioannis Economidis, eds., EC- It should come as no surprise that, when per- Sponsored Research on Safety of Genetically Modified Organisms: A Review of Results (Brussels: Office for Official Publications of the European Communities, 11. Carpenter et al., Comparative Environmental Im- 2001). pacts. 8. National Research Council, Safety of Genetically 12. National Agricultural Statistics Service, Acreage Engineered Foods: Approaches to Assessing Unintended (Washington, DC: U.S. Department of Agriculture, June Health Effects (Washington, DC: National Academies 30, 2006). Press, 2004). 13. James, “Global Status of Commercialized Biotech/ 9. Clive James, “Global Status of Commercialized Bio- GM Crops.” tech/GM Crops: 2005,” ISAAA Brief 34-2005, Interna- 14. Chris Sommerville and John Briscoe, “Genetic En- tional Service for the Acquisition of Agribiotech Applica- gineering and Water,” Science, 292, no. 5525 (2001): tions, Ithaca, NY, 2005. 2217. 10. Leonard Giannessi, Plant Biotechnology: Current 15. C. S. Prakash and Gregory Conko, “Agricultural Bio- and Potential Impact for Improving Pest Management in technology Caught in a War of Giants,” in Let Them Eat U.S. Agriculture: An Analysis of 40 Case Studies (Wash- Precaution: How Politics Is Undermining the Genetic ington, DC: National Center for Food and Agricultural Revolution in Agriculture, ed. Jon Entine (Washington, Policy, 2002). DC: American Enterprise Institute, 2006), 35–55.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 19 The Environmental Source

mitted to grow bioengineered varieties, poor ally borrowed from wild relatives and intro- farmers in less developed nations have eagerly duced into crop varieties, often of different snapped them up. Although industrial countries but related species. For example, wheat, rye, still grow the most, nearly 40 percent of bio- and barley are regularly mated with wild tech crop acreage is in less developed countries. grass species to introduce new traits.18 Such And 90 percent of the farmers growing bioen- wide crosses between crop and wild varieties gineered varieties are resource-poor farmers in typically do not produce offspring, however, countries such as China, India, the Philippines, because the embryos die before they mature and South Africa.16 into seeds. Therefore, the embryos must be “rescued” and cultured in a Petri dish. Even Is Crop Biotechnology Safe? then, the rescued embryos typically produce sterile seed, which can be made fertile again Many biotechnology skeptics contend that only by using chemicals that cause the plants such engineering is unsafe because it is “un- to mutate and produce a duplicate set of chro- natural,” or because the technology is so new mosomes. Successive generations then have to that plant breeders cannot anticipate all the po- be carefully screened to eliminate unwanted tentially negative effects. As a result, they call traits accidentally transferred from the wild for special regulations on biotech food, as well plants, such as toxins common in most wild as on the gene-splicing process itself. Ironically, species. Triticale, an artificial hybrid of wheat biotechnology is actually an improved method and rye, is one example of a wide-cross hybrid for plant breeding that gives researchers greater made possible solely by embryo rescue and control and better understanding of the final chromosome-doubling techniques. Triticale plant product. is now grown on more than 3 million acres For thousands of years farmers changed the worldwide, and dozens of other products of genetic characteristics of plants simply by select- wide-cross hybridization are common. ing seeds from the best plants for propagation When a desired trait cannot be found within the following year. Hybridization—the mating the gene pool of related plants, breeders can of different plants of the same species—assimi- create new variants by intentionally mutating lates desirable traits from several varieties into plants with radiation or chemicals or by sim- elite specimens. Although most people believe ply culturing clumps of cells in a Petri dish and that conventional plant breeding amounts to leaving them to mutate spontaneously during nothing more than simple selection and hy- cell division. Mutation breeding has been com- bridization, nothing could be further from the mon since the 1950s, and more than 2,250 truth.17 known mutant varieties have been bred in at When desired characteristics are unavail- least 50 countries, including Australia, France, able in cultivated plants, genes can be liber- Germany, Japan, the United Kingdom, and the

16. James, “Global Status of Commercialized Biotech/ GM Crops.” 17. C. S. Prakash, “The Genetically Modified Crop 18. Robert M. Goodman, Holly Hauptli, Anne Cross- Debate in the Context of Agricultural Evolution,” Plant way, and Vic C. Knauf, “Gene Transfer in Crop Improve- Physiology 126 (May 2001): 8–15. ment,” Science 236, no. 4797 (1987): 48–54.

20 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Agricultural Biotechnology

United States.19 New mutant crop varieties are one or two known genes into plant DNA—a commercialized frequently, and mutant wheat, surgical alteration of a tiny part of the crop’s rice, and canola varieties have been introduced genome compared with the traditional sledge- in the United States, Canada, and Australia, in hammer approaches whose genetic changes recent years.20 are mostly unknown and unpredictable. More important, wide-cross hybridization The National Research Council summarized and mutation breeding are among the meth- this issue neatly in a 1989 report: ods considered to be conventional breeding, so they are not opposed by antibiotechnology With classical techniques of gene transfer, a activists, nor are they subject to regulation in variable number of genes can be transferred, most of the world. Still, conventional breeding the number depending on the mechanism of involves gross manipulation of plant genetic transfer; but predicting the precise number material, which is why scientists view mod- or the traits that have been transferred is ern biotechnology, using rDNA methods, as difficult, and we cannot always predict the an extension of conventional techniques, not [behavior] that will result. With organisms a totally new approach.21 The primary differ- modified by molecular methods [i.e., bio- ence is that the development of modern bio- technology], we are in a better, if not perfect, engineered crops involves a precise transfer of position to predict [their behavior].22

19. M. Maluszynski, K. Nichterlein, L. Van Santen, and B. S. Ahloowalia, Officially Released Mutant Varieties: The FAO/IAEA Database (Vienna, Austria: Joint FAO- IAEA Division, International Atomic Energy Agency, De- cember 2000). 20. Clearfield Production System (BASF Corporation, Research Triangle Park, NC, 2005). Available at, http:// www.agro.basf.com/p02/AP-Internet/en_GB/function/ conversions:/publish/upload/CLEARFIELD-Brochure. pdf. 22. National Research Council, Field Testing Genetically 21. National Research Council, Safety of Genetically Modified Organisms: Framework for Decisions (Wash- Engineered Foods. ington, DC: National Academies Press, 1989), 13–14.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 21

Agricultural Biotechnology Regulation

Gregory Conko

For conventionally bred plants, regulators government oversight in the United States and rely on plant breeders to conduct appropriate abroad. safety testing and to be the first line of defense In a 1989 report, the National Research against genetic alterations that might prove Council (NRC) concluded, “Information about dangerous. They are not subject to any govern- the process used to produce a genetically modi- ment premarket review, and regulation of con- fied organism is important in understanding the ventionally derived food products amounts to characteristics of the product. However, the na- little more than monitoring the marketplace for ture of the process is not a useful criterion for contaminated or misbranded products. Numer- determining whether the product requires less or ous scientific bodies have concluded that there more oversight.”2 Another NRC panel repeated is no scientific reason for holding bioengineered this conclusion in a 2004 report.3 And an expert and conventional crops to different regulatory standards. However, despite this long-standing 2. National Research Council, Field Testing Genetically 1 consensus of the scientific community, bio- Modified Organisms: Framework for Decisions (Wash- tech-derived plants are subject to very strict ington, DC: National Academies Press, 1989), 14–15. 3. National Research Council, Safety of Genetically Engineered Foods: Approaches to Assessing Unintended 1. See the policy brief titled “Agricultural Biotechnology Health Effects (Washington, DC: National Academies Overview” for a description of agricultural biotechnology. Press, 2004).

202-331-1010 • www.cei.org • Competitive Enterprise Institute 23 The Environmental Source committee of the Institute of Food Technologists that express characteristics likely to pose signifi- (IFT) concluded unequivocally that neither exist- cant risk, regardless of the methods used in their ing empirical data nor theoretical considerations development, while leaving relatively low-risk support more stringent safety standards than traits of both conventional and recombinant DNA those that apply to conventional foods. Accord- modification unburdened by costly regulation.6 ing to the IFT, the evaluation of bioengineered Introducing any new living organism into organisms and the food derived from them “does the environment or the food supply cannot be not require a fundamental change in established said to be risk-free, but assessment of the risks principles of food safety; nor does it require a of bioengineered organisms should focus on the different standard of safety, even though, in nature of the organism and of the environment fact, more information and a higher standard of into which the organism is to be introduced, safety are being required.”4 independent of the breeding method used.7 For thousands of years, human hands have Whether an organism is bioengineered, conven- used both crude and sophisticated techniques to tionally bred, or unmodified, safety evaluations generate both subtle and gross genetic changes should be based on three considerations: famil- in the food crops on which we rely. All of the iarity, or the sum total of knowledge about the known risks of biotechnology are also known traits of the organism and the new environment; to exist in conventional plant breeding meth- the ability to confine or control the organism; ods. In almost all cases, these risks can be man- and the likelihood of harmful effects if the or- aged easily and effectively without any need ganism should escape control or confinement. for government oversight. Consequently, the Naturally, with conventional and biotech disproportionate attention paid to biotechnol- modification, breeders must be vigilant to en- ogy ignores the lessons of both biology and the sure that newly introduced plants do not pose history of agriculture.5 human health problems, become invasive, or In some cases, certain products of conven- injure natural biodiversity as a result of inten- tional or biotech modification might pose sub- tional or accidental genetic changes. But neither stantial risk and therefore could warrant height- the introduction of one, two, or several genes, ened government oversight. However, focusing judged against the background of tens or hun- only on recombinant DNA (deoxyribonucleic dreds of thousands of the host organism’s own acid) techniques, and treating all bioengineered genes, nor the transformation process itself cre- products as if they are uniquely risky, is counter- ates any risk that is novel, unique, or in some productive. Instead, regulatory efforts should be way difficult to manage. redirected to focus oversight on new organisms How novel is a corn plant, for example, that contains a newly inserted gene for a bacterial 4. Institute of Food Technologists, IFT Expert Report on Biotechnology and Foods (Chicago: Institute of Food 6. See, for example, Henry I. Miller and Gregory Conko, Technologists, 2000), 23. The Frankenfood Myth: How Protest and Politics Threaten 5. Kent J. Bradford, Allen Van Deynze, Neal Gutter- the Biotech Revolution (Westport, CT: Praeger, 2004), and son, Wayne Parrott, and Steven H. Strauss, “Regulating Bradford et al., “Regulating Transgenic Crops Sensibly.” Transgenic Crops Sensibly: Lessons from Plant Breeding, 7. National Research Council, Field Testing Genetically Biotechnology, and Genomics,” Nature Biotechnology Modified Organisms, and National Research Council, 23, no. 4 (2005), 439–44. Safety of Genetically Engineered Foods.

24 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Agricultural Biotechnology

protein that is toxic only to certain insect larvae ricultural, food, and environmental regulation. when one considers that every crop plant already These agencies include the U.S. Department of has hundreds or thousands of its own natural Agriculture (USDA), the U.S. Environmental pest-resistance genes? How novel is a gene-spliced Protection Agency (EPA), and the U.S. Food and canola plant enhanced to withstand a particular Drug Administration (FDA). Although each of , given that conventional herbicide-tol- these agencies considers the characteristics of erant canola plants have been produced and used individual products in their regulation, only commercially for more than two decades? the FDA follows the general scientific thinking Only when an identifiable high-risk trait is that bioengineered and conventional products involved should formal government oversight should be regulated similarly. Both the USDA be required. Fortunately, recombinant DNA and the EPA automatically subject all bioengi- (rDNA) techniques actually make it easier to neered plants as a class to premarket approval identify such risky traits. requirements not ordinarily applied to conven- tionally bred plants. The Current Regulatory Scheme More important, the supposed justification for special regulation is that the process of in- When the early research on plant biotech- serting a novel gene into a crop plant, not just nology was being conducted in the 1980s, the the presence of a novel gene, could be uniquely White House Office of Science and Technology risky. This supposition has been debunked,9 but Policy coordinated efforts of various regulatory each time a particular gene is put into a particu- agencies to outline a regulatory framework that lar plant variety, the resulting “transformation aligned with scientific recommendations. Because event” is regulated as a unique product. If a conventional and biotech breeding methods single researcher puts one particular gene (con- pose the same kinds of risks, no new regulatory ferring insect resistance, for example) into four apparatus was thought to be needed. Existing different corn plants, all four are considered to federal agencies would regulate bioengineered be individual transformation events. Each event organisms on the basis of their characteristics, is regulated separately, and, in general, safety not the method of production.8 At least in the- studies conducted on any one of the plants are ory, bioengineered organisms would not require not used in the review of the others. extra scrutiny simply because rDNA methods were used to produce them. Instead, individual Department of Agriculture products would be subject to heightened scru- tiny only if they expressed characteristics that The USDA’s primary concerns are the creation posed some conceptually heightened risk. of weeds, the spread of plant and animal patho- This coordinated framework for the regula- gens, and ecological disruption that would inter- tion of biotechnology divided regulatory juris- fere with American agriculture. The department diction among agencies already involved in ag- regulates the release of all bioengineered plants under statutes giving the Animal and Plant Health 8. Office of Science and Technology Policy, “Coordi- nated Framework for Regulation of Biotechnology; An- nouncement of Policy and Notice for Public Comment,” 9. Bradford et al., “Regulating Transgenic Crops Federal Register 51 (June 26, 1986): 23302–50. Sensibly.”

202-331-1010 • www.cei.org • Competitive Enterprise Institute 25 The Environmental Source

Inspection Service (APHIS) of USDA authority Consequently, a new variety of wheat produced to control plants that may be or may become with conventional or wide-cross hybridiza- weeds or other nuisances—what the statutes call tion or mutation breeding12 requires no gov- “plant pests.”10 Although the rules apply in a ernment-mandated field testing—even though general sense to novel or exotic varieties of both wide-cross hybridization introduces thousands bioengineered and conventional plants, APHIS of unknown and uncharacterized genes into the typically requires field testing of conventional crop and despite the fact that mutation breeding plants only if they are new to a particular U.S. randomly scrambles the DNA of a crop plant ecosystem (transplanted from another continent, in unpredictable ways. But all new varieties of for example) or if the plant itself is known to be a bioengineered wheat are subject to government- problematic weed or to harbor a plant disease. mandated field testing, even though there is no When the introduction of conventionally logical reason for the regulatory disparity. bred or new but unmodified plants is being con- For most bioengineered plants, APHIS re- sidered, the species is subject to regulation only quires the company producing the plants to if it appears on a list of known plants pests. If submit notice detailing the gene or genes that the plant species in question is not on the pro- have been inserted, the place where the plants scribed list, it is exempt from all USDA regula- will be tested, and other relevant characteris- tion. However, this straightforward approach tics of the plant before receiving permission to is risk-based in that the organisms required to conduct the field trials. A new permit is needed undergo case-by-case governmental review are whenever the size of a field trial is increased or a known enhanced-risk group. a new site is added. Once the company com- APHIS treats all new bioengineered plants pletes field testing, APHIS reviews the results as presumptive plant pests, no matter how safe and makes a determination on whether the or hazardous individual varieties may be.11 Each product should be deregulated and can be re- new bioengineered variety (or transformation leased into the market.13 Because of the added event) is considered to be a “regulated article” time and expense of waiting for permits and that requires repeated and often redundant field conducting often unnecessary tests, APHIS testing until the agency decides that it is not a regulations can make testing a bioengineered plant pest, at which time it may be deregulated. plant 10 to 20 times more costly than testing a conventionally bred plant.14 10. 7 CFR §§340.3 et seq. 11. APHIS, “Introduction of Organisms and Products Altered or Produced through Genetic Engineering Which 12. For a description of these methods, see the policy Are Plant Pests or Which There Is Reason to Believe brief titled “Agricultural Biotechnology Overview.” Are Plant Pests,” Federal Register 52 (June 16, 1987): 22892–915; APHIS, “Genetically Engineered Organisms 13. Donna Vogt and Mickey Parish, “Food Biotechnol- and Products; Notification Procedures for the Intro- ogy in the United States: Science, Regulation, and Issues,” duction of Certain Regulated Articles; and Petition for Congressional Research Service, Washington, DC, June Nonregulated Status,” Federal Register 58 (March 31, 2, 1999, http://fpc.state.gov/fpc/6176.htm. 1993): 17044–59; and APHIS, “Genetically Engineered 14. Susanne L. Huttner and Henry I. Miller, “USDA Reg- Organisms and Products; Simplification of Requirements ulation of Field Trials of Recombinant-DNA-Modified and Procedures for Genetically Engineered Organisms,” Plants: Reforms Leave Severe Flaws,” Trends in Biotech- Federal Register 62 (May 2, 1997): 23945–58. nology 15, no. 10 (1997): 387–89.

26 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Agricultural Biotechnology

Environmental Protection Agency not be in the business of regulating genetically engineered plants at all.”19 Consequently, the The EPA draws its authority to regulate agency revised its proposal several times and did most bioengineered plants from the Federal not finalize the regulation until 2001.20 When Insecticide, Fungicide, and Rodenticide Act, the final regulation was published, the agency which encompasses pesticides, growth modu- changed the term plant pesticide to plant-incor- lators, and related substances.15 In 1994, EPA porated protectant (PIP) but left the substance first proposed a rule for the regulation of of the original proposal essentially unchanged. bioengineered plants altered to mediate “host Bioengineered pest-protected plants must be plant resistance” to pests or diseases, treating approved by the EPA before commercialization such plants as if they were the same as chemical in much the same way that chemical pesticides pesticides.16 Any bioengineered plant that either are. The submission required for EPA’s regula- produces a substance directly used to protect tory review includes copious data on the paren- the plant from pests—such as a protein that tal plant, the genetic construction and behavior makes the plant resistant to insects, viruses, of the test plant, and so on. or fungi—or facilitates other pest manage- During the course of research and devel- ment practices—such as a trait for herbicide opment on a bioengineered plant variety that tolerance—were dubbed “plant pesticides” and contains a PIP, the EPA conducts repeated covered by the regulation.17 It is worth noting case-by-case reviews—before the initial trial, that, to agronomists, even weeds are considered again when trials are scaled up to larger size pests. Thus, a plant that is bioengineered to help or to additional sites (even if minor changes farmers facilitate weed control is regulated by EPA under the pesticide statute. Society of America, “Appropriate Oversight for Plants When the EPA rule was first proposed, it with Inherited Traits for Resistance to Pests,” Institute was widely criticized by scientific bodies and of Food Technologists, Chicago, July 1996. See also, Council for Agricultural Science and Technology, “The individual scientists as scientifically indefensi- Proposed EPA Plant Pesticide Rule,” Council for Agricul- ble.18 Many scientists “argued that EPA should tural Science and Technology, Ames, IA, October 1998. 19. Larry D. Schulze, “Eleven Societies Oppose EPA 15. 7 USC §§136–36(u). Regulating Plant Pesticides,” Label 8, no. 8 (1996), http:// pested.unl.edu/thelabel/tlaug96.htm. 16. EPA, “Plant-Pesticides Subject to the Federal Insec- ticide, Fungicide, and Rodenticide Act; Proposed Rule,” 20. EPA, “Regulations under the Federal Insecticide, Federal Register 59 (November 23, 1994): 60496–547; Fungicide, and Rodenticide Act for Plant-Incorporated see also, EPA, “Plant-Pesticides; Supplemental Notice of Protectants (Formerly Plant-Pesticides),” Federal Reg- Proposed Rulemaking,” Federal Register 62 (May 16, ister 66 (July 19, 2001): 37772–817; EPA, “Exemption 1997): 27131–42. from the Requirement of a Tolerance under the Federal Food, Drug, and Cosmetic Act for Residues of Nucleic 17. Ibid. Acids That Are Part of Plant-Incorporated Protectants 18. American Institute of Biological Sciences, American (Formerly Plant-Pesticides),” Federal Register 66 (July Phytopathological Society, American Society for Hor- 19, 2001): 37817–830; and EPA, “Exemption from the ticultural Science, American Society for Microbiology, Requirement of a Tolerance under the Federal Food, American Society of Agronomy, American Society of Drug, and Cosmetic Act for Residues Derived through Plant Physiologists, Crop Science Society of America, En- Conventional Breeding from Sexually Compatible Plants tomological Society of America, Institute of Food Tech- of Plant-Incorporated Protectants (Formerly Plant-Pesti- nologists, Society of Nematologists, and Weed Science cides),” Federal Register 66 (July 19, 2001): 37830–54.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 27 The Environmental Source

are made in the genetic construct), and again majority of what we eat, however, including at commercial scale. Biotech products face sub- both fresh and processed foods, is not subject stantial regulatory hurdles, even though PIPs to premarket testing, review, or inspection by developed through conventional breeding are the FDA. Instead, the agency simply polices exempt from these requirements.21 the marketplace. Food products found to be EPA also regulates other organisms—such adulterated (containing any addition “which as bioengineered microbes used for bioreme- may render [them] injurious to health”) or mis- diation or “bio-rational” pesticides—under the branded (falsely or misleadingly labeled) may Toxic Substances Control Act, which provides be removed from commerce.23 oversight of “non-natural” and “new” sub- Following the general regulatory framework stances, and mixtures of substances, intended that emphasizes product regulation rather than for use in commerce and that are not regulated process regulation, the FDA rightly does not elsewhere.22 Because research with bioengi- treat foods derived from bioengineered plants neered microorganisms is subject to very heavy as inherently unsafe.24 Food producers are regulatory burdens with highly uncertain ap- not required to seek premarket approval from proval standards, the U.S. in- the FDA unless there is a substantive reason dustry has largely restricted itself to research to believe that the novel trait or traits in the on naturally occurring and conventionally food pose a safety question.25 As in the case of modified organisms that are essentially exempt conventionally bred food crops, the initial de- from the regulations. Today the use of biotech termination of safety is left to the producer.26 organisms for bioremediation or to develop mi- However, the FDA has encouraged producers to crobial pesticides is almost nonexistent. consult with agency scientists before marketing a food produced with biotechnology to ensure Food and Drug Administration that the appropriate determination is made. In 2001, the FDA published a proposed rule that The FDA is responsible for ensuring that would require producers to notify the agency food items, including foods derived from bioen- gineered plants, are safe to eat. Under various 23. 21 USC §§342–43. statutes, including the Food, Drug, and Cos- 24. FDA, “Statement of Policy: Foods Derived from New metics Act, the FDA regulates food additives Plant Varieties,” Federal Register 57 (May 29, 1992): (such as artificial sweeteners and preservatives) 22984–3005. through a premarket review process. The vast 25. The FDA has established a risk-based decision tree that plant developers and food manufacturers apply to 21. Staff of the Subcommittee on Basic Research of the all foods to determine the safety of any new product, be Committee of Science, 106th Congress, 2nd Session, it genetically engineered or produced through traditional “Seeds of Opportunity: An Assessment of the Benefits, methods. See FDA, “Statement of Policy.” Safety, and Oversight of Plant Genomics and Agricul- 26. FDA, “Statement of Policy,” 22986–88. For example, tural Biotechnology,” U.S. House of Representatives, the FDA does require notification when the nutritional Washington, DC, 2000. or toxicological profile of the plant is changed signifi- 22. 40 CFR Parts 700, 720, 721, 723, and 725; EPA, cantly from what a consumer would reasonably expect “Microbial Products of Biotechnology; Final Regulation from the conventional equivalent or when genes coding under the Toxic Substances Control Act,” Federal Regis- for the proteins of known allergenic foods such as eggs, ter 62 (April 11, 1997): 17910–58. wheat, and tree nuts are transferred.

28 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Agricultural Biotechnology

at least 120 days before marketing a new bio- majorities of respondents agree that labeling engineered crop plant,27 but the proposal was would be a good idea.30 later withdrawn. Instead, the FDA published a Biotechnology advocates have argued guidance document that advised crop breeders against mandatory labeling because such re- to seek voluntary safety evaluations of the new quirements raise food costs—something that proteins produced by bioengineered plants be- mostly harms low-income Americans and those fore the plants were grown in field trials.28 If on fixed budgets. Perhaps more important, the safety of such proteins could be determined while biotech products are not substantially before the field trial stage, there would be no different from other products, special labels reason for concern if an experimental crop were would likely make consumers think they were accidentally introduced into the food supply. more dangerous.31 Hence, rather than serving Finally, the FDA requires labeling of foods educational or right to know purposes, such derived from biotechnology only when their labels promise simply to confuse consumers. composition differs significantly from that of In one typical survey, for example, 70 per- their conventional counterparts. Such differ- cent of respondents agreed that “the words ge- ences would need to be risk-related factors, netically engineered should appear on the label including the presence of a substance that was of a food product where one or more ingredi- completely new to the food supply, an allergen ents were genetically engineered.” However, 25 presented in an unusual or unexpected way, percent of respondents admitted that they were changes in the levels of major dietary nutrients, “not at all familiar” with bioengineered foods, increased levels of natural plant-produced tox- 30 percent said “not very familiar,” 38 percent ins normally found in foods, or even a change said “somewhat familiar,” and only 5 percent in the expected storage or preparation charac- said they were “extremely familiar.”32 What are teristics of the food.29 we to make of largely uninformed opinions about complex public policy issues? Labeling 30. See, for example, Campaign to Label Genetically Some activists argue that the government Engineered Foods website, http://www.thecampaign. should mandate labeling of all bioengineered org, and Center for Science in the Public Interest, “Na- tional Opinion Poll on Labeling of Genetically Modi- foods. They assert that consumers have a right fied Foods,” Center for Science in the Public Interest, to know how their foods have been altered Washington, DC, 2001, http://www.cspinet.org/reports/ and point to public opinion surveys in which op_poll_labeling.html. 31. Henry I. Miller, “Genetic Engineering: A Rational Approach to Labeling Biotech-Derived Foods,” Science 27. FDA, “Premarket Notice Concerning Bioengi- 284, no. 5419 (May 28, 1999): 1471–72; Subcommittee neered Foods,” Federal Register 66 (January 18, 2001): on Basic Research of the Committee of Science, “Seeds of 4706–38. Opportunity, 53–55; Gregory Conko, Eat, Drink, and Be 28. FDA, “Guidance for Industry; Recommendations for Merry: Why Mandatory Biotech Food Labeling Is Un- the Early Food Safety Evaluation of New Non-Pesticidal necessary (Portland, OR: Cascade Public Policy Institute, Proteins Produced by New Plant Varieties Intended October 2002). for Food Use,” Federal Register 71 (June 21, 2006): 32. Center for Science in the Public Interest, “National 35688–89. Opinion Poll on Labeling of Genetically Modified 29. FDA, “Statement of Policy,” 22991. Foods.”

202-331-1010 • www.cei.org • Competitive Enterprise Institute 29 The Environmental Source

In that same survey, 40 percent of respon- FDA policy on labeling and asked if they sup- dents agreed that foods “made from cross-bred ported or opposed it. In each survey, a majority corn” should be labeled.33 But virtually all the of respondents agreed with the FDA labeling corn grown in the United States is from cross- policy.37 Because respondents were given a sum- bred, or hybrid, varieties. Labeling in this case mary understanding of the FDA’s current policy would, therefore, convey no useful informa- before they were asked to comment on it, the tion and make absolutely no sense. It would be results of the IFIC surveys should be given more tantamount to labeling bottled water to inform credence than surveys of uninformed members consumers that the products contain hydrogen of the public. Given the limited level of back- and oxygen. In any case, we wonder how many ground knowledge on which other research on of the respondents who say they support bio- public attitudes is based, there is no evidence technology labeling know the substance of ex- that that the public genuinely supports manda- isting FDA policies for food labeling in general tory labeling. or biotech foods in particular. A government-mandated label on all geneti- Currently, FDA policy mandates labels on cally engineered foods also would raise impor- any new food products in which a “material” tant First Amendment free speech issues. In change has been made to a health- or safety- 1996, the U.S. Second Circuit Court of Appeals, related characteristic.34 This risk-based labeling in the case of International Dairy Foods Asso- requirement applies to all foods, whether they ciation, et al. v. Amestoy, ruled unconstitutional have been developed through conventional a Vermont statute requiring the labeling of dairy breeding methods or the more advanced bioen- products from cows treated with a genetically gineering techniques, and it is therefore consis- engineered growth hormone, noting that food tent with the scientific consensus that regulation labeling cannot be mandated simply because should be based on the specific characteristics of some people would like to have the information: the products that could make them more or less “Absent … some indication that this informa- safe, not how they were created. Consequently, tion bears on a reasonable concern for human the biotech labeling policy of the FDA has been health or safety or some other sufficiently sub- endorsed by scientific organizations such as the stantial governmental concern, the manufactur- American Medical Association35 and the Insti- ers cannot be compelled to disclose it.”38 In other tute of Food Technologists.36 words, to be constitutional, labeling must be In a series of polls commissioned by the In- confined to disclosure of information for which ternational Food Information Council (IFIC), a legitimate governmental interest exists, such respondents were read a summary of current as that relevant to health or nutrition. This is decidedly not the case when it comes to generic 33. Ibid. labeling of all bioengineered foods. 34. FDA, “Statement of Policy.” 35. American Medical Association, “Report 10 of the Council on Scientific Affairs (I-00): Genetically Modi- 37. IFIC, “IFIC Survey: Food Biotechnology Not a fied Crops and Foods,” American Medical Association, Top-of-Mind Concern for American Consumers,” Chicago, 2000. IFIC, Chicago, June 2005, http://www.ific.org/research/ 36. Institute of Food Technologists, IFT Expert Report upload/2005BiotechSurvey.pdf. on Biotechnology and Foods. 38. 92 F.3d 67 (2nd Cir. 1996).

30 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Agricultural Biotechnology

Furthermore, consumers need not rely on European and Asian countries in the past de- mandatory labeling of bioengineered foods to cade. The European Union (EU) has established truly have a choice. Real-world examples show strong restrictions on the commercial planting that market forces are fully capable of supply- of genetically engineered crops,42 and European ing information about process attributes (such food processors and retailers are reluctant to as kosher and organic production standards) import harvested agricultural products derived that consumers truly demand. The same can from biotechnology. be said about nonengineered foods. Numerous After approving two biotech varieties for products voluntarily labeled as containing no commercialization in the mid-1990s, EU policy- genetically engineered ingredients can be found makers imposed an unofficial moratorium from on grocery store shelves, and several antibiotech 1998 to 2004 on the approval of additional organizations tout their own guides to buying biotech crops. Six EU member countries— “non-GM” products.39 And, in 2001, FDA pub- Austria, France, Germany, Greece, Italy, and lished a draft guidance to assist producers in Luxembourg—banned all commercial planting voluntarily labeling both genetically engineered and sale of bioengineered varieties. In 2006, the foods and foods that are not genetically engi- World Trade Organization (WTO) ruled that neered.40 In addition, the USDA rule published the moratorium and national bans violated for organic certification necessarily excludes global trade treaties.43 However, the victory biotech products from organic food produc- for the United States, Canada, and Argentina, tion.41 Consequently, consumers wishing to which jointly filed the case, was largely sym- purchase nonbiotech foods need look only for bolic because the WTO decision left the under- certified organic products or others specifically lying regulatory policy of the European Union labeled as not developed using bioengineering unchallenged. The trade panel did not object techniques. to how biotech products were regulated in the

International Trade 42. European Parliament and the Council of the Euro- pean Union, “Regulation (EC) No. 1829/2003 on Ge- netically Modified Food and Feed,” Official Journal of Although U.S. consumers do not appear to the European Union L268 (2003): 1–23; European Par- be strongly opposed to biotech foods (in fact, liament and the Council of the European Union, “Regu- they seem rather indifferent), a strong anti- lation (EC) No. 1830/2003 Concerning the Traceability and Labeling of Genetically Modified Organisms and the biotechnology movement has arisen in several Traceability of Food and Feed Products from Genetically Modified Organisms and Amending Directive 2001/18/ EC,” Official Journal of the European Union L268 39. Institute for Responsible Technology, “How to Buy (2003): 24–28; European Parliament and the Council of Non-GM,” Institute for Responsible Technology, Fair- the European Union, “Commission Regulation (EC) No field, Iowa, available at http://www.responsibletechnol- 65/2004 of 14 January 2004 Establishing a System for ogy.org/GMFree/AboutGMFoods/HowtoBuyNon-GM/ the Development and Assignment of Unique Identifiers index.cfm. for Genetically Modified Organisms,” Official Journal of 40. FDA, “Draft Guidance for Industry: Voluntary La- the European Union L10 (2004): 5–10. beling Indicating Whether Foods Have or Have Not Been 43. WTO, “European Communities—Measures Affect- Developed Using Bioengineering; Availability” Federal ing the Approval and Marketing of Biotech Products: Register 66 (January 18, 2001): 4839–42. Reports of the Panel,” WT/DS291/R, WT/DS292/R, WT/ 41. 7 CFR Part 205. DS293/R, WTO, Geneva, September 29, 2006.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 31 The Environmental Source

EU; it held only that European officials were before implementation of the labeling and not following their own regulations by “unduly traceability rules were reluctant to continue delaying” final approval of otherwise complete selling biotech products. Consequently, the applications for 25 food biotech products for European market is no more open to bioengi- transparently political reasons.44 neered crops today than before the WTO case EU regulatory policies, however, are them- was decided. selves problematic.45 First, there is no rela- In addition, the very strong restrictions in- tionship between regulation and risk in EU cluded in the Cartagena Protocol on Biosafety,46 biotech policies, so very safe products are held which was finalized in January 2000, are to extreme regulatory scrutiny. And, second, beginning to spread European-style biotech once biotech foods are approved for commer- regulation based on the precautionary principle cial use, EU policy requires both labeling and around the world. Many less developed coun- traceability. Every single bioengineered variety try governments are reluctant to approved bio- (or transformation event) and every food in- engineered crops for their own farmers as long gredient derived from it must be labeled with as major export markets in Europe are closed a unique identifier, regardless of whether it to such crops.47 Others have been convinced can be distinguished from conventionally pro- by European policymakers and environmen- duced foods. Then, every link in the vast food tal activists that such regulation is warranted. chain—from seed breeders to farmers, ship- However, while the EU continues to assert that pers, processors, wholesalers, and retailers—is the precautionary principle is an unbiased risk required to keep detailed records identifying management philosophy, critics have shown from whom each ingredient was received and that its lack of definition and evidentiary stan- to whom it was sent, so that every ingredient dards makes it easy to abuse for the purpose of can be traced back to the farm on which it was masking trade protectionism and that its inher- grown. ently flawed risk management approach may, At the time this chapter was written, it was in fact, increase net risk.48 not clear how the global commodity system would accommodate the traceability regime, 46. Secretariat of the Convention on Biological Diversity, but compliance was expected to be very costly. Cartagena Protocol on Biosafety to the Convention on Biological Diversity: Text and Annexes (Montreal: Secre- Thus, even European food processors and tariat of the Convention on Biological Diversity, 2000). retailers that sold some bioengineered foods 47. Robert Paarlberg, The Politics of Precaution: Ge- netically Modified Crops in Developing Countries (Balti- 44. Ibid. See also Gregory Conko, “New Era, or Ancien more, MD: Johns Hopkins University Press, 2001); Rob- Régime, for European Biotech?” Planet (May 2006): 1, 3. ert Paarlberg, “African Famine, Made in Europe,” Wall 45. See generally Henry I. Miller and Gregory Conko, Street Journal, August 23, 2002, A12; Gregory Conko, The Frankenfood Myth; Tony Gilland, “Trade War or “Rethinking the Regulation of Bioengineered Crops: Culture War? The GM Debate in Britain and the Euro- Why European and American Biotechnology Rules Are pean Union,” in Let Them Eat Precaution: How Politics Bad for Less Developed Countries,” paper presented at Is Undermining the Genetic Revolution in Agriculture, the U.S. State Department conference on Agricultural ed. Jon Entine (Washington, DC: American Enterprise Biotechnology and Developing Countries, Arlington, VA, Institute, 2006); Neville Craddock, “Flies in the Soup— May 23, 2003. European GM Labeling Legislation,” Nature Biotechnol- 48. Gregory Conko, “Safety, Risk, and the Precautionary ogy 22 (April 2004): 383–84. Principle: Rethinking Precautionary Approaches to the

32 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Agricultural Biotechnology

Conclusion Key Experts

Even as farmers in underdeveloped nations Gregory Conko, Senior Fellow, Competitive clamor for biotechnology applications, and Enterprise Institute, [email protected] even as countries like China continue to experi- Henry Miller, Fellow, Hoover Institution, ment with and use agricultural biotechnology,49 [email protected] opponents of agricultural biotechnology in the West, particularly Europe, attack it as an Recommended Reading unnatural process that will destroy the world, not improve it. They argue that biotechnology Miller, Henry I., and Gregory Conko. 2004. should be heavily regulated, if not banned. The Frankenfood Myth: How Protest and Genetically engineered plants already are Politics Threaten the Biotech Revolution. subject to strict regulatory oversight that is Westport, CT: Praeger. equal to or greater than that advocated by the Bradford, Kent J., Allen Van Deynze, Neal vast majority of scientific specialists. Additional Gutterson, Wayne Parrott, and Steven H. regulation will slow down their further research Strauss. 2005. “Regulating Transgenic and development, keep beneficial products off Crops Sensibly: Lessons from Plant Breed- the market, and raise the cost of products that ing, Biotechnology, and Genomics,” Nature do make it to consumers. Furthermore, the inclu- Biotechnology 23, no. 4, 439–44. sion of similar restrictions—or inclusion of the Institute of Food Technologists. 2000. IFT Ex- precautionary principle—in international agree- pert Report on Biotechnology and Foods. ments will greatly affect the international trade Chicago: Institute of Food Technologists. of agricultural goods and delay their introduc- National Research Council. 1989. Field Testing tion into the marketplace. Each of these prob- Genetically Modified Organisms: Frame- lems could prevent the benefits of this technol- work for Decisions. Washington, DC: Na- ogy from being introduced to industrial nations tional Academies Press. and, more importantly, to the developing world.

Regulation of Transgenic Plants,” Transgenic Research 12, no. 6 (2003): 639–47; Henry I. Miller and Gregory Conko, “The Perils of Precaution,” Policy Review 107 (June/July 2001): 25–39. 49. Jikun Huang and Qinfang Wang, “Agricultural Bio- technology Development and Policy in China,” AgBio- Forum, 5, no. 4 (2002): 122-135.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 33

Chemical Risk

Chemical Risk Overview

Angela Logomasini

Worldwide, the average human life span has Yet the public perception is that man-made increased from about 30 years at the beginning chemicals are the source of every possible ill, of the 20th century to more than 60 years today, from cancer to depletion and from in- and it continues to rise.1 In the United States, it fertility to brain damage. Ignoring that nature has reached 76 years according to a recent es- produces far more chemicals at far higher doses3 timate (figure 1).2 The freedom to develop and and that most chemicals are innocuous at low put to use thousands of man-made chemicals doses, activists capitalize on those fears. They has played a crucial role in that progress by scare the public by hyping the risks to ensure making possible such things as pharmaceuti- that the government passes volumes of laws cals, safe drinking water, and pest control. and regulations focused on eliminating chemi- cals without much regard for the tradeoffs. 1. Nicholas Eberstadt, “World Population Prospects Advocates of such limits want the govern- for the Twenty-First Century: The Specter of ‘Depopula- tion’?” in Earth Report 2000, ed. Ronald Bailey (New ment to make sure every chemical is safe before York: McGraw Hill, 2000), 65. 2. U.S. Department of Labor, U.S. Census Bureau, 3. Bruce N. Ames and Lois Swirsky Gold, “Envi- Health, United States, 2000: Adolescent Health Chart- ronmental Pollution, Pesticides, and the Prevention of book (Washington, DC: Centers for Disease Control and Cancer: Misconceptions,” FASEB Journal 11, no. 13 Prevention, 2000), 7, http://www.cdc.gov/nchs/data/hus/ (1997): 1041–52, http://socrates.berkeley.edu/mutagen// hus00cht.pdf. AmesGold.pdf.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 37 The Environmental Source

Figure 1. Life Expectancy has long called for the elimination of chlorine. Science magazine quotes him as noting: “There 80 are no known uses for chlorine which we re- gard as safe.”7 Perhaps in recognition that this 75 standard is politically untenable, he suggested 70 that chlorine use be continued for “some phar- 65 maceuticals” and some “water disinfection,” but

Age 8 60 only until other options become available.

55 The Dangers of Precaution 50

45 1990 1950 1960 1970 1980 1990 2000 But before we call for zero discharge of any- Year thing, we should think about what that means. Like anything, chemicals may create new risks, Source: National Center for Health Statistics. but they have been used to eliminate others— many of which wreaked havoc on civilization exposing the public. In his 2000 book Pando- for centuries. As the Competitive Enterprise ra’s Poison, Greenpeace’s Joe Thornton calls on Institute’s Fred Smith notes, “Experience demon- society to follow the “precautionary principle,” strates that the risks of innovation, while real, are which says “we should avoid practices that vastly less than risks of stagnation.”9 Indeed, he have the potential to cause severe damage, even asks, what would the world be like if medical re- in the absence of scientific proof of harm.”4 We searchers had never introduced penicillin because should shift the burden of proof, he continues. they could not prove it was 100 percent safe? Those individuals or firms introducing new chemicals must prove the chemicals are safe Chemicals Transform Our before introducing them into commerce, and Everyday Lives those chemicals already in commerce which fail to meet this standard “should be phased out in Although we don’t think much about them, favor of safer alternatives.”5 man-made chemicals are essential to almost ev- The problem is that no one can ever prove that anything is 100 percent safe. Not surpris- York: American Council on Science and Health, 2003). ingly, Thornton also advocates a “zero dis- http://www.acsh.org/docLib/20041110_traces_2003. charge” policy, which calls for the elimination of pdf. 6 all bioaccumulative chemicals. In particular, he 7. Ivan Amato, “The Crusade against Chlorine,” Sci- ence 261, no. 5118 (1993): 153. For more information 4. Joe Thornton, Pandora’s Poison: Chlorine, Health, on chlorine issues, see Michelle Malkin and Michael Fu- and a New Environmental Strategy (Cambridge, MA: mento, Rachel’s Folly: The End of Chlorine (Washington, MIT Press, 2000), 10. DC: Competitive Enterprise Institute, 1996). 5. Ibid. 8. Thornton, Pandora’s Poison, 14. 6. For more information on bioaccumulative chemicals, 9. Fred L. Smith, “The Dangers of Precaution,” Euro- see Michael Kamrin, Traces of Environmental Chemicals pean Voice 6, no. 7 (February 17, 2000): 1, http://www. in the Human Body: Are They a Risk to Health? (New cei.org/pdf/3845.pdf.

38 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Chemical Risk erything we do. They make our cars run; they environmentalists) has proven a tremendous clean everything from our teeth to our dishes; benefit for oral hygiene.12 they reduce illness by disinfecting bathrooms at • Nearly 85 percent of pharmaceuticals cur- home and operating rooms in hospitals; they rently in use require chlorine to be used in are used on food products, such as poultry, to their production.13 eliminate E. coli and other deadly pathogens; • Thanks to chemicals used for pharmaceu- and they keep our computers, television sets, ticals, combination drug therapy reduced and other electronic products running. Con- AIDS deaths by more than 70 percent sider just a few of the critical functions they from 1994 to 1997.14 And more recently, perform in making our lives better: researchers estimated that AIDS drug treat- ments have saved a total of 3 million years • Chlorination of water supplies has saved of life in the United States since 1989.15 millions of lives. For example, since local • Fifty percent of the reductions of heart dis- engineers and industry introduced chlori- ease–related deaths between 1980 and 1990 nation in the 1880s, waterborne-related (total death rate decline of 30 percent) are deaths in the United States dropped from attributable to medicines and the chemicals 75 to 100 deaths per 100,000 people to that are in them.16 fewer than 0.1 death per 100,000 annually in 1950.10 • Rather than curtailing the use of chlorina- 12. “Ten Great Public Health Achievements—United tion as Thornton suggests, we should be States, 1900–1999,” Morbidity and Mortality Weekly expanding access. According to the World Report 48, no. 12 (1999): 241–43. Health Organization, because of such prob- 13. Gordon W. Gribble, “Chlorine and Health: Evaluat- ing Chlorine and Chlorinated Compounds” (New York: lems as poor sanitation and unsafe drinking American Council on Science and Health,1995), http:// water diarrheal diseases (such as cholera www.healthfactsandfears.net/docLib/20040503_chlo- and dysentery) kill about 2.2 million people rine.pdf. a year, most of whom are children under 14. Frank J. Palella, Kathleen M. Delaney, Anne C. Moor- five years of age.11 man, Mark O. Loveless, Jack Fuhrer, Glen A. Satten, • The U.S. Centers for Disease Control and Diane J. Aschman, and Scott D. Holmberg, “Declining Morbidity and Mortality among Patients with Advanced Prevention notes that fluoridation of water HIV Infection,” New England Journal of Medicine 338, (fluoride is yet another chemical targeted by no. 13 (1998): 853–60, https://content.nejm.org/cgi/con- tent/abstract/338/13/853. 15. Rochelle P. Walensky, et al., “The Survival Benefits of AIDS Treatment in the United States,” Journal of Infec- tious Diseases 194, no. 1 (July 1, 2006): 11–19 10. J. Michael LaNier, “Historical Development of Mu- 16. M.G. Hunink, L. Goldman, A. N. Tosteson, M. A. nicipal Water Systems in the United States, 1776–1976,” Mittleman, P. A. Goldman, L. W. Williams, J. Tsevat, Journal of the American Water Works Association 68, and M. C. Weinstein, “The Recent Decline in Mortality no. 4 (1976): 177. from Coronary Heart Disease, 1980–1990,” Journal of 11. “Water-Related Diseases: Diarrhoea,” World Health the American Medical Association 277, no. 7 (1997): Organization website, http://www.who.int/water_sanita- 535–42, abstract available at http://www.ncbi.nlm.nih. tion_health/diseases/diarrhoea/en/, access November 29, gov:80/entrez/query.fcgi?cmd=Retrieve&db=PubMed&l 2007. ist_uids=9032159&dopt=Abstract

202-331-1010 • www.cei.org • Competitive Enterprise Institute 39 The Environmental Source

• Chemicals called phthalates (there are sev- • Thanks to modern farming with chemicals, eral kinds of phthalates) are used in polyvi- food production has outpaced population nyl chloride (PVC)—a type of vinyl used for growth—providing people in both devel- medical tubing, blood bags, and numerous oped and developing countries with more other products. Although environmental- food per capita. Per capita grain supplies ists have tried to ban these products,17 vinyl have grown by 27 percent since 1950, and medical devices provide numerous lifesav- food prices have declined in real terms by ing benefits. PVC is a safe, durable, sterile 57 percent since 1980.20 product that can withstand heat and pres- • Using to control weeds decreases sure, as well as produce tubing that doesn’t the need for tilling soil, which, in turn, re- kink. It is particularly beneficial for vinyl duces soil erosion by 50 to 98 percent.21 blood bags because it stores blood twice as • Because of high-yield farming (which uses long as the next best alternative and doesn’t chemical fertilizers, pesticides, herbicides, break as glass alternatives do. With blood etc.), farmers feed more people while farm- shortages looming, PVC blood bags are an ing less land—leaving more land for wild- essential tool in maintaining and transport- life. If farmers continued to use 1950s tech- ing supply.18 nology—when most of the world did not • Biocidal chemicals may soon find their way use pesticides and fertilizers—they would into hospital uniforms and other textiles have to plant 10 million square miles of ad- used in hospitals, thereby helping to pre- ditional land to generate the food that pro- vent such materials from carrying bacteria duced today.22 That’s more land than all of and transmitting them to patients. Diseases North America (which is about 9.4 million acquired in hospitals account for as many square miles and almost as much as all the as 80,000 deaths a year, and studies have land in Africa (which is about 11.7 million found that bacteria can survive long peri- square miles). ods on worker’s uniforms—making them • Many of us enjoy drinks with artificial sweet- vehicles for infection.19 If antitechnology eners to avoid extra calories. These chemi- activists don’t try to ban them first, biocidal cals are an important benefit to diabetics. chemicals may soon help save thousands of The American Diabetes Association notes lives every year. the importance of artificial sweeteners—in- cluding saccharin—in improving quality of life for diabetics. “Artificial sweeteners are ‘free foods,’” says the American Diabetes 17. Bill Durodié, “Poisonous Propaganda: Global Echoes of an Anti-Vinyl Agenda” Competitive Enterprise Insti- Association in literature to diabetics. “They tute, Washington, DC, July 2000. make our food taste sweet, but they have 18. See Angela Logomasini, “Blood Supply Besieged,” Washington Times, A14, August 10, 2000, https://www. cei.org/gencon/019,01811.cfm. 20. Dennis Avery, “Saving the Planet with Pesticides,” in The True State of the Planet, ed. Ronald Bailey (New 19. Gang Sun and Jeffrey F. Williams, “Dressing to Kill: York: Free Press, 1995), 52–54. Incorporating Biocidal Agents into Textiles Gives Added Protection against Infectious Diseases,” Chemistry and 21. Ibid., 74–76. Industry 17 (1999): 658–71. 22. Ibid., 71.

40 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Chemical Risk

no calories and do not raise blood glucose be eliminated by 1985.”25 Although we can meet levels. … They can be added to your meal reasonable clean water goals, we can’t meet a plan rather than substituted.”23 zero discharge without forcibly halting indus- • Mercury—a heavy metal that is often a target trial processes that bring us lifesaving medicine, of environmentalists—is a key component a safe food supply packaged to ensure that it will of the amalgam fillings that have eliminated last, or even clothing. Likewise, regulations that and prevented billions of toothaches during the Environmental Protection Agency (EPA) is- more than four decades of use.24 sued under the Safe Drinking Water Act actually set zero as the goal for certain chemical contami- Disregarding such benefits, most of the key nants in drinking water—something that is vir- U.S. environmental regulatory statutes follow tually impossible and is totally unnecessary for the lead of groups like Greenpeace, focusing on public health purposes. With such goals, drink- the elimination of chemicals without considering ing water standards for chemicals are extremely the dangers of not having these technologies. The stringent. For example, one standard demands Clean Water Act, for example, makes the unat- that drinking water not contain any more than tainable pledge: “It is the national goal that the 0.03 parts per trillion of a contaminant.26 The discharge of pollutants into the navigable waters high costs of such onerous standards mean that financial resources are diverted from other, more essential needs such as infrastructure upgrades 23. “Sugars and Artificial Sweeteners,” American Dia- and microbial contamination.27 betes Association, Alexandria, VA, http://diabetes.org/ Other statutes simply assume that because nutrition-and-recipes/nutrition/sweeteners.jsp, accessed an industrial process uses chemicals it is some- November 27, 2007. As with so many chemicals, activ- ists once tried to ban saccharin by claiming it was a car- how suspect. Under the Toxic Release Inven- cinogen. That myth was dispelled in May 2000 when the tory (TRI),28 firms must report all chemical Department of Health and Human Services announced that saccharin is not a human carcinogen. Despite that 25. 33 USC §1251(a)(1). finding, activists complained when Congress eliminated the law that saccharin carry a cancer warning label. See 26. This is the standard for dioxin (see EPA’s listing of Public Health Service, National Toxicology Program, drinking water standards at http://www.epa.gov/safewa- 9th Report on Carcinogens 2000 (Washington, DC: U.S. ter/mcl.html). Dioxin is released into the air from both Dept. of Health and Human Services, 2000), http://ntp. natural processes (such as forest fires) and industrial niehs.nih.gov/index.cfm?objectid=06F2C37B-F88F- processes. Very low (and safe) levels find their way into 23D5-468CA8B9F7C2827B. most foods. For example, Ben & Jerry’s ice cream con- tains 0.79 ± 0.38 parts per trillion of dioxin (see http:// 24. Mercury has long been a key target of antichemi- www.junkscience.com/dec99/benjerr2.html). Although cal activists. However, in the early 1990s, public health dioxin is a key target of environmentalists, it has never providers and government researchers debunked claims been shown to cause any illness other than a skin disor- about the dangers of mercury in amalgam fillings. The der among very highly exposed individuals. See Michael American Dental Association called such claims fraudu- Gough, “Reevaluating the Risks from Dioxin,” Journal of lent, and some doctors had their licenses suspended and Regulation and Social Costs 1, no. 3 (June 1991): 5–23. paid hefty legal compensation in cases where they had convinced patients to remove fillings on such dubious 27. See the policy brief titled “Safe Drinking Water Act grounds. For a good overview of the case, see Stephen Bar- Overview.” rett, “The Mercury Amalgam Scam,” December 23, 1999, 28. TRI is a program created by the Emergency Planning http://www.quackwatch.org/01QuackeryRelatedTopics/ and Community Right to Know Act, 42 USC §§11001 et mercury.html. seq.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 41 The Environmental Source

“releases,” chemical uses, and processes that This section of the Environmental Briefing use chemicals. Environmentalists say this law Book will open with briefs on two fundamental encourages firms to reduce pollution. But not areas in the risk debate. The first addresses al- all releases constitute pollution,29 and not all legations that chemicals are causing a cancer epi- pose public health consequences. At question demic. The second addresses a newer debate: are should not be whether firms use chemicals, but chemicals disrupting our endocrine systems and whether they use chemicals responsibly and thus causing developmental and reproductive what is gained in return. Firms can reduce chlo- problems? Following those briefs, is an overview rine in attempts to appease environmentalists, of the science underlying methlymercury, which but are we willing to drink water swimming has garnered much news coverage in recent years. with microbial contaminants and give up life- Other risk related statutes are found in their sec- saving pharmaceuticals? tions on water, pesticides, and air quality.

29. For example, releases include materials that have been recycled, chemicals that are properly disposed of in modern , wastes safely managed at the site of a facility, and liquids (such as water) pumped from the ground and reinjected into the ground during oil drilling operations. Though none of these activities would consti- tute pollution to most people, TRI counts the movements of such materials as pollution. See the policy brief titled “Toxics Release Inventory.”

42 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Cancer Trends

Angela Logomasini

In recent decades, many have claimed that Prevention and Control, U.S. life expectancy cancer is rising because of increased use of reached 77.8 years in 2004.2 human-made chemicals. But if chemicals were Moreover, cancer trends are anything but a source of health problems, one might expect alarming. Scientists Richard Doll and Richard that as chemical use increased around the world, Peto note in their landmark study on cancer there would be a measurable adverse effect on that rates remained nearly constant in the life expectancy, cancer rates, or other illnesses. United States during the 20th century except Yet in developed nations, where chemical use for increases caused by smoking. Improvements has greatly increased, people are living longer, in medical technology, more accurate identifica- healthier lives. According to the the World tion and reporting of cancer cases, and—most Health Organization (WHO), the average important—increasing life expectancies that worldwide human life span has increased from result in more people in the older age groups 45 years in 1950 to about 66 in 2000, and it (in which cancer is more likely) only make it will most likely continue to increase to 77 years 1 by 2050. According to the Centers for Disease 2. ArialdiM.Miniño, Melonie P. Heron, SherryL.Mur- phy, and Kenneth D.Kochanek, “Deaths: Final Data 1. Bernard W. Stewart and Paul Kleihues, eds.,World for 2004,” National Vital Statistics Reports 55 no. 19 Cancer Report (Lyon, France: World Health Organiza- (August 21. 2007), http://www.cdc.gov/nchs/data/nvsr/ tion/IARC Press, 2003), 320. nvsr55/nvsr55_19.pdf.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 43 The Environmental Source

Figure 1. U.S. Cancer Mortality Age-Adjusted result of reduced smoking rates Cases per 100,000 Individuals over the past 25 years.5 They do

240 not mention environmental expo- sures in the discussion of cancer trends. 230 It is true that developed na- tions have higher cancer rates than 220 developing nations and that there was an increase in cancer incidence 210 during the 20th century. The WHO reports that developed nations face 200 cancer rates that are more than twice as high as that of developing 6 190 nations. The data clearly indicate, however, that chemical use and re-

180 lated pollution are not sources of

1975 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 this problem. Other factors better Source: National Cancer Institute. explain these trends. In particular, cancer is largely a disease related to aging, which means that along appear as if rates have increased.3 Scientists with the improvements in life expectancy Bruce Ames and Lois Swirsky Gold report come increased cancer rates. Also, rates will that overall cancer rates, excluding lung can- appear even larger because the median age of cer, have declined 16 percent since 1950. This the population is getting older. Not surpris- increase in cancer among the elderly is best ingly, the WHO reports that cancer deaths explained by improved screening.4 and incidence grew 22 percent between 1990 The National Cancer Institute (NCI), in and 2000. Those trends are expected to con- its annual report on cancer, has also reported tinue regardless of chemical use because, as that rates for overall cancer are down in re- the WHO reports, the number of individuals cent years (see figure 1). Rates for almost all older than 60 will triple by 2050. specific cancers also are falling. Researchers In addition, developed nations experienced report that even lung cancer is falling, as a a dramatic increase of cancer incidences in the past century because of an increase in smok-

3. Richard Doll and Richard Peto, “The Causes of Can- cer: Quantitative Estimates of Avoidable Risks of Cancer 5. Phyllis A. Wingo, Lynn A. G. Ries, Gary A. Gio- in the United States Today,” Journal of the National Can- vino, Daniel S. Miller, Harry M. Rosenberg, Donald R. cer Institute 66, no. 6 (1981): 1257. Shopland, Michael J. Thun, and Brenda K. Edwards, 4. Bruce N. Ames and Lois Swirsky Gold, “Environ- “Annual Report to the Nation on the Status of Cancer, mental Pollution, Pesticides, and the Prevention of 1973–1996, with a Special Section on Lung Cancer and Cancer: Misconceptions,” FASEB Journal 11, no. 13 Tobacco Smoking,” Journal of the National Cancer Insti- (1997): 1041–52, http://socrates.berkeley.edu/mutagen// tute 91, no. 8 (April 1999): 675. AmesGold.pdf. 6. Stewart and Kleiheus, World Cancer Report.

44 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Chemical Risk ing, which causes several types of cancer in be increasing or decreasing. Because cancer is a addition to lung cancer. The WHO says that disease that occurs at older ages, the number of tobacco is the main known cause of cancer, cancer cases will increase when a larger share producing up to 30 percent of all cancers in de- of the population is older, though the risk per veloped nations.7 A large portion of cancer rate individual might be declining or remaining con- increases in developed nations occurred during stant. Hence, when researchers adjust for such the previous century because of increases in the changes in the population, they get a better idea rate of smoking earlier that century. of whether cancer risks are increasing or declin- For example, Brad Rodu and Philip Cole, ing. In addition, as a population grows larger, researchers from the University of Alabama so does the number of cancers. So even if cancer Schools of Medicine and Public Health, report risks to the individual are declining, absolute that in the United States smoking is responsible number of cancers for the population could be for making what was once a rare occurrence— increasing. Hence, risk is better measured by lung cancer—one of the most common can- counting the number of cancers per 100,000 cers today. Rodu and Cole note, however, that individuals. “when the mortality from all smoking-related The NCI produces an annual report on cancers is excluded, the decline in other cancer cancer trends, published in the Journal of the from 1950 to 1998 was 31 percent (from 109 National Cancer Institute, which offers some of to 75 deaths per 100,000 person years).”8 They the best analysis in the world. A special report continue, “A typical commentary blamed ‘in- in the European Journal of Cancer offers a sim- creasing cancer rates’ on ‘exposure to industrial ilarly impressive analysis on cancers around the chemicals and run-away modern technologies world, using data adjusted for age and popula- whose explosive growth had clearly outpaced tion size.10 Both sources offer valuable analy- the ability of society to control them.’” But sis and explanations of the data that—when their research finds: “There is no denying the absent—can facilitate attempts to mislead the existence of environmental problems, but the public and policymakers about what the data present data show that they produced no strik- reveal about cancer risks. ing increase in cancer mortality.”9 The European Journal of Cancer article notes To get a better idea about specific cancer that rates for cancer are increasing overall be- trends, one must consider how cancer rates cause of various circumstances around the world are reported. Age-adjusted cancer data offer that are not easily lumped into a single category. a clearer understanding about risk and actual None of these circumstances include exposure trends than do non-age-adjusted data. Age ad- to trace levels of chemicals. Yet in some places, justing involves controlling for the fact that the both mortality and incidence are declining, par- number of older people in a population may ticularly in industrial nations where chemicals are used widely.11 Likewise, the NCI reports:

7. Ibid., 22. 8. Brad Rodu and Philip Cole, “The Fifty-Year Decline 10. D. M. Parkin, F. I. Bray, and S. S. Devesa, “Cancer of Cancer in America,” Journal of Clinical Oncology 19, Burden in the Year 2000: The Global Picture,” European no. 1 (2001): 240–41. Journal of Cancer 37, supplement 8 (2001): S4–66. 9. Ibid., 239–41. 11. Ibid.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 45 The Environmental Source

Cancer incidence for all sites combined period.14 One finds similar trends in other devel- decreased from 1992 through 1998 among oped nations. In the United Kingdom, research- all persons in the United States, primarily ers note, “the most notable change [in breast because of a decline of 2.9 percent per year cancer incidence rates] has been acceleration in in white males and 3.1 percent per year in the slow increases noted in the 1970s following black males. Among females, cancer inci- the introduction of screening in approximately dence rates increased 0.3 percent per year. 1988.”15 Others report similar findings in Den- Overall, cancer death rates declined 1.1 per- mark, the Netherlands, and Norway.16 cent per year.12 However, screening doesn’t explain all inci- dence increases in breast cancer. Both the NCI The NCI report shows that the incidence and the European Journal of Cancer report other has increased among women, largely as a result factors. Risk factors associated with breast can- of increased rates of smoking among women. cer are related to lifestyle choices available to women in industrial societies—which explains Breast Cancer Trends why breast cancer is more common in Western nations. These include dietary choices such as In recent years, breast cancer among women consumption of too much fat, alcohol, or both; has risen, particularly in developed nations, obesity among children (which increases risks as but chemicals have not been found to be the it can affect hormone levels and produce early likely cause. The NCI notes that breast cancer menstruation); weight gain after menopause rates appear to be higher in part because better (which may increase risks by 2 percent per unit screening and increased detection are finding of body mass index); and weight gain after 18 more cancers.13 The percentage of women age years of age. Delaying or refraining from child- 40 to 49 who obtained mammograms doubled bearing can also affect hormone levels, thereby between 1987 and 1998 from 32 percent to increasing breast cancer risks. And finally, the 63 percent. The percentage of women age 50 use of hormones for birth control and meno- to 64 who received a mammogram increased pause treatment may slightly increase risks.17 from 31 percent to 73 percent in that same time As developing nations experience economic growth, we should expect breast cancer rates to increase with the introduction of risk fac- 12. Holly L. Howe, Phyllis A. Wingo, Michael J. Thun, Lynn A. G. Ries, Harry M. Rosenberg, Ellen G. Feigal, tors associated with the lifestyles in developed and Brenda K. Edwards, “Annual Report to the Nation on the Status of Cancer (1973 through 1998), Featuring 14. U.S. Centers for Disease Control and Prevention, Cancers with Recent Increasing Trends,” Journal of the CDC Fact Book 2000/2001 (Washington, DC: CDC, National Cancer Institute 93, no. 11 (2001): 824–42. 2000), 46, http://www.csctulsa.org/images/CDC%20 13. Ibid. See also, Hannah K. Weir, Michael J. Thun, Ben- Fact%20Book%202000%202001.pdf. jamin F. Hankey, Lynn A. G. Ries, Holly L. Howe, Phyllis 15. Ibid. A. Wingo, Ahmedin Jernal, Elizabeth Ward, Robert N. Anderson, and Brenda K. Edwards. “Annual Report to 16. Parkin, Bray, and Devesa, “Cancer Burden in the the Nation on the Status of Cancer, 1975–2000, Featur- Year 2000.” ing the Uses of Surveillance Data for Cancer Prevention 17. Howe et al., “Annual Report to the Nation on the and Control,” Journal of the National Cancer Institute Status of Cancer,” and Parkin, “Cancer Burden in the 95, no. 17 (2003): 1276–99. Year 2000.”

46 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Chemical Risk

Figure 2. Deaths by Type of Cancer, Not emphasized by anti-chemi- Age-Adjusted Cancers per 100,000 Individuals cal activists is the fact that modern

60 medicine—and its many chemi- cals—are saving women from breast cancer. Because of improvements in 50 treatment, death rates in the United States from breast cancer decreased 40 from 1989 through 1995 by 1.6 percent for all races combined (see figure 2). Between 1995 and 1998, 30 the death rate declined even faster at a rate of 3.4 percent.19 In Europe, 20 likelihood of survival after one year is 91 percent. Likelihood of sur-

10 vival after five years is 65 percent. 19751976197719781979198019811982198319841985198619871988198919901991199219931994199519961997199819992000 Survival in the United Kingdom

Breast Colon and Rectum Prostrate Lung increased nearly 3 percent a year 20 Source: National Cancer Institute. between 1978 and 1985. Other European nations appear to be at an earlier stage in reducing rates, but nations. Such increases should not be confused there seems to be declining mortality among with—or exploited to claim—the existence of a younger generations.21 chemically caused cancer epidemic. In addition, studies assessing alleged chemi- Prostate Cancer Trends cally caused breast cancers are not finding much of a link. U.S. researchers produced one of the Prostate cancer increases have also been at- largest studies among women in Long Island, tributed by some to the use of chemicals. Prostate New York, which was unable to establish a link cancer has in fact risen in recent years in both the between the chemicals most often cited as a po- United States and Europe, but it has since leveled tential cause of breast cancer—DDT (dichloro- off on both sides of the Atlantic. Better technol- diphenyl-trichloroethane) and other pesticides ogy for detecting prostate cancer has increased as well as PCBs (polychlorinated biphenyls)— rates because it has improved detection. The NCI and an elevated level of cancers in that area.18 reports that prostate cancer incidence increased

18. Marilie D. Gammon, Regina M. Santella, Alfred I. Neugut, Sybil M. Eng, Susan L. Teitelbaum, Andrea Cancer on Long Island: I. Polycyclic Aromatic Hydrocar- Paykin, Bruce Levin, Mary Beth Terry, Tie Lan Young, bon DNA Adducts,” Cancer Epidemiology Biomarkers Lian Wen Wang, Qiao Wang, Julie A. Britton, Mary S. Prevention 11, no. 8 (2002): 677–85. Wolff, Steven D. Stellman, Maureen Hatch, Geoffrey C. 19. Howe et al., “Annual Report to the Nation on the Kabat, Ruby Senie, Gail Garbowski, Carla Maffeo, Pat Status of Cancer.” Montalvan, Gertrud Berkowitz, Margaret Kemeny, Marc Citron, Freya Schnabel, Allan Schuss, Steven Hajdu, and 20. Parkin et al., “Cancer Burden in the Year 2000.” Vincent Vinceguerra, “Environmental Toxins and Breast 21. Ibid.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 47 The Environmental Source

after 1973 at a rate of 2.9 percent annually and posedly alarming increase of brain and other then at a steeper rate when improved screening cancers among children. The Center for Chil- methods identified more cases. Nonetheless, dren’s Health and the Environment has run an prostate cancer cases began to decline by 11 per- advertising campaign against chemicals. In one cent annually between 1992 and 1995, and they advertisement, it proclaims, “More children are have since leveled off. Mortality follows a simi- getting brain cancer. Why? Toxic chemicals ap- lar trend, declining between 1995 and 1998 at a pear to be linked to rising cancer rates.”25 rate of 4.7 percent for white males and 3 percent But policymakers should not fall for such for African American males. European cancer claims. First, because childhood cancer is rare, researchers reported that such rate increases and an increase of even a relatively small number of recently reduced mortality are “consistent with a cancer cases will appear more substantial when favorable role of improved diagnosis, but mainly expressed on a percentage basis. Moreover, ac- of advancements of therapy.”22 cording to the NCI, the trends related to child- However, better detection probably doesn’t hood cancer are anything but alarming in the explain all of the increase in prostate cancer. United States. Cancer incidence among children Environmental factors may be causing some ad- is stable. And the NCI attributes brain cancer ditional cancers, but exposure to trace levels of increases to improved detection technology. It chemicals is not among the likely or documented concluded: causes. Instead, dietary factors, such as increased intake of animal fats or increased infections re- There was no substantial change in in- lated to more sexual promiscuity, are more likely cidence for major pediatric cancers, and sources. Occupational exposure to pesticides rates have remained relatively stable since (which is far higher than public exposure) is the mid-1980s. The modest increases that noted as a possibility by the NCI, but it is not were observed for brain/CNS [central a strong probability as “it is unclear if this find- nervous system] cancers, leukemia, and ing is the result of occupational factors or [of] infant neuroblastoma [cancer of the sym- concomitant lifestyle factors.”23 Occupational pathetic nervous system] were confined to exposures to other chemicals show only “weak the mid-1980s. The patterns suggest that associations” and are far from conclusive.24 the increases likely reflected diagnostic im- provements or reporting changes. Dramatic Brain Cancer Trends declines in childhood cancer mortality represent treatment-related improvement Anti-chemical activists have also claimed in survival … [and] recent media reports that chemical use is somehow linked to a sup- suggest that incidence is increasing and that the increases may be due to environmental 22. Fabio Levi, Franca Lucchini, Eva Negri, Peter Boyle, exposures. However, these reports have not and Carlo La Vecchia, “Leveling of Prostate Cancer Mortal- generally taken into consideration the tim- ity in Western Europe,” Prostate 60, no.1 (2004): 46–52. ing of changes in childhood cancer rates, 23. Richard B. Hayes, “Prostate,” in Cancer Rates and Risks (Washington, DC: National Cancer Institute), http:// rex.nci.nih.gov/NCI_Pub_Interface/raterisk/risks185.html. 25. The advertisement is available online: http://www. 24. Ibid. childenvironment.org/images/ad2big.pdf.

48 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Chemical Risk

or important development in the diagnosis Conclusion classifications of childhood cancers.26 Despite many claims to the contrary, cancer European studies also report that better trends in developed nations—measured in both detection technology and improvements in the incidence and mortality—do not indicate that cancer registries played important roles in the human-made chemicals play much of a role increase of reported childhood brain cancers.27 in increasing cancer rates. In fact, cancer inci- Fortunately, researchers report that child- dence trends reveal areas of great improvement hood mortality associated with cancer in general and opportunities to make further improve- is declining dramatically in developed nations. ments by encouraging people to make lifestyle The NCI reports “dramatic declines” in child- changes. Mortality trends indicate important hood cancer mortality overall.28 According to public health achievements, many of which are one report, mortality from childhood cancers made possible by the use of modern technology has declined 50 percent in Western Europe and and chemicals. is also declining in Eastern Europe, but at a slower rate.29

26. Martha S. Linet, Lynn A. G. Ries, Malcolm A. Smith, Robert E. Tarone, and Susan S. Devesa, “Cancer Surveil- lance Series: Recent Trends in Childhood Cancer Inci- dence and Mortality in the United States,” Journal of the National Cancer Institute 91, no. 12 (1999): 1051–58. 27. For example, see Ann Charlotte Dreifaldt, Michael Carlberg, and Lennart Hardell, “Increasing Incidence Rates of Childhood Malignant Diseases in Sweden dur- ing the Period 1960–1998,” European Journal of Can- cer 40, no. 9 (2004): 1351–60; Ardine M. J. Reedijk, Maryska L. G. Janssen-Heijnen, Marieke W. J. Louw- man, Yvonne Snepvangers, Wim J. D. Hofhuis, Jan Wil- lem W. Coebergh, “Increasing Incidence and Improved Survival of Cancer in Children and Young Adults in Southern Netherlands, 1973–1999,” European Journal of Cancer 41, no. 5 (2005): 760–69; and Cancer Re- search UK, “Trends in Childhood Cancer Incidence and Mortality Rates Over Time,” last updated on Septem- ber 2005, http://info.cancerresearchuk.org/cancerstats/ childhoodcancer/trends. 28. Linet et al., “Cancer Surveillance Series,’’ 1051. 29. F. Levi, C. La Vecchia, E. Negri, and F. Lucchini, “Childhood Cancer Mortality in Europe, 1955–1995,” European Journal of Cancer 37, no. 6 (2001): 785–809.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 49

The True Causes of Cancer

By Angela Logomasini

Environmental activists have long claimed improve quality of life to pay for unproductive that man-made chemicals are causing rampant regulations. cancer rates that could be addressed only by government regulation. Accordingly, lawmak- True Causes of Cancer ers have passed laws directing government agencies to study environmental causes of In their landmark 1981 study of the is- cancer, estimate the number of lives allegedly sue, Richard Doll and Richard Peto set out to lost, and devise regulations to reduce death determine the causes of preventable cancer in rates. However, lawmakers should be aware of the United States.1 According to Doll and Peto, some key problems with how this system has pollution accounts for 2 percent of all cancer worked in practice. First, the claim that chemi- cases, and geophysical factors account for an- cal pollution is a major cancer cause is wrong. other 3 percent (see figure 1). They do note that Second, agencies have relied on faulty scientific 80 percent to 90 percent of cancers are caused methods that grossly overestimate potential by “environmental factors.” Although activists cancer deaths from chemicals and potential lives saved by regulation. As a result, regulatory 1. Richard Doll and Richard Peto, “The Causes of Can- cer: Quantitative Estimates of Avoidable Risks of Cancer policy tends to divert billions of dollars from in the United States Today,” Journal of the National Can- other life-saving uses or from other efforts to cer Institute 66, no. 6 (1981): 1191–308.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 51 The Environmental Source

Figure 1. Causes of U.S. Cancer-Related Deaths underline the importance of diet by pointing out that the quarter of the Other population eating the fewest fruits Pollution and vegetables had double the cancer Geophysical factors incidence than those eating the most. Alcohol Diet Finally, they conclude: “There is no Occupational factors convincing evidence that synthetic Reproductive chemical pollutants are important as and sexual behavior a cause of human cancer.”3

Infections The Dose Equals the Poison

Before government officials, both domestic and international, advocate or issue regulations, they need to jus- Tobacco tify the regulations on the basis of public health benefits. Accordingly,

Source: Doll and Peto, “The Causes of Cancer.” regulators and scientists at interna- tional organizations have developed various tests to assess risks. Although often trump this figure as evidence that indus- those tests have a tremendous effect on which trial society is causing cancer, Doll and Peto chemicals are chosen to be regulated and to explained that environmental factors are sim- what degree, there are serious problems with ply factors other than genetics—not pollution the methodologies and the claims that research- alone. Environmental factors include smoking, ers make about their findings. diet, occupational exposure to chemicals, and During much of history, scientists contended, geophysical factors. Geophysical factors in- “the dose makes the poison.” Indeed, at small clude naturally occurring radiation, man-made levels, substances can be helpful or benign, but radiation, medical drugs and medical radiation, at high levels, they can sicken or kill. But in the and pollution. Tobacco use accounts for about later part of the 20th century, regulators, many 30 percent of all annual cancer deaths. Dietary in the environmental community, and a few choices account for 35 percent of annual cancer scientists abandoned that idea. They contended deaths. that many chemicals can have adverse effects at Bruce Ames and Lois Swirsky Gold have any level and that risks increase linearly with come to similar conclusions, noting that smok- any dose above zero. On the basis of those as- ing causes about a third of all cancers.2 They sumptions, regulatory policy around the world has focused on ways to regulate chemicals to re- 2. Bruce N. Ames and Lois Swirsky Gold, “Envi- duce exposure to as close to zero as possible. But ronmental Pollution, Pesticides, and the Prevention of many scientists question whether such linearity Cancer: Misconceptions,” FASEB Journal 11, no. 13 (1997): 1041–52, http://socrates.berkeley.edu/mutagen// AmesGold.pdf. 3. Ibid., 1041.

52 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Chemical Risk even exists. They contend that the old way of fact, the U.S. Environmental Protection thinking was correct: many chemicals are safe Agency (EPA) proposed a rule that would under a given threshold or exposure level, with have applied threshold assumptions in each chemical having its own threshold: 1998. When the EPA reversed its position, • Scientist Philip Abelson notes that the “error a federal court vacated the rule because in this approach is becoming increasingly the EPA did not use the best peer-reviewed apparent through experiments that pro- science as required by the Safe Drinking duce data that do not fit the linear model.” Water Act.8 Indeed, he argues, “Pharmacologists have long stated that it is the dose that makes the Mice, Men, and Carcinogens poison.”4 • Others note that the low-dose linearity When environmentalists and government model ignores the fact that the human body agencies label chemicals as carcinogens, they may create defense mechanisms against often point to rodent tests. However, the tests chemicals when we are exposed to them at have been proven seriously flawed. They entail low doses, which means low-level exposures administering massive amounts of chemicals to might help us fight off cancer and other ill- rodents bred to be highly susceptible to cancer. nesses. Scientist Jay Lehr notes that studies Then researchers extrapolate the possible ef- have found cases in which people exposed fects of such chemicals on humans, who may be to low-levels of radiation actually experi- exposed to small amounts of the same chemical enced less incidence of leukemia than the over their lifetimes. general population, whereas highly exposed First, we should ask, “Are the impacts on individuals experienced elevated rates of rodents relevant to humans?” Doll and Peto leukemia.5 note that some chemicals found to be carcino- • Another study found that increasing levels genic in humans have not produced cancerous of low-level radon exposure are linked to tumors in rodent experiments. In fact, for many decreasing cancer rates.6 years, cigarette smoke failed to produce malig- • Increasingly, the idea that all chemicals are nant tumors in laboratory animals even though unsafe at any level is losing credibility.7 In tobacco is perhaps the leading cause of cancer in the United States. These discordant effects of 4. Philip Abelson, “Radon Today: The Role of Flimflam chemicals in animals and humans underline the in Public Policy,” Regulation 14, no. 4 (1991): 97. difficulty of relying on animal results to esti- 5. Jay Lehr, “Good News about Radon: The Linear mate human risks.9 Nonthreshold Model Is Wrong,” Environmental Educa- tion Enterprises, Ostrander, OH, May 1996, http://www. Second, researchers question whether the junkscience.com/news/lehr.html. extremely high doses administered in the lab 6. Bernard L. Cohen, “Test of the Linear–No Thresh- old Theory of Radiation Carcinogenesis for Inhaled Ra- don Decay Products,” Health Physics 68, no. 2 (1995): What Risk? ed. Roger Bate (Boston: Butterworth Heine- 157–74. mann, 1997), 3–36. 7. For a discussion of thresholds, see James D. Wilson, 8. See the policy brief titled “Safe Drinking Water “Thresholds for Carcinogens: A Review of the Relevant Overview.” Science and Its Implications for Regulatory Policy,” in 9. Doll and Peto, “The Causes of Cancer,” 1192–308.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 53 The Environmental Source are relevant even to low-level exposures in the of 826 volatile chemicals in roasted coffee. real world. Ames and Gold demonstrate why Although only 21 of those chemicals have we need not be concerned about low-level ex- been put through laboratory risk assess- posure to “rodent carcinogens.”10 Ames and ments, all but 5 were found to be carcino- Gold found that such chemicals pose no more genic in laboratory rat tests. A cup of coffee risk than that posed by the many natural, un- contains at least 10 milligrams of “carcino- regulated substances that are common and ac- genic” chemicals.15 cepted parts of a healthy diet: • Carcinogens that cause cancer in rodent • Although 212 of 350 of the synthetic chem- studies exist in apples, bananas, carrots, icals examined by various agencies were celery, coffee, lettuce, orange juice, peas, found to be carcinogenic at the massive potatoes, and tomatoes at levels thousands doses given to rodents, 37 out of 77 of the of times greater than exposures found in natural substances tested were also found drinking water.16 carcinogenic in rodent studies employing There is neither convincing evidence nor the same methodology.11 solid biological theory to support the conten- • We safely consume thousands of natural tion that low-level, environmental exposure chemicals every day at much higher levels to natural or human-made chemicals is a sig- than chemicals that have been labeled car- nificant cause of human cancers. Regulation of cinogens because they caused cancer when environmental exposures to chemicals can be administered in massive doses to rodents. expected to have no discernible effect on human For example, humans consume thousands of health. The open question is how much money natural pesticides, which plants naturally pro- and effort are to be spent on those efforts and duce as a biological defense mechanism.12 how many lives will be lost as regulation im- • Ames and Gold estimate that 99.99 percent pedes life-saving technology. (by weight) of the pesticides humans con- sume are natural pesticides.13 What about Cancer Clusters? • The average intake of natural carcinogens found in plant foods is about 1,500 milli- In recent years, Hollywood produced two grams per person each day, while the aver- major motion pictures—A Civil Action and age intake of human-made pesticides is 0.09 Erin Brockovich—on the alleged effects of milligrams per day.14 chemicals on various communities. In both • The commonness of exposures to chemi- cases, tort lawyers claimed that drinking wa- cals is demonstrated by the identification ter contaminated by industrial facilities caused health-related problems in nearby areas. 10. Bruce N. Ames and Lois Swirsky Gold, “Too Many Rodent Carcinogens: Mitogenesis Increases Mutagen- 15. Ibid. esis,” Science 249, no. 4976 (August 31, 1990): 1487. 16. See Appendix A of National Research Council, Com- 11. Ibid. mittee on Comparative Toxicology of Naturally Occur- 12. Ibid. ring Carcinogens, Carcinogens and Anticarcinogens in the Human Diet: A Comparison of Naturally Occurring 13. Ibid. and Synthetic Substances (Washington DC: National 14. Ibid. Academies Press, 1996).

54 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Chemical Risk

Such cases raise public awareness about pect.19 In 1990, Gough analyzed the findings cancer clusters—geographic areas where can- of the landmark Doll and Peto study on the cer rates exceed (or appear to exceed) that of causes of cancer along with cancer risks esti- the general population. But despite the ability mated in EPA’s report Unfinished Business.20 of trial lawyers to win such cases, it is nearly Gough came to conclusions similar to those of impossible to pin down the causes of such clus- Doll and Peto. He noted that between 2 percent ters. In 1990, the Centers for Disease Control and 3 percent of all cancers could be associated and Prevention reported on 22 years of studies with environmental pollution. Determining that covered clusters in 29 states and 5 foreign such numbers helps us understand exactly what countries. They could not establish a clear cause the EPA can expect to accomplish when regu- for any cluster.17 lating pollutants for the purposes of reducing Part of the problem is that many clusters oc- cancer. Gough notes that the EPA action could cur by mere chance. Raymond R. Neutra of the address only a very small percentage of cancers: California Department of Health Services finds If the EPA risk assessment techniques were ac- that we can expect 4,930 such random cancer curate and all identified carcinogens amenable clusters to exist in any given decade in United to EPA regulations were completely controlled States.18 Cancer cluster surveillance systems about 6,400 cancer deaths annually (about 1.3 also mistakenly focus on low-level exposure to percent of the annual total of 485,000 cancer chemicals in the environment when such risks deaths when Gough did the analysis) would be may be impossible to detect. prevented. When cancer risks are estimated us- ing a method like that employed by the Food How Many Cancers Can and Drug Administration, the number of can- EPA Regulate Away? cers that can be regulated is smaller—about 1,400 (about 0.25 percent).21 Some of the EPA’s proposed regulations promise to save thousands from dying of can- Key Experts cer. When the promises of all of the hundreds of proposed regulations are added together, Michael Gough, [email protected] the lives claimed to be saved likely would total Angela Logomasini, Director of Risk and in the millions. But compared with the actual Environmental Policy, Competitive Enterprise number of deaths and likely causes, do those Institute, [email protected] claims hold water? Scientist Michael Gough demonstrates that 19. Michael Gough, “How Much Cancer Can EPA we should consider such EPA claims as sus- Regulate Away?” Risk Analysis 10, no. 1 (1990): 1–6. See also Michael Gough, “Estimating Cancer Mortality,” 17. Glyn G. Caldwell, “Twenty-Two Years of Cancer and Technology 23, no. 8, (1989): Cluster Investigations at the Centers for Disease Con- 925–30. trol,” American Journal of Epidemiology 132, suppl. 1 20. EPA, Unfinished Business: A Comparative Assess- (1999): S43–47. ment of Environmental Problems—Overview Report 18. Lori M. Kase, “Why Community Cancer Clusters Are (Washington, DC: EPA, 1987). Often Ignored,” Scientific American 275, no. 3 (1996): 21. Gough, “How Much Cancer Can EPA Regulate 85–86. Away?” See also Gough, “Estimating Cancer Mortality.”

202-331-1010 • www.cei.org • Competitive Enterprise Institute 55 The Environmental Source

Recommended Reading Doll, Richard, and Richard Peto. 1981. “The Causes and Prevention of Cancer: Quan- American Council on Science and Health. 1995. titative Estimate of Avoidable Risks of Update: Is There a Cancer Epidemic in the Cancer in the United States Today.” Journal United States? New York: American Coun- of the National Cancer Institute 66, no. 6, cil on Science and Health. 1191–308. Ames, Bruce N., and Lois Swirsky Gold. 1997. Gough, Michael. 1990. “How Much Cancer “Environmental Pollution, Pesticides, and Can EPA Regulate Away?” Risk Analysis Prevention of Cancer: Misconceptions.” 10, no. 1: 1–6. FASEB Journal 11, no. 13: 1041–52. http:// ———. 1999. “Cancer Testing.” Technology 6: socrates.berkeley.edu/mutagen//AmesGold. 23–42. pdf.

56 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Endocrine Disrupters

By Angela Logomasini

Having largely lost the intellectual debate systems, and contractions during pregnancy. on cancer (although their spurious claims still Foreign chemicals can disrupt proper function- adversely affect policy), anti-chemical activists ing of the endocrine system and lead to health have decided to add more tools to their arsenal. problems. Environmentalists refer to such ex- Among their most powerful tools is the claim ternal chemicals as endocrine disrupters, but that chemicals are causing widespread prob- others use more neutral terms because not all lems by disrupting the endocrine systems of hu- effects are negative or substantial. The Ameri- mans and wildlife. Accordingly, activists argue can Council on Science and Health (ACSH) that we should ban or heavily regulate various chemicals, particularly pesticide products, on calls them endocrine modulators, which is the 1 the basis of assertions that such chemicals may term used in the subsequent discussion. The have an endocrine-related effect. National Research Council calls them “hor- Endocrine systems in both humans and monally active agents.”2 animals consist of a series of glands that secrete hormones and send messages throughout the 1. ACSH, Endocrine Disrupters: A Scientific Perspec- tive (New York: ACSH, 1999), 9. body. Working in conjunction with the nervous 2. National Research Council, Hormonally Active system, these messages trigger various responses, Agents in the Environment (Washington, DC: National such as growth, maturation of reproductive Academies Press, 1999).

202-331-1010 • www.cei.org • Competitive Enterprise Institute 57 The Environmental Source

The endocrine disrupter alarm tactic fo- miscarriages. The relevance of these cases to cuses primarily on synthetic chemicals. Alleg- low-level environmental exposures or to other edly, because we have used and continue to use potential endocrine modulators is highly tenu- man-made chemicals—particularly a class of ous, as many researchers have pointed out: chemicals called organochlorines, such as DDT (dichloro-diphenyl-trichloroethane) and PCBs • Toxicologist Stephen Safe notes: “DES is not (polychlorinated biphenyls)—the public and only a potent estrogen, but it was adminis- wildlife are widely suffering with everything tered at relatively high doses.… In contrast, from infertility and cancer to neurological dis- synthetic environmental endocrine-disrupt- orders and developmental problems. But before ing compounds tend to be weakly active.”3 rushing to ban and regulate all man-made chem- • A panel of scientists reported to the Ameri- icals, policymakers should review some facts. can Council on Science and Health: “Aside To help place the issue in perspective, this for exposure itself, perhaps the two most section gives an overview of the following key important factors are potency and dose.”4 points: The ACSH report notes that putting envi- ronmental exposures to synthetic chemicals • Scientific studies have not found any defini- in perspective requires that we compare the tive adverse impacts to humans related to potency of such chemicals to that of the endocrine modulators in the environment. man-made estrogen, 17b-estradiol. Scientists • There are other, more significant sources of have found the synthetic chemicals DDT and endocrine modulators than industrial chem- PCBs (the most studied chemicals claimed to icals, indicating that the risks of industrial be endocrine disruptors) to be up to 1 mil- chemicals are tiny in comparison. lion times less potent than 17b-estradiol.5 • Effects on wildlife from industrial chemi- • The National Research Council reported cals appear to have occurred, but they have that it lacks data showing that “hormon- been isolated events rather than widespread ally active” compounds cause any adverse phenomena, and they have been related to impacts.6 relatively high-level exposures. • Cases in which wildlife may have been af- Declining Sperm Counts More Myth fected have declined considerably because Than Reality the level of industrial endocrine modulators in the environment has declined, thereby Yet more consternation resulted when Dan- reducing problems for wildlife. ish researchers conducted a statistical analysis

3. Stephen Safe, “Endocrine Disrupters: New Toxic Questionable Relevance of DES Menace?” in Earth Report 2000 (New York: McGraw- Hill, 2000), 192. Concerns about endocrine disrupters arose 4. ACSH, Endocrine Disrupters: A Scientific Perspec- in part after women who took the drug diethyl- tive, 11. stilbestrol (DES) experienced higher incidences 5. Ibid., 14–15. of reproductive tract problems. Between 1940 6. National Research Council, Hormonally Active and 1970, many women took DES to prevent Agents in the Environment.

58 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Chemical Risk

of 61 papers that included data on male sperm • Others suggested that problems with data counts.7 They reported a “significant decline emerged because the authors included stud- in mean sperm count” between 1940 and ies with samples that were far too small and 1990.8 But they noted that whether environ- that “would not normally be admissible as mental estrogens were involved remained to evidence.”11 be determined. • Claims drawn from the 61 study meta- Adding fuel to the fire, researchers Richard analysis grew even more suspect when other Sharpe and Niels E. Skakkebaek made stron- researchers conducted their own analysis ger suggestions that endocrine modulators of a subset of those studies. This analysis play a role in alleged sperm count declines. In considered the 48 studies published since one article, the authors asserted that “a strong 1970, leaving out some of the earlier studies mechanistic case can be made” to explain how because the data were too few to produce endocrine modulators could affect male repro- a useful analysis. This approach found that ductive functions.9 Although merely a series of male sperm counts have actually increased speculations, this article and subsequent state- between 1970 and 1990—contradicting ments by the authors have sparked continued claims that sperm counts were decreasing in mainstream press coverage and have become recent decades.12 key sources for those who claim that man- • To complicate matters further, although made chemicals are reducing sperm counts. But some additional studies do suggest falling problems with these papers abound: sperm counts,13 other studies have under- mined those findings by reporting no change • First, the 1992 Danish meta-analysis, which or an increase in sperm counts.14 is the basis of the declining sperm count claims, garnered criticism for numerous flaws, including the authors’ selection of 11. Stephen Farrow, “Falling Sperm Quality: Fact or Fic- data that left out low sperm counts in the tion?” British Medical Journal 309, no. 6946 (1994): 1. early dates, simply creating the illusion that 12. Anna Brake and Walter Krause, “Decreasing Qual- sperm counts in the later dates were lower.10 ity of Semen; Letter: Comment,” British Medical Journal 305, no. 6867 (1992): 1498, http://www.pubmedcentral. nih.gov/pagerender.fcgi?artid=1884126&pageindex=1. 7. This analysis and others that combine data from sev- eral studies are refered to as meta-analyses. 13. Stuart Irvine, Elizabeth Cawood, David Richardson, Eileen MacDonald, and John Aitkin, “Evidence of Dete- 8. Elisabeth Carlsen, Aleksander Giwercman, Niels riorating Semen Quality in the United Kingdom: Birth Keiding, and Niels E. Skakkebaek, “Evidence for De- Cohort Study in 577 Men in Scotland over 11 Years,” creasing Quality of Semen during the Past 50 Years,” British Medical Journal 312, no. 7029 (1996): 467. British Medical Journal 305, no. 6854 (1992): 609. 14. L. Bujan, A. Mansat, F. Fontonnier, and R. Mieusset, 9. Richard M. Sharpe and Niels E. Skakkebaek, “Are “Time Series Analysis of Sperm Concentration in Fertile Oestrogens Involved in Falling Sperm Counts and Disor- Men in Toulouse, France, between 1977 and 1992,” Brit- ders of the Male Reproductive Tract?” Lancet 341, no. ish Medical Journal 312, no. 7029 (1996): 417. See also 8857 (1993): 1392. Geary W. Olsen, Charles E. Ross, Kenneth M. Bodner, 10. Peter Bromwich, Jack Cohen, Ian Stewart, and An- Larry I. Lipshultz, and Jonathan M. Ramlow, “Have drew Walker, “Decline in Sperm Counts: An Artefact of Sperm Counts Been Reduced 50 Percent in 50 Years? A Changed Reference Range of ‘Normal’?” British Medical Statistical Model Revisited,” Fertility and Sterility 63, no. Journal 309, no. 6946 (1992): 19. 4 (1995): 887–93.

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• Claims of declining sperm counts remain DDT metabolites) and make a plea for govern- largely speculative. Even Sharpe, one of ment action: the strongest believers in potential sperm declines, notes “it is only a hypothesis.” He Our observations provide important new defends the hypothesis only on the idea that evidence related to low-level environmental “all the facts fit” (despite many findings to contaminants with organochlorine residues the contrary).15 to the risk of breast cancer in women. Given widespread dissemination of organochlo- Dubious Breast Cancer Claims rines in the environment, these findings have immediate and far-reaching implications for As in the prior case, concerns about breast public health intervention worldwide.”17 cancer caused by endocrine modulators arose with the publication of one key study. This As Stephen S. Sternberg, pathologist with time, it was a 1993 study led by Mount Sinai Sloan-Kettering Cancer Center, noted, “With Medical School Professor Mary Wolff that com- these statements, one can hardly consider that pared DDT levels in the body fat of 58 women the investigators reported their conclusions diagnosed with breast cancer with 171 control cautiously.” The result was media hype about subjects.16 Although the sample was still small, breast cancer risks. “The jury isn’t in, yet you the Wolff study was larger than prior studies, would never know it from the media reports,”18 only one of which had more than 20 subjects. said Sternberg. Further criticism of the study Wolff and her colleagues found higher levels quickly appeared in the scientific literature: of DDE (dichloro-diphenyl-dichloroethylene, the metabolite of DDT) in breast cancer vic- • Regarding the key breast cancer study al- tims, indicating an association between the leging endocrine risks, one group of re- two phenomena. searchers noted: “Their literature review Although it included phrases of caution excluded substantial conflicting evidence, (“these findings are novel” and “require confir- their discussion of the Serum DDE and PCB mation”), the study was full of other, more ex- measurements and the case-control analysis plosive rhetoric. In the conclusion, the authors excluded important details, and their dose- make strong statements about their “findings” response analysis, given their data used (which lump together all organochlorine sub- an inappropriate method. Also we do not stances even though the study focused only on believe that their data support their conclu- sion of a relationship between breast cancer and organochlorines as a class.”19 15. As quoted by Gail Vines, “Some of Our Sperm Are Missing: A Handful of Six Chemicals Are Suspected of Disrupting Male Sex Hormones, but Are These Oestro- gens Really the Environmental Evil They Seem?” New 17. Ibid. Scientist, August 26, 1995, 23. 18. Stephen S. Sternberg, “DDT and Breast Cancer, Cor- 16. Mary S. Wolff, Paolo G. Toniolo, Eric W. Lee, Mari- respondence,” Journal of the National Cancer Institute lyn Rivera, and Neil Dubin, “Blood Levels of Organo- 86 no. 14 (1994): 1094–96. chlorine Residues and Risk of Breast Cancer,” Journal of 19. John F. Acquavella, Belinda K. Ireland, and Jonathan the National Cancer Institute 85, no. 8 (1993): 648–52. M. Ramlow, “Organochlorines and Breast Cancer, Cor-

60 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Chemical Risk

• The National Research Council also noted of 240 women with breast cancer and a the following problems with the breast control group of the same size, which could cancer study: the size of the study was too not find a link.25 small to provide much conclusive informa- • Another study of more highly exposed pop- tion, methodological problems could mean ulations in Mexico, where DDT had been that the disease was causing higher levels used for insect control, found no significant of DDE rather than the other way around, difference in DDE levels among control and and adjustments that the Wolff study made breast cancer groups.26 to account for alleged losses of DDE levels • Accordingly, the National Research Council because of lactation may have been inap- concluded the following about the studies propriate (controlling for these variables conducted after 1995: “Individually, and substantially increased estimated DDE lev- as a group, these studies do not support an els in cancer victims).20 association between DDE and PCBs and • Ironically, Wolff, who remains an advocate cancer in humans.”27 of the view that organochlorines likely play a role in breast cancer and other diseases,21 Nature’s Hormone Factory28 participated in other studies that failed to find associations.22 Ironically, the entire theory that industri- • The National Research Council concluded alization is causing severe endocrine disrup- that the Wolff study and all the ones pub- tion falls apart when you consider exposures lished before 1995 “do not support an asso- to naturally occurring endocrine modulators. ciation between DDT metabolites or PCBs Plants naturally produce endocrine modulators and the risk of breast cancer.”23 called phytoestrogens, to which we are exposed • Subsequent studies further undermine can- cer claims.24 Key among those was a study a Problem? An Update,” Environmental Health Perspec- tives 108, no. 6 (2000): 487–93. respondence,” Journal of the National Cancer Institute 85, no. 22 (1993): 1872–75. 25. David J. Hunter, Susan E. Hankinson, Francine Laden, Graham A. Colditz, JoAnn E. Manson, Walter 20. National Research Council, Hormonally Active C.Willett, and Frank E. Speizer, “Plasma Organochlorine Agents in the Environment, 248–49. Levels and the Risk of Breast Cancer, New England Jour- 21. For example, see Mary S. Wolff and Ainsley Weston, nal of Medicine 337, no. 18 (1997): 1253–58. “Breast Cancer Risk and Environmental Exposures,” 26. Lizbeth López-Carrillo, Aaron Blair, Malaquías Environmental Health Perspectives 105, suppl. no. 4 López-Cervantes, Mariano Cebrián, Celina Rueda, Raúl (1997): 891–96. Reyes, Alejandro Mohar, and Jaime Bravo, “Dichlorodi- 22. Nancy Krieger, Mary S. Wolff, Robert A. Hiatt, Mari- phenyltrichloroethane Serum Levels and Breast Cancer lyn Rivera, Joseph Vogelman, and Norman Orentreich, Risk: A Case-Control Study from Mexico,” Cancer Re- “Breast Cancer and Serum Organochlorines: A Prospective search 57, no. 17 (1997): 3728–32. Study among White, Black, and Asian Woman,” Journal of 27. National Research Council, Hormonally Active the National Cancer Institute 86, no. 8 (1994): 589–99. Agents in the Environment, 272. 23. National Research Council, Hormonally Active 28. This title is borrowed from Jonathan Tolman, Na- Agents in the Environment, 250. ture’s Hormone Factory: Endocrine Disrupters in the 24. For an overview of many key studies, see Stephen Natural Environment (Washington DC: Competitive Safe, “Endocrine Disrupters and Human Health: Is There Enterprise Institute, March 1996).

202-331-1010 • www.cei.org • Competitive Enterprise Institute 61 The Environmental Source at levels that are thousands and sometimes mil- for estrogenized male fish.32 Even though they lions of times higher than those of synthetic may have a greater impact on wildlife because chemicals. Humans consume these chemicals they are far more potent, natural hormones are every day without adverse effects, and some not a large part of the debate related to envi- contend that these chemicals promote good ronmental estrogens. health. Consider these facts: In fact, when the U.S. Environmental Pro- tection Agency (EPA) set standards for its • Hundreds of plants appear to contain en- program to screen environmental estrogens (a docrine modulators, and lab tests have dis- program required under the Food Quality Pro- covered endocrine modulators in 43 foods tection Act), the committee refused to consider in the human diet, including corn, garlic, phytoestrogens and has delayed considering ef- pineapple, potatoes, and wheat.29 fects from contraceptives. Instead, it will screen • Soy products, particularly soybean oil, and test only “pesticide chemicals, commercial are found in hundreds of products, many chemicals, and environmental contaminants.”33 of which we safely consume on a regular When and if it considers the impacts of oral basis.30 contraceptives as environmental contaminants, • Although we safely consume them, phytoe- the EPA says its consideration will be limited strogens, are 1,000 to 10,000 times more because pharmaceutical regulation is a Food potent than synthetic estrogens. Because we and Drug Administration concern. consume far more phytoestrogens in our diet, As a result, the EPA’s program will focus on the estrogenic effects of the total amount we the smallest possible part of endocrine exposure consume are as much as 40 million times and the lowest area of risk. It serves regulators’ greater than those of the synthetic chemicals interests to leave consideration of both natu- in our diets. Nevertheless, they are safe.31 rally occurring estrogens as well as oral contra- ceptives out of the picture. If they did screen for In addition, the estrogen that our bodies them, the massive amounts would dwarf those create, 17b-estradiol, which is included in oral of pesticides and other chemicals they regu- contraceptives, may be entering waterways by late, demonstrating that low-level exposure to passing through treatment facilities. commercially related endocrine modulators is The effects of this chemical on wildlife are not relatively insignificant—a fact that would un- yet clear. However, recent studies in some Brit- dermine the EPA’s ability to regulate commer- ish rivers showed that natural hormones (17b- cial products on the allegation that they are a estradiol and estrone) and a component of birth significant source of endocrine disruption. control pills (ethynylestradiol) were responsible 32. C. Desbrow, E. J. Routledge, G. C. Brighty, J. P. 29. Tolman, Nature’s Hormone Factory, 4–5. Sumpter, and M. Waldock, “Identification of Estrogenic 30. Ibid., 5. Chemicals in STW Effluent,” Environmental Science and 31. Tolman, Nature’s Hormone Factory, 8. Figures are Technology 32, no. 11 (1998): 1549–58. derived from research of Stephen Safe, “Environmental 33. EPA, Office of Science Coordination and Policy, and Dietary Estrogens and Human Health: Is There a Endocrine Disruptor Screening Program: Report to Problem?” Environmental Health Perspectives 103, no. 4 Congress (Washington, DC: EPA, August 2000) 6, http:// (1995): 349. www.epa.gov/endo/pubs/reporttocongress0800.pdf.

62 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Chemical Risk

Wildlife-Related Problems: Isolated to covered in 1946 that natural endocrine modu- High-Level Exposures lators in clover had caused sheep sterility.36 Fortunately, cases of wildlife being affected Certain wildlife appears to have been af- by endocrine modulators are relatively isolated. fected by high exposures to certain man-made Moreover, the amount of certain endocrine chemicals, leading to developmental and repro- modulators—those that environmental activists ductive problems. In one study, alligators in hype the most—are becoming less concentrated Lake Apopka that were exposed to very high in the environment. This is happening despite levels of sulfuric acid and pesticides from a the fact that environmentalists have claimed nearby spill suffered from reduced hatching, these products were persistent, meaning they small phallus size, and reduced life spans.34 would not dissipate. The National Research Other studies have found similar problems in Council reports that, while there are some ex- the Great Lakes. However, one should look ceptions, concentrations are in fact declining: at these studies with caution before conclud- ing that such problems are widespread or that The concentrations of some regulated halo- man-made chemicals cause every endocrine-re- genated organic compounds have decreased lated problem. For example, many studies have since the 1970s. For many other chemicals, claimed that pesticides are causing deformities there are inadequate data upon which to in frogs in various places around the country, evaluate trends. The most studied chemicals but other factors may come into play. One study are PCBs and DDT and the production of revealed another possible cause: parasites.35 these has been banned in the United States for Also of note, phytoestrogens can have simi- the past 20 years, resulting in declines in envi- lar effects. Agricultural researchers and farmers ronmental concentrations. Examples include have discovered some problems and have miti- progressive and substantial decline in PCBs gated the effects of such chemicals to protect and DDT found in eggs taken from bird colo- their livestock. For example, Competitive En- nies in the Canadian Atlantic region between terprise Institute’s Jonathan Tolman noted that 1972 and 1978 and decrease in PCBs and the Australian Department of Agriculture dis- DDT in Bering Sea fish from 1982 to 1992.37

34. Louis J. Guillette Jr., Timothy S. Gross, Greg R. Mas- son, John M. Matter, H. Franklin Percival, and Allan R. Woodward, “Developmental Abnormalities of the Gonad and Abnormal Sex Hormone Concentrations in Juvenile Alligators from Contaminated and Control Lakes in Florida,” Environmental Health Perspectives 102, no. 4 (1994): 680–88. 35. Pieter T. J. Johnson, Kevin B. Lunde, Euan G. Ritchie, and Alan E. Launer “The Effect of Trematode Infection on Amphibian Limb Development and Survivorship,” Science 284, no. 5415 (1999): 802–4. For an overview 36. Tolman, Nature’s Hormone Factory, 1. of the issue, see Brian Doherty, “Amphibian Warfare,” 37. National Research Council, Hormonally Active Weekly Standard, May 24, 1999, 16–18. Agents in the Environment, 66–67.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 63

Methylmercury Science

Gregory Conko and Morgan Wildermuth

During the past few years, environmental power plants. The theory is that methylmer- activists, public health officials, and the media cury in fish is unhealthy for pregnant women have become increasingly concerned about and children and that mercury emissions must consumers’ exposure to mercury, primarily therefore be significantly reduced. methylmercury in fish. In response to exagger- A substantial body of evidence indicates, how- ated risk estimates, many consumers have been ever, that (a) the amount of mercury in the Amer- advised to reduce their fish consumption. How- ican diet is so low that it has little or no health ever, the most reliable scientific analyses con- effect on even at-risk populations, and (b) even tinue to show that eating at least two servings sizable reductions in mercury emissions would of fish each week produces health benefits that have no appreciable effect on American exposure substantially outweigh any hypothesized risk— to mercury. Furthermore, the cost of complying even for young children and pregnant mothers. with new power plant emissions regulations is The advisory warnings that spawned this un- estimated to have a large human impact. healthy trend were not created on a scientific or nutritional basis. Rather, they were created for Mercury Exposure and Health Effects political reasons. Environmental activists have buoyed the fish scare in an attempt to increase Very large doses of mercury are known to regulation of mercury emissions from electric have substantial adverse health effects, includ-

202-331-1010 • www.cei.org • Competitive Enterprise Institute 65 The Environmental Source

ing impacts on neurodevelopment in both adults age is important in determining whether expo- and children.1 Effects on developing fetuses are sure to a substance will be harmful, these mass of special concern, because mercury in the diet of poisoning scenarios have little or no relevance pregnant women can affect the hearing, intelli- for determining whether fish consumption, un- gence, and other cognitive functions of those chil- der normal circumstances, poses any legitimate dren. However, all that we currently know about health threat. the health effects of methylmercury exposure is Researchers have instead turned to epide- derived from (a) the study of mass poisonings miological studies of various fish-eating popu- in Iraq and Japan, (b) epidemiological studies lations to determine whether typical dietary conducted with populations that are different mercury exposure poses a real risk. Several dif- from Americans in important ways, and (c) ex- ferent study populations have been examined, perimental studies on lab animals. Each of these but the two largest and most extensive studies sources suffers from shortcomings, but the exist- have considered populations in the Faroe Is- ing science suggests that methylmercury exposure lands and the Seychelles Islands. Researchers at the very small current dietary levels does not conducting the Faroe Islands study claim to pose a genuine health or developmental risk. have found a link between small dosages of The dangerous effects of methylmercury mercury and negative health impacts, whereas exposure were first highlighted when, from the authors of the Seychelles study are convinced 1930s to the 1960s, people living around Mina- there is no such link. mata Bay, Japan, ate fish heavily contaminated with mercury wastes discharged from a plastics Faroe Islands factory.2 Hundreds died, and thousands more The Faroe Islands study examined 917 chil- were left with varying degrees of neurological dren, and the researchers reported an associa- damage. The precise level of mercury exposure tion between prenatal methylmercury exposure was never accurately calculated, but it is gener- (as measured in maternal umbilical cord blood ally believed to be far higher—perhaps several at birth) and subtle neuropsychological chang- hundreds of times higher—than current U.S. es.4 However, several important factors call this dietary exposure from fish. A similarly tragic finding into question. Perhaps most important, case, resulting from mercury-contaminated the major source of methylmercury in the Faroe grain in Iraq, occurred in the 1970s—again, Islanders’ diet was not fish, but pilot whale however, with mercury exposure thousands of meat. However, whale meat is also known to times greater than seen today with normal di- contain very high levels of PCBs (polychlori- etary fish consumption.3 Because the exact dos- nated biphenyls) and other synthetic chemicals, none of which were taken into consideration in 1. Mark Wheeler, “Mercury,” Environmental Health the study. One of the authors, Philippe Grand- Perspectives 104, no. 8 (1996): 826–30. jean, acknowledges that such high levels of 2. Judith E. Foulke, “Mercury in Fish: Cause for Con- cern?” FDA Consumer 28 (September 1994), http:// 4. Nicolina Sorensen, Katsuyuki Murata, Esben Budtz- www.fda.gov/fdac/reprints/mercury.html. Jorgensen, Pal Weihe, and Philippe Grandjean “Prena- 3. H. Rustam and T. Hamdi, “Methyl Mercury Poi- tal Methylmercury Exposure as a Cardiovascular Risk soning in Iraq: A Neurological Study,” Brain 97, no. 3 Factor at Seven Years of Age,” Epidemiology 10, no. 4 (1974): 499–510. (1999): 370–75.

66 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Chemical Risk other chemicals makes accurate interpretation the results of only one test clearly indicated of the study’s data very complicated.5 neurodevelopmental problems, while another Some scientists also question the study’s use showed a beneficial association with increased of maternal cord blood as the indicator of mer- mercury exposure, and the third was indetermi- cury exposure, because blood mercury levels nate. Consequently, a number of scientists, in- can vary dramatically from day to day and do cluding Kenneth Poirier and Michael Dourson, not give an accurate picture of total exposure former co-chairmen of the U.S. Environmental throughout a pregnancy. The World Health Or- Protection Agency (EPA) Reference Dose/Refer- ganization, for example, indicates that mercury ence Concentration Work Group, have advised levels in the mother’s hair are the most accurate the EPA and the U.S. Food and Drug Adminis- reflection of fetal mercury exposure.6 When tration (FDA) that the Faroe Islands study is not hair methylmercury levels were used, however, useful for determining a safe level of exposure no link was found between developmental de- to methylmercury.9 lays and methylmercury exposure in the Faroe children.7 Seychelles Islands In addition, though 17 neuropsychologi- The most exhaustive study of methylmer- cal tests were conducted on the Faroe Islands cury exposure has been an ongoing study begun children, the results of only 3 of the tests were in 1989 in the Seychelles, an island chain off the statistically significant.8 Of those three tests, coast of eastern Africa. Seychelles residents gen- erally eat fish 12 times a week, which is believed 5. Food and Drug Administration, “Methylmercury,” to be the highest per capita consumption of fish Transcript of the Center for Food Safety and Nutrition, in the world.10 The methylmercury exposures in Food Advisory Committee Methylmercury Meetings, the Seychelles children studied were 10 to 20 Beltsville, MD, July 23–24, 2002, http://www.fda.gov/ OHRMS/DOCKETS/ac/02/transcripts/3872t2.htm. times that of their U.S. counterparts, yet not a single test showed any negative effects from the 6. E. Cernichiari, R. Brewer, G. Myers et al., “Moni- 11 toring Methylmercury during Pregnancy: Maternal Hair exposure to mercury in their diet. The study Predicts Fetal Brain Exposure,” Neurotoxicology 16, no. authors concluded, “There is no evidence of 4 (1995): 705–10. See also Gary Myers, “Statement of neurodevelopmental risk from prenatal meth- Dr. Gary Myers, Pediatric Neurologist and Professor, University of Rochester,” Senate Committee on Environ- ment and Public Works, Senate Hearing 108-359, Climate ability,” Center for Science and Public Policy, Washing- History and the Science Underlying Fate, Transport, and ton, DC, December 2004. http://ff.org/centers/csspp/pdf/ Health Effects of Mercury Emissions, 108th Congress EPANODAComments-121804.pdf. (July 29, 2003), 299–308. 9. Michael Dourson, Andrea Wullenweber, and Kenneth 7. Philip W. Davidson, Gary J. Myers, Christopher Poirier, “Uncertainties in the Reference Dose for Methyl- Cox, Elsa Cernichiari, Thomas W. Clarkson, and Con- mercury,” Neurotoxicology 22, no. 5 (2001): 677–89. rad Shamlaye, “Effects of Methylmercury Exposure on 10. Gary J. Myers, Philip W. Davidson, Christopher Cox, Neurodevelopment,” Journal of the American Medical Conrad F. Shamlaye, Donna Palumbo, Elsa Cernichiari, Association 281, no. 10 (1999): 897. Jean Sloane-Reeves, Gregory E. Wilding, James Kost, Li- 8. Center for Science and Public Policy, “Critical Com- Shan Huang, and Thomas W. Clarkson, “Prenatal Meth- ments on EPA’s Proposed National Emission Standards ylmercury Exposure from Ocean Fish Consumption in for Hazardous Air Pollutants; and, in the Alternative, the Seychelles Child Development Study,” Lancet 361, Proposed Standards of Performance for New and Exist- no. 9370 (2003): 1686–92. ing Utility Steam Generating Units: Notice of Data Avail- 11. Ibid.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 67 The Environmental Source ylmercury exposure resulting solely from ocean of age, suggesting that eating ocean fish, when fish consumption.”12 there is no local pollution, is safe.”14 And Con- What perhaps makes the Seychelles study stantine Lyketsos of Johns Hopkins Hospital most relevant to Americans is that Seychelles and Health System concludes that “the existing residents eat the same fish varieties commonly evidence suggests that methylmercury exposure eaten in the United States, and, unlike the from fish consumption during pregnancy, of the Faroe Islands study, there are no other health, level seen in most parts of the world, does not educational, environmental, or dietary differ- have measurable cognitive or behavioral effects ences that might make the results unreliable. in later childhood.”15 The only important dietary difference is that typical Seychelles residents consume much New Zealand more fish than do typical Americans—the ex- A third major study was conducted in New posure of both mothers and children ranged Zealand16 but has generally not been consid- from about the same to 27 times greater than ered methodologically sufficient, on its own, to the typical American consumer. Furthermore, support conclusions about the effect of mercury unlike the Faroe study, testing has remained on health.17 The New Zealand researchers did double-blind—meaning neither the children find mixed evidence, with some tests indicat- nor the scientists administering and scoring ing a negative effect from mercury exposure. the neurodevelopmental tests knew any one But the study investigated only 38 mother– child’s methylmercury level—which tends to child pairs found to have high hair mercury make a study more accurate and less prone to levels, making the sample too small a source researcher bias.13 The Faroe Islands study, on from which to estimate a safe exposure level. the other hand, ceased being double-blind once In addition, the principal source of dietary the children were tested at age 7. mercury exposure in New Zealand is through Finally, the Seychelles researchers tested the consumption of shark meat, which tends to their subjects at 6, 16, 29, 66, and 107 months be much higher in mercury concentration than of age. They evaluated the children on 57 dif- the typical fish species consumed in the United ferent measurements of neurocognitive, lan- guage, memory, motor, perceptual, and behav- 14. Myers, “Statement of Dr. Gary Myers.” ioral functions, making this research the most 15. Constantine G. Lyketsos, “Should Pregnant Women comprehensive study ever done of mercury Avoid Eating Fish? Lessons from the Seychelles,” Lancet exposure. The ultimate finding, according to 361, no. 9370 (2003): 1668. lead investigator Gary Myers, a professor of 16. K. S. Crump, T. Kjellström, A. M. Shipp, A. Silvers, neurology and pediatrics at the University of and A. Stewart, “Influence of Prenatal Mercury Exposure upon Scholastic and Psychological Test Performance: Rochester Medical Center, is that “These chil- Benchmark Analysis of a New Zealand Cohort,” Risk dren show no adverse effects through nine years Analysis 18, no. 6 (1998): 701–13. 17. Gary J. Myers, Philip W. Davidson, and Conrad F. Shamlaye, “A Review of Methylmercury and Child Devel- 12. Ibid. opment,” Neurotoxicology 19, no. 2 (1998): 313–28. See 13. Sandy Szwarc, Fishy Advice: The Politics of Meth- also National Research Council, Toxicological Effects of ylmercury in Fish and Mercury Emissions (Washington, Methylmercury (Washington, DC: National Academies DC: Competitive Enterprise Institute, 2004). Press, 2000), 128–29.

68 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Chemical Risk

States. Thus, the study subjects were exposed bear no useful relationship to current dietary to much higher levels of methylmercury than intake. are typical Americans. Once the NRC committee hand-selected the data it would use, it identified a benchmark EPA’s Risk Assessment dose, which is the lowest dose thought to cause zero harm over a lifetime of daily exposure in Despite the relative merits of the Seychelles the most sensitive population of children. Us- research, and the comparative shortcomings of ing data from the Faroe Islands study, the NRC the Faroe research, the EPA’s “reference dose” committee recommended setting the benchmark (or estimated safe exposure level) for methyl- dose at 58 micrograms per liter in a person’s mercury is based solely on the Faroe Islands blood, and the EPA agreed. Even this number is study. At the EPA’s request, a National Research much lower than evidence from the Seychelles Council (NRC) committee was impaneled to study and other recent research would indicate advise the agency on developing the reference to be safe. Yet, to build in another large margin dose. of safety, the NRC then set the reference dose used for establishing regulatory policy an order The committee conclude[d] that there do of magnitude lower: a daily intake of one-tenth not appear to be any serious flaws in the of one microgram of mercury per kilogram of design and conduct of the Seychelles, Faroe the consumer’s body weight.19 Islands, and New Zealand studies that This reference dose is the most restrictive would preclude their use in a risk assess- safety threshold in the world, and most other ment. However, because there is a large scientific bodies—including the United Na- body of scientific evidence showing adverse tion’s Food and Agriculture Organization and neurodevelopmental effects, … the com- World Health Organization, the governments mittee conclude[d] that [a reference dose] of Canada and the United Kingdom, and even should not be derived from a study, such as the Agency for Toxic Substances and Disease the Seychelles study, that did not observe an Registry of the U.S. Department of Health and association with [methylmercury].18 Human Services—have established minimum recommended exposure levels that are several Thus, merely because the Seychelles study times higher than the EPA’s reference dose.20 found that dietary exposure to methylmercury Nevertheless, a U.S. Centers for Disease Con- at levels as much as 10 times greater than seen trol and Prevention (CDC) study of American in the United States appear to be safe, the NRC children and women of childbearing age found panel refused to consider it. But almost all of that, in 1999 and 2000, a mere 8 percent of the the “large body of scientific evidence,” on which studied population had blood mercury levels the committee based its decision, is evidence only of extremely high mercury exposures that 19. Ibid., 21. 20. Harold M. Koenig, Mercury in the Environment: The Problems, the Risks, and the Consequences (Annapolis, MD: Annapolis Center for Science-Based Public Policy, 18. National Research Council, Toxicological Effects of 2003). See also Ken Ogilvie, Mercury in the Environ- Methylmercury, 6. ment: A Primer (Toronto, ON: Pollution Probe, 2003).

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above the extra safe reference dose.21 A follow- Instead of improving consumer health, EPA up study in 2001 and 2002 found that only 4 and FDA mercury advisories have needlessly percent were above the reference dose level.22 frightened consumers away from eating a food None were even close to the very conservative that is actually very good for them. The agen- benchmark dose that EPA estimates will cause cies have issued increasingly complicated and zero harm over a lifetime of exposure. But by extensive mercury advisory notices that appear warning consumers—especially women of to be confusing consumers about which fish childbearing age—to be concerned about mer- species are safe and which are dangerous. A cury exposure from eating seafood, the EPA and joint FDA–EPA advisory issued in March 2004 the FDA are actually putting American lives at warns women of childbearing age to avoid risk. swordfish, shark, king mackerel, and tilefish from the Gulf of Mexico (but not tilefish from Importance of Fish for Good Health the Atlantic Ocean).24 It then suggests that women eat 12 ounces per week of a variety of The most important problem with EPA’s fish species, and it lists several fish types that extraordinarily low reference dose for methyl- are especially low in methylmercury—including mercury exposure is that it has led the EPA and canned light tuna. However, the advisory distin- the FDA to jointly warn American consumers guishes among canned tuna varieties, indicating that eating too much of certain kinds of fish that, if women eat six ounces of albacore tuna, may be harmful to their health. Unfortunately, they should then eat no more than six ounces exactly the opposite is the case. A vast body of of any other fish that week. It’s no wonder that scientific research clearly indicates that, even many consumers have become concerned about if current dietary levels of mercury exposure eating any fish at all. The health benefits of fish were to pose some risk, the benefits obtained consumption are both very large and well es- by consuming fish vastly outweighs that risk. tablished, however. According to Walter Willett, professor of nutri- Fish, especially species such as tuna and tion at the Harvard School of Public Health, salmon, are inexpensive sources of protein that the benefits of eating seafood “are likely to be are also rich in important minerals and benefi- at least 100-fold greater than the estimates of cial omega-3 fatty acids.25 Consumption of as harm, which may not exist at all.”23 little as one or two servings of fish each week is associated with a substantial reduction in the 21. Kathryn Mahaffey, Robert Clickner, and Catherine Bodurow, “Blood Organic Mercury and Dietary Mercury Intake: National Health and Nutrition Examination Sur- Washington Post, August 8, 2006, F1, 5. vey, 1999 and 2000,” Environmental Health Perspectives 24. FDA and EPA, “What You Need to Know About 112, no. 5 (2003): 562–70. Mercury in Fish and Shellfish: Advice for Women Who 22. R. L. Jones, T. Sinks, S. E. Schober, and M. Pickett, Might Become Pregnant, Women Who Are Pregnant, “Blood Mercury Levels in Young Children and Child- Nursing Mothers, Young Children,” FDA and EPA, bearing-Aged Women—United States, 1999–2002,” Mor- Washington, DC, March 2004, http://www.epa.gov/wa- bidity and Mortality Weekly Report 53, no. 43 (2004): terscience/fishadvice/advice.html. 1018–1020. 25. British Nutrition Foundation, “n-3 Fatty Acids and 23. Sally Squires, “Good Fish, Bad Fish: Sorting Seafood’s Health,” BNF Briefing Paper, British Nutrition Founda- Benefits from Risks Can Leave Consumers Floundering,” tion, London, 2000.

70 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Chemical Risk risk of stroke and heart disease, lowering the their fish intake dramatically because of con- probability of death from coronary disease by fusing advisories.28 more than one-third and lowering total mor- tality by 17 percent.26 And these benefits exist Conclusion despite any potential health risk of methylmer- cury consumption. Yet, at the same time that The mercury advisory warnings issued in the American Heart Association and American recent years have spawned an unhealthy trend Dietetic Association have been recommending toward lower fish consumption. However, a that consumers increase consumption of fish,27 substantial body of evidence indicates that the the public has been led to believe that they amount of mercury in the American diet is so should instead reject most fish. low that it has little or no health effect on even Despite beliefs to the contrary, pregnant at-risk populations, such as pregnant women women and their children also reap numerous and children. The basis for these mercury advi- benefits from fish consumption, because fish sories is a single, unreliable study chosen solely are a good source of the n-3 fatty acids doco- for the reason that it purportedly found nega- sahexaenoic acid and eicosapentaenoic acid. tive health consequences of low-level mercury These two nutrients are known to contribute to exposure. Even if that study was accurate, how- healthy pregnancy outcomes and fetal growth ever, further research by the CDC indicates that and to reduce the risk of preeclampsia and pre- no American women of childbearing age have mature labor. But a Harvard University study dietary mercury exposure anywhere near those found that, after publication of the FDA’s 2001 allegedly harmful levels. mercury advisory, pregnant women reduced The policy brief entitled “Mercury Pollu- tion and Regulation” in this volume’s “Clean Air” section further discusses the politicization of the mercury debate and the high cost of com- 26. Dariush Mozaffarian and Eric B. Rimm, “Fish In- plying with new power plant emissions regula- take, Contaminants, and Human Health: Evaluating the Risks and the Benefits,” Journal of the American Medi- tions, which could have their own substantial cal Association 296, no. 15 (2006): 1885–99. See also impact on humans. Hiroyasu Iso, Kathryn M. Rexrose, Meir J. Stampfer, JoAnn E. Manson, Graham A. Colditz, Frank E. Speizer, Key Experts Charles H. Hennekens, and Walter C. Willett, “Intake of Fish and Omega-3 Fatty Acids and Risk of Stroke in Women,” Journal of the American Medical Association Gregory Conko, Senior Fellow, Competitive 285, no. 3 (2001): 304–12, and Penny Kris-Etherton, Enterprise Institute, [email protected]. W.S. Harris, and Lawrence J. Appel, “Summary of the Iain Murray, Senior Fellow, Competitive Scientific Conference on Dietary Fatty Acids and Car- diovascular Health, Nutrition Committee of the Ameri- Enterprise Institute, [email protected]. can Heart Association,” Circulation 103, no. 7 (2001): 1034–39. 27. American Heart Association, “At-a-Glance: Ameri- 28. Emily Oken, Ken P. Kleinman, Wendy E. Berland, Ste- can Heart Association’s Dietary Recommendations for ven R. Simon, Janet W. Rich-Edwards, and Matthew W. Children and Adolescents,” October 30, 2006, American Gillman, “Decline in Fish Consumption among Pregnant Heart Association, Dallas, TX, http://www.american- Women after a National Mercury Advisory,” Journal of heart.org/presenter.jhtml?identifier=3034000. Obstetrics and Gynecology 102, no. 2 (2003): 346–51.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 71 The Environmental Source

Recommended Readings Emissions. Washington, DC: Competitive Enterprise Institute. Mozaffarian, Dariush, and Eric B. Rimm. 2006. U.S. Congress. 2003. Senate Committee on “Fish Intake, Contaminants, and Human Environment and Public Works, Senate Health: Evaluating the Risks and the Ben- Hearing 108-359. Climate History and the efits.” Journal of the American Medical As- Science Underlying Fate, Transport, and sociation 296, no. 15 (2006): 1885–99. Health Effects of Mercury Emissions. 108th Szwarc, Sandy. 2004. Fishy Advice: The Poli- Congress, July 29. tics of Methylmercury in Fish and Mercury

72 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Clean Air Act

Clean Air Act Overview

Ben Lieberman

Enacted in 1970, the Clean Air Act (CAA) Implementation Plans to the EPA spelling is the most complex, comprehensive, and out how it will meet the NAAQS. States costly environmental statute in existence. with areas that exceed these standards are Amended in 1977 and again in 1990, the CAA subject to additional requirements and po- has spawned thousands of pages of regula- tential penalties. Title I also contains the air tions covering numerous sources of air emis- toxics program, which deals with a long list sions.1 The CAA is divided into the following of so-called hazardous pollutants. six titles: • Title II covers mobile sources of pollution: motor vehicles and fuels. The EPA has pro- • Title I regulates the six so-called criteria pol- mulgated a large number of costly rules af- lutants (particulate matter, sulfur dioxide, fecting the composition of motor fuels and carbon monoxide, nitrogen oxides, ozone, vehicle emissions. and lead). The U.S. Environmental Protec- • Title III contains general provisions and tion Agency (EPA) sets National Ambient authorizes lawsuits against the agency for Air Quality Standards (NAAQS) for these failing to meet the statute’s hundreds of six pollutants. Each state must submit State requirements. • Title IV addresses industrial emissions that 1. 42 USC §§7401–671(q). are believed to contribute to .

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• Title V created an air emissions permitting Most notable is the 53 percent decline since program, which is operated by the states 1970 of emissions of the six criteria pollutants.6 under EPA supervision. Technological advances have greatly contributed • Title VI regulates the production and use of to these positive trends. For example, automo- chemicals that are believed to deplete the biles manufactured today pollute approximately stratospheric ozone layer, such as chloro- 25 times less than their 1970s counterparts.7 fluorocarbons (CFCs). These positive trends likely will continue even if no new regulations are enacted.8 During the 30-year existence of this federal Nevertheless, the EPA continues to tighten regulatory scheme, the quality of air has im- existing requirements and to add new ones, proved dramatically.2 These gains improve on always claiming that much more needs to be trends that had begun prior to 1970, indicating done. Generally, these new initiatives provide that technological advances and state and local fewer benefits but impose higher costs than controls were having a positive effect before fed- previous ones. Unfortunately, the statute never eral involvement.3 The extent to which air qual- answers this question: “How clean is clean?” ity improvements likely would have continued Hence, its open-ended provisions continue to be (under state and local law and through private tightened. For example, the agency is required sector efficiency improvements) had Congress to revisit the NAAQS every five years and set not passed the CAA is subject to debate. What new standards if deemed necessary to protect is clear is that the law has proved very costly— public health with what the agency considers quite possibly more than necessary to achieve an adequate margin of safety. In 1997, this pro- its goals. The EPA estimates direct costs at ap- cess led to costly and controversial new ozone proximately $21 billion annually, increasing to and particulate matter standards. Even as those $28 billion annually by 2010.4 Others believe provisions are now being implemented, the the actual costs, including the indirect ones, agency is in the process of tightening them yet may be much higher.5 again. More than ever before, Congress needs to pay close attention to new EPA regulations un- der the CAA and to use its authority to block those regulations that are not in the interest of 2. EPA, “National Air Quality and Emissions Trends the American people or the environment. In Report: 2003 Special Studies Edition,” September 2003, EPA, Washington, DC. See also Steven F. Hayward, Index of Leading Environmental Indicators: 2006 (San Fran- 6. EPA, “Air Emissions Trends—Continued Progress cisco: Pacific Research Institute, 2006), 47–53. through 2005,” EPA, Washington, DC, http://www.epa. 3. Indur Goklany, Clearing the Air: The Real Story of gov/air/airtrends/2006/emissions_summary_2005.html. the War on Air Pollution (Washington, DC: Cato Insti- 7. Joseph Bast and Jay Lehr, “The Increasing Sustain- tute, 1999). ability of Cars, Trucks, and the Internal Combustion 4. EPA, “Executive Summary,” in The Benefits and Engine,” Policy Study 95, Heartland Institute, Chicago, Costs of the Clean Air Act, (Washington, DC: EPA, June June 22, 2000). 1999). 8. Joel Schwartz, No Way Back: Why Air Pollution Will 5. Randall Lutter and Richard Belzer, “EPA Pats Itself Continue to Decline (Washington, DC: American Enter- on the Back,” Regulation 23, no. 3 (2000): 23–28. prise Institute, 2003).

76 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Clean Air Act addition, as Congress takes up reauthorization Fumento, Michael. 1997. Polluted Science: of the CAA, it needs to consider placing sen- The EPA’s Campaign to Expand Clean Air sible limits on the EPA’s power to generate new Regulations. Washington, DC: American provisions. Enterprise Institute. Goklany, Indur. 1999. Clearing the Air: The Recommended Readings Real Story of the War on Air Pollution. Washington, DC: Cato Institute. EPA. 2003. “National Air Quality and Emis- Schwartz, Joel. 2003. No Way Back: Why Air sions Trends Report: 2003 Special Studies Pollution Will Continue to Decline. Wash- Edition.” EPA, Washington, DC, September. ington, DC: American Enterprise Institute.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 77

The Clean Air Act and High Gasoline Prices

Ben Lieberman

The high price of gasoline has emerged as a as well. The EPA has broad authority to revisit major issue in recent years. The increased cost of these regulations and to tighten them, which it crude oil is the main contributor to the pain con- has done on several occasions. sumers feel at the pump, but federal environmen- More fuel-related rules are constantly being tal regulations under the Clean Air Act (CAA) added to the existing burden. For example, the also are taking a substantial toll. This regulatory EPA currently is phasing in tough new standards burden likely will increase in the years ahead. for sulfur in gasoline and diesel fuel, and new Under the 1990 Amendments to the CAA, mobile source air toxics rules also are pending. the EPA has regulated the composition of gaso- Several rules are specific to certain states or line heavily. This effort includes the reformu- localities, resulting in the balkanization of the lated gasoline (RFG) program, which applies nation’s fuel supply.2 As these so-called bou- to nearly one-third of the nation’s fuel supply, tique fuel requirements were taking effect in the as well as other requirements. These specialized fuel formulations cost more than conventional (Washington, DC: Federal Trade Commission, 2005), gasoline.1 Conventional gasoline is regulated 56–58. 2. EPA, “Study of Unique Fuel Blends (‘Boutique Fu- els’), Effects on Fuel Supply and Distribution, and Poten- 1. Federal Trade Commission, Gasoline Price Changes: tial Improvements,” Staff White Paper, EPA, Washington, The Dynamic of Supply, Demand, and Competition, DC, October 24, 2001, pp. 9–11.

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1990s, the U.S. Energy Information Adminis- inadequate to the task of providing the quan- tration warned that “the proliferation of clean tity and variety of fuels now required; yet the fuel requirements over the last decade has com- last American refinery was built in the 1970s, plicated petroleum logistics” and presciently and expansions of existing facilities struggle to predicted that “additional clean fuels programs keep pace. The Bush administration’s efforts could make the system more vulnerable to local to streamline the NSR program will help but shortages and price spikes.”3 are being delayed by legal challenges. The NSR Although high gasoline prices were a major and other CAA regulations have added tens of impetus behind the massive Energy Policy Act billions of dollars to refining costs without in- of 2005, the act’s provisions were a mixed bag creasing output. That situation leaves the refin- at best. It did amend the CAA by repealing one ing sector with considerably fewer resources to of the provisions that made the RFG program invest in expanding capacity and makes those more costly than necessary, but it also added an expansions considerably more expensive.4 ethanol mandate, which required that 4.0 bil- Air quality has improved dramatically over lion gallons of this corn-derived fuel additive be the past 30 years, in large part as a result of blended into the nation’s fuel supply in 2006, in- reductions in motor vehicle emissions.5 But creasing to 7.5 billion gallons in 2012. Ethanol most of the credit goes to improvements in the costs considerably more than gasoline, so the vehicles themselves, not to recent federal micro- mandate benefits Midwestern corn farmers and management of the makeup of fuels.6 Indeed, the ethanol industry at the expense of the driv- costly fuel regulations like the RFG program ing public. In addition, the logistical difficulties have proved to be environmentally unjustified of incorporating ethanol into the nation’s fuel and even counterproductive.7 supply also have added to costs. In effect, the To protect the driving public from further ethanol mandate is yet one more costly federal unnecessary costs, Congress must take a more fuel requirement piled on to an overly complex aggressive role regarding new EPA regulations regulatory scheme and has proved to be a step affecting gasoline and must reconsider existing in the wrong direction. rulemaking authority that is doing more eco- The most recent energy bill increases the nomic harm than environmental good. ethanol mandate five-fold, from 7.5 billion gal- lons to 36 billion by 2022. Other CAA rules have affected the price of 4. National Petroleum Council, Observations on Petro- leum Product Supply, (Washington, DC: National Petro- gasoline in less direct ways. For example, the leum Council, 2004), 16–18. EPA’s aggressive implementation of the New 5. Joseph Bast and Jay Lehr, “The Increasing Sustain- Source Review (NSR) program, along with ability of Cars, Trucks, and the Internal Combustion other regulations, has made it very difficult to Engine,” Policy Study 95 Heartland Institute, Chicago, build new refineries or even to upgrade exist- June 22, 2000. ing ones. Currently, refinery capacity is proving 6. Joel Schwartz, No Way Back: Why Air Pollution Will Continue to Decline (Washington, DC: American Enter- 3. U.S. Department of Energy, Energy Information prise Institute, 2003). Administration, Demand and Price Outlook for Phase 7. National Research Council. Ozone-Forming Poten- 2 Reformulated Gasoline, 2000 (Washington, DC: U.S. tial of Reformulated Gasoline (Washington, DC: Na- Department of Energy, 1999), 8. tional Academies Press, 1999).

80 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Clean Air Act

Key Expert Demand, and Competition. Washington, DC: Federal Trade Commission. Ben Lieberman, Senior Political Analyst, National Petroleum Council. 2004. Observa- [email protected]. tions on Petroleum Product Supply. Wash- ington, DC: National Petroleum Council. Recommended Readings National Research Council. 1999. Ozone- Forming Potential of Reformulated Gaso- Bast, Joseph, and Jay Lehr. 2000. “The Increas- line. Washington, DC: National Academies ing Sustainability of Cars, Trucks, and the In- Press. ternal Combustion Engine.” Policy Study 95. Schwartz, Joel. 2003. No Way Back: Why Air Heartland Institute, Chicago, June 22, 2000. Pollution Will Continue to Decline. Wash- EPA. 2001. “Study of Unique Gasoline Fuel ington, DC: American Enterprise Institute. Blends (‘Boutique Fuels’), Effects on Fuel U.S. Department of Energy, Energy Information Supply and Distribution, and Potential Im- Administration (EIA). 2000. Demand and provements.” Staff White Paper, EPA, Wash- Price Outlook for Phase 2 Reformulated ington, DC, October 24. Gasoline. Washington, DC: U.S. Depart- Federal Trade Commission. 2005. Gasoline ment of Energy. http://www.eia.doe.gov/ Price Changes: The Dynamic of Supply, emeu/steo/pub/special/rfg4.html.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 81

Mercury Pollution and Regulation

Gregory Conko and Morgan Wildermuth

Health issues related to methylmercury in posure to methylmercury. In contrast, the cost fish—which are discussed in the “Chemical of complying with new power plant emissions Risk” section of The Environmental Source— regulations is estimated to have a large human are only half of the mercury policy debate. Of impact. equal concern to many is the source of that mercury. Some see the alleged consumer health Origins of Mercury in the Environment risk from mercury exposure as a justification for restricting mercury emissions from coal- Mercury is a naturally occurring element and oil-fueled electric utility power plants. that appears in the environment in elemental Because methylmercury in fish is unhealthy for form, as well as in organic and inorganic com- consumers, critics argue, mercury power plant emissions must be significantly reduced in or- pounds. In its various forms, mercury cycles der to improve public health. through the environment—in air, land, and However, even if the amount of mercury in water—and is circulated and modified by both the American diet did pose some genuine health natural and human (anthropogenic) activities.1 risk, it still is not clear that even sizable reduc- 1. United Nations Environment Programme, Global tions in mercury emissions from U.S. power Mercury Assessment (Geneva: United Nations Envi- plants would have an appreciable effect on ex- ronment Programme Chemicals, 2002). See also Mark

202-331-1010 • www.cei.org • Competitive Enterprise Institute 83 The Environmental Source

Most of the mercury in power plant emis- Historical records show that fish have al- sions is in either elemental or inorganic form. ways had trace amounts of methylmercury, It is the organic compound methylmercury, however, and that the amounts have remained however, that accumulates in fish and other an- relatively stable throughout the years, despite imals. Methylmercury is created in two primary large increases in mercury emissions in the lat- ways. First, elemental mercury can bind with ter half of the 20th century.3 French scientists, dissolved organic carbon in oceans and other for example, recently found that methylmer- waterways. Second, certain microorganisms in cury levels measured in Yellowfin tuna were soil and water can ingest inorganic mercury the same in 1998 as they were in 1971, despite and add carbon atoms to the molecules in a a prediction of a 9 to 26 percent increase that process called methylation. The elemental and would have corresponded with increases in inorganic mercury in power plant emissions global mercury emissions.4 Fish caught during can be converted into methylmercury in each the late 19th and early 20th centuries—and of these ways. However, extensive study of the preserved at the Smithsonian Institution—have mercury cycle shows that only a small portion average methylmercury levels more than three of the mercury from anthropogenic sources is times higher than a similar sample of fish to- converted to methylmercury.2 day.5 Similarly, the amount of methylmercury in Organic compounds such as methylmercury human bodies today is within the same range as readily bind to proteins, and methylmercury binds easily with fats in the tissues of living 3. Matthew Barber, “Survey of Metals and Other El- organisms. Once it begins to accumulate in ements,” Food Service Information Sheet 48/04, U.K. Food Standards Agency, London, March 2004, http:// aquatic organisms such as algae and plankton, www.foodstandards.gov.uk/science/surveillance/fsis- methylmercury becomes more concentrated as 2004branch/fsis4804metals. See also U.S. Department of it bioaccumulates up the food chain. Small fish Human Health Services and U.S. Environmental Protec- eat the algae and plankton, amassing greater tion Agency, “Mercury Levels in Commercial Fish and Shellfish,” U.S. Department of Human Health Services methylmercury levels, and larger fish accumu- and U.S. Environmental Protection Agency, Washington, late still higher levels by eating small fish. DC, February 2006, http://vm.cfsan.fda.gov/~frf/sea- mehg.html. 4. Anne M. Kraepiel, Klaus Keller, Henry B. Chin, Eliz- abeth G. Malcolm, and François M. Morel, “Sources and Wheeler, “Measuring Mercury,” Environmental Health Variations of Mercury in Tuna,” Environmental Science Perspectives 104, no. 8 (1996): 826–31. and Technology 37, no. 24 (2003): 5551–58. 2. Leonard Levin, “Mercury Sources, Transport, and 5. G.E. Miller, P.M. Grant, R. Kishore, F. J. Steinkruger, Fate in the Atmosphere,” in U.S. Department of Energy, F. S. Rowland, and V. P. Guinn, “Mercury Concentrations National Technology Laboratory, Proceedings of the in Museum Specimens of Tuna and Swordfish,” Science Mercury Control Technology R&D Program Review 175, no. 4026 (1972): 1121–22. See also C. D. Car- Meeting (Washington, DC: U.S. Department of Energy), rington, G. M. Cramer, and P. M. Bolger, “A Risk Assess- and Leonard Levin, “Prepared Statement of Leonard ment for Methylmercury in Tuna,” Water, Air and Soil Levin, Ph.D., Technical Leader, EPRI, Palo Alto, Cali- Pollution 97, nos. 3–4 (1997): 273–83; National Fish- fornia,” Senate Committee on Environment and Public eries Institute, “NFI Position Statement on Joint FDA/ Works, Senate Hearing 108-359, Climate History and EPA Mercury Advisory,” National Fisheries Institute, the Science Underlying Fate, Transport, and Health Ef- McLean, VA, March 2004, http://www.nfi.org/?a=news fects of Mercury Emissions, 108th Congress (July 29, &b=eMedia+Kit&c=&x=3050; and U.S Department of 2003), 211–15. Human Health Services and U.S. Environmental Protec-

84 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Clean Air Act

that in preserved human corpses from several manometers, not just power plant emissions.9 centuries ago.6 Thus, ample evidence shows that Furthermore, most of the mercury from power the range of methylmercury to which humans plant emissions is generated not in industrial are exposed has remained essentially constant countries such as the United States, but in or falling over the past century, despite steadily poorer countries with few pollution controls.10 rising levels of anthropogenic mercury emis- The EPA indicates that U.S. power plant sions during that time. emissions account for approximately 48 tons per year of mercury deposition, a level that has Mercury Power Plant Emissions been falling over time.11 And only an estimated 1 percent or less of mercury that ends up in a body A large proportion of mercury added to of water is converted into methylmercury.12 Con- the environment each year comes from natu- sequently, even a total elimination of mercury ral earth processes, not human processes.7 And emissions from U.S. power plants would be ex- anthropogenic sources in the United States rep- pected to have much less than a 1 percent effect resent less than one percent of the total annual on human dietary exposure to methylmercury. mercury deposition. The U.S. Environmental Despite this sobering information, the envi- Protection Agency (EPA) estimates that 4,400 ronmental activist community continues to scare to 7,500 tons of mercury are emitted into the consumers and the media into believing that atmosphere each year from both natural and more stringent emissions regulations are neces- human-generated sources.8 sary to address the alleged problem of methyl- Natural sources of mercury emissions in- mercury in fish.13 In 2003, when the EPA pro- clude volatilization from the Earth’s crust and posed a simplification of Clean Air Act (CAA) the oceans, volcanic action, and erosion. An- regulations that would relax emissions standards thropogenic sources are estimated to make up for a group of Midwestern power plants while 50 to 75 percent of the total atmospheric de- simultaneously requiring a two-thirds reduction position, but that includes a variety of sources, such as the mining of elemental mercury for use 9. United Nations Environment Programme, Global in such things as thermometers and sphygmo- Mercury Assessment. 10. Richard Carlton, Paul Chu, Leonard Levin, et. al., “[Electric Power Research Institute] Comments on EPA- Proposed Emission Standards/Proposed Standards of tion Agency, “Mercury Levels in Commercial Fish and Performance, Electric Utility Steam Generating Units: Shellfish.” Mercury Emissions,” Electric Power Research Institute, 6. Food and Drug Administration, “Methylmercury,” Palo Alto, CA, June 16, 2004. Transcript of the Center for Food Safety and Nutrition, 11. EPA, “Clean Air Mercury Rule.” Food Advisory Committee Methylmercury Meetings, 12. Harold M. Koenig, Mercury in the Environment: The Beltsville, MD, July 23–24, 2002, http://www.fda.gov/ Problems, the Risks, and the Consequences (Annapolis, OHRMS/DOCKETS/ac/02/transcripts/3872t2.htm. MD: Annapolis Center for Science-Based Public Policy, 7. U.S. Environmental Protection Agency, “Clean Air 2003). Mercury Rule: Basic Information,” March 2, 2006, U.S. 13. Natural Resources Defense Council, “Mercury Con- Environmental Protection Agency, Washington, DC, tamination in Fish: A Guide to Staying Health and Fight- http://www.epa.gov/air/mercuryrule/basic.htm. ing Back,” Natural Resources Defense Council, New York, 8. Ibid. http://www.nrdc.org/health/effects/mercury/index.asp.

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in overall mercury emission levels, environmen- U.S. Department of Energy disputed that claim, tal organizations and their allies misrepresented however, indicating that no proven technologies the proposal as one that would poison the food were capable of achieving such reductions, and supply.14 But the facts suggest otherwise. it suggested that actually attaining a 90 percent reduction might require technologies that had Emissions Regulation and Politics not yet been developed.18 After George W. Bush became president in One provision of the 1990 CAA amend- 2001, the EPA reconsidered the Clinton admin- ments required the EPA to study the effects istration’s recommendation and proposed two of mercury and other substances in electric possible approaches for regulating mercury power plant emissions in order to determine emissions.19 The first option was a MACT ap- whether any of those emissions should be sub- proach similar to the Clinton administration’s ject to more stringent regulation.15 The Clinton plan. It would have achieved an estimated 30 administration committed the EPA to setting percent reduction in mercury emissions by such rules by December 2004 (later extended 2008 by setting uniform emissions limits for to March 2005). In doing so, the administra- existing facilities and more restrictive limits for tion recommended a conventional policy that new ones. would set an upper-bound limit on the amount The second option paired mandatory emis- of mercury any facility could emit and would sions reductions with an emissions credit trad- require every power plant in the country to ing program—a combination known as “cap adopt the maximum available control technol- and trade.” It would achieve an estimated 20 ogy (MACT)—that is, install new equipment percent reduction in mercury emissions by 2010 that would achieve the greatest possible reduc- by piggybacking on reductions that would coin- tion in mercury emissions.16 Proponents of that cide with on-going declines in other emissions, option claimed that a MACT requirement could such as sulfur. The cap and trade approach be stringent enough to reduce mercury emis- would then mandate a 70 percent reduction by sions by as much as 90 percent by 2008.17 The 2018—setting combined emissions limits for all the facilities in a given state—paired with the 14. Mercury Policy Project, “Hold the Tuna Charlie: emissions credit trading system. Facilities that Pres. Bush’s Mercury Moves Gift Industry,” E-Wire press achieved greater reductions than those man- release, Washington, DC, November 15, 2003, http:// dated by the upper-bound limit could sell the www.ewire.com/display.cfm/Wire_ID/1919. 15. 40 CFR Part 63, codifying Clean Air Act Amend- ments of 1990, §112(n)(1)(A). 18. U.S. Department of Energy, Energy Information Ad- 16. EPA, “Revision of December 2000 Regulatory Find- ministration, Analysis of Alternative Mercury Control ing on the Emissions of Hazardous Air Pollutants from Strategies (Washington, DC: U.S. Department of Energy, Electric Utility Steam Generating Units and the Removal 2005). of Coal- and Oil-Fired Electric Utility Steam Generating 19. EPA, “Proposed National Emission Standards for Units from the Section 112(c) List,” Federal Register 70, Hazardous Air Pollutants; and, in the Alternative, Pro- no. 59 (2005): 15995. posed Standards of Performance for New and Existing 17. Natural Resources Defense Council, “New EPA ‘Do- Stationary Sources: Electric Utility Steam Generating Nothing’ Mercury Pollution Rules Dangerous to Public Units—Proposed Rule,” Federal Register 69, no. 20 Health,” NRDC Press Backgrounder, March 24, 2005. (2004): 4652–752.

86 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Clean Air Act

“right” to emit the difference to another facility benefit from the slightly higher projected IQ in the same state. levels was estimated to be less than $5 million The Bush administration clearly preferred a year, and the total benefit for all mercury re- the cap and trade alternative. However, be- ductions (from the power plant emissions rule cause an emissions credit trading system would and other EPA regulations) was estimated to be allow some facilities to make little or no emis- approximately $50 million a year. sions reductions, and because it provided for However, because the harmful effects of a slower phase-in of reduction mandates, op- current mercury exposure levels are subject to ponents claimed that it would slash environ- serious doubt, and because the elimination of mental and public health protections.20 Rep. most (or even all) U.S. mercury emissions from Richard Gephardt (D-MO) characterized the power plants would have almost no impact on cap and trade proposal as “the most alarming those levels, many critics argued that neither rollbacks in environmental efforts that we have proposal would produce measurable benefits. ever seen.”21 In that environment, the concern Nevertheless, even assuming that the EPA’s about methylmercury in fish began to emerge benefit estimates were correct, the agency’s as a serious political issue. The subtext of most own analysis indicated that annual costs for reporting on the fish safety issue was, invari- implementing the cap and trade rule would be ably, that very stringent mercury emissions about $750 million a year, or $3.9 billion from restrictions were needed to promote consumer 2007 to 2025.23 safety. The EPA adopted the cap and trade ap- proach and published its final Clean Air Mer- Alleged Health Gains from Regulation cury Rule in March 2005.24 Although the costs of implementing either proposal were expected On the basis of its very conservative as- to vastly outweigh any benefits derived, the sumptions—derived primarily from the Faroe cap and trade option was estimated to achieve Islands methylmercury study (see the policy roughly the same emissions reduction at ap- brief titled “Methylmercury Science)—the EPA proximately $15 billion less than the MACT insisted that significant reductions in U.S. emis- option.25 sions would result in improved human health, Although the monetized cost of the EPA’s a reduction in early mortality, a very small in- Clean Air Mercury Rule is substantial, what is crease in children’s intelligence (an average of missing from that calculation is the total hu- less than 0.025 IQ points per affected child), man cost of the requirements; the rule shifts and positive effects on wildlife.22 The monetized resources away from expenditures that produc-

20. Gregg Easterbrook, “Everything You Know about nal Report, EPA-452/R-05-003 (Research Triangle Park, the Bush Environmental Record Is Wrong,” Working NC: EPA, 2005). Paper 02-6, AEI–Brookings Joint Center for Regulatory 23. Ibid. Studies, Washington, DC, April 2002. 24. EPA, “Revision of December 2000 Regulatory 21. Ibid. Finding.” 22. EPA, Office of Air Quality Planning and Standards, 25. Ted Gayer and Robert Hahn, “The Political Economy Air Quality Strategies and Standards Division, Regula- of Mercury Regulation,” Regulation 28, no. 2 (2005): tory Impact Analysis of the Clean Air Mercury Rule: Fi- 26–33.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 87 The Environmental Source ers and consumers prefer in order to address a Furthermore, the substantial reduction in small and possibly nonexistent risk. The new mercury emissions will have almost no real ef- mercury emissions limits will make it more fect on human dietary exposure, because U.S. expensive to produce electric power from coal power plant emissions of mercury represent and oil. And because some amount of power considerably less than 1 percent of total global generation will shift from coal and oil to other mercury deposition. The Clean Air Mercury fuels, the indirect effects will ripple throughout Rule will, however, come at a substantial cost, the economy. which can be measured not only in dollars, but A U.S. Department of Energy study esti- also in decreased health and welfare for mil- mated that the emissions restrictions would re- lions of Americans. sult in an average of 32 percent higher electric power rates and 17 percent higher natural gas Key Experts rates.26 In addition, higher prices for all fuels and for electricity will directly affect the costs Gregory Conko, Senior Fellow, Competitive borne by other producers, which, in turn, will Enterprise Institute, [email protected]. affect the costs of consumer and industrial Iain Murray, Senior Fellow, Competitive products. These higher costs will fall most Enterprise Institute, [email protected]. heavily on lower-income earners, who, in turn, will have less disposable income for purchasing Recommended Readings other essential goods and services such as nutri- tious foods and health care. Koenig, Harold M. 2003. Mercury in the Envi- ronment: The Problems, the Risks, and the Conclusion Consequences. Annapolis, MD: Annapolis Center for Science-Based Public Policy. From the start, the Clean Air Mercury Rule Szwarc, Sandy. 2004. Fishy Advice: The Poli- has been a solution in search of a problem. A tics of Methylmercury in Fish and Mercury substantial body of evidence indicates that the Emissions. Washington, DC: Competitive amount of mercury in the American diet is so Enterprise Institute. low that it has little or no health effect on even U.S. Congress. 2003. Senate Committee on at-risk populations, such as pregnant women Environment and Public Works, Senate and children. Even if the EPA’s overly pessimis- Hearing 108-359. Climate History and the tic risk assessment is accurate, however, other Science Underlying Fate, Transport, and research indicates that no American women of Health Effects of Mercury Emissions. 108th childbearing age have dietary mercury expo- Congress, July 29. sure anywhere near the level at which there is any evidence of harm.

26. U.S. Department of Energy, Energy Information Ad- ministration, Analysis of Strategies for Reducing Multiple Emissions from Electric Power Plants with Advanced Technology Scenarios, SR/OIAF/2001-05 (Washington, DC: U.S. Department of Energy, 2001).

88 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Energy

Automobile Fuel Economy Standards

Sam Kazman

The federal government’s fuel economy increased consumer demand for more fuel-ef- standards for new cars are a prime example of ficient cars. Moreover, the CAFE program has a program whose unintended consequences far had a number of side effects that have reduced outweigh its regulatory goals. The program, its fuel-saving effect. For example, by restrict- popularly known as CAFE (Corporate Aver- ing the availability of large passenger cars, the age Fuel Economy), was enacted in 1975 in the CAFE program has boosted consumer demand wake of the Middle East oil shocks. Its purpose for even less fuel-efficient vehicles, such as vans was to reduce U.S. consumption of gasoline and and sport utility vehicles (SUVs), which fall dependence on foreign oil by setting minimum into a less regulated vehicle category. Moreover, standards for the fuel efficiency of new cars. higher fuel-efficiency mandates tend to stimu- Over the years, that purpose has expanded. To- late more driving by reducing the cost of each day, the alleged threat of is one additional mile. of the major arguments in support of making Most important, the program’s fuel savings CAFE standards more stringent. have imposed a human toll that proponents Since the CAFE program’s enactment, fuel refuse to acknowledge: CAFE standards kill economy for new cars has doubled. Much of people. They cause new cars to be downsized— that increase, however, was due not to CAFE that is, to be made smaller and lighter. Smaller standards but to rising gasoline prices, which cars generally get more miles per gallon than

202-331-1010 • www.cei.org • Competitive Enterprise Institute 91 The Environmental Source

larger cars, but they are also less crashwor- standards for the nation’s new-car fleet, with thy. The result is that the CAFE program has an eventual goal of 27.5 miles per gallon for increased traffic fatalities by 1,000 or more 1985. It authorized the U.S. Department of deaths per year. Given that this program has Transportation (DOT) to set car standards for been in effect for over a quarter of a century, subsequent years, subject to a statutory maxi- the cumulative death toll may well make it mum of 27.5 miles per gallon, and also to es- the federal government’s deadliest regulatory tablish fuel economy standards for light trucks, program. a vehicle category that includes vans and SUVs. Government mandates to reduce gasoline The current new-car standard is 27.5 miles use rest on a very questionable principle. Why per gallon. The more lenient standard for light shouldn’t people be able to use as much gaso- trucks, which is not subject to a statutory cap, line as they are willing to pay for? After all, we is currently 21.6 miles per gallon, and it is set derive benefits from natural resources. Mobility to increase to 24 miles per gallon by the 2011 empowers us. It allows us to structure our lives, model year. giving us flexibility in choosing our communi- The CAFE standards must be met by every ties and our jobs and in handling our family carmaker’s new vehicles sold within a given and professional responsibilities. As long as the model year. Individual vehicles can fall below price we pay for gasoline at the pump is not the standard, but they must be offset by a com- subsidized by the government, any attempt to pany’s sales of other vehicles that exceed the restrict our mobility should be subject to seri- standard or by a company’s use of CAFE cred- ous question. its earned in other years. If the government is going to restrict gaso- The Clinton administration generally fa- line consumption (and that is a big if, the valid- vored higher CAFE standards, but a series of ity of which we question), then higher gasoline congressional appropriation freezes barred taxes are the most efficient way of doing so. DOT from raising those standards. The Bush They immediately affect all consumers, com- administration raised the light truck standard pared to the many years that it takes for CAFE and also began a reform of the CAFE program to affect the production of new cars. More im- aimed at reducing its adverse safety effects. portant, a tax increase is far more politically With the Democrats taking control of Con- honest than the CAFE standards, because its gress in 2007, there is more impetus to dras- magnitude is readily apparent to the public. tically increase both the car and light truck The CAFE program’s effects, in contrast, are standards. The intensification of the global relatively invisible. That is what makes the warming debate will give such proposals even program so attractive to politicians and gov- more prominence than they have had in the ernment regulation advocates—and so danger- past. ous to the public at large. Although much of this debate will center on appropriate CAFE levels, the real issue is Background the wisdom of the CAFE program itself. As the following sections indicate, the program’s The CAFE program established an initial se- underlying premises are in need of basic re- ries of congressionally mandated fuel economy consideration.

92 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Energy

A Questionable Effect on Gasoline Increases in Traffic Fatalities Consumption Vehicle downsizing is one of the most effec- Since the passage of CAFE standards, the tive means of increasing fuel economy. Down- fuel efficiency of new cars has nearly doubled. sized vehicles, however, are less crashworthy Much of this increase, however, is due not than similarly equipped large cars in practically to the standards but to the auto market’s re- every type of accident. As a result, the CAFE sponse to rising oil prices. For example, in the program increases highway fatalities. A 1989 years immediately following CAFE’s enact- Harvard–Brookings Institute study calculated ment, new-car fuel economy increased to levels that the CAFE program’s 500-pound downsiz- even higher than those required by statute, as ing effect on new cars caused a 14 to 27 percent consumers, faced with steadily rising gasoline increase in occupant fatalities—or 2,200 to prices, demanded far more fuel-efficient cars 3,900 additional traffic deaths per year.1 More than they had in the past. Only in the mid- recently, a 2002 National Academy of Sciences 1980s and later, when gas prices first stabilized study estimated that the program’s downsizing and then actually began to decline, did CAFE effect contributed to between 1,300 and 2,600 itself exert a real effect on car design and on additional deaths per year.2 the mix of models available. The drop in gas Ironically, the CAFE program is adminis- prices, however, meant that conservation had tered by the National Highway Traffic Safety become a less pressing need. Similarly, during Administration (NHTSA), a unit of DOT. Even the post-Katrina increase in gasoline prices, though its middle name is Safety, NHTSA has from late 2005 through the summer of 2006, sales of large SUVs declined drastically while 1. The earliest and still one of the foremost analyses of smaller SUVs and hybrids boomed in popular- this issue can be found in Robert W. Crandall and John ity. These changes took place far more quickly D. Graham, “The Effect of Fuel Economy Standards than anything that the CAFE program might on Automobile Safety,” Journal of Law and Econom- ics 32, no. 1 (1989): 97–118. For other analyses that have accomplished. reach similar conclusions, see National Highway Traffic Although CAFE has forced some changes in Safety Administration, Relationship of Vehicle Weight to the new-car fleet, many of its effects have actu- Fatality and Injury Risk in Model Year 1985–93 Passen- ger Cars and Light Trucks (Washington, DC: National ally increased fuel consumption. The restriction Highway Traffic Safety Administration, 1997); James on large cars caused consumers to hang onto R. Healey, “Death by the Gallon,” USA Today, July 2, their older, less efficient cars for longer periods 1999, section B. For an application of the Crandall- of time. Because consumers were limited in their Graham analysis to recent traffic statistics, see “CAFE’s Yearly Death Toll: State by State” Competitive Enter- choice of new cars, demand for larger vehicles, prise Institute, Washington, DC, 2002, http://www.cei. such as vans, minivans, and SUVs, was boosted. org/gencon/025,02407.cfm. These vehicles, which were subject to the less 2. Committee on the Effectiveness and Impact of stringent light truck CAFE standard, were often Corporate Average Fuel Economy (CAFE) Standards, less fuel efficient than the cars they replaced. National Research Council, Effectiveness and Impact Finally, because fuel efficiency reduces the costs of Corporate Average Fuel Economy (CAFE) Standards (Washington, DC: National Academies Press, 2002), of driving, the CAFE program actually encour- 3, http://books.nap.edu/books/0309076013/html/3. ages more driving. html#pagetop.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 93 The Environmental Source largely failed to assess the safety effect of this fuel economy and cars with low fuel economy program. In 1989, a federal appeals court, rul- perform the same. More important, most vehi- ing in the case of Competitive Enterprise Insti- cle emissions come not from new cars but from tute and Consumer Alert v. NHTSA, found that older ones. Because the CAFE program results the agency had engaged in “decisional evasion” in these cars being kept on the road even longer, and “statistical legerdemain” in dealing with the result may well be more—rather than less— this issue.3 air pollution. Proponents of higher CAFE standards argue that new technologies have replaced Little Reduction in U.S. Dependence on downsizing as means of enhancing fuel econ- Foreign Oil omy. The CAFE program, however, imposes a safety tradeoff on vehicles regardless of how Despite the CAFE program, oil imports technologically sophisticated they may be. currently account for 60 percent of U.S. oil Take the most high-tech car imaginable: if you consumption, as compared with 35 percent in then make it larger and heavier, it will be safer, 1975.4 Half of those imports, however, come but it will also be less fuel efficient. Because from other Western Hemisphere nations, the CAFE program prevents such cars from and our single largest foreign source of oil is being “upsized,” it continues to impose its le- Canada.5 thal effect. America’s dependence on foreign oil is es- sentially determined not by the fuel economy of No Reduction in Automobile our cars, but by world oil prices. Our domestic Emissions oil sources are relatively high cost in nature. When world oil prices are low, the United States Proponents of higher CAFE standards claim tends to increase its imports of low-cost foreign that that the standards will reduce the threat of oil. If Congress wishes to reduce such imports global warming. Fuel-efficient cars do emit less (a goal whose wisdom is itself debatable), the per mile traveled, but this effect best way to do so is to eliminate the extensive will be diminished by the program’s stimulus to federal restrictions on domestic oil exploration increase driving. Moreover, new vehicles con- and development. stitute a miniscule source of overall carbon di- oxide emissions. Finally, as explained elsewhere in The Environmental Source, the evidence in support of a threat of global warming is ex- 4. U.S. Department of Energy, Energy Information Ad- tremely speculative. ministration, Oil Market Basics (Washington, DC: U.S. Department of Energy), http://www.eia.doe.gov/pub/oil_ As for pollutants, all vehicles are subject to gas/petroleum/analysis_publications/oil_market_basics/ the same U.S. Environmental Protection Agency default.htm. emissions standards in terms of allowable 5. U.S. Department of Energy, Energy Information Ad- grams per mile. In this respect, cars with high ministration, “Crude Oil and Total Petroleum Imports Top 15 Countries,” U.S. Department of Energy, Wash- ington, DC, http://www.eia.doe.gov/pub/oil_gas/petro- 3. Competitive Enterprise Institute and Consumer Alert leum/data_publications/company_level_imports/current/ v. NHTSA, 956 F.2d 321 (D.C. Cir. 1992). import.html.

94 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Energy

Key Experts Kazman, Sam. 2005. “CAFE Is Bad for Your Health,” Wall Street, Journal, November Sam Kazman, General Counsel, Competi- 14. http://www.cei.org/gencon/019,04970. tive Enterprise Institute, [email protected] cfm. Nivola, Pietro S., and Robert W. Crandall. 2002. Recommended Readings The Extra Mile: Rethinking Energy Policy for Automotive Transportation. Washing- Competitive Enterprise Institute. CAFE Café ton, DC: Brookings Institution Press. website. http://www.cei.org/pages/cafe/opeds/ index.cfm.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 95

Accessing Energy Resources on Public Lands

Angela Logomasini

Federal land ownership affects the ability gas resources.1 The API claims that the federal of energy developers to access energy and min- government limits access to 90 percent of off- eral resources. In recent decades, the energy shore areas of the outer continental shelf and industry and other parties have complained that litigation and permitting delays limit access that environmental regulations have led to a to onshore lands. It also notes that in 1999 4.5 continually shrinking level of access to such percent of oil and gas leases were challenged in resources. In contrast, environmental groups court, but now nearly 50 percent are. Permit maintain that energy industry access to public restrictions also complicate drilling and make lands is extensive and growing. A review of it impossible in some leased areas.2 these perspectives indicates that energy devel- In contrast, the Environmental Working opment on public lands has, in fact, declined Group (EWG) claimed in 2005 that oil and gas significantly. development on those lands was out of control 1. API, “Why We Need Expanded Access for Drilling Energy Development on Public Lands on Government Lands and Offshore,” API, Washing- ton, DC, 2006, http://www.api.org/policy/exploration/ expanded-access.cfm. According to the American Petroleum In- 2. API, “Access to Federal Lands,” API, Washington, stitute (API), the federal government owns 78 DC, 2006, http://www.api.org/aboutoilgas/facts/index. percent of the nation’s oil and 62 percent of its cfm.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 97 The Environmental Source and that this development affected one in three protection has locked companies out of acres of federal land. To make its point, EWG public lands.4 used an elaborate computer mapping program that cross-referenced data from a federal Bu- A review of the EWG methodology, how- reau of Land Management database with ever, reveals serious flaws. The data are not or- additional data collected from several other ganized in a way that reveals trends that could sources that included locations of oil and gas support the idea that industry claims about operations around the nation. After comparing shrinking resource access are inaccurate. The this database with the location of federal lands, report simply includes a collection of activities it reported: “We electronically plotted the 3.45 from several databases covering several differ- million tracts of Western public land currently ent years. Moreover, the data are incapable of or formerly drilled, mined, offered to, or other- measuring the environmental impact because wise controlled by mining, oil and gas interests, they simply do not contain information on the as detailed in the three data sources described impacts of these operations. Instead, EWG notes above.”3 that mining activities can theoretically affect The EWG report further states: wildlife and the environment within 100 miles of the operation. But it is also possible—in fact, A two-and-a-half year Environmental quite likely—that most of these operations can Working Group (EWG) computer investi- be pursued without serious adverse environ- gation has found that metal mining and oil mental impacts. As an example, the Audubon and gas industries actively control land in Society drills for oil and gas on its lands, which and around more than two-thirds of 1,855 it claims to do in a manner that is consistent parks, wilderness areas, wildlife refuges, with its wildlife protection goals. wild and scenic rivers, forests, and other Perhaps most important, EWG’s data in- treasured public lands in the American clude large numbers of development activi- West. If present trends continue, within 20 ties that were not on federal land because the years, metal mining and oil and gas com- group counted all activities on nonfederal panies will actively mine, drill, or otherwise lands (including private or state lands) within control public lands inside or within five five miles of a federal property. One should miles of every one of these natural treasures. expect that a large number of activities would EWG’s investigation of millions of federal reside near federal lands, given that a high per- government records belies industry claims centage of the resources are mined in western that excessive emphasis on environmental states, where much of the land is owned by the government. In fact, the federal government owns more than 50 percent of the land in five

3. EWG, “Methodology,” in Who Owns the West?: 4. EWG, “Executive Summary,” in Who Owns the Losing Ground (Washington, DC: EWG, 2005); EWG West?: Losing Ground (Washington, DC: EWG, 2005), appers to have removed this information from its site, EWG appers to have removed this information from its but it can be found in the Internet Archive at http://web. site, but it can be found in the Internet Archive at http:// archive.org use the search engine to find www.ewg.org/ web.archive.org use the search engine to find www.ewg. reports/losingground/methodology.php. org/reports/losingground/methodology.php.

98 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Energy

Table 1. Environmental Working Group Mining Data Categories

Located on federal land Type of control Source of information (number of leases or claims) Active and proposed mines (type 1) Active mining plans and notices from the Bureau of 334 Land Management’s LR2000 database and various industry sources Active oil and gas drilling and Active leases in current production according to the 13,679 production (type 1) Bureau of Land Management’s LR2000 database Active mining claims (type 2) Active claims according to the Bureau of Land 70,833 Management’s LR2000 database Active oil and gas leases (type 2) Active leases not in current production, according to 20,080 the Bureau of Land Management’s LR2000 database Total 104,926 Source: U.S. Bureau of Land Management.

of those states, including Nevada, of which they will be (or were) ever used for resource the federal government owns 80 percent.5 By extraction. Lease restrictions may make such counting activities on nearby nonfederal lands, activities unlikely or even impossible in some EWG inflates the number of tracts of land af- cases, and the land might simply not be suitable fected by 67 percent.6 for such use. In addition, EWG counts all development- EWG does categorize the data into types. related activities—ongoing, proposed, potential, Type 1 includes lands with active and proposed or past—as the same. Accordingly, its data set mines, as well as active oil and gas drilling and production. Type 2 counts lands with active includes active drilling and mining operations, mining claims and active oil and gas leases. potential drilling or mining, potential leasing Type 3 counts lands containing abandoned or opportunities, and abandoned mining opera- closed mines and abandoned or closed drilling tions. Yet many of these activities do not ac- operations. Type 4 counts closed mining claims, curately reflect development on public lands. closed oil and gas leases, tracts of land offered For example, the fact that lands are available for lease by the government, and leases offered for leasing now (or in the past) does not mean and refused by industry (see table 1). It does not make sense to count types 3 and 5. U.S. General Accounting Office, Land Ownership (Washington, DC: U.S. General Accounting Office, 4 in an assessment of activities affecting lands 1996), 24. today. Those types involve closed operations, 6. According to the EWG data, there were 3,413,627 closed claims or leasing rights, and refusals by tracts of land (the total of types 1 to 4) involved in ac- industry to access resources on the lands. Ac- tive or potential mining in the western United States. Of cordingly, these data provide little information that total, EWG reports that 2,294,570 of them—67 percent—consisted of land actually outside the boundar- about existing land-use activities, and because ies of government land. See EWG, “Methodology.” they are aggregated, they provide no meaning-

202-331-1010 • www.cei.org • Competitive Enterprise Institute 99 The Environmental Source

Figure 1. EWG Estimates versus Actual Oil and Gas Leases cent of its data are not particularly applicable, energy development on federal lands is likely much less than predicted. 3,500,000 One possible way to assess the 3,000,000 percentage of land actually involved in such activities is to compare total 2,500,000 acreage owned by the four envi-

2,000,000 ronmental agencies with the acres containing leases for existing and 1,500,000 potential oil, gas, and mining opera- tions. The four agencies own about 1,000,000 629 million acres of land.7 The U.S. 500,000 Bureau of Land Management’s most recent annual report, Public Land 0 EWG Estimates Actual Losses Statistics 2005, indicates that the total acreage of federal lands subject to active oil and gas leases amounted to about 35 million acres.8 All other ful information on future trends. It is true that mineral leases—such as coal, geothermal, and some of the past activities might have had envi- hard rock leases—amount to about 1.2 million ronmental impacts, but EWG presents no data acres. Combined, that’s less than 6 percent of on such impacts and does not reveal how they relate to current or future activities. The only relevant items for assessing exist- 7. Data are based on estimates for each agency: U.S. ing federal activities and potential ones on fed- Forest Service, “About Us,” U.S. Forest Service, Washing- eral lands would be within types 1 and 2. But ton, DC, June 8, 2006, http://www.fs.fed.us/aboutus; U.S. type 2 represents only potential development. Fish and Wildlife Service, “President Seeks More than $2 Reliance on type 1 and 2 lands indicates that Billion for U.S. Fish and Wildlife Service in 2007 Budget,” press release, U.S. Fish and Wildlife Service, Washington, ongoing and potential activities of mining op- DC, February 6, 2006, http://www.fws.gov/budget/2007/ erations on federal lands are much lower than FY07%20press%20release.htm; and National Park Ser- what EWG claims. In fact, it decreases the total vice, “The National Park System Acreage,” National Park number of oil, gas, and mining activities from Service, Washington, DC, June 8, 2006, http://www.nps. gov/legacy/acreage.html. According to the National Park 3,413,627 to 160,893—reducing EWG’s total Service, it was responsible for managing “83.6 million by nearly 97 percent. The final tally for active acres [in 2006], of which more than 4.3 million acres re- and proposed oil, gas, and mining activities is main in private ownership,” meaning 79.3 million acres 104,926 (see figure 1). were government owned. EWG’s data do not reveal how many acres 8. U.S. Bureau of Land Management, Public Land are involved in these projects, but somehow Statistics 2005 (Washington, DC: Department of the In- terior, 2005), http://www.blm.gov/natacq/pls05/PLScov- EWG extrapolates that projects affect one in er06web.pdf. Grand totals for acreage are in charts 3-13 three acres of western land. Given that 97 per- and 3-14.

100 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Energy

Figure 2. Oil and Gas Leasing on Public Lands

200

150

100 Millions of Acres

50

0 1964 1965 1966 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 1962 1963 1967 Year Source: U.S. Bureau of Land Management, Public Land Statistics, various years.

Note: The Bureau of Land Management has reported in different formats over the years, which required that the total of existing leases for each be tallied from several tables in some cases. From 1962 to 1980, the totals were reported in one chart and required no calculations. From 1981 to 1985, the numbers were reported in three charts (competitive leases issued that year, noncompetitive leases issued that year, and all other leases continuing that year) and tallied accordingly. From 1986 through 2005, the leases were re- ported in two charts (all existing competitive leases and all existing noncompetitive leases), requiring the tallying of the two totals. federal properties—far less than the EWG esti- The Bureau of Land Management’s annual mate of one in three acres.9 reporting of public land statistics can also pro- It should be noted that these data simply vide some insight into leasing trends. The Bureau reflect existing leases—not active operations— of Land Management has produced an annual which are a fraction of the number of leases. statistics report every year since 1962, from For example, although there were 34.6 million which figure 2 on oil and gas leasing trends was acres under lease in 2004, the Bureau of Land developed. The figure shows increasing acreage Management reports only 11.6 million “acres under lease during the 1980s, but historically in producing status” for that year—about one- low leasing starting in the 1990s and from third of the lands leased.10 2000 onward. Figure 2 indicates that environmental claims 9. See U.S. Bureau of Land Management, Public Land that oil and gas leasing and drilling on public Statistics 2005. The number of leases related to mining lands are growing in recent years do not hold for all other resources was tallied from leasing totals in charts 3-13 and 3-14 (for geothermal leasing) and charts water. In fact, it would better support the con- 3-18 and 3-19 for all other lease totals. 10. The figure for 2004 is used here because the 2005 3-17 in U.S. Bureau of Land Management, Public Land report did not include statistics on acres in producing Statistics 2004 (Washington, DC: U.S. Department of the status, but the ratio would be similar. See charts 3-13 and Interior, 2004).

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tention that industry is experiencing reduced ac- tant because increasingly it is becoming the key cess to these lands. However, oil and gas drilling source of oil and gas production. Natural gas on public lands may have declined for other rea- production in these areas accounted for about sons; hence the conclusion that environmental 20 percent of all U.S. natural gas production regulation is largely responsible cannot be drawn in 2004; crude oil accessed there amounted to with any certainty. But Figure 2 does undermine about 29 percent of national production.13 Pro- claims that such access has reached historic duction from those areas could be much higher, highs. Greater support for the idea that access but it is limited by various federal regulations— has been reduced comes from policy changes most of them environmental in nature. that have limited the scope of commercial activi- The federal government maintains jurisdic- ties on these lands. For example, the increase in tion over nearly all of the lands of the continental federal lands designated as “wilderness” limits shelf. Under the Submerged Lands Act of 1953, commerical activities on these lands.11 states own the lands within four miles of the A report produced by the U.S. Department coast, except that Texas and Florida own lands of Energy’s Energy Information Administra- within nine miles of their coasts. The federal tion shows that policy changes related to en- government owns and controls resource use on vironmental concerns also have significantly the rest. Originally approved in 1953, the Outer reduced access to oil and gas resources.12 The Continental Shelf Lands Act (OCSLA) governs federal government owns and controls access federal management of submerged lands, set- to all offshore lands—the lands referred to as ting up a system for federal leasing to oil and the continental margins. Of the three categories gas firms of access to the resources contained in of these lands, the first is the continental shelf. those lands and for setting environmental stan- It includes the shallowest regions, which run to dards for resource extraction. President Ronald a depth of about 650 feet and extend off the Reagan set the international boundaries of these coasts 12 to 250 miles. The second is the conti- lands in 1983 when he declared the U.S. Exclu- nental slope, which is essentially a transitional sive Economic Zone, which runs 200 miles from point at which the ocean floor slopes down to U.S. shorelines. In 1994, the International Law depths of up to three miles. At the bottom of the of the Sea Treaty recognized similar rights of all slope begins the third category, the continental other nations of the world. rise, where the ocean floor dips down gradually With the emergence of the environmen- and where sediment from the slope remains. tal movement in the 1970s, OCSLA has been According to the Energy Information Ad- amended six times, reflecting environmental- ministration, the continental margin is impor- ist desires for increasingly restrictive leasing policies and more environmental regulation 11. Angela Logomasini, The Green Regulatory State where resource extraction continues. The 1978 (Washington, D.C.: Competititive Enterprise Insitute, amendments further increased environmental 2007), http://www.cei.org/pdf/6106.pdf, 14-20. considerations. It set up a system for five-year 12. U.S. Department of Energy, Energy Information Ad- ministration, “Overview of U.S. Legislation and Regula- tion Affecting Offshore Natural Gas and Oil Activity,” 13. U.S. Department of Energy, Energy Information Ad- U.S. Department of Energy, Washington, DC, September ministration, “Overview of U.S. Legislation and Regula- 2005. tion Affecting Offshore Natural Gas and Oil Activity,” 4.

102 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Energy

Table 3. Moratoria on Drilling on the Outer Continental Shelf

Year Acreage removed from drilling

1983 35 million 1984 54 million 1985 45 million 1986 and 1988 8 million 1989 33 million 1990 84 million 1990 Bush blanket moratorium (effective through 2000) 2000 Clinton extension of Bush blanket moratorium (effective through 2012)

Source: U.S. Department of Energy, Energy Information Administration.

leases and held that such leasing could not the Coastal Zone Management Act, the Endan- continue unless the federal government had gered Species Act, the Clean Water Act, and the obtained information on the “environmental, National Fishing Enhancement Act. social, and economic effects” of such activi- As a result, an increasing number of areas of ties.14 In addition, the amendments called for the continental shelf have been placed off limits balancing environmental concerns against the for any drilling. Most of these restrictions began economic benefits of resource extraction. as moratoria on drilling included in the annual In addition to regulations in the OCSLA, interior appropriations bill. In 1982, the first the Energy Information Administration noted of such moratorium addressed 736,000 acres the following: off the coast of California; more land was re- moved from drilling in the years that followed During the 1960s, increasing environmental (see table 2). awareness set the stage of development of After lands were removed from leasing for numerous environmental laws, regulations, about a decade under these measures, Presi- and executive orders that have affected dent George H. W. Bush issued a presidential natural gas and oil activities on federal off- directive that placed a blanket moratorium shore areas. All natural gas and oil activities over drilling on unleased areas off the coasts of must now pass through a large number of California (with the exception of 87 tracts in environmental reviews by federal, state, and southern California), Washington, Oregon, the local agencies. North Atlantic, and the Eastern Gulf of Mex- ico, which President Clinton extended in 2000. The laws involved include the National In 2006, Congress did make a modest change, Environmental Policy Act, the Clean Air Act, opening 8.3 million acres off the Gulf of Mex- ico. However, this relatively small change may 14. Ibid., 8. have done more harm than good in the view of

202-331-1010 • www.cei.org • Competitive Enterprise Institute 103 The Environmental Source those who seek opening more of the OCS lands, This history clearly shows that the desire of as it has effectively shut down debate on the environmental groups to limit access to energy issue for many years to come, leaving the vast resources on public lands—a desire that is now areas closed to development for the forseable reflected in public land-use policies, particularly future.15 on the outer continental shelf.

15. Ben Geman, “Leasing Bans are Likely Untouchable in Current Congress -- Bingaman,” E&E Daily, January 26, 2007.

104 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Global Warming

An Issue of Science and Economics

Iain Murray

Abundant and affordable energy is one of Whether poor people around the world ever the great boons of modern industrial civiliza- gain access to energy depends on a number tion and the basis of our standard of living. of factors, such as the development of secure Energy makes people’s lives brighter, safer, property rights in developing countries and more comfortable, and more mobile. Unfor- continuing technological progress. One poten- tunately, billions of people in poor countries tial obstacle, however, could thwart any efforts still do not have access to energy. For exam- to provide more energy. That threat is political ple, India’s per capita consumption of electric- pressure to reduce energy use worldwide for ity is one-twentieth that of the United States. fear of global warming. The hydrocarbons— Hundreds of millions of Indians live “off the coal, petroleum, and natural gas—that are the grid”—that is, without electricity—and many source of anthropogenic greenhouse gas emis- still use cow dung as a fuel for household sions provide over three-fourths of the world’s cooking, a practice that contributes to half total energy. Although many alternative sources a million premature deaths every year. This of energy exist, all of these sources combined continuing reliance on preindustrial energy cannot begin to substitute for hydrocarbons sources is also one of the major causes of en- without further significant technological inno- vironmental degradation. vations and massive capital investments. This

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is not the work of a few years, but of several Alarm over the prospect of Earth’s warm- decades.1 ing is not warranted by the agreed science or Yet environmental activist groups and their economics of the issue. Global warming is supporters in legislatures around the world, happening, and humans are responsible for at backed by activist scientists eager to use the po- least some of it. Yet this fact does not mean that litical process to advance their ideological agen- global warming will cause enough damage to das, demand action now. They propose massive, Earth and to humanity to require drastic cuts mandated cutbacks in hydrocarbon use, while in energy use, a policy that would have damag- at the same time objecting to reliable, proven ing consequences of its own. Moreover, science technologies, such as nuclear power, that could cannot answer questions that are at heart eco- contribute to such cutbacks. Although even nomic or political, such as whether the Kyoto the European Union (EU) is failing to meet its Protocol is worthwhile. targets under the ,2 the activists Predictions of a global warming catastro- and their political allies call for more ambi- phe are based on models that rely on econom- tious targets. With every severe weather event ics as much as on science. If the science of the touted as proof of global warming and shrill greenhouse theory is right, then we can assess warnings about the world’s being only a few its consequences only by estimating future years away from climate catastrophe, together production of greenhouse gases from esti- with exploitation of national security worries, mates of economic activity. This policy brief legislators are coming under extreme pressure addresses questions regarding global warming to “do something.” as a political and economic, as well as scien- Support for putting the world on an energy- tific, issue. starvation diet to avert catastrophic global warming has continued to gain traction among Isn’t There a Scientific Consensus politicians, pundits, and public intellectuals in That Global Warming Is Real and many countries. Notwithstanding this outcry, Bad for Us? however, the scientific case for catastrophic global warming continues to be dubious. There is no scientific consensus that global Moreover, environmental activists refuse to warming will cause damaging climate change. countenance adaptive strategies that would Claims regarding a consensus mischaracter- be demonstrably beneficial whether the world ize the scientific research of bodies such as the warms significantly or not. United Nations Intergovernmental Panel on Climate Change (IPCC) and the U.S. National Academy of Sciences. 1. For a general discussion of these issues, see Robert L. Bradley Jr., Julian Simon and the Triumph of Energy Sustainability (Washington, DC: American Legislative What Do Scientists Agree On? Exchange Council, 2000). 2. See European Environment Agency, Annual Euro- Scientists do agree on the following: pean Community Greenhouse Gas Inventory 1990–2004 • Global average temperature is about and Inventory Report 2006, EEA Technical Report 0.6°C—or just over 1°F—higher than it was 6/2006 (Copenhagen: European Environment Agency, 2006). a century ago.

108 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Global Warming

• Atmospheric levels of carbon dioxide have • We have enough data to confidently predict risen by about 30 percent over the past 200 future temperature levels. years. • At what level temperature change might be • Carbon dioxide, like water vapor, is a green- more damaging than beneficial to life on house gas whose increase is likely to warm Earth. Earth’s atmosphere.3 Didn’t the National Academy of Sciences Doesn’t This Mean We Should Be Say Greenhouse Gases Cause Global Worried? Warming?

As Richard Lindzen of the Massachusetts Not quite. The National Academy of Sci- Institute of Technology (MIT) summarized in ences reported the following in 2001: 2006, Because of the large and still uncertain These claims are true. However, what level of natural variability inherent in the the public fails to grasp is that the claims climate record and the uncertainties in the neither constitute support for alarm nor time histories of the various forcing agents establish man’s responsibility for the small … a causal linkage between the buildup amount of warming that has occurred. In of greenhouse gases in the atmosphere fact, those who make the most outlandish and the observed climate changes during claims of alarm are actually demonstrating the 20th century cannot be unequivocally skepticism of the very science they say sup- established.5 ports them. It isn’t just that the alarmists are trumpeting model results that we know The academy also noted that 20 years’ must be wrong. It is that they are trumpet- worth of data is not enough to estimate long- ing catastrophes that couldn’t happen even term trends. if the models were right as justifying costly policies to try to prevent global warming.4 Hasn’t Earth Warmed Precipitously over the Past 100 Years? What Don’t Scientists Know Yet? The temperature rise of 0.6°C over the past Scientists do not agree on whether: century is at the bottom end of what climate • We know enough to ascribe past tempera- models suggest should have happened. This ture changes to carbon dioxide levels. finding suggests either that the climate is less sensitive to greenhouse gases than previously

3. Richard Lindzen, testimony before the U.S. Senate Environment and Public Works Committee, May 2, 2001, http://www-eaps.mit.edu/faculty/lindzen/Testimony/Sen- 5. Committee on the Science of Climate Change, Na- ate2001.pdf. tional Research Council, Climate Change Science: An 4. Richard Lindzen, “Climate of Fear,” Wall Street Analysis of Some Key Questions (Washington, DC: Na- Journal, April 12, 2006. tional Academies Press, 2001).

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thought or that some unknown factor is de- has warmed considerably less than greenhouse pressing the temperature.6 theory suggests.8 These measurements, which cover the whole atmosphere and show only Don’t Climate Models Warn a very slight warming, show a disparity with of Alarming Future Warming? the surface temperature measurements, which cover only a small fraction of Earth but show Predictions of 6°C temperature rises over sustained warming. the next 100 years are at the extreme end of the IPCC range and are the result of faulty eco- Hasn’t the Disagreement between nomic modeling, not science (discussed later in and Surface Temperatures this brief). Been Resolved?

What Are the Realistic Current No. Substantial disagreement still exists Estimates of Future Warming? between the midrange of the satellite measure- ments and the midrange of the surface measure- Both of the National Aero- ments. This discrepancy presents a problem for nautics and Space Administration (NASA)— climate models. the father of greenhouse theory—and Richard Lindzen of MIT—the world’s most renowned Do Other Human-Made Factors climatologist—agree that, even if nothing is Besides Greenhouse Gases Influence done to restrict greenhouse gases, the world Temperature? will see a global temperature increase of only about 1°C in the next 50 to 100 years. Hansen New research suggests that the role of and his colleagues predict “additional warming greenhouse gases in warming has been overes- in the next 50 years of 0.5 ± 0.2°C, a warming timated, because factors such as atmospheric rate of 0.1 ± 0.04°C per decade.”7 ,9 land-use change,10 and solar varia-

What about Satellite Temperature 8. John R. Christy and Roy W. Spencer, Global Temper- Measurements? ature Report: April 2003 (Huntsville, AL: Earth System Science Center, University of Alabama in Huntsville May 9, 2003). Evidence from satellite and weather bal- 9. Makiko Sato, James Hansen, Dorothy Koch, Andrew loon soundings suggests that the atmosphere Lacis, Reto Ruedy, Oleg Dubovik, Brent Holben, Mian Chin, and Tica Novakov, “Global Atmospheric Black Car- bon Inferred from AERONET,” Proceedings of the Na- 6. See testimony of Richard Lindzen to the U.K. House tional Academy of Sciences 100, no. 11 (2003): 6319–24. of Lords Committee on Economic Affairs, “Aspects of 10. Roger A. Pielke, Gregg Marland, Richard A. Betts, the Economics of Climate Change,” January 21, 2005, Thomas N. Chase, Joseph L. Eastman, John O. Niles, http://www.publications.parliament.uk/pa/ld/lduncorr/ Devdutta S. Niyogi, and Steven W. Running, “The Influ- econ2501p.pdf. ence of Land-Use Change and Landscape Dynamics on 7. Shan Sun and James E. Hansen, “Climate Simula- the Climate System: Relevance to Climate-Change Policy tions for 1951–2050 with a Coupled Atmosphere- beyond the Radiative Effect of Greenhouse Gases,” Phil- Ocean Model,” Journal of Climate 16, no. 17 (2003): osophical Transactions of the Royal Society of London 2807–26. 360, no. 1797 (2002): 1705–19.

110 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Global Warming

tion11 all appear to have contributed signifi- Is the World in Severe Danger from cantly to recent warming. Sea-Level Rise, Perhaps by as Much as 20 Feet This Century? Is Earth Continuing to Warm? No. Recent research from French scientists The global average temperature has seen no indicates that sea levels have risen steadily over net increase since 1998 in four of the five gener- the past 50 years at a rate of 1.5 millimeter per ally accepted measurement series (the exception year, which translates to just 15 centimeters per being NASA’s). Three of the series suggest Earth is century.14 The IPCC foresees sea-level rise of even cooling.12 Recent articles have admitted that between 0.18 and 0.59 meters this century and natural processes are currently overwhelming regards higher figures as unlikely. Earth experi- anthropogenic climate forcings but have asserted enced a sea-level rise of 0.2 meters over the past that global warming will resume in 2009 or even century with no noticeable ill effects. 2015. Such findings strongly suggest that not Another study relevant to this controversy enough is known about natural forcings to allow examined changes in ice mass “from elevation confidence in future projections of temperature. changes derived from 10.5 years (Greenland) and 9 years (Antarctica) of satellite radar altim- Is the World in Danger of Plunging into etry data from the European Remote-sensing a New Ice Age? ERS-1 and -2.”15 The researchers re- port a net contribution of the three ice sheets to No. The scenario presented in The Day after sea level of +0.05 ± 0.03 millimeters per year. Tomorrow is physically impossible. Although CO2Science.Org puts this finding in perspec- research does suggest that the Gulf stream has tive: “At the current sea-level-equivalent ice- switched on and off in the past, causing tem- loss rate of 0.05 millimeters per year, it would perature drops in Europe, oceanographers are take a full millennium to raise global sea level convinced that global warming does not pres- by just 5 cm, and it would take fully 20,000 ent any such danger.13 years to raise it a single meter.”

11. Eigil Friis-Christensen and Knud Lassen, “Length of no. 5669 (2004): 400–2. See also Carl Wunsch, “Gulf the Solar Cycle: An Indicator of Solar Activity Closely Stream Safe If Wind Blows and Earth Turns,” Nature Associated with Climate,” Science 254, no. 5032 (1991): 428, no. 6983 (2004): 601. 698–700. See also Peter Thejil and Knud Lassen, Solar 14. Muriel Bergé-Nguyen, Anny Cazenave, Alix Lom- Forcing of the Northern Hemisphere Land Air Tempera- bard, William Llovel, J. Viarre, and Jean-François Cre- ture: New Data, DMI Report 99-9 (Copenhagen: Danish taux, “Reconstruction of Past Decades Sea Level Using Meteorological Institute, 1999). Thermosteric Sea Level, Tide Gauge, Satellite Altim- 12. See Roger A. Pielke, “How to Make Two Decades etry and Ocean Reanalysis Data,” Global and Planetary of Cooling Consistent with Warming,” Prometheus sci- Change 62,:nos. 1–2 (2008): 1–13. ence policy blog, University of Colorado at Boulder, May 15. H. Jay Zwally, Mario B. Giovinetto, Jun Li, Helen G. 12, 2008, http://sciencepolicy.colorado.edu/prometheus/ Cornejo, Matthew A. Beckley, Anita C. Brenner, Jack L. archives/climate_change/001425how_to_make_two_ Saba, and Donghui Yi, “Mass Changes of the Greenland deca.html. and Antarctic Ice Sheets and Shelves and contributions 13. Andrew J. Weaver and Claude Hillaire-Marcel, to Sea-Level Rise: 1992–2002, Journal of 51, “Global Warming and the Next Ice Age,” Science 304, no. 175 (2005): 509–27

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Are Extreme Weather Events Directly scientists agree that Hurricane Katrina can in Attributable to Global Warming? no way be blamed on global warming. Other rrecently published research casts No provable link has been established be- extreme doubt on the influence of warming on tween weather events such as Hurricane Ka- hurricanes. Philip Klotzbach of Colorado State trina and global warming. Research by German University finds the following: scientists has demonstrated that the devastating floods in central Europe in 2002 were perfectly The data indicate a large increasing trend in normal events when compared with the histori- tropical cyclone intensity and longevity for cal record.16 Allegations that extreme weather the North Atlantic basin and a considerable has been more damaging recently do not take decreasing trend for the Northeast Pacific. into account the fact that humans are now liv- All other basins showed small trends, and ing and investing resources in more dangerous there has been no significant change in global areas. Moreover, the World Meteorological Or- net tropical cyclone activity. There has been ganization has acknowledged that increases in a small increase in global Category 4–5 hur- the recorded number of extreme weather events ricanes from the period 1986–1995 to the may be caused by better observation and report- period 1996–2005. Most of this increase is ing.17 A top expert from the IPCC, Christopher likely due to improved observational tech- Landsea, resigned in January 2005 to protest nology. These findings indicate that other the misrepresentation of IPCC science by claims important factors govern intensity and that the previous hurricane season was exac- frequency of tropical cyclones besides SSTs erbated by global warming.18 Most hurricane [sea surface temperatures].19

16. Manfred Mudelsee, Michael Börngen, Gerd Tetzlaff, Is the Snow on Kilimanjaro Really and Uwe Grünewald, “No Upward Trends in the Occur- Disappearing Because of Global rence of Extreme Floods in Central Europe,” Nature 425, no. 6954 (2003): 166–69. Warming? 17. Ken Davidson, director of the World Climate Program for the World Meteorological Organization, replied to a Not according to scientists who study Mount questioner in Geneva in 2003 as follows: “You are correct Kilimanjaro most closely. Kaser and colleagues that the scientific evidence (statistical and empirical) are “develop[ed] a new concept for investigating not present to conclusively state that the number of events have increased. However, the number of extreme events the retreat of Kilimanjaro’s glaciers, based on that are being reported and are truly extreme events has the physical understanding of glacier–climate increased both through the meteorological services and interactions.” They write: through the aid agencies as well as through the disaster reporting agencies and corporations. So, this could be because of improved monitoring and reporting.” See The concept considers the peculiarities of “WMO Joins the IPCC Mantra,” “Stop Press” Stories, the mountain and implies that climato- http://www.john-daly.com/press/press-03b.htm. logical processes other than air temperature 18. See “Chris Landsea Leaves IPCC,” open letter posted on the Prometheus science policy blog, University of Colorado at Boulder, January 17, 2005, http://scien- 19. Philip J. Klotzbach, “Trends in Global Tropical Cy- cepolicy.colorado.edu/prometheus/archives/science_ clone Activity over the Past Twenty Years (1986–2005),” policy_general/000318chris_landsea_leaves.html. Geophysical Research Letters 33 (2006): L10805.

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control the ice recession in a direct manner. released to the press long before the sensation- A drastic drop in atmospheric moisture at alist stories surfaced in Europe. Nor did the the end of the 19th century and the ensuing paper recommend “immediate action” beyond drier climatic conditions are likely forcing better climate modeling.22 glacier retreat on Kilimanjaro.20 Do Climate Models Show That We Are Is Global Warming Causing the Spread in Danger of Reaching a Tipping Point, of Malaria? Where Global Warming Will Become Much Worse? Climate is not a significant factor in the re- cent growth of vector borne diseases such as All the major climate models show that, malaria. Most experts on this subject agree that once global warming starts, it will progress malaria is more closely correlated with other steadily, essentially in a straight line. They do factors. Deforestation, migration of lowland not show exponential growth or any increased people (who have higher immunities but bring effect after certain temperatures are reached. unknown diseases with them into their new areas of residence), construction of roads and Haven’t the National Academies of All dams, and proliferation of pools and ditches are the Major Industrial Countries Agreed much more important in predicting the future That Global Warming Is a Serious spread of these diseases.21 Threat?

Are Claims Real That the U.S. Claims have been made that the scientific Department of Defense Has Concluded consensus is represented by a statement drafted Global Warming Poses a National by the Royal Society of London and signed by Security Threat? the national scientific academies of the Group of Eight, plus those of India, Brazil, and China. The Pentagon is not convinced that global But such claims ignore the politicized nature of warming represents a major security threat to the statement. The climate change committee of the United States. The “secret paper” that gar- the Russian Academy of Sciences later said that nered much publicity in Europe was a self-ad- its president should not have signed the state- mittedly speculative exercise that went beyond ment, and the use to which the statement was the bounds of measured research and had been put was condemned by the outgoing president of the U.S. National Academy of Sciences, Bruce 20. Georg Kaser, Douglas R. Hardy, Thomas Molg, Alberts, who called the Royal Society’s presen- Raymond S. Bradley, and Tharsis M. Hyera, “Modern 23 Glacier Retreat on Kilimanjaro as Evidence of Climate tation of the statement “quite misleading.” Change: Observations and Facts,” International Journal of Climatology, 24, no. 3: 329–39. 22. Peter Schwartz and Doug Randall, “An Abrupt Cli- 21. Paul Reiter, Christopher J. Thomas, Peter M. Atkin- mate Change Scenario and Its Implications for United son, Simon I. Hay, Sarah E. Randolph, David J. Rogers, G. States National Security,” paper submitted to the U.S. Dennis Shanks, Robert W. Snow, and Andrew Spielman, Department of Defense, October 2003. “Global Warming and Malaria: A Call for Accuracy,” 23. Sam Knight, “Anti-Bush Gibe by Royal Society Sparks Lancet Infectious Diseases 4, no. 6 (2004): 323–24. Climate Change Row,” Times Online, July 5, 2005,

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Aren’t Polar Bears Drowning Because of by Dennis Bray of Cambridge University and Melting Ice? Hans von Storch of Germany’s Institute for Coastal Research, following the same method- These claims are overblown. A leading Ca- ology as a published study from 1996, found nadian polar bear biologist wrote recently: that although a move had occurred toward acceptance of anthropogenic global warm- Climate change is having an effect on the ing, only 9.4 percent of respondents “strongly west Hudson population of polar bears, but agree” that climate change is mostly the result really, there is no need to panic. Of the 13 of anthropogenic sources. A similar proportion populations of polar bears in Canada, 11 “strongly disagree.” Furthermore, only 22.8 are stable or increasing in number. They are percent of respondents “strongly agree” that not going extinct, or even appear to be af- the IPCC reports accurately reflect a consensus fected at present.24 within climate science.27 There is scientific agreement that the world Isn’t There a Scientific Consensus has warmed and that humans are at least partly Such That One Researcher Found No responsible for the warming—although no con- Disagreement about Global Warming in sensus exists on the precise extent of human- the Literature? kind’s effect on the climate. Scientific debate is ongoing about the parameters used by the The research by Naomi Oreskes of the Uni- computer models that project future climatic versity of California, published in the journal conditions. We cannot be certain whether the Science in December 2004, was flawed.25 She world will warm significantly, and we do not studied about 1,000 scientific abstracts but know how damaging—if at all—even signifi- admitted to a sympathetic journalist that she cant warming will be. made a major mistake in her search terms. In fact, she should have reviewed about 12,000 Why Is Economics Important to the abstracts. Even taking her sample, another re- Study of Global Warming? searcher who tried to replicate her study came to quite different conclusions.26 In addition, Predictions of a global warming catastro- the most recent survey of climate scientists phe are based on models that rely on econom- ics as much as on science. If the science of the http://business.timesonline.co.uk/tol/business/markets/ greenhouse theory is right, then we can assess united_states/article540543.ece. its consequences only by estimating future pro- 24. Mitchell Taylor, Department of the Environment, duction of greenhouse gases from estimates of Government of Nunavut, as quoted by the Toronto Star, economic activity. May 1, 2006. 25. Naomi Oreskes, “Beyond the Ivory Tower: The Scientific Consensus on Climate Change,” Science 306 (5702): 1686. 26. Benny J. Peiser, Liverpool John Moores University, 27. Dennis Bray, “The Not So Clear Consensus on Cli- unpublished letter to Science, January 4, 2005, http:// mate Change,” Heartland Institute, Chicago, http://www. www.staff.livjm.ac.uk/spsbpeis/Scienceletter.htm. heartland.org/Article.cfm?artId=21311.

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Haven’t Economists Agreed That Not would reduce warming costs to $10 trillion, at Reducing Carbon Emissions Now Is a cost of $34 trillion.29 More Costly Than Doing So? What Will the Kyoto Protocol Do to This common assertion is based on the report Reduce Warming? of Sir Nicholas Stern to the U.K. government on the economics of global warming, which is The Kyoto Protocol, most observers agree, seriously flawed. It relies on a social cost of car- will have virtually no effect on temperature bon emission that is considerably greater than increase, because it imposes no greenhouse gas the average of all the other literature in the field emissions restrictions on major developing na- and also uses a very small discount rate, exag- tions such as China and India. These nations gerating the costs of future damages as well as have publicly refused to accept any restrictions the benefits of early action.28 now or in the future.30 Dr. Richard Tol of Hamburg University, the leading expert on the social cost of greenhouse Can’t We Reduce Emissions without gases, estimates the cost of carbon dioxide Affecting the Economy? emissions at about $2 per ton, not the $86 per ton used by Stern. Even at a higher estimate of Greenhouse gas emissions derive from en- $12 per ton, this translates to just 12 cents on ergy use, which in turn derives from economic a gallon of gasoline, far less than the dollar-a- growth. Therefore, nations that restrict emis- gallon figure commonly suggested. sions are almost certain to reduce their rate of Dr. William Nordhaus of Yale estimates that economic growth. 3°C of global warming would cost the world $22 trillion this century. Stern’s recommenda- Isn’t Global Warming All Cost and No tions, based on immediate deep reductions in Benefit? emissions on the basis of intergenerational eq- uity, would reduce Nordhaus’s estimate to $9 No. Even substantial global warming is trillion, but at a cost of $26 trillion. Al Gore’s likely to benefit the United States. Eminent Yale package of measures, which calls on the United professor Robert Mendelsohn wrote this advice States to “join an international treaty within to the Senate in 2000: the next two years that cuts global warming pollution by 90 percent in developed countries Climate change is likely to result in small and by more than half worldwide in time for net benefits for the United States over the the next generation to inherit a healthy Earth,” 29. William Nordhaus, The Challenge of Global Warm- ing: Economic Models and Environmental (Yale Univer- 28. See, for example, Richard S. J. Tol, “The Stern Re- sity, New Haven, CT, 2007). view of the Economics of Climate Change: A Comment,” 30. “CEI Drops Junk Science Lawsuit after White House Economic and Social Research Institute, Hamburg, Vrije, Acknowledgment; Chinese Emissions Skyrocket; India and Carnegie Mellon Universities, November 2, 2006, Rejects Emissions Restrictions,” Cooler Heads Digest, http://www.fnu.zmaw.de/fileadmin/fnu-files/reports/ November 12, 2003, http://www.globalwarming.org/ sternreview.pdf. article.php?uid=233.

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Table 1. Effects of Kyoto Protocol on European Economies as Predicted by a General Equilibrium Model Country Percentage of lost GDP Jobs lost Germany 5.2 1,800,000 Spain 5.0 1,000,000 United Kingdom 4.5 1,000,000 Netherlands 3.8 240,000 Source: Margo Thorning, Kyoto Protocol and Beyond: Economic Impacts on EU Countries (Brussels: International Council for Capital Formation, October 2002).

next century. The primary sector that will only one economic sector and therefore badly benefit is agriculture. The large gains in underestimate the negative effects of emission this sector will more than compensate for restrictions throughout the economy. General damages expected in the coastal, energy, equilibrium models, which take into account and water sectors, unless warming is un- the effects of emissions restrictions on other expectedly severe. Forestry is also expected economic sectors, show much greater negative to enjoy small gains. Added together, the economic effects than do sectoral models.32 United States will likely enjoy small ben- efits of between $14 [billion] and $23 bil- What Do the Better Economic Models lion a year and will only suffer damages in Say Kyoto Will Do? the neighborhood of $13 billion if warming reaches 5°C over the next century. Recent Research from general equilibrium models predictions of warming by 2100 suggest suggests strongly negative impacts on Euro- temperature increases of between 1.5°C pean economies from adopting Kyoto targets and 4°C, suggesting that impacts are likely (or going beyond the targets, as in the case of to be beneficial in the U.S.31 the United Kingdom). One model (see table 1) shows the economic effects by 2010 of adopt- Haven’t Economic Models Predicted ing Kyoto targets. Remember that the protocol No Effect on Growth from Reducing achieves virtually nothing in reducing global Emissions? temperature. The most recent measure proposed in the The models of the effect of greenhouse United States, the Lieberman-Warner Climate gas emission restrictions on the economy that Security Act 2008, would have had the follow- suggest no effect are mostly European. They ing effects, according to a detailed study by the are sectoral models that look at the effects on Heritage Foundation:

31. Robert Mendelsohn, letter to Sen. John Mc- 32. Michael Canes, Economic Modeling of Climate Cain, July 12, 2000, http://64.233.179.104/search? Change Policy (Brussels: International Council for Capi- q=cache:ctDw6sczNv0J:www.senate.gov/~commerce. tal Formation, October 2002).

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• Cumulative gross domestic product there because of economic decisions made (GDP) losses are at least $1.7 trillion before the signing of the Kyoto treaty, which and could reach $4.8 trillion by 2030 was signed in 1997 but which uses 1990 as its (in inflation-adjusted 2006 dollars). baseline year. • Single-year GDP losses hit at least $155 billion and realistically could exceed Isn’t President Bush to Blame for $500 billion (in inflation-adjusted 2006 Holding Up Kyoto? dollars). • Annual job losses exceed 500,000 before President George W. Bush has not unilater- 2030 and could approach 1,000,000. ally held up ratification of the Kyoto treaty. The • The annual cost of emission permits to U.S. Senate must ratify any treaty signed by a energy users will be at least $100 billion president. In 1997, during Bill Clinton’s presi- by 2020 and could exceed $300 billion dency, the Senate voted 95 to 0 not to accept by 2030 (in inflation-adjusted 2006 dol- any Kyoto-style treaty that would significantly lars). harm the U.S. economy and that did not include • The average household will pay $467 participation by major developing countries.35 more each year for its natural gas and The U.S. president has no power to impose the electricity (in inflation-adjusted 2006 Kyoto Protocol, or any other treaty, on an un- dollars). That means that the average willing Senate.36 household will spend an additional $8,870 to purchase household energy Isn’t Global Warming a Worse Threat over the period 2012 through 2030.33 Than Terrorism?

Isn’t Europe on Track to Meet Its Kyoto The charge that global warming is worse Targets? than terrorism in terms of damage to the world is pure hyperbole. The implausible and unverifi- Europe has found that the Kyoto targets able claim of a large number of deaths owing to are unrealistic. Regardless of announced tar- global warming each year—the figure is often put gets, 11 of the 15 preenlargement EU countries at 150,000—ignores the fact that most of those are on course to increase their greenhouse gas alleged deaths are caused by diseases such as emissions well beyond their individual Kyoto malaria, which have historically existed even in targets.34 Those that are on track are largely cold climates and could easily be controlled if the environmental lobby dropped its opposition to 33. William W. Beach, David Kreutzer, Ben Lieberman, the use of the pesticide DDT (dichloro-diphenyl- and Nick Loris, “The Economic Costs of the Lieberman- Warner Climate Change Legislation,” Center for Data Analysis Report 08-02, Heritage Foundation, Washing- ton, DC, May 12 2008, http://www.heritage.org/research/ 35. Senate Resolution 98, 105th Congress, First Session, EnergyandEnvironment/cda08-02.cfm. “Expressing the Sense of the Senate Regarding the Condi- 34. European Environment Agency, “EU15 Greenhouse tions for the United States Becoming a Signatory to Any Gas Emissions Decline after Two Years of Increases,” International Agreement on Greenhouse Gas Emissions press release, European Environment Agency, Copenha- under the United Nations,” 1997. gen, July 15, 2004. 36. U.S. Constitution, article II, section 2, clause 2.

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trichloroethane).37 Moreover, that number is it- opportunities, they promote the development self dwarfed by the number of people who meet of a carbon cartel seeking to exploit the system early deaths because of poverty—a number that to make profits, as politically connected firms will increase if governments around the world lobby for greater allocation of emission credits. suppress the use of energy. Moreover, given the The volatility of the carbon market in Europe clear and demonstrated link between wealth shows how dependent such markets are on and health, replacing coal-generated electricity political considerations. A simple carbon tax with more expensive alternatives would lead to would be much more economically efficient, almost 200,000 extra premature deaths in the although likely to prove unattractive to voters United States alone.38 in democracies.40

Can’t We Replace Fossil Fuels Cheaply Conclusion and Effectively with Renewable Energy? The world faces severe economic conse- Alternative sources of energy, such as wind quences from currently proposed strategies to and solar power, are not yet cost-effective and deal with global warming. These approaches will come with environmental costs of their own produce job losses and consume scarce resources (the veteran British environmentalist David that could be better spent on handling other global Bellamy is leading opposition to wind farms).39 problems, such as AIDS or lack of access to clean The only currently cost-effective alternative to drinking water.41 The economic consequences of fossil fuel use is nuclear power, which produces the global warming mitigation strategies currently nearly no emissions but which environmental proposed will probably be worse than the effects activists continue to oppose in direct contradic- of global warming itself. Therefore, adaptation tion to their assertions that global warming is and resiliency strategies should be considered as the gravest danger facing the planet. a more cost-effective alternative. In addition, “no regrets” strategies that will provide benefits from Aren’t Market-Based Solutions the Way greater economic growth—especially greater re- to Reduce Emissions? silience against natural disasters—whether global warming proves to be a problem or not, should “Cap and trade” schemes that allow firms be adopted at once.42 and governments to trade the right to emit greenhouse gases up to certain limits are not 40. Ross McKitrick, “What’s Wrong with Regulat- economically efficient. By creating rent-seeking ing Carbon Dioxide Emissions?” briefing at the U.S. Congress, October 11, 2001, http://www.cei.org/gen- con/014,02191.cfm. 37. Reiter et al., “Global Warming and Malaria.” 41. See the work of the Copenhagen Consensus Center 38. M. Harvey Brenner, “Health Benefits of Low-Cost at http://www.copenhagenconsensus.com. Energy: An Econometric Case Study,” EM magazine, No- 42. See, for example, Jonathan Adler, with Clyde Crews, vember 2005. Paul Georgia, Ben Lieberman, Jessica Melugin, and 39. Glenn R. Schleede, “Facing up to the True Costs and Mara-Lee Seivert, Greenhouse Policy without Regrets: A Benefits of Wind Energy,” paper presented at the 2004 Free Market Approach to the Uncertain Risks of Climate Annual Meeting of the Associated Electric Cooperative, Change (Washington, DC: Competitive Enterprise Insti- St. Louis, MO, June 24, 2004. tute, 2000).

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Key Experts Christopher Horner, Senior Fellow, Com- petitive Enterprise Institute, [email protected] Iain Murray, Senior Fellow, Competitive Enterprise Institute, [email protected] Recommended Reading Marlo Lewis, Senior Fellow, Competitive Enterprise Institute, [email protected] Marlo Lewis. 2006. A Skeptic’s Guide to An Myron Ebell, Director of Energy and Global Inconvenient Truth. Washington, DC: Com- Warming Policy, Competitive Enterprise Insti- petitive Enterprise Institute. http://ff.org/ tute, [email protected] centers/csspp/pdf/skepticguide.pdf.

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International Policy

International Policy Overview

J. Bishop Grewell

Increased interactions among nations, es- tions and the planet’s long-term environmen- pecially in the areas of trade and commerce, tal health.1 have led to a tightly knit global community. Consider, for example, the Kyoto Protocol. At the same time, players on the world stage Already, tension over the protocol is evident mistakenly have confused increased global- as the United States demands that developing ization as necessitating a call for increased nations like China and India bear the same international governance through treaties and emissions reduction burdens as the developed international bodies. Nowhere is that more world. Developing nations counter that they prevalent than in the call for international en- are just now entering their industrial revolu- vironmental policy. Both at home under U.S. tion and deserve the same unhindered chance foreign policy and abroad in international at prosperity that the developed world enjoyed. treaties, misguided environmental policies Developing nations have a point. The Kyoto are leading the diplomatic corps astray from Protocol will keep them impoverished not only its traditional charges of promoting peace through reduced violent conflict and prosper- 1. For information on how green politics have contrib- ity through free trade. The biggest victims of uted seriously to human suffering, see Lorraine Mooney and Roger Bate, eds., Environmental Health: Third this “greening” of foreign policy, ironically, World Problems—First World Preoccupations (Boston: are the poor people living in developing na- Butterworth Heinemann, 1999).

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by barring them from using resources necessary Key Experts to develop, but also by undermining the devel- opment of market economies. Myron Ebell, Director of Energy and Global Instead of international regulation, we Warming Policy Competitive Enterprise Insti- should promote free trade, which improves en- tute, [email protected]. vironmental quality by increasing wealth: Fran Smith, Adjunct Scholar, Competitive Enterprise Institute, [email protected]. • A 1992 study by economist Don Coursey of the University of Chicago found that a 10 Recommended Readings percent increase in income results in a 25 percent increase in the demand for environ- Anderson, Terry L., and J. Bishop Grewell. 1999. mental amenities.2 “Property Rights Solutions for the Global • Economists Gene Grossman and Alan Krue- Commons: Bottom-Up or Top-Down?” ger found similar evidence of a relationship Duke Environmental Law and Policy Fo- between environmental quality and eco- rum 10, no. 1.: 73–101. nomic health. Their research discovered that Anderson, Terry L., and J. Bishop Grewell. countries increased sulfur dioxide emissions 2000. “The Greening of Foreign Policy.” until reaching a per capita income of about PERC Policy Series PS20, Property and En- $9,000 (in 1998 dollars).3 After that thresh- vironment Research Center, Bozeman, MT. old was met, countries’ sulfur dioxide emis- http://www.perc.org/pdf/ps20.pdf. sions declined. Anderson, Terry L., and Henry I. Miller, eds. • The greening of foreign policy threatens the 2000. The Greening of U.S. Foreign Policy. benefits of free trade by slowing, ending, Stanford, CA: Hoover Institution Press. and even reversing the trend toward free Mooney, Lorraine and Roger Bate, eds. 1999. trade that developed over the course of the Environmental Health: Third World Prob- past century. lems—First World Preoccupations. Boston: Butterworth Heinemann. Sheehan, James. 1998. Global Greens: Inside the International Environmental Establish- ment. Washington, DC: Capital Research Center. 2. Don Coursey, “Demand for Environmental Quality,” Business, Law, and Economics Center, Washington Uni- versity, St. Louis, MO, 1992. See also Don Coursey and Christopher Hartwell, “Environmental and Public Health Outcomes: An International and Historical Comparison,” Working Paper 00.10, Irving B. Harris Graduate School of Public Policy, University of Chicago, Chicago, http:// harrisschool.uchicago.edu/about/publications/working- papers/pdf/wp_00_10.pdf. 3. Gene M. Grossman and Alan B. Krueger, “Economic Growth and the Environment,” Quarterly Journal of Economics 110, no. 2 (May 1995): 353–77.

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Jennifer Zambone (with updates by Angela Logomasini)

In his 1798 Essay on the Principle of Popu- however, that the doomsayers have been wrong lation, Thomas Malthus argued that human on nearly every count. According to a recent population growth eventually would outstrip United Nations report: “The global economy Earth’s capacity to support humankind, lead- grew at 5.4 percent in 2006 … The population ing to mass starvation.1 Following that tradi- grew 1.1 percent, increasing the average world tion, several prognosticators from the 1960s per capita income by 4.3 percent. At this rate, and 1970s predicted that a growing population world poverty will be cut in by more than half would lead to increasing natural resource scar- between 2000 and 2015.”3 city and rising commodity prices, causing severe environmental degradation and mass starva- Food Supply tion in the near future.2 The evidence shows, Among the most popular claims of the 1. Thomas Malthus, An Essay on the Principle of Popu- doomsayers is that population will outstrip our lation (New York: Penguin, 1985). capacity to grow food, but history has proved 2. Worst among these was Paul Erlich, who suggested them wrong. that one solution could be to put chemicals into the wa- ter supply to involuntarily sterilize the population. See 3. Jerome C. Glenn and Theodore J. Gordon, 2007 Paul Erlich, The Population Bomb (New York: Ballant- State of the Future (Geneva: World Federation of UN As- ine Books, 1968), 135–36. sociations, 2007), 1.

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• Per capita grain supplies have increased by century and eight times less expensive than more than 22 percent since 1950,4 and food they were at the turn of the 20th century.8 prices have dropped, indicating abundance, • In the 1970s, prognosticators predicted that not greater scarcity. we would run out of oil in the next 10 to • Wheat prices have gone from $256 per ton 20 years. To the contrary, known oil in 1950 to $90 per ton in the 1990s (in con- resources have grown to 15 times the size stant dollars).5 recorded in 1948.9 Discoveries of new oil de- • The drop in corn prices is equally impres- posits, as well as better extraction technolo- sive. A bushel of corn in 1950 would have gies, have played a major role in our ability cost $10.72 in 2000 dollars, but in 2000, a to meet our present and future demands.10 bushel of corn sold for $1.80.6 • These gains are not confined to industrial Environment and Population countries. Developing countries also have experienced impressive gains. The rate of Those impressive gains have not come at increase in food production in poor coun- a cost to the environment. Technical advance- tries has been more than double that of the ments have allowed farmers to increase crop rate of population growth.7 yields using fewer acres of cropland. In 1950, the average grain yield was only 1.1 tons per Natural Resources hectare.11 By 1992, grain yield more than dou- bled to 2.8 tons per hectare.12 To understand Anti-population activists have long claimed the true impact on the environment, consider that we will run out of natural resources, but that to grow the amount of food currently thanks to human ingenuity, we have been able consumed using 1950s technologies, farmers to expand supply by discovering new resources would have had to plow under an additional and by using them more efficiently. Prices have 10 million square miles of wildlife habitat.13 declined in real terms as supply has increased. 8. Stephen Moore, “The Coming Age of Abundance,” • Relative to wages, prices for natural re- in The True State of the Planet, ed. Ronald Bailey (New York: Free Press, 1995), 110. sources by the 1990s were about half that of 1980 and they were also three times less ex- 9. Jerry Taylor and Peter VanDoren, “Soft Energy ver- sus Hard Facts: Powering the Twenty-First Century,” pensive than they were in the middle of the in Earth Report 2000, ed. Ronald Bailey (New York: McGraw-Hill, 2000), 121. 10. Failure to meet energy needs in some markets (such as 4. Number derived from data from FAO Production California) is driven by political failures to allow resource Yearbook 2000 (Rome: FAO, 2000). development. Instead, examples like California bolster ar- 5. Dennis Avery, “Saving the Planet with Pesticides,” guments for pro-market and pro-technology policies that The True State of the Planet, ed. Ronald Bailey (New have led to resource abundance in other markets. York: Free Press, 1995), 55–57. 11. Food and Agricultural Organization, FAO Produc- 6. Corn price data are taken from the U.S. Department tion Yearbook 1970 (Rome: 1970). of Agriculture’s Feed Grains Database, available at http:// 12. Food and Agricultural Organization, FAO Produc- www.ers.usda.gov/data/feedgrains. tion Yearbook 2000. 7. Avery, 55. 13. Avery, 50.

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The trend, then, has been an ever-increasing • All regions of the world are experiencing a crop yield using fewer and fewer acres, leav- decline in fertility rates.17 ing more land available for wildlife habitat, • About 90 countries are experiencing sub- exactly the opposite of what the doomsayers replacement levels of fertility.18 predicted. • The world’s less developed regions experi- enced a drop in fertility from six children Why Population Trends Are Not per woman in 1960 to three per woman in Alarming 1990.19 • According to a 2007 United Nations report: Although humankind has become healthier “Global Population is changing from high and more prosperous regardless of population mortality and high fertility to low mortality growth, it has become evident to demographers and low fertility. Population may increase by that the rate of population growth is in gradual another 2.8 billion by 2050 before it begins and long-term decline. Fertility rates in indus- to fall, after which it could be 5.5 billion by trial countries have dropped below replace- 2100—which is 1 billion fewer people than ment level (the level to maintain the current are alive today.”20 population.)14 Consider these facts: • The decline in the population growth rate continues to occur at about 30 percent per • According to demographer Nicholas Eber- generation.21 stadt, the decline in the rate of population growth has extended “over more than a Regardless of the projection, given our generation by a growing number of coun- proven ability to continually increase the avail- tries; and it has suddenly come amazingly ability of resources and food, we doubtless will close to describing the norm for childbear- be able to provide for a much greater popula- ing the world over.”15 tion than we have now. • In 1950, the average number of children born per woman stood at about five. By Key Experts 2007, the estimate now stands at 2.59 chil- dren for woman.16 Myron Ebell, Director of Energy and Global Warming Policy, Competitive Enterprise Insti- tute, [email protected] 14. Nicholas Eberstadt, “World Population Prospects for the Twenty-First Century: The Specter of ‘Depopula- 17. See World Fact Book, “Field Listing—Total Fertil- tion’?” in Earth Report 2000, ed. Ronald Bailey (New ity Tate,” https://www.cia.gov/library/publications/the- York: McGraw-Hill, 2000), 66. world-factbook/fields/2127.html. 15. Ibid. 18. Ibid. 16. United Nations Population Division, 2000 Revision 19. United Nations Population Division, 1998 Revision of World Population Estimates and Projections (New of World Population Estimates and Projections (New York: United Nations, 2000); 2007 number comes from: York: United Nations, 1998).. World Fact Book (Washington, D.C.: U.S. Central Intel- ligence Agency, 2007), accessed online edition at: https:// 20. Glenn and Gordon, 2007 State of the Future,. www.cia.gov/library/publications/the-world-factbook/ 21. Eberstadt, “World Population Prospects for the index.html. Twenty-First Century,” 81.

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Nicholas Eberstadt, Henry Wendt Scholar Eberstadt, Nicholas. 2000. “World Population in Political Economy, American Enterprise In- Prospects for the Twenty-First Century: stitute, [email protected] The Specter of ‘Depopulation’?” In Earth Report 2000, ed Ronald Bailey. New York: Recommended Reading McGraw-Hill.

Bailey, Ronald. 2000. “The Progress Explo- sion: Permanently Escaping the Malthusian Trap.” In Earth Report 2000, ed. Ronald Bailey. Washington, DC: McGraw-Hill.

128 Competitive Enterprise Institute • www.cei.org • 202-331-1010 The Convention on Persistent Organic Pollutants

Angela Logomasini

In 2001, the Bush administration signed the tion has stalled, but is likely to reemerge in a United Nations Environment Program’s Stock- future congress. holm Convention on Persistent Organic Pol- lutants, known as the POPs treaty. The treaty Current POPs Bans bans 12 chemicals—DDT (dichloro-diphenyl- trichloroethane), aldrin, dieldrin, endrin, chlor- The assumption behind the POPs treaty is dane, heptachlor, hexachlorobenzene, mirex, that regulators—and, in this case, international toxaphene, polychlorinated biphenyls (PCBs), negotiators—are well positioned to decide dioxins, and furans—most of which are al- which products are valuable and which are too ready banned in the United States. Several bills dangerous for public use. Although eliminating in Congress have focused on implementing the dangerous chemicals might sound reasonable, treaty, which members wanted to to pass before such decisions rarely are cut and dry—they of- the Senate ratification. The legislation promised ten carry serious tradeoffs. to make a seriously flawed treaty even worse History shows that regulators are inferior to by allowing the U.S. Environmental Protection the marketplace in managing such risks. Market Agency (EPA) to ban and regulate additional selection of products is driven by such concerns as substances unilaterally after unelected bureau- price, utility, and quality. Those parties affected— crats add chemicals to the treaty list. Legisla- manufacturers, buyers, sellers, and downstream

202-331-1010 • www.cei.org • Competitive Enterprise Institute 129 The Environmental Source

consumers—make decisions at the appropriate activists, prompted public officials to ban the use points in the process where they have access of the substance around the world at the domestic to information about the implications of their level starting in the 1970s. In large part because of decisions. Markets manage risk in this fashion DDT use, malaria rates reached historic lows in by allowing individuals to decide what level of the 1960s, but after nations banned the pesticide, risk is worth taking to gain the benefits of many cases skyrocketed. Currently, malaria kills more products and activities. Although people do not than 1 million people a year—mostly children— always make perfect decisions, individuals in the and makes 500 million more seriously ill.2 marketplace are better positioned to make such Such realities should have led officials to re- decisions than are regulators. sume use of DDT. Indeed, public health officials Government bans, in contrast, are the result from around the world signed a petition urging of a political process and focus instead on politi- POPs treaty negotiators to include a public health cal payback rather than product price, utility, or exemption to the DDT ban. Instead POPs treaty quality. Decision makers often are distant and negotiators worked to ban DDT globally—pre- lack adequate information to make informed venting a return to DDT use even though it could decisions about acceptable levels of risk and the save millions of lives. Only under considerable appropriateness of certain products. As a result, pressure did negotiators agree to allow a tempo- political bans more often serve the politically rary, limited exemption for DDT use for malaria organized at the expense of others—and too control.3 But even with this temporary, limited often they increase risk and reduce quality of exemption, the treaty regulations governing use life. In the end, the bans often harm consum- make access more expensive. Rather than ad- ers by increasing prices and denying access to vance bans under the POPs treaty, policymakers desired products, and sometimes the bans have should seek ways to improve DDT access. devastating consequences. The world’s poor are Other examples exist, as well. The POPs often hit the hardest by such policies because treaty also bans the use of PCBs, even though they can least afford expensive alternatives, PCBs could have beneficial applications in in- even when such alternatives are available. dustrial processes in developing nations. Yet Treaty regulations on the pesticide DDT dem- the only health impacts that have been demon- onstrate why we should not trust international— strated scientifically are skin and eye irritations, or any other—bureaucrats with such decisions. which can be avoided with proper management DDT is the most affordable and effective tool in of the substance.4 Such unwarranted bans fighting malaria around the world, and adverse human health impacts from DDT have never 2. World Health Organization, “Malaria,” Fact Sheet been demonstrated. In addition, limited use for 94, May 2007, Geneva, World Health Organization, malaria control has little impact on wildlife.1 Yet http://www.who.int/mediacentre/factsheets/fs094/en. misinformation about the public health impacts 3. Malaria Foundation International, “DDT-Malaria: of DDT, which was advanced by environmental Open Letter,” Malaria Foundation International, Stone Mountain, GA, March 29, 1999, http://www.malaria.org/ 1. Richard Tren and Roger Bate, When Politics Kills: ddtcover_english.html. The list of signatures is available Malaria and the DDT Story (Washington, DC: Competi- online at http://www.malaria.org/DDT_signatures.html. tive Enterprise Institute, December 2000). See also the 4. William P. Kucewicz, The Public Health Implica- policy brief titled “Pesticides and Public Health.” tions of Polychlorinated Biphenyls (PCBs) in the Envi-

130 Competitive Enterprise Institute • www.cei.org • 202-331-1010 International Policy

make development more expensive for people to act on treaties until after Senate ratification. in developing nations—and make the transition Lawmakers must follow the constitutional pro- from poverty less attainable for many people cess for good reason. In this case, sidestepping around the world. the Constitution would give international nego- tiators and EPA authority to deprive Americans Additional Bans Ahead of the right to engage in commerce—to distrib- ute, use, and sell certain chemicals. Now that the POPs treaty has been ratified During the 109th Congress, several mem- by enough nations to make it binding on the bers offered bills that would amend FIFRA and signatories, negotiators are meeting to discuss TSCA to allow EPA to implement the POPs adding additional chemicals to the POPs list of treaty. Rep. Paul Gillmor (R-OH) offered H.R. banned and regulated substances. In the United 4591, and Rep. Hilda S. Solis (D-CA) intro- States, ratification has been held up because duced a competing bill, H.R. 4800; both would members of Congress first want to pass legisla- amend TSCA. Rep. Frank Lucas (R-OK.) intro- tion determining how the United States would duced H.R. 3849 to amend FIFRA, and Sen. implement the treaty and how it would address Saxby Chambliss (R-GA) introduced a compan- POPs listings. Implementation legislation would ion bill (S. 2042). Both the Gillmor and Lucas amend the Federal Insecticide, Fungicide, and bills were reported out of committee, and there Rodenticide Act (FIFRA) and the Toxic Sub- was discussion that they might be combined stances Control Act (TSCA), directing EPA on and passed as one bill, but that did not happen how to implement treaty provisions. before the end of the Congress. In 2002, the Bush administration initially Rather than requiring Senate ratification, proposed implementation legislation, intro- all bills set up a process for EPA to consider duced by Sen. Bob Smith (R-NH) in May 2002 whether to issue rules regulating chemicals that (S. 2507), that would allow EPA to regulate negotiators add to the POPs list in the future. only the 12 chemicals listed in the treaty. At the All bills set up notice and comment provisions time, others proposed empowering the agency for any regulations that EPA might issue under to regulate any additional chemicals added to the POPs treaty, and the Gillmor, Lucas, and the POPs treaty without Senate ratification. Chambliss bills mention some form of cost- Each addition essentially constitutes a new benefit considerations when EPA considers treaty agreement by amendment, and each whether to regulate newly listed POPs. amendment demands Senate ratification accord- Of the bills, the Gillmor bill contains the stron- ing to the U.S. Constitution. Just as Congress gest language. Specifically, it states that the EPA cannot expect EPA to implement amendments to can issue regulations of POPs listed chemicals to existing laws until after both Congress and the “the extent necessary to protect human health executive branch have approved them according and the environment in a manner that achieves to constitutional standards, EPA is not supposed a reasonable balance of social, environmental, and economic costs and benefits.”5 In addition,

ronment (New York: American Council on Science and Health, 2005), http://www.acsh.org/docLib/20050103_ 5. U.S. Congress, H.R. 4591, 109th Congress, section PCBs2005.pdf. 503(e)(1)(A)(ii).

202-331-1010 • www.cei.org • Competitive Enterprise Institute 131 The Environmental Source when assessing the risks of a substance, the Gill- For example, section 503(e)(1)(C) of the mor bill would require EPA to use “sound and Gillmor bill states that the rules do not take objective scientific practices” and to “determine effect “until the United States has consented to the weight of the scientific evidence concerning be bound” by the POPs listing decision, but the such risks or effects based on the best available bill never defines what body of the United States scientific information, including peer-reviewed government would consent or how it would in- studies, in the rulemaking record.”6 dicate consent.8 Again in section 504 (a), the bill Some environmental activists have com- states that it is “the sense of the Congress that the plained that the Gillmor bill would apply United States shall consent to be bound … only “onerous cost-benefit requirements that will after … the United States has declared that such make future U.S. action on these substances amendment shall enter into force upon ratifica- very unlikely.”7 Yet following sound science and tion, acceptance, approval, or accession of the consideration of costs and benefits is critical United States to such amendment.”9 This time, given that POPs regulations could have serious the bill offers a menu of means for binding the adverse public health and economic impacts. United States to the POPs treaty amendments. However, those mandates alone do not make Ratification is only one option and, hence, is not the Gillmor bill acceptable, because they do not considered necessary under the bill. The section guarantee that the agency will follow them suf- notes that the president must consult with con- ficiently. Agencies often have incentives to regu- gressional committees in both houses and they late, and such incentives can undermine scien- will conduct oversight. It does not say that the tific objectivity. Elected officials in the Senate Senate should ratify any agreement or that the should ratify treaty changes and additions as president should sign any agreement. Section the Constitution outlines. 506 makes a similar pronouncement: “Any pro- All bills fall short when it comes to requiring vision of this Act that establishes a requirement Senate ratification or even presidential signature to comply with, or that is based on, a provision for any new agreement. The Gillmor bill comes of the POPs Convention … shall be effective closest to suggesting that ratification by the only to the extent that the United States has con- Senate might be applied, but it does not require sented to be bound by that provision.”10 such ratification. In several sections of the bill, Whether the Gillmor bill would pass consti- it suggests that someone else in the federal gov- tutional muster in the Supreme Court is unclear, ernment should consent before EPA regulations but there are good reasons it should not. If any of take effect, but the specifics of such approval are the implementation bills pass in the future, they unclear. Under those vague provisions, unelected likely would make the POPs treaty a vehicle for public officials from EPA or the State Department many more international bans of valuable chemi- might be sufficient to bind the United States to cal products. Our treaty partners might even use new international agreements related to POPs. the treaty to reduce U.S. competitiveness. Their

6. Ibid., section 503(e)(4). 8. U.S. Congress, H.R. 4591, 109th Congress, section 503(e)(1)(C). 7. Lauren Morello, “POPs Bills Still on Target for House Vote, Sponsors Say,” Environment and Energy 9. Ibid., section 504(a). Daily, September 20, 2006. 10. Ibid., section 506.

132 Competitive Enterprise Institute • www.cei.org • 202-331-1010 International Policy

proposed bans likely would focus on products tively demands that states gain EPA approval the treaty partners no longer use but that still to issue regulations on substances listed in the would have value in the United States. Such bans POPs treaty that are more stringent than EPA would cost our competitors little, while impos- regulations. Allegedly, such regulations prevent ing costs in the United States. Legitimate public states from protecting public health. In real- health concerns likely would take a back seat to ity, such bans and regulations make as much such political interests. After all, international sense at the state level as they do at the global negotiators were willing to impose a worldwide or international level—which is very little. If ban on DDT even though developing nations anything, preemption of additional, more oner- could use the product to save millions of people ous regulations at the state level could mitigate from malaria illness and death. some of the adverse effects of domestic bans and regulation. However, the benefits are not Getting a Seat at the Table substantial enough to warrant the passage of any of the misguided POPs bills or ratification Some have suggested that the United States of the treaty. needs to ratify the POPs treaty in order to “get a seat at the table” among POPs negotiators to Conclusion ensure that U.S. interests are met. For example, while urging Congress to pass a POPs bill and Ideally, policymakers should oppose ratifi- ratify the treaty, EPA Administrator Steve John- cation and implementation of the POPs treaty. son lamented, “As a consequence of [the current The treaty represents a seriously flawed ap- U.S.] non-party status, we are limited to being proach to managing chemical risks, as is clearly observers.… Our absence from these treaties demonstrated by its provisions impeding ac- diminishes the voices of some of the best scien- cess to the chemical DDT. By hindering malaria tific and policy experts in the world.”11 However, control efforts, such policies contribute to the such arguments are based on the assumption that misery and deaths of millions of people every the POPs treaty is good public policy and hence year. American policymakers must provide the will be valuable if implemented in the United strong moral leadership necessary to fight the States. This assumption is wrong. Rather than world malaria crisis. In addition to reversing trying to get a seat at the table, the United States the POPs treaty, they should pursue policies should oppose the growth of global controls that to allow greater freedom to access DDT for threaten human freedom and well-being. malaria control. In addition, imposing global regulations on other chemicals that may have State Preemption public value and whose risks can be managed makes little sense. Finally, at a bare minimum, Environmentalists also criticize the Gillmor POPs implementation legislation should not bill because it contains a provision that effec- allow international negotiators and unelected domestic officials to determine U.S. policy without complying with the constitutional 11. Lauren Morello, “EPA Chief Urges House Panel to mandate for a presidential signature and Sen- Approve POPs Bill,” Energy and Environment Daily, July 21, 2006. ate ratification.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 133

REACH The EU’s Chemical Policy

Angela Logomasini

Regulations enacted in the European Union into commerce. Currently, government officials (EU) increasingly are having worldwide effects, must bear the burden of proving that a product warranting greater attention among policymak- is unsafe before removing it from the market. ers in the United States and around the world. REACH would reverse that burden, demand- Not only do EU directives affect the 27 EU ing that firms conduct extensive tests to dem- member nations, but EU regulations also can onstrate product safety. Because manufacturers become trade barriers and affect thousands of cannot prove that anything is 100 percent safe, businesses around the globe that are directly or that policy would likely produce arbitrary bans indirectly linked to the EU’s substantial share in on many relatively safe substances and would the world market through international trade. discourage innovation. The EU’s new chemicals policy—called REACH As the name implies, there are several regu- (Registration, Evaluation, and Authorization of latory components of REACH. The registra- Chemicals)—should be of special concern, as it tion phase mandates that firms register prod- will have serious worldwide impacts. REACH ucts with the government when they produce officially took effect in June 2007. or import them at levels of one metric ton or REACH uses the so-called precautionary more per year. The second stage—evaluation— principle by requiring companies to prove that involves consideration of whether the govern- their products are safe before their introduction ment will demand further study of chemicals.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 135 The Environmental Source

Chemicals deemed as substances of “special tion of chemicals. Nor does the study consider concern” during evaluation must undergo the indirect impacts associated with the cancella- next stage—authorization. After demanding tion of chemicals under REACH. The Euro- further study and review of chemicals during pean Chemical Industry Association, known as authorization, regulators then decide which Cefic, has indicated that it expects that firms substances to ban or regulate and which to could stop producing as much as 30 percent of give final approval. substances currently produced at relatively low The REACH proposal includes some ex- levels (1 to 100 metric tons per year), because emptions for things that are obviously safe, the costs of regulations may make such prod- such as water, as well as some products regu- ucts unprofitable. In addition, REACH will lated under other directives, such as medical reduce innovation significantly, because lower products, food additives, cosmetics, and pes- profits and the costs of registration will leave ticides. In addition, REACH exempts most fewer resources for new product research and polymers, but the commission likely will try development. In addition, there may be fewer to include those in the program at a future kinds and reduced amounts of raw materials date. Existing regulations currently cover only available as importing costs grow substantially firms that manufacture chemicals. REACH higher. covers anyone who produces, imports, or uses All studies acknowledge that REACH will a regulated substance. REACH also covers lead manufacturers to stop producing some downstream users, which include formulators products rather than go through registration (such as paint manufacturers) and firms that bureaucracy. The impacts associated with the use chemicals in their production processes or elimination of just a few substances during the as ingredients. registration phase—not to mention the loss of products during the evaluation and authoriza- Economic Scope tion stages—could be substantial. According to a study by KPMG, “Formulators typically The cost estimates of the REACH program use a particular critical substance in many of could be as high as €5.2 billion, according a their formulations. So the loss of only a few European Commission–funded study.1 How- critical substances would affect a large part ever, nearly all the estimates likely understate of their portfolio, resulting in large-scale re- the costs of the program, because they consider formulation.”2 only a fraction of REACH costs—the registra- In addition, cost studies have found that tion costs. The study does not consider the costs REACH will reduce innovation and harm busi- of the latter, potentially more expensive, stages nesses in the EU nations that need development of the program: the evaluation and authoriza- the most—the newer EU members in Eastern

1. Joan Canton and Ch. Allen, A Microeconomic Model to Assess the Economic Impacts of the EU’s New 2. KPMG Business Advisory Services, REACH— Chemicals Policy, (Brussels: European Commission/DG Further Work on Impact Assessment: A Case Study Ap- Enterprise, November 2003), http://europa.eu.int/comm/ proach (Amstelveen, Netherlands: KPMG Business Ad- enterprise/reach/docs/reach/effects_new_chem_pol- visory Services, April 2005), http://europa.eu.int/comm/ icy-2003_11_17.pdf. enterprise/reach/docs/reach/kpmg_summary.pdf, p. 21.

136 Competitive Enterprise Institute • www.cei.org • 202-331-1010 International Policy

Europe.3 Small businesses throughout Europe own study, users of specialty chemicals likely also will have a particularly hard time, accord- will suffer serious repercussions.6 ing to nearly all studies. One study notes, “The heaviest burden will be on SMEs [small and Trade Implications medium-sized enterprises] which cannot con- sistently fulfill the REACH requirements and REACH also promises to have protection- so it is predicted that most of them may face ist effects that likely will trigger World Trade financial troubles, may be taken over by bigger Organization (WTO) disputes. In a presenta- ones, or even shut down.”4 tion to the EU Parliament in January 2005, REACH’s impact isn’t going to fall only on Marco Bronckers, chair of the WTO and inter- Europe, because the United States and other national trade law professor at the Law Uni- nations are inextricably linked to the EU econ- versity of Lieden, detailed many of REACH’s omy through trade. The United States exports trade-related problems. For example, he noted more than $20 billion in chemical products that under international trade agreements, and invests more than $4 billion in the EU regulations must be “not more trade restrictive chemical and related industry sectors annually. than necessary to fulfill a legitimate objective, In addition, U.S. firms export more than $400 taking account of the risks non-fulfillment billion in products containing chemicals, some would create.”7 REACH’s volume-focused of which may fall under the scope of REACH requirements are likely to violate this WTO regulations. The United States also imports requirement. Because low-risk substances will more than $40 billion of chemicals from Eu- be regulated under REACH simply because rope each year.5 of their high volume, the regulations may be The U.S. government mission to the EU has deemed arbitrary. pointed out that REACH is expected to ad- versely affect tens of billions of dollars of trade Questionable Benefits in chemicals and products. Affected sectors will probably include textiles, pharmaceuticals, Most of the claims made about REACH’s electronics, automobiles, and advanced materi- benefits involve speculative comments sprin- als. According to the European Commission’s kled throughout various studies. Those specu- lations have taken on the character of gossip; they gain credibility simply by being repeated, and some are embellished in subsequent re- 3. Institute for Prospective Technological Studies (IPTS), iterations. A review of underlying data finds Implementation of REACH in the New Member States (Brussels: European Commission, 2005), http://europa. either that references are lacking or that the eu.int/comm/enterprise/reach/docs/reach/ipts_summary. pdf. 4. Ibid., 91. 6. Ibid. 5. Gary Litman, “Comments on the EU Commission 7. Marco Bronckers, paper presented before the Euro- Consultation Document Concerning the Registration, pean Parliament, Joint Public Hearing, A WTO Perspec- Evaluation, Authorization, and Restrictions of Chemicals tive: Imported Products, January 19, 2004, http://www. (REACH),” U.S. Chamber of Commerce, Washington, europarl.eu.int/meetdocs/2004_2009/documents/DV/ DC, July 9, 2003. Bronckers/bronckersen.pdf.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 137 The Environmental Source claims greatly mischaracterize the research pesticides use.” It notes that health problems they cite. usually “arise from improper application or For example, The European Commission’s container disposal.”12 REACH is not designed 2003 Extended Impact Assessment of REACH to address acute poisoning or misuse of chemi- claims that REACH might save 4,500 lives, cals whose properties are well known. In fact, according to data provided in a World Bank many of the substances involved in the World study on environmental health risks around the Bank study are likely pesticides that will be ex- world.8 That claim is repeated in a study pro- empted from REACH regulations. Hence, that duced by Tufts University for the Nordic Coun- statistic is completely irrelevant to REACH’s cil.9 Similarly, that World Bank figure is used benefits calculations—yet somehow REACH by the World Wildlife Fund’s analysis,10 which advocates have been able to use it to justify relies on that claim to arrive at a net benefit their program. estimate for REACH. Another questionable set of benefits claims Yet the World Bank report11 relates to prob- stems from a more formal benefits study pro- lems associated with high-level exposures to duced for the European Commission by Risk agrochemicals, most of which are related to Policy Analysts Limited (RPA), which purports improper use of chemicals. Acute poisoning is to have produced hard numbers document- “the most often cited health consequence of ing REACH benefits in terms of occupational safety.13 The report does one thing right: it ac- 8. “Regulation of the European Parliament and the knowledges that REACH benefits will not result Council Concerning the Registration, Evaluation, Au- from better management of chemicals risks that thorization, and Restrictions of Chemicals, Establishing governments manage today. Accordingly, the a European Chemicals Agency and Amending Directive RPA study attempts to quantify work-related 1999/45/EC and Regulation (EC) {on Persistent Organic Pollutants},” Commission Staff Working Paper COM illnesses that are caused by unknown chemical (2003) 644, Commission of the European Communities, sources. But if the causes are unknown, how Brussels, October 29, 2003), 30, http://europa.eu.int/ can anyone deem them to be caused by chemi- comm/enterprise/reach/docs/reach/eia-sec-2003_1171. cals used in the workplace? pdf. Such ambiguity leads to some really slip- 9. Frank Ackerman and Rachel Massey, The True Costs pery “science.” The study’s design is the first of REACH (Medford, MA: Global Development and En- vironmental Institute, Tufts University, 2004), 51, http:// and most obvious problem. A good study www.euractiv.com/29/images/TuftsStudyonREACH_ collects data in a systematic and consistent tcm29-130918.pdf. way, using a clear set of scientific standards. 10. David Pearce and Phoebe Koundouri, The Social In addition, the study’s data should be made Costs of REACH: The Cost and Benefits of Future available to the public so that the study can Chemicals Policy in the European Union (Weyside Park, U.K.: World Wildlife Fund, May 2003), 28, http://www. wwf.org.uk/filelibrary/pdf/socialcostofchemicals.pdf. 12. Ibid., p. 38. 11. Kseniya Lvovksy, Health and Environment, Envi- 13. Assessment of the Business Impacts of New Regula- ronment Strategy Papers, Number 1, (Washington, D.C.: tions in the Chemicals Sector, Prepared for the European World Bank, November 2001), p. 35, http://lnweb18. Commission Enterprise Directorate-General (Norfolk, worldbank.org/ESSD/envext.nsf/41ByDocName/Enviro UK: Risk and Policy Analysts Limited, 2002), produced nmentStrategyPaperNo1HealthandEnvironment200136 in association with Statistics Sweden, http://www.chemi- 1KBPDF/$FILE/ESP1Health&Environment2001.pdf. calspolicy.org/downloads/RPAreport.pdf.

138 Competitive Enterprise Institute • www.cei.org • 202-331-1010 International Policy be reproduced, and the study should pass a many are likely to miss the deadline, creating peer review. None of those standards applies serious compliance problems for many. Such to RPA’s REACH benefits study. RPA collected realities are likely to harm small firms the most, data from government agencies in various EU many of which may have to abandon business nations, and each of those nations used differ- with Europe.15 ent data collection methods—some good, some In the United States, legislators are consid- not so good. In addition, rather than using one ering revisions to the Toxic Substances Control year as a sample year, RPA used different sam- Act to reshape it into a REACH-styled program. ple years for different nations based on what Currently, the law allows the Environmental data each nation had available. The data also Protection Agency to regulate chemicals when are not publicly available; hence, the study is it determines the substances pose unreason- difficult—if not impossible—to reproduce. able risks. A REACH-styled revision might The study then takes all the murky data for a apply the precautionary principle, shifting the limited set of countries and extrapolates risks burden by requiring industry to demonstrate for the entire European Union. When a study safety. Senator Frank Lautenberg (D-NJ) com- makes such extrapolations, it should at least missioned the Government Accountability Of- have a reasonably representative sample. But fice to study the issue and outline the differ- the haphazard nature of RPA’s data collection ences between REACH and TSCA.16 However, effort makes such extrapolations nothing more the Bush Administration has taken the issue than a desperate attempt to generate something in another direction, negotiating a voluntary from nothing. agreement—under the Security and Prosperity Partnership (SPP)—with the governments of Recent and Upcoming Issues Canada and Mexico to increase research on chemicals. “In some ways, SPP is an unofficial Between June and November in 2008 com- response to REACH, by trying to do a better panies are required to pre-register their chemi- job of collecting risk assessment data on high cals with the European Chemicals Agency, yet priority chemicals,” according to Bill Allmond at least half are unprepared according to one of the Synthetic Organic Chemical Manufac- survey.14 Firms that preregister will then fol- turers Association.17 Unfortunately, such volun- low REACH’s long-term registration schedule, which sets separate dates for various industry segments and that allows small businesses a lon- ger time to comply. However, firms that fail to 15. “Many Small Companies May be Unaware of REACH Requirements,” Chemical Week 169, no. 39 preregister by December 2008 will be required (November 28, 2007): 7. to register immediately. But REACH’s bureau- 16. CHEMICAL REGULATION: Comparison of U.S. cratic mandates are so complicated that many and Recently Enacted European Union Approaches to firms and small businesses cannot determine if Protect against the Risks of Toxic Chemicals (Washing- they must file and what they must report, and ton, D.C.: USGAO, August 2007), http://www.gao.gov/ new.items/d07825.pdf 17. Kara Sissell, “Global Regulations: The Burden In- 14. “50 Percent of Firms ‘Not Prepared’ for REACH,” tensifies,” Chemical Week 169, no. 36 (November 7, Chemical Week 169, no. 37 (November 14, 2007), 5. 2007): 1.

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tary programs are often simply a forerunner to Recommended Readings government regulation. Logomasini, Angela. 2005. “Europe’s Global Conclusion REACH: Costly for the World, Suicidal for Europe.” Institut Hayek, Louvain-la-Neuve, Any serious analysis of the EU’s REACH Belgium. http://www.fahayek.org/gazette/ policy reveals that its economic effects are imagesup/Reach_EN.pdf. not good for Europe and its trade partners. Logomasini, Angela. 2005. “EU Trade Union’s REACH’s effects could be particularly dire for OverREACHing Benefits Analysis.” Institut new EU member nations, developing nations, Hayek, Louvain-la-Neuve, Belgium. http:// and small businesses. Meanwhile, documented www.fahayek.org/index.php?option=com_ benefits of the program are nonexistent. content&task=view&id=345&Itemid=40. Logomasini, Angela. 2006. “Still OverREACH- Key Contact ing: The European Union’s Proposed Chem- icals Policy Has Not Been Fixed.” Institut Angela Logomasini, Director of Risk and Hayek, Louvain-la-Neuve, Belgium. http:// Environmental Policy, Competitive Enterprise www.fahayek.org/index.php?option=com_ Institute, [email protected]. content&task=view&id=1090&Itemid=1.

140 Competitive Enterprise Institute • www.cei.org • 202-331-1010 The Strategic Approach to International Chemicals Management

Angela Logomasini

The Strategic Approach to International of estimates that place chemical production Chemicals Management (SAICM) is a United as increasing by 80 percent within the next 15 Nations (UN) initiative designed to set up a years.1 global chemicals agency to coordinate manage- ment of chemicals, wastes, and other substances History and Background of SAICM on a global scale. The program is dubbed as a voluntary initiative through which “stake- SAICM began as an item discussed in chap- holders” will engage in efforts to ensure safe ter 19 of Agenda 21,2 an action plan agreed management of chemicals. Such efforts include to at the UN Conference on Environment and information sharing, harmonization of chemical risk standards and labeling, and training. In ad- 1. “Ministers Reach Global Agreement on Sound Man- dition, SAICM is supposed to ensure ratification agement of Chemicals,” European Report, February 11, 2006. and implementation of environmental treaties, but how those goals will be pursued is unclear. 2. United Nations Department of Economic and So- cial Affairs, “Environmentally Sound Management of Proponents argue that centralization of chemi- Toxic Chemicals, Including Prevention of Illegal Inter- cal policy is important because of the number national Traffic in Toxic and Dangerous Products,” in of chemicals in world commerce today—some United Nations Conference on Environment and De- estimates range up to 100,000—and because velopment, Agenda 21: Earth’s Action Plan, UN Doc. A/CONF.151/26, chapter 19 (New York: United Na-

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Development, held in Rio de Janeiro, Brazil, ers prove that their products are safe before in 1992. The conference also released the Rio allowing them to enter into, or continue in, Declaration, which outlined environmental commerce. Because nothing in life is 100 per- goals. The Agenda 21 action plan proposed a cent safe, the precautionary principle means system for global chemicals management. Since that governments can regulate products simply then there have been three international meet- because they decide that products might pose ings on SAICM, and during the last meeting, public health risks—making regulation arbi- held in February 2006, several documents were trary and subject to political whims. During finalized that form the SAICM program: the SAICM negotiations, policymakers removed high-level policy declaration called the “Dubai language on the precautionary principle from Declaration,” the “Global Action Plan,” and the document, which now states that the pro- the “Overarching Policy Strategy.”3 Also during gram will “take into account” the wording of the 2006 meeting, the parties to the agreement the Rio Declaration. Although this language established the Chemicals Secretariat in the UN creates some confusion as to whether the pro- to administer the program. gram will follow the precautionary principle, there is reason to believe that it eventually will SAICM and the Precautionary Principle take a precautionary approach, because the Rio Declaration endorses the principle. During the SAICM international meetings, the United States opposed language that set Policy Implications the “precautionary principle” as an object of the program—an approach that demands that SAICM represents a policy whose scope is as products be proven safe before entering the mar- extensive as that of the Kyoto Protocol on cli- ketplace. Domestically, U.S. regulators follow a mate change,4 which seeks to control use of the more risk-based approach, assessing the risks of world’s energy. SAICM covers the other half of the products and setting regulations that allow an universe. Whereas the Kyoto Protocol attempts “acceptable” level of risk. Under the present U.S. to regulate the world’s energy, SAICM seeks to system, regulators must demonstrate that prod- manage matter—all nonliving physical objects ucts are unsafe before removing them from the on Earth. SAICM is seen as innocuous because market. Although this approach often produces it is considered a voluntary effort. Yet despite its very restrictive regulations—including bans of nonbinding nature, SAICM is likely to possess a many products—it provides some protection substantial policy role—setting global standards against arbitrary governmental coercion. that will likely become models for governments In contrast, the precautionary principle re- to follow as the basis for environmental treaties duces regulatory accountability by shifting the and other international agreements that, unlike burden of proof. It demands that manufactur- SAICM, will be binding.

4. The Kyoto Protocol to the United Nations Frame- tions, 2005) http://www.un.org/esa/sustdev/documents/ work Convention on Climate Change was adopted on agenda21/english/agenda21chapter19.htm. December 11, 1997. The text of the protocol can be 3. These documents can be found online at http://www. found at http://unfccc.int/essential_background/kyoto_ chem.unep.ch/saicm. protocol/items/2830.php.

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In fact, one of SAICM’s key goals is to en- proponents see it as the perfect vehicle for the sure that all existing treaties related to chemi- European Union to globalize its REACH pro- cal and waste disposal are ratified and become gram, which became law in December 2006. subject to implementing legislation in the vari- REACH—which stands for Registration, ous nations. The United States, a likely target Evaluation, and Authorization of Chemicals— of ratification and implementation efforts, has applies a precautionary approach to chemical yet to ratify a number of treaties, including the regulation that will be followed by government Stockholm Convention on Persistent Organic regulation, demanding that firms demonstrate Pollutants,5 which bans a number of chemical safety through a complicated registration and internationally, and the on information collection program that will inevi- the Control of Transboundary Movements of tably result in the ban of some products. Hazardous Wastes and Their Disposal,6 which regulates shipment of hazardous wastes. SAICM and Public Health SAICM’s “Global Action Plan” offers an idea as to the program’s ambitious agenda for Although it is true that some of SAICM’s chemicals. It includes nearly 300 “concrete goals are reasonable, such as ensuring that measures” for the various stakeholders to pur- developing nations gain information regard- sue. Many of these measures are restrictive in ing the proper handling of chemicals, the pro- nature, including, for example intentions to gram is likely to fail when it comes to attaining “restrict availability of” or “substitute” “highly these goals. It will fail for the same reasons toxic pesticides”; “promote substitution of haz- that centralized economic planning has failed: government officials are too removed from the ardous chemicals”; “regulate the availability, many diverse problems that individuals face in distribution, and use of pesticides”; “halt the a society and lack the information necessary sale of and recall products” that pose “unac- to solve those problems. Uniform policies will ceptable risks”; and “eliminate the use” of cer- not work in the various situations around the tain “hazardous chemicals.”7 world; such political processes tend to serve organized players rather than the common SAICM and REACH good, and policy goals are often based on mis- perceptions. Another reason to believe that SAICM will Market economies are better situated to have a substantial regulatory role is that many address problems associated with chemicals 5. Stockholm Convention on Persistent Organic Pollut- management and some of the larger problems ants, May 23, 2001, 40 I.L.M. 532, http://www.pops.int/ that hinder human well-being in developing documents/convtext/convtext_en.pdf. nations. Indeed, many of the serious prob- 6. Basel Convention on the Control of Transboundary lems that SAICM proposes to address—such Movements of Hazardous Wastes and Their Disposal, as developing nations’ mismanagement of March 22, 1989, 28 I.L.M. 649, http://www.basel.int/ text/con-e-rev.pdf. dangerous substances because of their lack of resources to pursue policies for proper han- 7. Draft Global Plan of Action, SAICM, July 21, 2005, http://www.chem.unep.ch/saicm/meeting/prepcom3/ dling—could be solved through the promotion en/3-4%20GPA.pdf. of economic growth, not through expensive

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global governance. The costs of SAICM will nations cannot afford the regulatory burdens likely have the opposite result: SAICM will proposed by many of the world’s environmen- divert resources from more important issues tal treaties, and many of these treaties promise and undermine commerce and economic de- to undermine economic growth. For example, velopment. a study by Liberty Institute in India shows that In fact, most of the world’s serious environ- the Basel Convention has proved counterpro- mental problems are the effects of poverty in ductive and detrimental to development in developing nations. According to a 2001 World poor nations.10 Bank study, Environment Strategy Papers: SAICM is also unlikely to improve public Health and Environment,8 the most prevalent health in developed nations by reducing cancer global environmental problem is inadequate rates as its proponents believe it will do. The sanitation, an issue that only economic growth section on chemical risk in The Environmen- can address through improved infrastructure tal Source details why policies like SAICM are and increased access to chemical disinfectants, likely to have few public health benefits. such as chlorine. Next on the list of problems is limited access to modern energy sources, includ- Conclusion ing electricity and fossil fuels. The lack of such amenities means that the rural poor around the SAICM represents a major international world rely on burning biomass fuels—such as policy development, and businesses may soon cow dung—in their homes as an energy source. be caught by surprise after the SAICM Secre- Resulting pollution leads to an estimated 1.7 tariat begins to affect policy around the world. million deaths associated with respiratory ill- And even though SAICM is primarily intended nesses each year.9 to assist developing nations with the manage- Meanwhile, UN bureaucrats fret that some- ment of chemicals, developing nations stand to one might consume trace levels of chemicals lose the most from the program, which seeks to found in plastic packaging. Yet increased use impose burdensome regulations. of such packaging would actually benefit the world’s poor—rather than increase risks. That Key Contact is because the absence of such sanitary pack- aging and refrigeration in developing nations Angela Logomasini, Director of Risk and contributes to food spoilage (and shortages) Environmental Policy, Competitive Enterprise and the spread of infectious agents, which kill Institute, [email protected]. tens of thousands of people every year. SAICM is not the solution to such problems and arguably represents a serious misalloca- tion of limited resources. Indeed, developing

8. Kseniya Lvovsky, Environment Strategy Papers: 10. Prasanna Srinivasan, “The Basel Convention 1989: Health and Environment (Washington, DC: World Bank, A Developing Nation’s Perspective,” Liberty Institute, 2001). Delhi, September 24, 2001, http://www.libertyindia.org/ 9. Ibid. pdfs/basel_convention_srinivasan.pdf.

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Recommended Readings Logomasini, Angela. The U.N.’s Strategic Ap- proach to International Chemicals Manage- Logomasini, Angela. Earth Sense in the Bal- ment Program Stealth Attempt at Global ance. National Review Online, Septem- Regulation. Washington, D.C.: Competitive ber 23, 2005, http://www.cei.org/gencon/ Enteprisxe Institute: March 29, 2006, http:// 029,04853.cfm. www.cei.org/utils/printer.cfm?AID=5233.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 145

International Fisheries

Michael De Alessi (with updates by Iain Murray)

The history of fisheries management in fisheries management legislation). On Decem- the United States largely is one of misman- ber 9, 2006, Congress again reauthorized the agement, depletion, and what scientist Gar- act to include compromises, including the au- rett Hardin once described as the “Tragedy thorization of such schemes.2 of the Commons.”1 In recent years, however, Fish stocks and other marine resources some progress has been made. A growing ap- have suffered immeasurably from management preciation for what underlies most fisheries regimes that pit fishers against regulators; the declines has resulted in some efforts to create most common response to fishery depletion positive incentives for marine conservation, has been the use of regulations, such as limiting most notably in Iceland and New Zealand. In fishing seasons. Such regulations create incen- the United States, however, such programs are tives for harvesters to catch as many fish as rare and have even been prohibited in recent they can, often as quickly as they can, even to years under the 1996 reauthorization of the the detriment of the resource—because if they Magnuson-Stevens Fishery Conservation and don’t catch the fish, someone else will. Management Act (the nation’s overarching

2. Juliet Eilperin, “House Approves Overhaul of Rules 1. Garrett Hardin, “The Tragedy of the Commons,” for Fisheries,” Washington Post, December 10, 2006, Science 162, no. 3859 (1968): 1243–48. p. A08.

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In contrast, when fishers own a fishery or compared public oyster beds in Maryland to have some sort of property right to a certain privately leased oyster beds in Virginia shows harvest, they have incentives to maintain the how private management of marine resources long-term health of the fishery and will strive is superior to its open-access and government- for sustainable harvests, making investments managed counterparts.3 The study found that both to protect the resource and often even leased beds are better managed and far more to enhance it. In New Zealand, for example, productive. In places like Alabama, artificial where harvesting rights are well defined, fish- reefs, despite becoming public property as soon ers have reduced harvests voluntarily, have in- as they hit the water, also have demonstrated vested heavily in scientific research, and in the the potential for private investment in marine case of the scallop fishery, also have invested conservation (knowing exactly where the reefs in an ambitious reseeding and enhancement are offers enough of a sense ownership to re- program. ward investment). The collapse of the once-rich fisheries along Private rights developed in common also the Georges Bank off the coast of New England have conserved resources successfully in tradi- serves as a dramatic testimony to both the fail- tional communities like those of Maine lobster ure of fishery management in the United States fishers, who have protected lobster grounds by and the fatal flaws of regulatory attempts to informally marking out territories and limiting prevent overfishing. Traditional limits on sea- fishing access to a well-defined group. Defin- sons and fishing gear simply encourage harvest- ing their territories allows the members of the ers to figure out ways around the restrictions. group to realize the benefits of stewardship, and Limit the number of fishing days, for example, studies have shown that conservation is mark- and fishing efforts will simply intensify during edly improved within those territories. Nothing the permitted period. The quota- and subsidy- would prevent those regimes from remaining driven Common Fisheries Policy of the Euro- or evolving under a system of private owner- pean Union (EU) is another example of failed ship of marine resources. From outright fee- management systems that purportedly protect simple ownership of oyster beds in Washington resources but in fact deliver perverse incentives. to proprietary ownership of artificial reefs in Without any sense of ownership, individuals Alabama, marine habitat is being conserved are not likely to attempt to conserve or enhance and enhanced privately. Those with an inter- marine resources, because the benefits of doing est in fisheries conservation should recognize so are diluted throughout the fishery. Fishers the regimes that already exist and give fishers have no desire to destroy their own source of the ability to create new regimes, which would livelihood, but as long as the rules of the game allow them to become stewards of the ocean reward overharvesting, fish stocks will continue environment. to decline.

Private Ownership 3. Richard J. Agnello and Lawrence P. Donnelley, “Property Rights and Efficiency in the Oyster Indus- Privately owned marine resources are bet- try,” Journal of Law and Economics 18, no. 2 (1975): ter protected. One well documented study that 521–33.

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The Role of Technology The Role of Subsidies

Advanced technologies are often blamed Production subsidies are commonly used in for fisheries depletion, but they could protect European and developing countries to encour- and monitor marine resources. Consider that age fishing and thereby “protect” traditional the oceans are similar to the American West in industries. Such subsidies merely contribute the early 1800s, when enclosing and monitor- to the overfishing of resources and should be ing land and cattle were unthinkable. But once banned or opposed wherever possible. More- private property rights were clearly allocated over, the subsidies appear to be the subject of in the West, owners and entrepreneurs rap- large-scale fraud.4 idly developed branding registries—and later, Proponents of subsidies also sometimes jus- barbed wire—to effectively define and defend tify them by claiming that the political risks of their property. Technologies already exist that fishery closure scare off private investment in could start “fencing” and “branding” marine the fishing industry. Reducing political risk by resources, if only rights to them were clearly providing a stable, predictable framework for defined. the industry based on genuine, tangible prop- Technologies such as sonar (used to detect erty rights that encourage conservation would the presence of marine life using sound waves), satisfy that concern. satellites, and unmanned submersibles (used to monitor the whereabouts of specific animals Individual Transferable Quotas or aggregations of marine life) are increasingly available and adaptable to fisheries manage- In addition to full-fledged property rights ment. To date, such technologies often have schemes, some recent innovations, particularly been used only to increase harvesting capacity, the Individual Transferable Quota (ITQ) system, and with their use have come charges of vacu- are now working toward changing fisher’s moti- uming the sea. But blame should not be laid on vations. ITQs grant fishers a right to a percent- technology. The real problem lies with open age of a total harvest, so that healthier fish pop- access to resources and inadequate regulatory ulations translate into rights to catch a greater schemes. number of fish and an increase in the value of Indeed, recent technological developments that ITQ. Under an ITQ system, the rights are have seen the introduction of selective gear that can extract particular species from mixed 4. See, for example, various reports from Oceana, such fisheries in an almost surgical fashion, leaving as, “In 2005 and 2006, Oceana documented numerous other species untouched. Technology is also boats in the Mediterranean using illegal driftnets. Many solving the issue of undersized fish, allowing of these boats were the recipients of subsidies from Italy and the European Union (EU) to convert to legal nets—a them to escape and survive. Such developments program that has given out more than $200 million Euro are in fact the reverse of vacuuming the sea. ($240 million)—yet were still using the illegal gear.” See However, certain regulations, such as those Oceana, “Pirates and Plunder: Fisheries Subsidies Sup- in the EU’s Common Fisheries Policy, actively port Illegal or Rogue Fishing,” Oceana, Washington, DC, http://www.oceana.org/fileadmin/oceana/uploads/ discourage—even penalize—the adoption of dirty_fishing/cut_the_bait/2007_Subs_outreach_kit/Pi- such technology. rates_and_Plunder_FINAL.pdf.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 149 The Environmental Source transferable, so owners can realize the gains from problems with bycatch discarding and encour- any improvements in the fishery, thereby encour- ages the practice of throwing back smaller and aging owners to invest time, effort, and capital lower-value fish of targeted species in the hopes into research and stewardship. ITQs are not well of catching larger ones—high grading, as it is suited to every fishery, and they do not translate known. Therefore, there may be areas where a directly into private ownership of actual fish or system based on tradable days at sea, together fish habitats (which would create even stronger with “incentive day” rewards for good prac- stewardship incentives), but they definitely are a tices (such as using better technology and not step in the right direction. sending out ships with insufficient crew) and ITQs have proved effective in other coun- bycatch limits, would be preferable.5 However, tries and in the United States, and they can be the central principle remains that of creating an important acknowledgment of the power an ownership stake in a resource so as to en- of private stewards to protect the environ- courage growth in the value of the underlying ment. However, ITQs are only limited property resource. rights. Legislative limitations on ownership and transferability will devalue rights and discour- Recommendations age conservation and stewardship because the motivation for those activities is to increase Several recommendations can be made: the value of the quota. Devalued quotas will • Lawmakers should make sure that there are mean that harvesters will have little interest no explicit restrictions on the rights-based in working to improve the fishery’s health and management tools available to fishery man- productivity. Restrictions imposed by lawmak- agers. If fishing interests can agree on a ers could also lead ITQs to resemble “taxi cab system of private or quasi-private rights to medallions” more closely than private rights, manage the marine resources they depend which creates an interest in limiting competi- on for a living, managers should have the tion and a vested interest in maintaining the leeway to grant those rights. status quo. • Lawmakers should implement policies that New Zealand and Iceland have the most employ private property rights. Open access extensive ITQ programs by far, and both pro- to valuable resources is an appealing con- grams have been in existence for more than 10 cept but a proven failure. Access to all will years. In both countries, fisheries management leave a valuable resource for none. Under has improved dramatically, as have a number a system of property rights, everyone will of fish stocks managed by ITQs. Problems still have an opportunity to fish, but with persist, such as political wrangling and real- strong incentives to conserve fisheries and location of quotas to recreational anglers, but other marine resources. the overall improvement has been remarkable. • International negotiations should seek to ITQs are not a panacea and will be ill suited in reduce or eliminate subsidies that promote some cases, but they should not be dismissed entirely. 5. See, for example, Owen Paterson, “Consultation on a National Policy on Fisheries Management in U.K. ITQs may well be unsuitable in areas where Waters,” Conservative Party Green Paper, January 2005, mixed fisheries predominate. The system creates http://www.conservatives.com/pdf/fishinggreenpaper.pdf.

150 Competitive Enterprise Institute • www.cei.org • 202-331-1010 International Policy

overfishing by providing a stable, predict- Recommended Readings able framework that will encourage private investment in fisheries without the perverse Christy, Francis. 1996. “The Death Rattle of incentives subsidies provide. Open Access and the Advent of Property Rights Regimes in Fisheries.” Marine Re- Reconciliation of competing commercial, source Economics 11, no. 4: 287–304. recreational, and environmental concerns and De Alessi, Michael. 2000. “Fishing for Solu- prevention of further degradation of the ma- tions: The State of the World’s Fisheries.” rine environment require some form of private In Earth Report 2000: Revisiting the True ownership rights. The exact specification of State of the Planet, 85–114. ed., Ronald rights, which may take the form of anything Bailey. New York: MacGraw-Hill. from transferable fishing quotas to extensions De Alessi, Michael. 2004. “Catching the Aqua- of programs that allow for leasing of the sea for culture Wave.” Grassroot Institute of Ha- aquaculture or offshore oil exploration, is not waii, Honolulu. important. What is important is that we start Markels, Michael. “Fishing for Markets: Regu- moving away from the “Tragedy of the Com- lation and Ocean Farming.” Regulation 18, mons” toward stewardship. no. 3 (1995): 73–79, http://www.cato.org/ pubs/regulation/reg18n3h.html. Key Contacts National Research Council. 1999. Sharing the Fish: Toward a National Policy on Indi- Iain Murray, Senior Fellow, Competitive vidual Fishing Quotas. Washington, DC: Enterprise Institute, [email protected]. National Academies Press.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 151

Lands and Wildlife

Measuring the Scope of Federal Land Ownership

Angela Logomasini

During much of American history, land- Background use regulation was not a federal issue. The American system was biased against an active After the Louisiana Purchase and acquisition federal role in land ownership and long-term of the western lands of the United States, the fed- management. It focused instead on limiting fed- eral government owned about 80 percent of the eral powers to those specifically enumerated in total U.S. territory. Given the constitutional bias the U.S. Constitution, such as individual rights for private property, the government eventually and protection of private property. Accord- transferred 1.1 billion acres to states and pri- ingly, newly acquired federal lands were to be vate parties under various federal programs.1 In dispensed to the public, eventually becoming particular, the Homestead Act of 1862 granted private lands that would be put to productive freehold property to anyone who assumed con- use. However, in modern times, these trends trol of 160 acres of government land, which have been signficantly reversed. Federal con- they were to improve by growing crops or at trols on public and private lands have grown least keeping a home on the property. An indi- and continue to expand, affecting private prop- erty, recreation, and small businesses involved 1. Betsy A. Cody, Major Federal Land Management Agen- cies: Management of Our Nation’s Lands and Resources in resource industries—putting many of them (Washington, DC: Congressional Research Service, 1995), out of business. http://cnie.org/NLE/CRSreports/Natural/nrgen-3.cfm.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 155 The Environmental Source vidual who worked or lived on such a plot for the U.S. landmass or about 650 million acres.2 five years would then gain full ownership. Stew- Most federal ownership is concentrated in the ardship of these lands would result from private Western United States, exceeding 50 percent in effort or state-level regulation at the most. 5 western states and 20 percent in 12. Hence, During the first half of the 20th century, the impact of land-use regulations is very sub- the limited government philosophy gave way stantial in some markets.3 to progressivism in many areas, including en- GAO reported that overall federal landown- vironmental policy. Progressives ensured that ership between 1964 and 1994 for the four envi- their views were articulated in numerous public ronmental agencies declined from 700.8 million policies, shifting the federal focus from divesti- acres to 622.8 million.4 One might conclude that ture toward acquisition and management. such a reduction indicates that federal land-use At the same time, land management policy regulation has declined in at least one area. How- moved away from resource use toward conser- ever, closer inspection reveals a different story. vation and preservation goals, eventually limit- Federal land ownership increased for three ing access for ranchers, foresters, recreationists, out of the four environmental agencies involved: and those seeking access to energy resources. U.S. Forest Service territory expanded by about Such trends continue even though the federal 5 million acres, Fish and Wildlife Service terri- government could facilitate resource use in a tory expanded by about 65 million acres, and manner consistent with environmental goals. National Park Service territory expanded by As an example, resource extraction can prove about 49 million acres.5 beneficial, particularly when it eliminates dis- The agencies that gained greater control eased trees and reduces fire risk. over lands are those whose missions are more consistent with the progressive environmental Scope of Federal Land Ownership movement’s emphasis on preservation than and Control with a conservation emphasis that allows re- source use and recreation. Based on these mis- One of the most comprehensive reviews of sions, a logical ranking of the agencies from land management and ownership policy was most resource-use intensive to most focused on produced by the General Accounting Office conservation seems as follows: (now the Government Accountability Office— GAO) in 1996. It reported on ownership and use of federal lands managed by four agencies: • Bureau of Land Management: “It is the mis- the Department of Agriculture’s U.S. Forest sion of the Bureau of Land Management to Service and the Department of the Interior’s sustain the health, diversity, and productiv- Bureau of Land Management, U.S. Fish and 2. U.S. General Accounting Office, Land Ownership: Wildlife Service, and National Park Service. Information on the Acreage, Management, and Use of According to GAO, these four agencies have Federal and Other Lands, GAO/RCED-96-40: (U.S. Gen- jurisdiction over and and regulate 95 percent of eral Accounting Office,Washington, DC, 1996), 14. federal lands. The Department of Defense con- 3. Ibid., 23–24. trols the rest. Total federal land ownership is 4. Ibid., 2. substantial, amounting to about 30 percent of 5. Ibid., 19.

156 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Lands and Wildlife

ity of the public lands for the use Figure 1. Federal Land Managed for Conservation and enjoyment of present and 6 future generations.” 100 • U.S. Forest Service: “The mis-

sion of the USDA Forest Service 80 is to sustain the health, diversity,

and productivity of the Nation’s 60 forests and grasslands to meet

the needs of present and future Percent 40 generations.” • U.S. Fish and Wildlife Service: The U.S. Fish and Wildlife Service 20 describes its mission as “working 0 with others, to conserve, protect, USFWS NPS USFS BLM

and enhance fish, wildlife, and Agency plants and their habitats for the continuing benefit of the Ameri- 1964 1994 7 can people.” Source: U.S. Government Accountability Office. • National Park Service: “The Na- tional Park Service preserves un- impaired the natural and cultural resources for conservation and preservation. The Bureau and values of the national park system for of Land Management is the least conservation the enjoyment, education, and inspiration focused, followed by the U.S. Forest Service. of this and future generations. The Park The National Park Service and the U.S. Fish Service cooperates with partners to extend and Wildlife Service, according to GAO, have the benefits of natural and cultural re- always dedicated 100 percent of their property source conservation and outdoor recreation to conservation and preservation goals. Also throughout this country.”8 of note, GAO shows a considerable shift from resource use to conservation between 1964 and GAO confirms this ranking by assessing the 1994 (see figure 1). amount of land that each agency has available Not surprisingly, the Bureau of Land Man- agement—whose mission is the most focused on resource use—is the only agency that saw 6. Bureau of Land Management, Office of Public Af- fairs, “BLM Facts,” Bureau of Land Management, Wash- a decline in landholdings. It relinquished con- ington, DC, June 7, 2006, http://www.blm.gov/nhp/facts/ trol of 197 million acres between 1964 and index.htm. 1994. However, its reduced landholding is not 7. U.S. Fish and Wildlife Service, “Who We Are,” U.S. indicative of reduced federal controls overall, Fish and Wildlife Service, Washington, DC, June 7, 2006, nor does it indicate increased development of http://www.fws.gov/who. public lands. In fact, not much of this land was 8. National Park Service, “The National Park Service: privatized or turned over for resource use. More Caring for the American Legacy,” November 25, 2007, http://www.nps.gov/legacy/mission.html. than 113 million acres were simply transferred

202-331-1010 • www.cei.org • Competitive Enterprise Institute 157 The Environmental Source

to the state of Alaska and Native Alaskans. And 272 million acres out of 622.8 acres—or about even with that shift, GAO reports that in 1994, 44 percent—were managed for conservation the federal government still owned 63 percent rather than resource use by 1994, according to of the state of Alaska.9 GAO.14 Again, this trend lends support to the Agencies with greater focus on preserva- contention that federal land policy has shifted tion—reflecting progressive environmental ide- in favor of environmental interests. als—gained the most. The more conservation- In addition to expanding conservation- and focused Fish and Wildlife Service received 49 preservation-related territories, the federal million acres of Bureau of Land Management government also increased its rights of use land; the National Park Service received 41 on 3 million acres of nonfederal land.15 These million acres.10 Such shifts represent movement rights include rights for the public or govern- away from resource use policies toward more ment agencies to cross lands owned by private preservationist ones. parties, nonprofit organizations, or nonfederal The growth of federal land control and own- government entities. ership is apparent in most states. The number of Also of note, GAO reports that between acres managed by land agencies increased in 46 July 1964 and September 1994, environmental states and decreased in only 4. In some states— organizations transferred 3.2 million acres of Arizona, California, Florida, Nevada, and land to the federal government.16 Such transfers Wyoming—the shift toward federal ownership are indicative of environmentalist support for was substantial, with more than 1 million acres federal land management policies, because few becoming federal property. Federal ownership such organizations would transfer lands unless declined in Alaska, Idaho, New Mexico, and they had some assurance that the federal gov- Utah.11 These findings indicate that the federal ernment would promote the environmentalist government is in general accruing land in states agenda of preservation of such lands—shifting that have higher-valued real estate, such as them away from resource use activities and California and Florida, while dispensing with public access. lands in lower-valued areas such as Utah and Since 1994, total land ownership by the four Alaska. environmental agencies has grown from 622.7 The amount of federal land managed for million acres to 629.3 million acres. The U.S. conservation purposes—that is “national parks, Forest Service grew from 191.6 million acres national wildlife refuges, wilderness and wil- in 1994 to 193 million acres by 2006.17 The derness study areas, wild and scenic rivers, and U.S. Fish and Wildlife Service land manage- areas of critical environmental concern”12—has ment portfolio grew from 87.5 million acres in grown by 66 million acres.13 In total, more than

14. Ibid., 24. 9. U.S. General Accounting Office, Land Ownership, 24. 15. Ibid., 6. 10. Ibid., 20. 16. Ibid., 7. 11. Ibid. 17. For the 1994 figures, see U.S. General Accounting Of- fice, Land Ownership, 6; for the 2006 figure, see U.S. For- 12. Ibid. est Service, “About Us,” U.S. Forest Service, Washington, 13. Ibid., 6. DC, January 30, 2007, http://www.fs.fed.us/aboutus.

158 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Lands and Wildlife

1996 to 96 million acres of wildlife refuges in Under the act, Congress periodically des- 2006.18 The National Park Service land owner- ignates land as “wilderness.” The act declared ship grew from 76.6 million acres in 1994 to that, once designated by Congress, wilderness 79.3 million acres in 2006.19 As occurred in the areas “shall be administered for the use and en- prior two decades, the Bureau of Land Man- joyment of the American people in such manner agement continued to lose property, while more as will leave them unimpaired for future use as conservation-focused agencies gained. Land wilderness, and so as to provide for the pro- managed by the Bureau of Land Management tection of these areas, the preservation of their declined from 267.1 million acres in 1994 to wilderness character, and for the gathering and 261 million acres by 2006.20 dissemination of information regarding their use and enjoyment as wilderness.”21 The intent Growth of Wilderness Regulation of such designations was to reduce their use for resource industries and focus on “recreational, Another way to demonstrate the trend to- scenic, scientific, educational, conservation, and ward preservation on public lands involves as- historical use.”22 Although all resource use was sessing the amount of land designated as wilder- not eliminated, wilderness designations can ness in the past several decades. The National limit such use considerably; the growing num- Wilderness Act of 1964 created the National ber of wilderness areas reflects the emphasis on Wilderness Preservation System, a network of preservation over resource use. public lands that receive special protections Figure 2 shows a considerable and steady from development and other uses. expansion of the amount of federal land desig- nated as wilderness. In 1980, Congress added more than 56 million acres to the system with the passage of the Alaska National Interest 18. For the 1994 figures, see U.S. General Accounting Lands Conservation Act. Since then, Congress Office, Land Ownership, 6; for the 2006 figure, see U.S. Fish and Wildlife Service, “President Seeks More than $2 has continued to add land, but at a slower Billion for U.S. Fish and Wildlife Service in 2007 Budget,” pace. press release, U.S. Fish and Wildlife Service, Washington, The federal government also implements a DC, February 6, 2006, http://www.fws.gov/budget/2007/ similar law for wild and scenic rivers. Congress FY07%20press%20release.htm. can designate rivers for protection under the 19. For the 1994 figures, see U.S. General Accounting Office, Land Ownership, 6; for the 2006 figure, see Na- Wild and Scenic Rivers Act, which states that tional Park Service, “The National Park System Acreage,” these rivers National Park Service, Washington, DC, June 8, 2006, http://www.nps.gov/legacy/acreage.html. The National shall be preserved in free-flowing condition, Park Service states that it was responsible for managing “83.6 million acres [in 2006], of which more than 4.3 and that they and their immediate environ- million acres remain in private ownership,” meaning ments shall be protected for the benefit and 79.3 million acres were government owned. enjoyment of present and future generations. 20. For the 1994 figures, see General Accounting Office, Land Ownership, 6; for the 2006 figure see Bureau of Land Management, Homepage, Bureau of Land Man- 21. National Wilderness Act, Public Law 88-577, section agement, Washington, DC, June 8, 2006, http://www. 2(b). blm.gov/nhp/index.htm. 22. Ibid., section 4(b).

202-331-1010 • www.cei.org • Competitive Enterprise Institute 159 The Environmental Source

Figure 2. Wilderness Acreage by Year

100

80

60

40 Millions of Acres

20

0 1972 1974 1975 1976 1978 1980 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1996 1997 1999 2000 2002 2004 2005 2006

Year Source: Wilderness.net, a partnership of the University of Montana, the Wilderness Research Institute, and the National Wilderness Training Center.

Figure 3. Miles of River Designated as Wild and Scenic

12,000

10,000

8,000

6,000 Miles

4,000

2,000

0 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1996 1998 1999 2000 2002 2004

Year Source: National Park Service.

160 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Lands and Wildlife

The Congress declares that the established river to the list, expanding regulation and national policy of dam and other construc- protection along them (see figure 3). tion at appropriate sections of the rivers of The data show that federal land-use con- the United States needs to be complemented trols are growing—in terms of both ownership by a policy that would preserve other se- and management. Subsequent policy briefs will lected rivers or sections thereof in their free- show that such politically driven preservationist flowing condition to protect the water qual- management over an increasing amount of land ity of such rivers and to fulfill other vital has actually undermined environmental goals national conservation purposes.23 substantially. In addition, other policy briefs document how privately managed lands suffer As with the wilderness designations, nearly far less from serious environmental problems every year since the Wild and Scenic Rivers Act and are managed to allow long-term resource was passed Congress has added more miles of renewal.

23. Public Law 90-542, section 1(b).

202-331-1010 • www.cei.org • Competitive Enterprise Institute 161

Pesticide Regulation

Pesticide Regulation Overview

Angela Logomasini

Pesticide residues found on domestic and law, the U.S. Environmental Protection Agency imported produce pose little, if any, risk to (EPA) has banned numerous pesticides that are public health, particularly compared with the both safe and useful for farming, home pest enormous public health benefits of pesticide control, and other public health purposes. use.1 However, for more than a decade, federal Statutory Scheme pesticide policies have placed in jeopardy the ability to address the greater risks associated The EPA regulates pesticides under three with insects and other pests. Applying federal laws: 1. According to one National Research Council report, “The great majority of individual naturally occurring and • Federal Food Drugs and Cosmetics Act synthetic chemicals in the diet appear to be present at (FFDCA). The FFDCA is the law under levels below which any significant adverse biological ef- fect is likely, and so low that they are unlikely to pose any which the EPA sets tolerances for pesticides. appreciable cancer risk.” See Committee on Comparative The EPA can essentially ban a pesticide by Toxicity of Naturally Occurring Carcinogens, Board on not setting a tolerance—the amount of pes- Environmental Studies and Toxicology, Commission on ticide residue that is allowed to legally re- Life Sciences, National Research Council, Carcinogens and Anticarcinogens in the Human Diet (Washington, main on food. The Agricultural Marketing DC: National Academies Press, 1996), 336–37. Service, an agency of the U.S. Department

202-331-1010 • www.cei.org • Competitive Enterprise Institute 165 The Environmental Source

of Agriculture (USDA), is responsible for “negligible risk” standard, allowing produce to monitoring residue levels in or on food. The contain pesticide residues that did not exceed a U.S. Department of Health and Human Ser- one-in-a-million cancer risk. vice’s Food and Drug Administration uses However, the FFDCA set a separate stan- this information to enforce tolerances on dard for pesticide residues found in processed imported and domestically produced food food. It applied the “Delaney Clause,” which in interstate commerce. The USDA’s Food prohibited the addition to food of any sub- Safety Inspection Service enforces tolerances stance that caused cancer in laboratory animals. for meat, poultry, and some egg products. The Delaney Clause essentially set a zero-risk • Federal Insecticide, Fungicide, and Roden- standard. It applied to pesticides used directly ticide Act (FIFRA). To sell a pesticide, a or indirectly in processed food. It also applied company must also register it with the EPA to pesticide residues found on raw agricultural under FIFRA. For pesticides used on food, products that were used in processed food, if the EPA can register uses only for pesticides the pesticide became more concentrated during that have a tolerance. Pesticide registrants processing. must register and gain EPA approval of As science became able to detect increas- their products as well as for each specific ingly lower levels of residues, the Delaney use (i.e., use indoors as a bug spray requires Clause essentially demanded that the EPA ban one registration and use outdoors for a spe- many pesticides. In addition, having separate cific crop requires another). The EPA must standards for raw produce and processed food review registered pesticides on a 15-year created perverse effects, which the National cycle. To gain registration, applicants must Research Council (NRC)2 noted could actually submit scientific data and research demon- reduce safety. In a 1987 report, Regulating Pes- strating that the products pose minimal risk. ticides in Food: The Delaney Paradox, the NRC The EPA can limit uses by denying registra- highlighted problems with the existing policy.3 tion for such uses. The NRC raised concerns about alternative pest • Food Quality Protection Act (FQPA). The control practices that could pose greater risks FQPA amended the first two laws. Details or could prove inadequate to maintain food on these changes follow. supplies and control disease-carrying pests. The NRC called on Congress to address this issue, Brief History of Pesticide Regulation suggesting that it set a single standard for raw and Legislation and processed foods. In 1988, the EPA began applying the neg- Before 1996, the FFDCA used two stan- ligible risk standard to processed foods with- dards for setting tolerances. One standard al- out legislative authorization. But in 1992, lowed the EPA to regulate pesticide residues on environmental groups succeeded in suing the raw produce using a cost-benefit approach. The 2. The NRC is an affiliate of the National Academy of agency could weigh the risks of using the pesti- Sciences. cides versus the risks of not having them to help 3. Board on Agriculture, National Research Council, maintain the food supply. Under that legisla- Regulating Pesticides in Food: The Delaney Paradox tive authority, the EPA applied what it called a (Washington, DC: National Academies Press, 1987).

166 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Pesticide Regulation

agency for not applying the Delaney Clause. Food Quality Protection Act Reforms A federal court held that the agency was ob- ligated to apply the Delaney Clause to pro- The FQPA attempts to address the conflict- cessed food.4 ing standards within the first two pesticide Hence, for those who used and produced laws. The FQPA changed the standard for set- pesticide products, reforming the law became ting tolerances. It applies a single standard for an urgent matter. With numerous bans likely, all pesticide uses and requires the EPA to show many crops—and ultimately our food supply— “reasonable certainty that no harm will result would be placed in jeopardy. In addition, con- from aggregate exposure to the pesticide chemi- cerns mounted about the increasing difficulty cal residue, including all anticipated dietary ex- associated with controlling rising infectious posures and all other exposures for which there diseases, carried by insects and other pests.5 is reliable information.”8 The FQPA mandated Meanwhile, environmental groups worked that the EPA apply this standard to all pesticide to make the law more stringent. Their efforts registrations, new and old. Accordingly, the were bolstered by a 1993 NRC report and the EPA is working to reregister the thousands of media hype that followed. The report, Pesticides pesticides registered before the passage of the in the Diets of Infants and Children, noted that FQPA. children might be more susceptible to pesticides The bill was supported unanimously by both and hence they faced greater risks.6 Despite houses of Congress and lauded by members of media hype suggesting the contrary, the study agricultural states and farm interests. Many be- did not conclude that existing exposures were lieved that it would dramatically improve pes- unsafe for children. Specifically, the study noted ticide approvals. But rather than solving these that “exposures occurring earlier in life can lead problems, the FQPA gave vital ground to those to greater or lower risk of chronic toxic effects pushing for more stringent regulation. Not such as cancer than exposures occurring later in surprisingly, environmental groups supported life.”7 Just to be safe, the report recommended the FQPA because they believed that it would that EPA use a 10-fold safety factor when set- prove even more stringent and would lead to 9 ting pesticide regulations. many pesticide bans in the future. Following the advice of Pesticides in the Di- ets of Infants and Children, the reform included 4. Les v. Reilly, 968 F.2nd 985 (9th Cir. 1992), cert. denied, 113 U.S. 1361 (1993). 8. 21 USC § 346a(b)(2)(A)(ii). 5. See Joshua Lederberg, Robert E. Shope, and Stanley 9. After passage of the FQPA, Competitive Enterprise C. Oaks Jr., eds., Emerging Infections: Microbial Threats Institute’s Jonathan Tolman noted in the Wall Street to Health in the United States (Washington, DC: Na- Journal that the 1996 law was more stringent than tional Academies Press, 1992), especially 163–67, http:// the old law and would lead to bans. A response by the www.nap.edu/books/0309047412/html/index.html. Natural Resources Defense Council’s Albert Meyerhoff concurred that the law was more stringent and would en- 6. Committee on Pesticides in the Diets of Infants and able environmental groups to pursue bans. See Jonathan Children, National Research Council, Pesticides in the Tolman, “The Real Pests Aren’t in the Food,” Wall Street Diets of Infants and Children (Washington, DC: Na- Journal, September 18, 1996, A18, and Albert H. Mey- tional Academies Press, 1993). erhoff, “Law Makes Food Safer for Children,” Letters to 7. Ibid., 359. the Editor, Wall Street Journal, October 7, 1996, A23.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 167 The Environmental Source several new criteria that now apply very strong endocrine disrupters.11 The program is designed standards to both processed and raw foods. to simply add to the body of research on endo- When setting standards under the new law, the crine disrupters, but the agency has indicated EPA must consider (a) the impacts of the pesti- that the program will serve as a guide for regu- cide on infants and children, applying a 10-fold latory decisions.12 safety factor unless information is available to The following briefs provide additional in- demonstrate safety; (b) the aggregate exposure formation on the FQPA and its implications. (the total exposure of individuals to various The first discusses some of the science and sources of the pesticide); and (c) whether the implementation issues in general. Two others cumulative effects of a combination of pesti- address the impact that federal pesticide policy cides could increase health risks.10 can have on public health and well-being re- In addition, the law created the Endocrine lated to agricultural productivity and control of Disrupter Screening Program, under which the disease-carrying pests. The final brief discusses EPA must study pesticides that are potential the issue of pesticides in schools.

11. For more information on endocrine disrupters, see the policy brief titled “Endocrine Disrupters.” 12. See Draft User’s Guide for the Endocrine Disrupter Priority Setting Database (Washington, DC: EPA and Eastern Research Group, 2000). A contractor produced this publication for the EPA. Page 1-1 states that the pro- gram will eventually help EPA “determine how best to 10. 21 USC § 346a. regulate” chemicals.

168 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Food Quality Protection Act

Angela Logomasini

In 1996, the Food Quality Protection Act portant products. However, the FQPA created (FQPA) amended the two federal laws govern- new and unexpected problems and may, in fact, ing pesticides: the Federal Insecticide, Fungicide, prove as onerous as the former law. Although and Rodenticide Act (FIFRA) and the Federal many have claimed that the problems emanate Food, Drugs, and Cosmetics Act (FFDCA). Con- from poor EPA implementation, problems have gress’s goal was to address disparities between also resulted from new onerous standards writ- the two laws governing pesticide regulation and ten into the FQPA. Addressing these issues will to address concerns that federal pesticide regu- likely require congressional action. lations were overly stringent. At the time, the Statutory Scheme onerous pesticide standards were leading the U.S. Environmental Protection Agency (EPA) Before entering commerce, pesticides must to cancel many vital pesticide uses.1 gain registration for each specific use (e.g., use The hope was that the FQPA would ensure a as indoor bug spray or on a specific crop) under more scientifically sound process that kept risks FIFRA. To gain registration, registrants must low while allowing continued use of many im- provide data that demonstrate that does not 1. For an overview of the history before this law, see the pose an unreasonable safety risk. Without such policy brief titled “Pesticide Regulation Overview.” EPA approval, firms may not sell any pesticidal

202-331-1010 • www.cei.org • Competitive Enterprise Institute 169 The Environmental Source

product, although EPA can allow for emergency • Cumulative exposure. Under the “cumulative uses of certain products. In addition, the FFDCA exposure” standard, the EPA must consider requires that the EPA set “tolerance levels” for the impact of groups of various pesticides. pesticides used on foods (as opposed to other There are two aspects in particular. First, it uses, such as to control insects, rodents, or mi- must group pesticides that supposedly cause crobes). Tolerance levels specify how much pes- cancer in a similar way—pesticides that have ticide exposure the EPA will allow as residue a so-called common mechanism for toxic- on foods. For example, the EPA sets a level that ity. Second, it must add all the exposures— it believes, on average, will limit individuals’ inhalation, oral, dermal—of these pesticides exposure to pesticide residues found on apples, and limit exposure to them as a group. This assuming an individual eats a certain number task is very difficult because the science is of apples every day for 70 years. not always clear on the mechanisms for The FQPA added some additional consider- causing cancer for all of these substances, ations. The law sets a general standard wherein nor is it clear whether cumulative exposures the EPA must show “reasonable certainty” that actually increase risk. Claims about such cu- a pesticide will “do no harm.”2 The requirement mulative exposure risks gained steam with alone is quite stringent. The language and the a study conducted by researchers at Tulane legislative history indicate that this standard University. It claimed that, when combined, is equivalent to a risk not greater than one in endocrine disrupters were 1,000 times more a million.3 But that is just the beginning. The potent. When other researchers could not standards must be even more stringent because replicate this result, the Tulane researchers re- under the FQPA, the EPA must now also con- tracted the study.4 Despite the redaction, the sider the following: idea that synergistic effects of chemicals mul- tiply potency prevails among activists. And • Aggregate exposure. The “aggregate expo- the concept has even made its way into law. sure” standard requires the EPA to consider After the Tulane study was published in Sci- all exposure pathways of a single pesticide ence, Congress passed provisions in the 1996 when setting tolerances. For example, the FQPA calling on the EPA to consider such cu- EPA must consider whether a person eat- mulative exposures when issuing regulations. ing an apple that contains specific pesticide Subsequently, several studies reported no syn- residue also is exposed to the same pesticide ergistic interactions with the chemicals. from consumer products, such as bug sprays • Safety Factor for Children. The new law re- or household disinfectants. Hence, the toler- quires the EPA to consider risks to children ance level for a pesticide would have to in- clude all conceivable exposures—reducing the amount of allowable residue. 4. The original study was Steven F. Arnold, Diane M. Klotz, Bridgette M. Collins, Peter M. Vonier, Louis J. Guillette Jr., and John A. McLachlan, “Synergistic 2. 21 USC § 346a(b)(2)(A)(ii). Activation of Estrogen Receptor with Combinations of 3. For an analysis, see Frank Cross, “The Consequences Environmental Chemicals, Science 272, no. 5267 (1996): of Consensus: Dangerous Compromises of the Food 1489–92; the retraction is John A. McLachlan, “Syner- Quality Protection Act,” Washington University Law gistic Effect of Environmental Estrogens: Report With- Quarterly 75, no. 3 (1997): 1155–206. drawn,” Science 277, no. 5325 (1997): 459–463.

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and to apply a 10-fold safety factor unless • When researchers recalculated risks by the EPA determines that a lower safety fac- considering actual pesticide exposure levels tor is acceptable. The EPA notes that it will measured by the U.S. Department of Agri- apply this 10-fold factor in addition to the culture (USDA), they found that risks were 100-fold safety factor it currently applies “from 4,600 to 100,000 times lower than when setting standards. Hence, when the EPA estimates.”7 EPA applies the 10-fold safety factor for children, it will actually apply a 1,000-fold Applying the New Standards safety factor. The combination of “reasonable certainty” Already Conservative Risk Estimates of “no harm,” “aggregate risk,” “cumulative Become More Stringent effects,” and additional safety factors for chil- dren poses a host of new challenges for the EPA Even before Congress made the law more when conducting risk assessments for setting stringent with the FQPA, the EPA used very tolerances. conservative risk estimates. Given EPA risk as- To assess aggregate exposure, the agency sessment methodologies, pesticide safety regula- must estimate how much exposure the public tions already applied safety margins that ensured has to a pesticide from the various pathways— exposure levels were thousands of times lower on and in foods, in the home, and in drinking than levels EPA deemed safe. For example: water. Then the agency must limit enough of those exposures to ensure that total exposure • Bureaucrats set standards to ensure safe does not exceed the level it deems safe. To exposures even if a farmer applied the full facilitate understanding of this process, the legal limit of all pesticides licensed for use agency developed a theoretical construct called on a given crop. Yet farmers apply only a the “risk cup.” The cup represents the total fraction of the legal limits and do not apply amount of exposure to the public of a pesticide all pesticides licensed for a particular crop. that the EPA will allow. The EPA then registers For example, University of Texas Professor only the amount of pesticide uses that “fill” the Frank Cross notes that one study shows that cup. When filling the cup, the EPA considers farmers in California use about 25 percent all potential exposure pathways. For example, of their legal limit for tomatoes, and each regulators will estimate that certain agricultural farmer uses no more than 5 of 54 licensed use will fill 50 percent of the cup, drinking wa- pesticide products.5 ter exposure will fill 1 percent, home consumer • Frank Cross highlights a number of stud- products will fill 29 percent, and “other” expo- ies showing that the EPA’s conservative risk sures (which they assume but do not specify) estimates overstate pesticide exposure by will fill the rest. as much as 99,000 to 463,000 times actual exposure levels.6 7. Sandra O. Archibald and Carl S. Winter, “Pesticides in Our Food,” in Chemicals in the Human Food Chain, 5. Cross, “The Consequences of Consensus,” 1174. ed. Carl K. Winter, James N. Seiber, and Carole Nuckton 6. Ibid., 1177. (New York: Van Nostrand Reinhold, 1990), 39.

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Various groups have complained that the of them an unprofitable enterprise for a cou- EPA has grossly exaggerated exposure levels. ple of reasons. First is cost. The law requires A key problem is that when the agency lacks that firms spend a considerable amount of re- data on actual exposures or when levels are be- sources—submitting data and paying very hefty low the agency’s ability to detect them, regula- registration fees—to obtain a registration. Such tors use default numbers that assume a certain high costs basically make many markets un- amount of exposure. Hence, the cup fills, but profitable for companies, so they do not bother it does not represent real risks to society. Once to register those uses. The total cost of pesticide the cup is full, the EPA will not register any fur- registration is estimated to be more than $50 ther uses of the pesticide. million, and the process can take from 9 to 10 When filling the cup, the EPA can consider years.9 Second, the FQPA standards limit the the impacts of numerous pesticides—placing number of uses that the EPA will register for several in one cup. For example, the EPA has various products. placed certain organophosphate products into These factors serve as disincentives for the one category and is working on a cumulative development of new minor use pesticides as risk assessment for those products. Placing well as for the reregistration of old ones. In them all in one cup could demand dramatic fact, to continue business in more profitable reduction in registered uses. For example, markets, firms are negotiating the elimination home exterminators may not gain a registered of minor uses when they reregister products. use for many organophosphates, leaving them Syngenta, for example, came to an agreement with fewer options for controlling pests such with the EPA in June 2000 to eliminate many of as cockroaches. Such changes can have serious the minor uses—particularly home-related pest public health impacts. In addition to carrying control—for the pesticide diazinon. Syngenta diseases, cockroaches are believed to contrib- explained that the product was safe when used ute to asthma, a serious health ailment affecting properly. Agreeing to phase out certain uses many children.8 was purely a “business decision,” the company noted, because the product was no longer prof- “Minor Uses” itable for those uses.10 The FQPA’s impact on minor uses promises Ironically, a major problem relates to what to have serious public health outcomes because people call “minor uses” of pesticides. Minor these products meet critical needs: to ensure uses include key public health uses to control affordable fruits and vegetables and to protect pests, ranging from disease-carrying mosqui- against disease-carrying pests. As one USDA of- toes to rodents. In addition, they include uses ficial noted, on many fruits and vegetables. These uses are anything but minor, yet the law has made many 9. USDA, “EPA and Pesticide Registration Issues,” 8. Floyd J. Malveauz and Sheryl A. Fletcher-Vincent, Agricultural Research Service, Washington, DC, http:// “Environmental Factors of Childhood Asthma in Urban www.ars.usda.gov/is/np/mba/jan97/epa.htm. Centers,” Environmental Health Perspectives 103, Suppl. 10. Glenn Hess, “EPA Phases out Pesticide Diazinon: 6 (1995): 59. See also the policy brief titled “Pesticides Syngenta Cites Declining Margins.” Chemical Market and Public Health.” Reporter, December 11, 2000.

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Even though the FQPA provisions were use, voluntary cancellations, cancellations of intended by Congress to ensure that exist- certain uses, and other restrictions. ing public health pesticide uses are not lost Recently, EPA completed a 10-year study of without economically effective alternatives, 230 organophosphates and carbonates pesticides. the provisions may not be adequate. If the It concluded that the Food Quality Protection FQPA results in cancellation of major agri- Act demands that the agency ban 3,200 uses of cultural uses of a pesticide that is also used pesticide products in these categories and places in public health, it may become no longer restrictions on 1,200 other uses. It deemed 5,237 profitable for the manufacturer to produce uses as “safe” under the act.13 Hence, the Food small quantities for mosquito control, thus Quality Protection Act could increase regulations ending production of the pesticide. Since on 46 percent of the uses of the 230 chemicals— adulticides used for mosquito control were a substantial increase. Among recommended registered decades ago, the data supporting the restrictions are bans on a majority of uses their registrations may be insufficient to of carbofuran, a product used for a variety of meet current requirements.11 crops. EPA also announced its intention to ban major agricultural uses of the product lindane, a FQPA Impacts product targeted by environmental groups. Researchers at the University of California The 1996 law has produced some serious note problems with the elimination of so many impacts. For example, consider the effect of the products: law on products that use organophosphate pes- ticides. At the time the FQPA passed, there were Economic theory suggests that these increased 49 of these products on the market, represent- restrictions and cancellations from the even- ing about one-third of all pesticide sales.12 The tual implementation of the FQPA will result EPA picked this broad category of products in in reduced supply of commodities currently its first effort to implement the law’s provisions relying on [organophosphate] pesticides for on cumulative exposure. By the time the EPA pest control. This will result in higher prices released its draft cumulative risk assessment for consumers and lower quantity [of pro- for these products in 2002, 14 products had duce] sold … . If consumers respond to the already been canceled and 28 had to meet risk increased prices by reducing consumption of mitigation measures that include limitations on the affected fruits and vegetables (and per- haps consuming less nutritious foods), they may suffer a loss of health benefits associa- tion with the change in consumption.14 11. Robert I. Rose, “Pesticides and Public Health: Inte- grated Methods of Mosquito Management,” Emerging Infectious Diseases 7, no. 1 (January–February 2001): Indeed, the researchers note that another 17–23; http://www.cdc.gov/ncidod/eid/vol7no1/rose.htm. study assessing the impacts of such laws reveals 12. Sean B. Cash and Aaron Swoboda, “Food Quality Protection Act and California Agriculture,” Agricultural 13. Kate Phillips, EPA Recommends Restrictions on Pesti- and Research Economics Update 6, no. 4 (2003): 9–11, cide Usage, Chemical Week 168 no. 2 (August 9, 2006). http://www.agecon.ucdavis.edu/extension/update/ar- ticles/v6n4_3.pdf. 14. Ibid., 10.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 173 The Environmental Source a potential negative health effect resulting from Recommended Reading the FPQA. Cross, Frank B. “The Consequences of Con- Key Expert sensus: Dangerous Compromises of the Food Quality Protection Act.” Washington Angela Logomasini, Director of Risk and University Law Quarterly 75, no. 3 (1997): Environmental Policy, Competitive Enterprise 1155–206. Institute, [email protected].

174 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Pesticides and Agriculture

Angela Logomasini and Jennifer Zambone

In 1989, environmental activists claimed that children’s food3 and another report on the pes- a chemical called Alar that was used to assist in ticide residues in various foods.4 These reports the production of lush red apples had created conclude that certain foods have unacceptably what amounted to “poisoned apples.” They used high pesticide residues and may well cause can- this claim as part of a campaign to have the sub- cer.5 The facts point in a very different direction. stance banned. Yet it turned out that these “poi- soned” apples were as much of a fairy tale as Beyond Safe the apple in Snow White. The Alar hysteria was completely debunked.1 Nevertheless, Alar has Pesticide levels rarely, if ever, approach never been used again on apples in the United unsafe levels. Even when activists cry wolf be- States.2 Moreover, the crusade against pesticide use on produce continues. Consumers Union, 3. Edward Groth III, Charles Benbrook, and Karen the group that produces Consumer Reports, Lutz, Update: Pesticides in Children’s Foods (Washing- produces a report on the content of pesticides in ton, DC: Consumers Union, 2000). 4. Edward Groth III, Charles Benbrook, and Karen Lutz, Do You Know What You’re Eating? (Washington, 1. Fredrick J. Stare and Elizabeth Whelan, Fad-Free DC: Consumers Union, 1999), http://www.consumer- Nutrition (Almeda, CA: Hunter House, 1998), 262. sunion.org/food/do_you_know1.htm. 2. Stare and Whelan, Fad-Free Nutrition, 262. 5. Groth, Benbrook, and Lutz, Update, 24.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 175 The Environmental Source cause residues exceed federal limits that does • Residue levels decline even further when we not mean the products are not safe. In fact, resi- wash produce. One study shows that wash- dues can be hundreds of times above regulatory ing fruits and vegetables can reduce expo- limits and still be safe: sure by 97 percent for some pesticides.8

• According to one National Research Coun- FDA Residue Survey: cil (NRC) report, “the great majority of Most Residues are Undetectable individual naturally occurring and synthetic chemicals in the diet appears to be present In its most recent survey, the FDA has made at levels below which any significant adverse the following discoveries: biological effect is likely, and so low that they are unlikely to pose any appreciable • “The findings for 2003 demonstrate that cancer risk.”6 pesticide residue levels in foods are gener- • The American Academy of Pediatrics notes, ally well below EPA tolerances, corroborat- “The risks of pesticides in the diet are re- ing results presented in earlier reports.”9 mote, long-term, and theoretical, and there • Sixty-two percent of domestic fruit and veg- is no cause for immediate concern by par- etable samples had no detectable pesticide ents. The risks to children over their lifetime residues. of experiencing the major chronic diseases • Eighty-three percent of imported fruit and associated with the typical American diet vegetable samples had no detectable pesti- far exceed the theoretical risks associated cide residues. with pesticide residues.”7 • Only 6 percent of imported fruit and veg- • Various government agencies test produce etable samples contained residues in excess for residues to ensure that they meet safety of federal standards. Only 2 percent of do- standards. The U.S. Food and Drug Admin- mestic fruit and vegetable samples exceeded istration (FDA) and the state of California standards. conduct the most comprehensive and regu- • There were no pesticide residue tolerance lar testing. Both find not only that residue violations on 92.9 percent of all imported levels are far lower than any standard of fruit and vegetable samples. the U.S. Environmental Protection Agency • FDA reports no residue violations for do- (EPA), but also that they are most often un- mestic grains and violations for only 1.4 detectable (see details in the next section). percent of imported grains. • FDA found no violations for dairy and egg products and for seafood. 6. Committee on Comparative Toxicity of Naturally Occurring Carcinogens, Board on Environmental Studies • FDA found no residue violations in baby and Toxicology, Commission on Life Sciences, National foods. Research Council, Carcinogens and Anticarcinogens in the Human Diet (Washington, DC: National Academies 8. Henry B. Chin, “The Effect of Processing on Resi- Press, 1996), 336–37. dues in Foods,” in Pesticide Residues and Food Safety: 7. International Food Information Council Foundation, A Harvest of Viewpoints (Washington, DC: American IFIC Review: On Pesticides and Food Safety (Washing- Chemical Society, 1991), 171. ton, DC: IFIC Foundation, January 1995. 9. Ibid., 10.

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Eating Fruits and Veggies Trumps of Agriculture–recommended amount of Pesticide Risks five servings of fruits and vegetables a day.14 Hence, if we want to reduce cancer risks, we The main cause of cancer is not pesticide should focus on consuming more produce. residues, but rather the nutritional value of what a person eats.10 Pesticides Promote Health through Affordable Produce • In fact, a seminal study by Sir Richard Doll and Richard Peto apportioned 2 percent of To promote public health, policy should cancer cases to causation by all environ- work to ensure that families—particularly mental pollutants found in the air, water, lower-income families—are able to afford fresh and food and 35 percent of all cancers to produce. Pesticides play a key role in increas- dietary factors.11 ing supply and thereby keeping these products • Accordingly, the World Health Organiza- affordable. tion advocates increased intake of fruits and vegetables, to reduce the cancer incidence • Use of modern agricultural technology and rate by 30 percent across the board.12 chemicals has reduced the cost of food, • The quarter of the U.S. population consum- thereby improving nutrition, particularly ing the least amount of fruits and vegetables for lower-income families. In fact, at the has a cancer rate twice as high as the quarter turn of the 20th century, before the use of of the population consuming the most fruits modern agricultural practices, Americans and vegetables.13 spent 20 percent of their income on food. • Moreover, only 36 percent of Americans Now, the average American family spends older than two consume the U.S. Department approximately 10 percent of its disposable income on food.15 10. Robert S. Lichter and Stanley Rothman, Environ- • Affordability is a key concern for most mental Cancer: A Political Disease? (New Haven, CT: Americans. Consumers who say that they Yale University Press, 1999). would pay for residue-free foods are willing 11. Richard Doll and Richard Peto, “The Causes of to pay only a small increase. In one survey, Cancer: Quantitative Estimates of Avoidable Risks of Cancer in the United States Today,” Journal of 46 percent said they would pay more for the National Cancer Institute 66, no. 1192 (1981): such products, but only 15 percent of those 1235, 1251. In addition, Doll and Peto estimate respondents would pay more than 10 per- that tobacco use is responsible for 30 percent of the cent extra.16 cancer cases in the United States. For more information on cancer risks, see “The True Causes of Cancer” and “Cancer Trends,” in The Environmental Source. 14. “Achievements in Public Health, 1900–1999: Safer 12. World Health Organization, Programme for Cancer and Healthier Foods,” Morbidity and Mortality Weekly Control, Developing a Global Strategy for Cancer (Ge- Report 48, no. 40 (1999): 905–13, http://www.cdc.gov/ neva: World Health Organization, 2000). mmwr/preview/mmwrhtml/mm4840a1.htm. 13. Bruce N. Ames, and Lois Swirsky Gold, “Environ- 15. International Food Information Council Foundation, mental Pollution, Pesticides, and the Prevention of Can- IFIC Review. cer: Misconceptions,” FASEB Journal 11, no. 3 (1997): 16. National Research Council, Commission on Life 1041–52. Sciences, The Future Role of Pesticides in U.S. Agri-

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• Without pesticides, the price of raising a • Cooking food produces 2,000 milligrams crop could increase 5 to 200 times, and of burnt material per person per day. Burnt those costs would be transferred to consum- material contains many rodent carcinogens ers in the prices of the goods, according to and mutagens. one estimate.17 • A person consumes only 0.09 milligrams • Scientist Philip Abelson warned that con- per day of the residues of 200 synthetic tinued banning of pesticides and fungicides chemicals that the FDA measures.20 could lead to food scarcities.18 • As Ames and Gold point out, there is little difference between naturally occurring “Carcinogens” in Perspective chemicals and man-made chemicals. They find that 99.99 percent of the chemicals Environmentalists have long claimed that that we eat are natural. Plants produce such we should avoid all pesticides because these chemicals to defend themselves against in- chemicals cause cancer in rodents and, hence, sects, fungi, and other predators. Ames and must be dangerous to humans. But even if pesti- Gold estimate that “on average Americans cides were not used, every time people eat they ingest roughly 5,000 to 10,000 different would shovel in these “rodent carcinogens.” natural pesticides and their breakdown People consume such natural rodent carcino- products.”21 Hence, we consume far more gens without ill effects, and the same is true for naturally occurring pesticides on plants low-level pesticide exposures. Consider these than we do manmade ones—without ill ef- facts: fect. This reality underscores the fact that current exposure to manmade chemicals is • Bruce Ames and Lois Swirsky Gold of the not significant and poses a very low-level University of California at Berkeley estimate risk. Ames and Gold specifically note: “The that the amount of residual carcinogenic possible carcinognic hazards from synthetic pesticides in food is 1,800 times less than pesticides (at average exposures) are mini- the amount of carcinogens derived from 54 mal compared to the background of nature’s natural plant chemicals that are found in pesticides, though neither may present a food.19 hazard at the low doses consumed.”22

culture (Washington, DC: National Academy Press, Key Experts 2000), 85, http://www.nap.edu/openbook.php?record_ id=9598&page=R1. Angela Logomasini, Director of Risk and 17. Stare and Whelan, Fad-Free Nutrition, 92, citing J. G. Edwards, “Antipesticide Ads’ Lies Are Hazardous to Environmental Policy, Competitive Enterprise Our Health,” Priorities 4, no. 4 (1995): 45–46. Institute, [email protected]. 18. Philip Abelson, “Adequate Supplies of Fruits and Vegetables: Fungicide Ban Would Reduce Supply of Healthy Foods,” Science 266, no. 5189 (1994): 1303. 20. Ames and Gold, “Environmental Pollution, Pesti- cides, and the Prevention of Cancer,” 1045. 19. Bruce Ames and Lois Swirsky Gold, “Chemical Carcinogenesis: Too Many Rodent Carcinogens,” Pro- 21. Ibid., 1044. ceedings of the National Academy of Science 87, no. 19 22. Ames and Gold, “Environmental Pollution, Pesti- (1990): 7772–76. cides, and the Prevention of Cancer,” 1147.

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Dennis Avery, Hudson Institute, cgfi@rica. Morris, Julian, and Roger Bate, eds. 1999. Fear- net. ing Food: Risk, Health, and Environment. Boston: Butterworth-Heinemann, 1999. Recommended Readings Smith, Kenneth, and Jack Raso. 1999. “An Unhappy Anniversary: The Alar ‘Scare’ Ten Avery, Dennis. 1995. “Saving the Planet with Years Later.” New York: American Council Pesticides: Increasing Food Supplies while on Science and Health. http://www.acsh. Preserving the Earth’s Diversity.” In True org/publications/pubID.865/pub_detail. State of the Planet, ed. Ronald Bailey, 49–82. asp. New York: Free Press.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 179

Pesticides and Public Health

Angela Logomasini and Jennifer Zambone

In recent years, public health authorities public about the risks of pesticides and failing have expressed serious concerns regarding what to inform them of the far more serious risks they call the trend of “emerging infections.” associated with disease vectors. As a result, in- They fear that many diseases transmitted by dividuals and public health agencies have fewer various pests—collectively called “vectors”— options to control serious and expanding risks are on the rise. Even diseases eradicated from associated with vector-borne diseases. the United States are reemerging as increased travel and trade create more opportunities for Background diseases to cross international boundaries. Even diseases that have never been seen in the United Throughout history, one of the most serious States have emerged, such as the West Nile vi- risks to public health has been disease transmit- rus in 1999. ted by vectors. Vectors include any organism In the past, we have been able to keep these that carries pathogens that can then be trans- diseases at bay with the use of pesticides and ferred to humans. Most commonly we think of other measures, but today government regula- mosquitoes and other insects, but rodents and tions limit access to much-needed pesticides. In other animals can transmit disease as well. We addition, environmental activists have waged should learn from history that vector-borne attack campaigns on pesticide use, scaring the risks are not isolated to tropical areas and that

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they can reemerge in the United States. Con- ies, as well as in Canada, Norway, Sweden, sider a few historical cases: and northern Russia.5

• In the summer of 1793, an epidemic of yel- Adverse Impacts of Vector-Borne low fever, a disease carried by mosquitoes, Disease Today struck Philadelphia. Yellow fever killed 5,500 people that summer and plagued the Vector-borne diseases continue to plague the city for seven years.1 world. The developing world suffers the great- • Malaria was endemic in most of the United est toll because many nations cannot afford States and remained so in many states until pesticides and other control methods. Consider right after the end of World War II.2 these facts: • Dengue fever periodically emerged the U.S. Gulf Coast states for decades including re- • According to the World Health Organiza- cent outbreaks in the 1980s, and it continues tion, malaria alone infects 500 million and to pose a threat.3 Tick-borne diseases have kills more than 1 million.6 Most of its vic- affected the population as well.4 tims are children. • The research of Paul Reiter, chief of the • In the United States, Lyme disease is the entomology section of the Dengue Branch number one vector-borne disease. According of the Centers for Disease Control and Pre- to the CDC, “During 1992–1998, a total of vention (CDC), demonstrates that, contrary 88,967 cases of Lyme disease were reported to popular wisdom, most mosquito-borne by 49 states, the District of Columbia, and diseases are not tropical. For example, he Guam (2 cases), for a crude mean annual notes that until modern times, malaria was incidence of 5.1 reported cases/100,000 endemic in nearly all states east of the Rock- persons/year. The number of reported cases increased 70%, from 9,909 in 1992 to 16,802 in 1998. Ninety-two percent of cases were reported by 10 states. Over the 1. Andrew A. Spielman and Michael D’Antonio, Mos- 7-year period, crude annual incidence per quito: A Natural History of Our Most Persistent and 100,000 persons increased from 4.0 to 6.7.”7 Deadly Foe (New York: Hyperion, 2001), 61. The CDC notes that reported cases have 2. In fact, one of the fundamental reasons for the estab- lishment of the Centers for Disease Control and Preven- 5. Paul Reiter, “Global Warming and Vector-Borne Dis- tion in 1945 was the eradication of endemic malaria in ease: Is Warmer Sicker?” Brief- the United States. Happily, that goal was achieved. ing, Competitive Enterprise Institute, Washington, DC, 3. Ricardo Alonso-Zaldivar, “Dengue Fever is Not July 28, 1998. Quite Dead,” Los Angeles Times, January 14, 2008. 6. World Health Organization, “ Malaria,” Fact Sheet 4. Researchers believe that although Lyme disease was 94, World Health Organization, Geneva, 2007, http:// only recently identified (1975), the disease has been www.who.int/mediacentre/factsheets/fs094/en. around for about 100 years. National Institute of Allergy 7. Kathleen A. Orloski, Edward B. Hayes, Grant L. and Infectious Disease, Lyme Disease: The Facts, the Campbell, and David T. Dennis, “Surveillance for Lyme Challenge, NIH Pub. 98-3193 (Bethesda, MD: National Disease: United States, 1992–1998,” Morbidity and Mor- Institutes of Health, 1998), www3.niaid.nih.gov/topics/ tality Weekly Report 49, no. SS03 (2000): 1–11, http:// lymeDisease/PDF/LymeDisease.pdf. www.cdc.gov/mmwr/preview/mmwrhtml/ss4903a1.htm.

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increased probably because of both better dengue have been endemic in the past. In surveillance and true increases of incidence. addition, mosquitoes transmit canine heart- Still, the CDC believes overall incidence is worms.10 underreported, noting that more intensive studies in both Maryland and Connecticut Role of Pesticides in Promoting Health find that there are 7 to 17 unreported cases throughout History for each reported case. • In 1999, the West Nile virus appeared in the Pesticides have proven critical in protecting United States for the first time. Since then, public health: it has killed nearly 800 people and made nearly 20,000 people seriously ill.8 The ill- • In 1966, St. Louis encephalitis (SLE), a ness can be severe, leading to months of mosquito-transmitted form of viral en- suffering and paralysis for some. The CDC cephalitis, broke out in Dallas. In the space estimates that thousands of cases were prob- of a few weeks, mosquitoes infected up to ably never reported. 690 people. Dallas then aerially sprayed • Vectors also promote serious problems re- 475,000 acres with the pesticide malathion. lated to allergies and asthma. According to The mosquito populations and the number one study, “Allergens associated with dust of new SLE cases dropped dramatically. As mites (DM) and cockroaches (CR) are prob- the National Academy of Sciences (NAS) ably important in both onset and worsening committee stated, “The economic and pub- of asthma symptoms for children who are lic health consequences would certainly chronically exposed to these agents. Young have been greater had pesticides not been children spend a great deal of time on or available.”11 near the floor where these allergens are con- • In 1914, when few pesticides were available, centrated in dust. Of children (2–10 years there were 600,000 cases of malaria in the of age) living in metropolitan Washington, United States. By 1995, when pesticides had DC, 60% were found to be sensitive to CR long been a staple of public health control, and 72% were allergic to DM.”9 the number of annual cases had shrunk to • Other mosquito-borne diseases currently 1,167.12 endemic in the United States are Western equine encephalitis, Eastern equine enceph- alitis, St. Louis encephalitis, and LaCrosse 10. P. G. Koehler and F. M. Oi, “Mosquitoes and Other virus. As noted, malaria, yellow fever, and Biting Flies,” Entomology and Nematology Department, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gaines- 8. Centers for Disease Control and Prevention, Divi- ville, FL, 2003, http://edis.ifas.ufl.edu/Ig081. sion of Vector-Borne Infectious Diseases, West Nile Virus 11. Joshua Lederberg, Robert E. Shope, and Stanley C. Web page, http://www.cdc.gov/ncidod/dvbid/westnile/ Oaks Jr., eds., Emerging Infections: Microbial Threats to surv&controlCaseCount06_detailed.htm. Health in the United States (Washington, DC: National 9. Floyd J. Malveau and Sheryl A. Fletcher-Vincent, Academies Press, 1992), 166. “Environmental Factors of Childhood Asthma in Urban 12. Holly Ann Williams, Jacqueline Roberts, S. Patrick Centers,” Environmental Health Perspectives 103, Suppl. Kachur, Ann M. Barber, Lawrence M. Barat, Peter B. 6 (1995): 59. Bloland, Trenton K. Ruebush, and Elizabeth B. Wolfe,

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• In 1995, dengue spread to the Mexico-Texas and vectors of human disease are no longer border. On the Mexican side of the border, available.”14 where pesticides were largely not available, • The NAS report noted, “The potential for approximately 4,700 individuals contracted vector-borne disease to emerge in the United dengue. On the Texas side, where public States still exists … [and] any reduction in health officials applied pesticides (and where vector control efforts is likely to be followed more people have screened homes), there by a resurgence of the vector population. For were only 29 cases. Only seven of the Texas a disease agent that is known or suspected cases occurred among individuals who had to be transmitted by an arthropod vector, no history of travel outside the state.13 efforts to control the vector can be crucial in containing or halting an outbreak.”15 Freedom to Develop and Use Pesticides • The NAS report continued, “The primary Is Key to Disease Control goal at the onset of mosquito-borne disease epidemics is to eliminate the infective mos- Numerous experts in the field of vector quitoes as quickly as possible. Transmis- control fear that government regulation jeop- sion can only be stopped by the effective ardizes public health by reducing the develop- application of a pesticide that kills adult ment of and access to much needed pesticides. mosquitoes.”16 Consider some observations from the scientific community and vector control experts: Issues of Safety: Pesticides versus Alternatives • In 1992, an NAS report warned: “A grow- ing problem in controlling vector-borne dis- Environmental activists suggest that pesti- eases is the diminishing supply of effective cide risks are too high and that there are “more pesticides.” Because all pesticides must go natural” means to control pests. However, the through an onerous registration process at risks of disease are far greater than the risks the U.S. Environmental Protection Agency of pesticides, and alternative controls are not (EPA), “some manufacturers have chosen nearly as effective: not to reregister their products because of the expenses of gathering safety data. Partly • Activists provide no scientifically validated as a result, many effective pesticides over the information documenting deaths or illnesses past 40 years to control agricultural pests related to proper application of pesticides. In contrast, there are millions of documented deaths and illnesses related to vector-borne

“Malaria Surveillance—United States, 1995,” Morbidity and Mortality Weekly Report 48, no. SS-1 (1999): 1–21. 13. Centers for Disease Control and Prevention, “Den- 14. Lederberg, Shope, and Oaks, Emerging Infections, gue Fever at the U.S.-Mexico Border, 1995–1996,” 160. Morbidity and Mortality Weekly Report 45, no. 39 (1996): 841–44, http://www.cdc.gov/mmwr/preview/ 15. Ibid., 160–61 mmwrhtml/00043962.htm. 16. Ibid., 166.

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diseases (see the preceding section for the toes. Wayne J. Crans, research professor of statistics).17 entomology at Rutgers University, notes that • Despite what activists say about the risks as- these items and actors have limited value in sociated with pesticides, the EPA has studied actually controlling the targeted pests, and these chemicals extensively and determined many manufacturers of such products sim- them to be safe under even the most severe ply take advantage of consumers by over- exposure assumptions. selling the effectiveness of these products.21 • Environmentalists claim that pesticides are so toxic they lead to wide-scale kill- Key Expert ing of wildlife, particularly birds. Accord- ingly, they think that pesticides should be Angela Logomasini, Director of Risk and eliminated. Although we should continue to Environmental Policy, Competitive Enterprise study to find ways to reduce the impacts of Institute, [email protected]. pesticides on wildlife, we should not neglect the fact that wildlife is also at considerable Recommended Readings risk from the vector-borne diseases that the pesticides control.18 Logomasini, Angela. 2005. “Pesticides and • It appears that wildlife may be at greater the West Nile Virus: An Examination of risk from vector-borne diseases than from Environmentalist Claims,” Competitive En- pesticides. In fact, the data indicate that the terprise Institute, Washington, DC. http:// number of bird deaths related to West Nile www.cei.org/pdf/3893.pdf. and other diseases greatly outnumber the Reiter, Paul. “Global Warming and Vector- number related to pesticides.19 Borne Disease: Is Warmer Sicker?” Cooler • In addition, environmentalists claimed that Heads Coalition Briefing, Competitive En- pesticide spraying led to a massive lobster terprise Institute, Washington, DC, July 28, die-off on Long Island in 1999. However, 1998. these claims have been shown to be unlikely Tren, Richard, and Roger Bate. “When Politics according to data and studies conducted on Kills: Malaria and the DDT Story.” Compet- the topic.20 itive Enterprise Institute, Washington, DC, • Electronic repellers, citronella plants, bug December 2000, http://www.cei.org/PDFs/ zappers, bats, and purple martins are not malaria.pdf. effective in controlling or repelling mosqui- For more information on malaria, see http:// 17. Angela Logomasini, “Pesticides and the West Nile www.fightingmalaria.org, the Web site of Africa Virus: An Examination of Environmentalist Claims,” Fighting Malaria. Competitive Enterprise Institute, Washington, DC, 2005, http://www.cei.org/pdf/3893.pdf. 18. “West Nile Virus Threatens Backyard Birds,” Sci- ence Daily, May 17, 2007, http://www.sciencedaily.com/ releases/2007/05/070516161231.htm. 21. Wayne Crans, “Products and Promotions That Have Limited Value for Mosquito Control,” Department of 19. Logomasini, “Pesticides and the West Nile Virus.” Entomology, Rutgers University, New Brunswick, NJ, 20. Ibid. http://www.rci.rutgers.edu/~insects/proprom.htm.

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Pesticides in Schools

Angela Logomasini

In recent years, policymakers have been eral pesticide law to require schools to notify confronted with claims that children face dire parents of pesticide use three times a year and public health risks associated with the use of allow them to be placed on a registry for ad- pesticide products in schools. Accordingly, on ditional notification. The House removed the several occasions Congress has considered reg- language from the bill. Although the issue has ulating such uses, and many states have passed not emerged recently in Congress, more than laws governing pesticide use. Although these 20 states have “pesticide in schools” notifica- laws may be well intended, they could actually tion bills, and pressure continues to mount for create more serious health hazards for children federal action. In the Northeast, nearly all states associated with increased risks from pests. have some form of notification. The Massachu- setts law is one of the more extensive. It requires Congressional Action schools and day care facilities to develop Inte- grated Pest Management Plans, with the goal By unanimous consent, the Senate passed of reducing pesticide use. It also regulates what legislation that would have regulated the use of pesticides can be used and requires notification pesticides in schools as an amendment to the of parents and employees. 2001 “No Child Left Behind” education bill. These laws present numerous problems for The legislation would have changed the fed- schools. Perhaps most important, these laws

202-331-1010 • www.cei.org • Competitive Enterprise Institute 187 The Environmental Source create incentives for schools to halt pesticide use products to be thousands of times safer than rather than deal with red tape and bad public actual safe levels.3 relations. Unfortunately, laws that undermine Products must, however, be used according responsible use of pesticides can increase risks to label directions to ensure that misuse does of diseases and other health problems posed not harm applicators or others who may be by pests. In addition, such laws prevent urgent exposed. Fortunately, the data show an impres- responses to problems that demand such re- sive safety record associated with pesticide use sponses. For example, many require schools to in schools. Data compiled by the Association of wait 48 to 72 hours after a notification before Poison Control Centers indicates few problems. controlling a pest problem. But if a school has The association’s report on the topic from 2003 a problem with rats, wasps, or other vectors of includes a sample of about 2.4 million reports disease, the goals of public health and safety from 60 poison centers around the nation and often demand a rapid response. In addition, covers the 50 states plus the District of Colum- these laws have proven expensive for schools bia and Puerto Rico.4 that already face tight budgets. According According to this report, pesticide poison- to testimony offered by the National School ing problems are not school-based problems: Boards Association, such laws would cost one 92 percent of all poisonings occur in the home, Virginia school district $350,000 to $400,000 and only 1.5 percent of all poisonings occur at a year.1 school (it is unclear how many of these poison- ings are related to pesticides and what the de- Pesticide Risks Are Manageable gree of severity is). Of the 41 pesticide-related deaths reported, the report finds that none in- Despite claims to the contrary, pesticides can volved school-age children and most involved be—and usually are—used in a relatively safe intentional poisoning. Only five deaths were manner in schools, minimizing risks associated reported as accidental—two were preschool- with pests without creating significant risks age children and three were adults. from exposure to the products. One reason is In addition, the Journal of the American that public exposure is short term and low level Medical Association assessed data collected and thus unlikely to have any long-term or can- from federal medical surveillance efforts, such cerous effects.2 In addition, federal laws require as data collected from telephone calls to poison control centers.5 Despite the hype presented

1. Statement of Marshall Trammell, chairman, Chester- field County School Board, Chester, Virginia, on behalf of 3. See the policy brief titled “The Food Quality Protec- the National School Boards Associations, in School Pes- tion Act.” ticide Provision to H.R. 1, Hearing Before the Subcom- 4. William A. Watson, Tony L. Litovitz, Wendy Klein- mittee on Department Operations, Oversight, Nutrition, Schwartz, George C. Rodgers, Jessica Youniss, Nicole and Forestry of the Committee on Agriculture House of Reid, Wayne G. Rouse, Rebecca S. Rembert, and Douglas Representatives, 107th Congress, First Session, July 18, Borys, “2003 Annual Report of the American Associa- 2001, Serial No. 107-12, http://commdocs.house.gov/ tion of Poison Control Centers Toxic Exposure Surveil- committees/ag/hag10712.000/hag10712_0f.htm. lance System,” Toxicology 22, no. 95 (2002): 335–404. 2. See the policy brief titled “The True Causes of 5. Walter A. Alarcon, Geoffrey M. Calvert, Jerome Cancer.” M. Blondell, Louise N. Mehler, Jennifer Sievert, Maria

188 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Pesticide Regulation in the press about this report, the findings are conditions, especially in young children.”6 anything but alarming. The data indicate very Cockroaches are indeed a serious problem in few problems associated with pesticide use in schools. or near schools. Over a four-year period, the According to one study published in En- report finds no fatalities and only three serious vironmental Health Perspectives in 1995, cases of pesticide exposure–related illnesses. “Allergens associated with dust mites and We have no details on these three cases, but the cockroaches are probably important in both “high severity” category indicates unfortunate onset and worsening of asthma symptoms for accidents that may have been life threatening or children who are chronically exposed to these required hospitalization. agents.”7 Cockroaches appear to be a large part The rest of the nearly 2,600 cases involved of the problems related to childhood asthma temporary reactions to chemicals that left no and allergies. Researchers reported in the New long-term effects. The vast majority—89 percent England Journal of Medicine that 36 percent of the cases—were categorized as “low severity,” of children in a sample of 476 suffered from involving such things as skin irritation, dizziness, cockroach-related allergies.8 Children who headaches, or possible emotional stress associ- suffered from this type of allergy missed more ated with exposure to chemicals. Given that the days of school, had more unscheduled hospital study measures four years of incidents among and doctors’ office visits, and lost more sleep about 50 million school-age children, these data than children suffering from other allergies. indicate an incredibly impressive safety record, Other reports have found that early exposure despite the spin to the contrary. to cockroach allergens may contribute to the development of asthma for some children. Risks Associated with The Centers for Disease Control and Pre- Uncontrolled Pest Problems vention (CDC) has reported that 12 percent of children in 2004—9 million children—had at In contrast to the relative safety of pesticide some point in their lives been diagnosed with use in schools, problems related to pests remain asthma, and that year four million had suffered significant. Consider just some of the risks.

6. Zia Siddiqi, “Don’t Let a Pest Problem Be Your Big- Cockroaches gest News,” School Planning and Management 43, no. 5 According to School Planning and Manage- (2004): 42–49. ment, cockroaches “often infest schools” and 7. Floyd J. Malveaux and Sheryl A. Fletcher-Vincent, they can “carry pathogens that can cause pneu- “Environmental Risk Factors of Childhood Asthma in monia, diarrhea, and food poisoning. Their Urban Centers,” Environmental Health Perspectives 103, suppl. 6 (1995): 59–62. droppings can inflame allergic or asthmatic 8. David Rosenstreich, Peyton Eggleston, Meyer Kat- tan, Dean Baker, Raymond G. Slavin, Peter Gergen, Propeck, Dorothy S. Tibbetts, Alan Becker, Michelle Herman Mitchell, Kathleen McNiff-Mortimer, Henry Lackovic, Shannon B. Soileau, Rupali Das, John Beck- Lynn, Dennis Ownby, and Floyd Malveaux, “The Role of man, Dorilee P. Male, Catherine L. Thomsen, and Mar- Cockroach Allergy and Exposure to Cockroach Allergen tha Stanbury, “Acute Illnesses Associated with Pesticide in Causing Morbidity Among Inner-City Children with Exposure at Schools,” Journal of the American Medical Asthma,” New England Journal of Medicine 336, no. 19 Association 294, no. 4 (2005): 455–65. (1997): 1356–63.

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from asthma attacks. Poor children (14 percent) It is true that not all these fire ant illnesses suffer more often from asthma than children occurred in schools, but the data indicate the from other households.9 scope of that one pest problem, which also af- Prudent use of chemicals—not reduced pes- fects children at school. Texas’s agricultural ex- ticide use—can be a big part of the solution. tension service notes, “Red imported fire ants A study last year in the Journal of Allergies can be a serious problem for teachers and chil- and Clinical Immunology showed that use of dren cultivating schoolyard gardens in Texas.”13 chemical baits and regular cleaning can reduce indoor cockroach allergens to levels below that Rats and Mice which causes allergies and reduce the number Students are also at risk from rats, which not of trapped cockroaches by 96 percent.10 only carry disease but also can pose fire hazards by chewing electrical lines. Unfortunately, rat Fire Ants infestations are not as uncommon as one might Consider that illnesses caused by fire ants think. In 2004, the city of Chicago had to shut in just one state dwarf the number of health down 13 cafeterias and begin an intensive $4 problems associated with pesticides in schools. million effort to control rats and mice at 600 The Journal of the South Carolina Medical As- schools because of rat infestations.14 sociation notes, “In 1998, there were an esti- mated 660,000 cases of fire ant stings in South Various Other Problems Carolina, of which approximately 33,000 Other problems arise from poison ivy, dis- sought medical treatment for an estimated cost ease-carrying mosquitoes breeding on or near of $2.4 million.”11 Hence, South Carolina’s fire school grounds, dust mites, food-borne illness, ants caused more than 10 times the illnesses in molds, bee stings, and other sources—all of one year than did pesticide use in every school which can be reduced with the use of pesticides in the nation over four years, as reported in the and disinfectants. Even the common fly can be Journal of the American Medical Association a problem. According to an article in Planning article discussed earlier.12 and School Management, “because of their natural attraction to decaying material, flies 9. B. Bloom and A. N. Dey, National Center for Health are among the filthiest insects around, carrying Statistics, “Summary Health Statistics for U.S. Children: more than 100 known pathogens. They slough National Health Interview, 2004,” Vital Health Statistics off bacteria every time they land on a desk or a 10, no. 227 (February 2006), http://www.cdc.gov/nchs/ data/series/sr_10/sr10_227.pdf. cafeteria plate, so prevention is a serious health issue.”15 10. Samuel J. Arbes, “Abatement of Cockroach Allergen (Bla g 1) in Low-Income, Urban Housing: A Randomized Controlled Trial,” Journal of Allergies and Clinical Im- munology 112, no. 2 (2003): 339–45. 13. Nathan Riggs, “Managing Fire Ants in Texas School- 11. Samuel T. Caldwell, Stanley H. Schuman, and Wil- yard and Butterfly Gardens,” Texas Cooperative Exten- liam M. Simpson, “Fire Ants: A Continuing Community sion, Bexar County, 2002, http://fireant.tamu.edu/mate- Health Threat in South Carolina,” Journal of the South rials/factsheets_pubs/pdf/FAPFS016.2002rev.pdf. Carolina Medical Association 95 (1999): 231–35. 14. Siddiqi, “Don’t Let a Pest Problem Be Your Biggest 12. Alarcon, et. al., “Acute Illnesses Associated with Pes- News.” ticide Exposure at Schools.” 15. Ibid.

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Conclusion Key Expert

Children around the nation do indeed face Angela Logomasini, Director of Risk and some serious public health risks. Schools should Environmental Policy Competitive Enterprise implement programs that apply a variety of Institute, [email protected]. means to control these problems—an approach called integrated pest management. The pru- Recommended Reading dent use of public health pesticides is often a key tool in any such program. Unfortunately, Logomasini, Angela. 2005. “Pesticides and media hype and resulting legislation about the the West Nile Virus: An Examination of impact of pesticides that does not consider the Environmentalist Claims,” Competitive En- risks they help control promises only to under- terprise Institute, Washington, DC. http:// mine public health in the nation’s schools. www.cei.org/pdf/3893.pdf.

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Safe Drinking Water Act

Safe Drinking Water Act Overview

Angela Logomasini

Since passage of the Safe Drinking Water Act express preferences about how the community (SDWA) in 1974, localities struggle to meet federal wants to expend limited resources. mandates that do not make sense in all drinking water systems. The U.S. Environmental Protec- Statutory Scheme tion Agency (EPA) has based many of its rules on weak science, leading to needlessly onerous The SDWA regulates about 54,000 exist- federal standards. As a result, localities are forced ing public and private “public water systems.” to spend limited resources on misguided federal These systems provide piped drinking water for priorities. Small systems are particularly hard hit, 60 or more days a year to at least 25 individu- paying for standards that provide no verifiable als or to at least 15 service connections.1 Ap- benefits while diverting resources from legitimate proximately 15 million Americans draw water needs (e.g., infrastructure upgrades and repairs, from unregulated “nonpublic water systems,” expansion of the water supply system). Unfortu- such as private wells.2 nately, 1996 amendments to the law failed to fix these fundamental flaws. Congress should focus 1. U.S. Environmental Protection Agency, Drinking Water Infrastructure Needs Survey: Third Report to on ways to give states and localities more power Congress (Washington, DC: EPA, 2005), 1, http://www. in setting priorities. After all, each locality has a epa.gov/safewater/needssurvey. better grasp of its particular needs and can better 2. Ibid.

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The EPA regulates more than 80 drink- Localities and the private sector had developed ing water contaminants that might be found and used sand and carbon filtration; advanced in the water of public water systems. For water purification technologies (such as coagu- each regulated contaminant, the EPA usually lation, rapid filtration, and chlorination); and specifies a maximum contaminant level goal copper sulfate additives (to improve taste and (MCLG), which represents the level of a con- odor). taminant that the EPA ideally wants to allow Deaths related to waterborne illnesses in in drinking water. The EPA uses the MCLG the United States dropped from 75 to 100 per as a guide in setting the enforceable standard, 100,000 people at the turn of the 20th century the maximum contaminant level (MCL). The to fewer than 0.1 deaths per 100,000 annu- MCL represents the amount of that contami- ally by 1950, a result of local governments and nant that systems may legally allow in tap industry having introduced chlorination in the water. For example, the EPA allows systems 1880s.4 In the late 1960s and early 1970s, po- to provide only drinking water that contains litical pressure began to mount for the passage no more than 0.005 milligrams of benzene per of enforceable federal standards. The federal liter of water. When the EPA determines that government and others issued a number of it is technically or economically infeasible to studies indicating that drinking water quality monitor for a contaminant, it is directed by was less than perfect. While Washington was Congress to promulgate mandatory “treat- debating the issue in 1973, a Gallup public ment techniques,” such as mandatory installa- opinion poll sponsored by the American Water tion of filtration devices. Works Association (AWWA) indicated that 70 percent of those polled were happy with the History quality of their drinking water.5 Some contend that public apathy began to change after the Many fear that returning drinking water League of Women Voters, Ralph Nader groups, regulatory authority to the states will create and even the AWWA worked to raise public more waterborne-related illnesses. However, “awareness” (i.e., fears).6 Despite the hype that history shows that states and localities were led up to the passage of the SDWA in 1974, doing a commendable job long before federal it appears that drinking water was not neces- involvement began. Local government and sarily any worse than it had been in the past. private industry created the drinking water Data from the EPA and the Centers for Disease supply system that we have today; the federal Control and Prevention indicate that, overall, government did not get involved until well waterborne illnesses had most likely remained after the infrastructure and treatment technol- ogy had produced enormous health benefits.3 Long before the adoption of the SDWA, locali- 4. Ibid., 177. ties and private industry made much progress. 5. “Water Quality and Public Opinion,” Journal of the American Water Works Association 65, no. 8 (1973): 3. Michael J. LaNier, “Historical Development of Mu- 513–19. nicipal Water Systems in the United States, 1876–1976,” 6. Peter N. Kyros, “Legislative History of the Safe Journal of the American Water Works Association 68, Drinking Water Act,” Journal of the American Water no. 4 (1976): 173–80. Works Association 66, no. 10 (1974): 566–69.

196 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Safe Drinking Water Act level since 1920.7 And in some categories, seri- ever, recent estimates from the EPA indicate ous outbreaks of waterborne illnesses such as that the costs are likely much higher. typhoid fever declined. • Furthermore, the EPA estimates additional In recent history, the largest and most seri- funds are necessary to upgrade infrastruc- ous outbreaks (in Milwaukee in 1993 and in ture to meet drinking water needs, both for Las Vegas in 1994) arose within large systems basic infrastructure and to meet regulatory that regularly meet standards, indicating that costs. According to the agency, water supply federal regulation is inadequate for predicting systems will need a total of $278.8 billion and preventing new challenges. Unfortunately, for infrastructure upgrades over the next 20 such events occur without warning. But his- years.10 This estimate—which is 60 percent tory indicates that drinking water suppliers higher than EPA estimates in two earlier have always been better than federal regula- reports—indicates that infrastructure costs tors at dealing with and eventually solving are growing faster than anticipated.11 such problems. • EPA notes that $45.1 billion of the 20-year costs may be “directly attributable” to regu- Welfare Costs of Uniform Federal latory mandates.12 Of that amount, water Standards systems need $35.2 billion immediately to meet existing standards, and they will need Giving states and localities greater authority an additional $9.9 billion to cover the costs in setting drinking water standards would allow of recently promulgated regulations.13 them to spend their limited resources in a way • According to a 1999 report by the U.S. that maximizes public health and well-being. General Accounting Office (now the Gov- Indeed, the circumstances facing the 200,000 ernment Accountability Office), compliance public water systems around the nation vary tre- with current regulations costs about $20 a mendously. The U.S. Congressional Budget Of- year per household (about $145 a year for fice (CBO) notes that a system that allows locali- systems serving 25 to 100 people).14 How- ties flexibility would reduce costs.8 Currently, the ever, costs have increased substantially since financial resources involved are considerable: this report came out, and they will continue to multiply many times over as new regula- • According to the CBO, the overall annual tions come on line. cost to comply with the SDWA ranges from $1.4 billion to more than $4 billion.9 How- 10. EPA, Drinking Water Infrastructure Needs Survey, 15.

7. Gunther F. Craun, “Waterborne Disease Outbreaks 11. Ibid., 5. in the United States of America: Causes and Prevention,” 12. Ibid., 29. World Health Statistics Quarterly 45, no. 2–3 (1992) 13. Ibid. These estimates cover the disinfection byprod- 192–95. ucts phase I rule, the radon rule, the arsenic rule, and 8. CBO, Federalism and Environmental Protection: others. Case Studies for Drinking Water and Ground-Level 14. U.S. General Accounting Office, Safe Drinking Wa- Ozone (Washington, DC: CBO, 1997), 18, http://www. ter Act: Progress and Future Challenges in Implementing cbo.gov/ftpdoc.cfm?index=250&type=0&sequence=0. the 1996 Amendments, GAO.RCED-99-31 (Washington, 9. Ibid., 17. DC: U.S. General Accounting Office, January 1999), 7.

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Drinking Water and Cancer the possible exception of asbestos in a few water supplies, we know of no established In addition to addressing acute drinking wa- human carcinogen that is ever present in ter illnesses, the SDWA was designed to reduce sufficient quantities in large U.S. water sup- cancer risks. But are cancer risks really signifi- plies to account for any material percentage cant, and can EPA actually eliminate them?15 of the total risk of cancer.”19 Consider some facts: The Worst Is Yet to Come • Using very conservative estimates, the EPA estimated in Unfinished Business that drink- Many of the contaminants regulated in the ing water contamination causes between past—most of which were industrial chemicals 400 and 1,000 annual cancer cases.16 How- that accidentally entered water supplies—did not ever, it is important to note that the EPA appear in most water supplies. Hence, although numbers are largely based on cancer risks these contaminants carry with them expensive as determined by rodent studies that may be monitoring mandates, they did not all trigger the seriously flawed. need to invest in expensive infrastructure. But • Using the EPA’s estimates, which likely several upcoming regulations will soon demand overstate the risks, scientist Michael Gough astronomical investments. Many of these rules converted those estimates into actual can- address naturally occurring contaminants,20 cer deaths, because not all cancers result in which are more prevalent in drinking water death, and came out with 240 to 591 pos- systems nationwide and will require very expen- sible annual drinking water deaths.17 sive efforts to eliminate. To add insult to injury, • Using the U.S. Food and Drug Administra- localities may reap no benefits from these rules tion’s (FDA) process for assessing risks, because the EPA science underlying them is se- Gough found that annual cancer deaths riously flawed. Three such cases are detailed in caused by drinking water contamination these briefs: the disinfection byproduct rule, the might range somewhere between 56 and 407 radon rule, and the arsenic rule. a year.18 These estimates indicate that cancer risks from drinking water are extremely small Legislative Solutions and difficult to address through regulation. • In their landmark study on cancer, scientists The best solution would be to return full Richard Doll and Richard Peto noted “with authority for standard setting to the states and to allow states to work with localities to meet 15. See also “Chemical Risk” in The Environmental Source. 19. Richard Doll and Richard Peto, “The Causes of Can- 16. U.S. Environmental Protection Agency, Unfinished cer: Quantitative Estimates of Avoidable Risks of Cancer Business: A Comparative Assessment of Environmental in the United States Today,” Journal of the National Can- Problems—Overview Report (Washington, DC: EPA, cer Institute 66, no. 6 (June 1981): 1249. February 1987), 30. 20. These contaminants are largely byproducts of na- 17. Michael Gough, “How Much Cancer Can EPA ture, such as radon, which is radiation that results from Regulate Anyway?” Risk Analysis 10, no. 1 (1990): 5. the decomposition of radium and uranium present in soil 18. Ibid. and rock.

198 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Safe Drinking Water Act their specific needs. However, if the federal the law. If large questions remain over science government remains involved, there are ways and standards are likely to impose consider- to help empower localities within a federal able costs, Congress should preempt the overly framework. Congress should engage in greater stringent standard. Congress also could amend congressional review of safe drinking water the drinking water law to grant states discre- rules to ensure that the EPA has indeed used tion on how they regulate naturally occurring the “best available science,” as demanded under contaminants, such as radon and arsenic.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 199

Arsenic

Angela Logomasini

The debate over whether to tighten the inorganic forms, but the U.S. Environmental drinking water standard for arsenic highlighted Protection Agency (EPA) regulations focus on a key problem with federal drinking water inorganic arsenic because it is more prevalent regulation: the inappropriateness of the federal in drinking water. Traditionally, many critics government’s setting local priorities. At any have contended that inorganic arsenic was time, local governments and utilities can moni- the principal danger to public health. But the tor and control any contaminant they choose, EPA Science Advisory Board (SAB) pointed and they know better where to devote their out that the research is actually far less clear. scarce resources. Nonetheless, as the case of Recent research indicates that at least some arsenic demonstrates, the Safe Drinking Water forms of organic arsenic are carcinogenic, Act (SDWA) allows federal regulators to impose and some may be more toxic than inorganic priorities even when they promise a net loss to forms.1 public health and well-being.

Background 1. SAB, Arsenic Proposed Drinking Water Regulation: A Science Advisory Board Review of Certain Elements of Arsenic is an element that is a natural the Proposal, EPA-SAB-DWC-01-001 (Washington, DC: part of Earth’s crust. It exists in organic and EPA, December 2000), 10–11.

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Legislative History Domenici (R-NM) responded by introducing S. 223, which would void the new rule. In March The drinking water standard for most regu- 2001, the Bush administration announced that lated substances is specified as a “maximum it would delay the effective date of the standard contaminant level,” or MCL. The MCL sets for 60 days to review the rule and the underly- the maximum amount of a substance that the ing science. In April 2001, the administration EPA will allow in tap water. Between 1975 and issued a notice announcing that it would delay 2002, the EPA used an MCL of 50 parts per the final rule until 2002, after further scientific billion for arsenic, which meant that it allowed review and a cost analysis were complete.4 The no more than 50 parts per billion of arsenic delay of the rule proved controversial, as the per liter of tap water. This standard was set as Democratic National Committee and environ- an “interim standard” after the passage of the mental activists suggested that the delay would SDWA. The 1986 revisions to the law mandated threaten public health. The administration that the agency set a final standard by 1989. completed its review and issued the Clinton After the agency missed the legislative dead- standard in the fall of 2001. line and a court-ordered deadline, amendments to the SDWA in 1996 extended the deadlines for Welfare Losses the rule. The amendments required the agency to propose a standard by January 2000 and The debate on arsenic largely focused on the to finalize the rule by January 2001. In June public health consequences of arsenic in drink- 2000—five months later than legislatively man- ing water, but it failed to consider the public dated—the agency proposed a new standard of health impacts of the rule itself. According to a five parts per billion.2 Because EPA proposed U.S. Congressional Budget Office study, federal tne rule late, lawmakers, water providers, and drinking water regulations can impose “welfare local officials expressed concern that there was losses”—a phrase that highlights the possibility not enough time to consider fully the proposed of shortsighted federal standards reducing the rule and its implications. Congress responded overall public welfare.5 by including language in a fiscal year 2000 ap- With the arsenic rule, the welfare losses will propriations bill that extended the deadline for likely be high, because the costs fall dispro- six additional months. portionately on low-income rural Americans, But in the waning days of the Clinton ad- mainly in the Southwest. In fact, the SAB high- ministration, the EPA published a final standard lights these very points, noting that an overly of 10 parts per billion in the Federal Register.3 expensive arsenic rule “might force tradeoffs The standard would have been effective starting that do not maximize the gains to public health.” March 23, 2001, although water systems would For example, “allocation of income to arsenic have had until 2006 to comply. Senator Pete 4. Federal Register 66, no. 78 (April 23, 2001): 20580–84. 2. Federal Register 65, no. 121 (June 22, 2000): 5. U.S. Congressional Budget Office, Federalism and 38888–983. Environmental Protection: Case Studies for Drinking 3. Federal Register 66, no. 14 (January 22, 2001): Water and Ground-Level Ozone (Washington, DC: U.S. 6976–7066. Congressional Budget Office, November 1997).

202 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Safe Drinking Water Act

might preclude addressing nutritional factors” Problems with the Underlying Science because the standard could make it difficult for low-income families to put food on the table. Because tightening the standard would force In addition, the SAB noted that high treat- people to make serious sacrifices, one might ment costs could lead communities to discon- assume that, before issuing its rule, the EPA nect systems and access water from potentially had clear evidence indicating that the current more dangerous sources, such as from poorly standard is not safe. Yet even after the Bush designed wells or untreated surface water.6 The administration reviewed the science, it is still statistics on how much the law will cost reveal far from clear that the rule would provide any that welfare losses are likely to be high: benefit. According to the National Research Council, “No human studies of sufficient sta- • According to the EPA, per household costs tistical power or scope have examined whether of this rule alone could add $326 annually consumption of arsenic in drinking water at the to water bills in systems that serve fewer current MCL [the standard before the Clinton than 100 connections and up to $162 in sys- administration acted] results in the incidence of tems that serve between 100 and 100,000 cancer or no cancer effects.”11 residents. Even residents in larger systems Most of what scientists do know relates to that serve up to a million residents might a few studies that reveal one thing: relatively see water bills increase by $20 per year.7 high-level exposure to arsenic for long periods • According to conservative EPA estimates, of time can cause cancer and other ailments. the total annual costs of the rule could The EPA based its risk assessment on studies range from $180 million to $205 million.8 of Taiwanese populations in 42 villages who Water suppliers and independent academic were exposed to relatively high levels of arsenic. experts estimate the costs would be far From these studies, the EPA has extrapolated higher—$604 million over and above any risks of low-level arsenic exposures in drinking estimated benefits each year, with an initial water to the U.S. population. But the SAB and investment cost of $5 billion.9 Independent the National Research Council have pointed out researchers have found that the costs would serious flaws. Among them are the following: exceed benefits by $600 million annually.10 • Although the Taiwanese studies found an 6. Ibid., 38. association between high exposures and 7. Federal Register 65, no. 14 (January 22, 2001): cancer, these data do not necessarily sup- 7011. port any link between low-level exposures 12 8. Federal Register 65, no. 14 (January 22, 2001): and cancer in the United States. 7010. 9. “Environmental Group Asks Court to Force OMB to Issue Arsenic Proposal,” Daily Environment Report 11. National Research Council, Arsenic in Drinking Wa- no. 92 (May 11, 2000): A1. ter (Washington, DC: National Academies Press, 1999), 10. Robert S. Raucher, Public Interest Comment on 7, http://www.nap.edu/catalog.php?record_id=6444. the U.S. Environmental Protection Agency’s Proposed 12. SAB, Review of the Draft Criteria Document on National Primary Drinking Water Regulations: Arsenic Inorganic Arsenic, EPA-SAB-DWC-94-004 (Washington, Rule (Arlington, VA: Mercatus Center, 2000). DC: U.S. EPA, November 1993).

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• The EPA failed to consider poor nutrition • However, the agency fails to consider loss among the Taiwanese, which very likely of life because of the burdens placed on the exaggerates agency risk estimates. Dietary public from the standard. Considering such deficiencies, arsenic ingestion from other factors, a study by the American Enterprise food sources, and heavy smoking may in- Institute and the Brookings Institution esti- crease the toxicity of arsenic as well as the mates that the rule could lead to a net loss incidence of lung and bladder cancers.13 of 10 lives per year.17 • Similarly, the SAB noted that the EPA did • The SAB notes that any substantial benefits not adequately consider studies of U.S. of tightening the arsenic standard would oc- populations in Utah exposed over decades cur in communities that have arsenic levels to levels of up to 200 parts per billion—20 approaching the current 50 parts per billion times the Clinton standard—that failed to standard—mostly rural southwestern areas find bladder cancers.14 of the country. However, the SAB report • The SAB concluded that the EPA approach highlights the fact that any benefits may be likely biases “U.S. risk estimates toward overridden by the costs to these communi- overestimates. … The magnitude of this bias ties of meeting the standard. In fact, such is likely to be large.”15 costs may lead to a net reduction in public health.18 Benefits or Net Public Health Loss? Arsenic Rule Implementation Ironically, even if the EPA’s risk assessment were accurate, the benefits of its rule are so After the EPA finalized the arsenic rule in small that its costs likely will lead to a net re- late 2001, Congress directed it to review its duction in public health and quality of life. affordability standards, develop policies to ad- dress “undue economic hardships” on small • According to EPA estimates, a standard set communities, and report to Congress on these at 10 parts per billion will eliminate 23 to 33 issues in March 2002.19 In March 2002, the cancer deaths each year (lung and bladder cancers combined).16 The agency speculates 17. Jason Burnett and Robert W. Hahn, EPA’s Arsenic that there would be other benefits, but it Rule: The Benefits of the Standard Do Not Justify the cannot quantify them because it lacks solid Costs (Washington, DC: American Enterprise Institute- evidence for such claims. Brookings Joint Center for Regulatory Studies, 2001). 18. SAB, Arsenic Proposed Drinking Water Regulation, 13. SAB, Arsenic Proposed Drinking Water Regulation, 37–39. 26, 30–31. The SAB notes substantial deficiencies in se- 19. 107th Congress, House of Representatives, Making lenium, methyl donors, zinc, and other substances as key Appropriations for the Departments of Veterans Affairs confounding factors. and Housing and Urban Development, and for Sundry 14. Ibid., 30. Independent Agencies, Boards, Commissions, Corpora- tions, and Offices for the Fiscal Year Ending September 15. Ibid. 30, 2002, and for Other Purposes, Conference Report 16. Federal Register 65, no. 14 (January 22, 2001): 107-272, November 2001, 175, http://frwebgate.ac- 7011. The EPA estimates that benefits will come to $140 cess.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_ to $198 per year and $6.1 million per life saved. reports&docid=f:hr272.107.pdf.

204 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Safe Drinking Water Act

EPA produced its report, but the report simply communities to allocate resources according offered calculations showing how the EPA ar- to their greatest needs. However, no legislation rived at its affordability standards.20 has passed to address affordability issues. The EPA then requested that the SAB and In March 2006, EPA proposed more reason- the National Drinking Water Advisory Council able affordability criteria, but these will not ap- review the affordability issue. The SAB released ply to existing regulations, such as arsenic, but a report suggesting that the EPA find a better instead to future rules.24 EPA has yet to finalize device than median income to decide afford- this proposal.25 ability—one that better reflected the finances of lower-income households. It also recommended Legal Challenge that the EPA consider lowering the percentage of income that it believed acceptable as an an- There have been attempts to challenge the nual expense for a drinking water regulation rule in the courts. Most interesting was the at- from 2.5 percent to a significantly lower, more tempt to cast the SDWA as unconstitutional. reasonable level.21 The council recommended In 2003, the state of Nebraska challenged the that the EPA reduce acceptable drinking water arsenic rule as a violation of the Commerce costs to 1 percent of the median income.22 Clause, which limits Congress to regulation The EPA has not implemented any such sug- only in cases involving interstate commerce.26 gestions. It has continued to reject variance and The state essentially argued that because most exemption requests on the basis of its misguided drinking water systems do not cross state lines, affordability criteria.23 As a result, Representa- the entire SDWA was unconstitutional because tive Butch Otter (R-ID) and eight cosponsors Congress has no authority to regulate intrastate introduced H.R. 4717 in 2004 and H.R. 1315 commerce. The court held that the EPA showed in 2005, which would allow small, nonprofit that there is enough interstate commerce of public water systems (serving 10,000 homes or drinking water to justify regulation. However, it fewer) to exempt themselves from the drinking left open the possibility that individual systems water rules related to naturally occurring sub- involved exclusively in intrastate activity might stances such as arsenic and radon. The goal was be able to successfully challenge the rule. to help alleviate excessive burdens and allow Key Expert 20. EPA, Report to Congress: Small Systems Arsenic Implementation Issues (Washington, DC: EPA, March 2002). Angela Logomasini, Director of Risk and Environmental Policy, Competitive Enterprise 21. SAB, Affordability for Small Drinking Water Sys- tems, (Washington, DC: EPA, December 2002), 4. Institute, [email protected] 22. National Drinking Water Advisory Council, Recom- mendation of the National Drinking Water Advisory Council to the EPA on Its National Small Systems Af- 24. Federal Register 71, no. 41, (March 4, 2006): fordability Criteria (Washington, DC: EPA, July 2003), 10671-10685. 87, http://www.epa.gov/safewater/ndwac/pdfs/report_ 25. For more information see EPA’s website http://epa. ndwac_affordabilitywg_final_.08-08-03.pdf. gov/OGWDW/smallsys/affordability.html. 23. Personal conversation with Mike Keegan of the Na- 26. State of Nebraska et al. v. Environmental Protection tional Rural Water Association on July 27, 2004. Agency, 331 F.3d 995, 998 (DC Cir., 2003).

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Recommended Readings Contaminants Monitoring. Arlington VA: Mercatus Center, http://www.mercatus. Burnett, Jason, and Robert W. Hahn. 2001. EPA’s org. Arsenic Rule: The Benefits of the Standard Logomasini, Angela. 2001. “Arsenic and Old Do Not Justify the Costs. Washington, DC: Politics.” OnPoint 80, Competitive Enter- American Enterprise Institute–Brookings prise Institute, Washington, DC, http://www. Joint Center for Regulatory Studies. cei.org/gencon/004,02034.cfm. Raucher, Dudley, Susan. 2001. Public Interest Com- Robert S. 2000. Public Interest Comment on ment on the U.S. Environmental Protection the U.S. Environmental Protection Agency’s Agency Proposed National Primary Drink- Proposed National Primary Drinking Water ing Water Regulations: Arsenic and Clari- Regulations: Arsenic Rule. Arlington, VA: fications to Compliance and New Source Mercatus Center.

206 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Chlorine and the Disinfection Byproducts Rule

Angela Logomasini

For many years, the U.S. Environmental chlorination to keep water supplies clean, the Protection Agency (EPA) has attempted to public may suffer adverse health impacts. develop standards to regulate disinfection by- products, a group of microbial contaminants Regulatory Status that result when public water is purified with chlorine. The EPA is working on congressio- The EPA proposed a rule in 1994,2 but Con- nally mandated deadlines to issue a series of gress extended the deadline until November 1998. rules to regulate these contaminants. According The EPA issued stage 1 of the rule on schedule. to the General Accounting Office (GAO), now The law required the EPA to finalize stage 2 of the the Government Accountability Office, the first rule by May 2002, but it did not actually finalize of two stages of these rules will cost $700 mil- the rule until January 2006. For each regulated lion a year.1 Because the science used to justify contaminant under the Safe Drinking Water Act these rules is very weak, it is likely that the pub- (SDWA), the EPA usually specifies a maximum lic will pay billions in exchange for little or no contaminant level goal (MCLG), which repre- benefit. Because the rules cause reduced use of sents the level of a contaminant that the EPA

1. GAO, Safe Drinking Water Act: Progress and Future Challenges in Implementing the 1996 Amendments, GAO. 2. Federal Register 59, no. 145 (July 29, 1994): RCED-99-31, 6 (Washington, DC: GAO, January 1999). 38668–829.

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ideally wants to allow in drinking water.3 The On the basis of those findings, the EPA re- EPA uses the MCLG as a guide in setting the en- leased a notice in the Federal Register (called a forceable standard, the maximum contaminant Notice of Data Availability, or NODA) stating level (MCL). The MCL represents the amount of that it was considering revisions to the 1994 a contaminant that systems may legally allow in rule because it “concluded that a nonlinear ap- tap water. In 1998, controversy emerged when proach is more appropriate for extrapolating the EPA issued its first set of standards for dis- low-dose cancer risk rather than the low-dose infection byproducts. The EPA set a zero MCLG linear approach.”7 EPA then requested com- and a 0.08 MCL for a group of four disinfec- ments. Setting a goal above zero would have tion byproducts called “total trihalomethanes,” been the first time the agency had set a MCLG of which chloroform is one.4 A federal court re- above zero for a substance it considered carci- versed the MCLG for chloroform. nogenic and would have enabled the agency to ease the stringency of the standard. The Science Nine months later, the EPA caved in to po- litical pressures and reversed its position. It set After the passage of the 1996 SDWA amend- a zero MCLG for chloroform in the final rule.8 ments, the EPA set up an advisory committee The EPA had failed to use the “best available on the rule and cosponsored a study with the science,” which the 1996 law demands that International Life Sciences Institute Expert Panel. it observe, and a federal court subsequently Consisting of 10 experts from government and vacated the MCLG (but not the final MCL), industry, this panel concluded that cancer related calling the MCLG “arbitrary and capricious.”9 to chloroform “is expected to involve a dose re- The EPA subsequently removed the zero goal.10 sponse relationship, which is nonlinear and prob- Although the EPA has not promulgated a new ably exhibits an exposure threshold.”5 Hence, the MCLG, the enforceable MCL that it set remains best science indicates that under a given level, in effect. chloroform poses zero risk, which would enable The EPA’s flip-flop is difficult to explain on the agency to set a less stringent standard than scientific grounds. The final regulations and the if the substance posed a risk at any level (as is NODA are full of disclaimers, noting that there assumed under the linear risk model).6

7. Federal Register 63, no. 61 (March 31, 1998): 15685. 3. An MCLG is an unenforceable standard that is used The regulations for chloroform would not be affected by as a guide for setting the enforceable standard, the MCL. a zero MCLG because the enforceable MCL would not For more information, see the policy brief titled “Safe have changed. Also, the standard does not simply regulate Drinking Water Act Overview.” chloroform. It regulates the level of total trihalomethanes; 4. Under this standard, water providers must ensure chloroform is one of four such contaminants. that tap water contains no more than 0.08 mg/L of the 8. Federal Register 63, no. 241 (December 16, 1998): combined concentration of these substances. 69390–476. 5. Federal Register 63, no. 61 (March 31, 1998): 9. Chlorine Chemistry Council v. Environmental Pro- 15685. tection Agency, 98-1627, 99-1023, and 99-1056 (DC 6. For more information on threshold models versus Cir., March 31, 2000). linear models, see the policy brief titled “The True Source 10. Federal Register 65, no. 104 (May 30, 2000): of Cancer in the Environmental Source. 34404–05.

208 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Safe Drinking Water Act is little hard evidence that disinfectant byprod- EPA’s own Science Advisory Board (SAB) re- ucts are even carcinogenic. ported in 1993 that the EPA lacked the hard data necessary to justify passing a disinfection • In the final rule, the EPA notes, “a causal byproduct regulation. The SAB warned, “A key relationship between exposure to chlori- concern is the possibility that chlorination … nated surface water and cancer has not may be replaced by processes with poorly un- yet been demonstrated. However, several derstood health impacts, both chemically and studies have suggested a weak association microbiologically.”15 in various subgroups … these studies found Failure to properly disinfect water has al- a weak association for bladder cancer, al- ready resulted in serious public health impacts. though findings were not consistent within In 1991, the government in Peru reduced chlo- and among studies.”11 rine levels in their water supply because of fears • In the NODA, the EPA noted that studies it about cancer risks resulting from EPA actions used for the 1994 rule12 generally showed to regulate disinfection byproducts.16 Inad- results that had weak statistical significance equate chlorination in Peru has been cited in and were not always consistent. For exam- scientific literature17 as a key factor in a cholera ple, some reviewers believe that two studies epidemic that started in Peru and spread then showed statistically significant effects only throughout the hemisphere, leading to 533,000 for male smokers, while two other studies cases of cholera and 4,700 deaths. showed higher effects for nonsmokers. One study showed a significant association with Key Experts exposure to chlorinated surface water but with exposure to chlorinated groundwater, Angela Logomasini, Director of Risk and while others showed the opposite result.13 Environmental Policy, Competitive Enterprise Institute, [email protected]. Setting such standards without scientific Bonner Cohen, National Center for Public consensus or any verified alternative to chlo- Policy Research, [email protected]. rination is very risky. Disinfection byproduct regulations could curtail the use of disinfec- tants that are vital to the protection of con- By-product Research,” Water Policy Report, May 12, sumers against microbial contamination, a 1993, 30. cause of approximately 50,000 deaths daily 15. SAB, Drinking Water Committee Commentary on worldwide.14 Underscoring that concern, the Negotiated Regulation for Disinfection Byproducts, EPA-SAV-DWC-COM-94-002 (Washington, DC: EPA, November 8, 1993), 3. 11. Federal Register 63, no. 241 (December 16, 1998): 69407. 16. Michael Fumento, “Will the U.S. Repeat Peru’s Deadly Chlorine Folly?,” www.fumento.com, 1996, 12. Federal Register 63, no. 61 (March 31, 1998): http://www.fumento.com/bomis34.html. 15679–80. 17. For example, see David L. Swerdlow et al., “Wa- 13. Federal Register 63, no. 241 (December 16, 1998): terborne Transmission of Epidemic Cholera in Trujillo, 69408. Peru: Lessons for a Continent at Risk, The Lancet, July 4, 14. “As Control Efforts Reach Turning Point, Wa- 1992; and “Of Cabbages and Chlorine: Causes of Chol- ter Suppliers Press Congress to Boost Disinfection era Epidemic in Peru, The Lancet, July 4, 1992.

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Recommended Readings Enrique Ghersi and Hector Naupari, “Dirty Water: Chlera in Peru,” in Environmental Michelle Malkin and Michael Fumento, Rachell’s Health: Third World Problems—First World Folly: The End of Chlorine (Washington, Preoccupations, Roger Bate and Lorraine DC: Competitive Enterprise Insitute: March Mooney eds. (New York: Butterworth-Hei- 1996), http://fumento.com/rachel.pdf. nemann, 1999), 17-46.

210 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Radon

Angela Logomasini

The Environmental Protection Agency contaminant level” or MCL. The MCL sets the (EPA) has been working to promulgate a drink- maximum amount of a substance that the EPA ing water rule on radon for more than a decade. will allow in tap water. Currently, EPA regula- As with many other rules, the debate focuses tions set a MCL of 4,000 picocuries per liter for on whether science proves that the rule is nec- radon. In 1991, the EPA proposed changing the essary to protect public health, given its very MCL to 300 picocuries per liter on the basis of high costs, particularly to rural America. Costs 1991 findings of an agency report on radon.1 to small communities may force them to make Because of controversies regarding EPA science huge sacrifices. The only solution for such com- and the potential costs of the rule, Congress munities might be to discontinue drinking wa- placed a hold on the EPA’s promulgation of the ter service, which could lead residents to turn rule until it reauthorized the SDWA. But rather to dangerous sources such as untreated surface than reining in the EPA and preventing it from waters. setting a ridiculously stringent standard, the 1996 SDWA amendments required the agency Regulatory and Legislative History 1. U.S. Environmental Protection Agency, Report to Congress on Radon in Drinking Water: Multimedia Risk The drinking water standard for most regu- and Cost Assessment of Radon (Washington, DC: EPA, lated substances is specified as a “maximum 1994).

202-331-1010 • www.cei.org • Competitive Enterprise Institute 211 The Environmental Source to issue a final rule within four years after re- • Back in 1993, EPA science adviser William viewing the findings of a government-funded Raub warned the agency that it was relying National Academy of Sciences (NAS) risk as- on “inconclusive epidemiological findings as sessment of radon. An affiliate of the NAS—the to whether radon (either ingested or inhaled) National Research Council (NRC)—produced actually presents an appreciable risk within a report in 1998.2 The EPA proposed a rule in the typical American household if none of 1999, again suggesting an MCL of 300 picocu- the occupants smokes tobacco products.”5 ries per liter. However, under the 1996 SDWA • The agency, however, essentially ignored amendments, the EPA rule would allow locali- Raub’s admonition and issued a draft report ties and states to meet a less stringent standard on radon (which it ultimately adopted as if they used programs to regulate radon in in- the final report with few changes), sticking door air. Despite a mandate to finalize the rule by its radon alarmism. in 2002, the EPA has not yet produced a final • The SAB criticized the EPA’s draft report rule. findings noting: “There is no direct epide- miological or laboratory evidence of cancer Aggregate Costs and Benefits being caused by ingestion of radon in drink- ing water … it is not possible to exclude Aggregate costs and benefits of the radon the possibility of zero risks for ingested rule are as follows: radon.”6 • After reviewing the scientific literature, the • The EPA estimates that the rule would cost chairman of the SAB review committee $407.6 million per year.3 overseeing the EPA radon report, Roger Mc- • The EPA claims that the rule will yield $362 Clellan, concluded that an MCL of 3,000 million in benefits, or $5.8 million per theo- picocuries per liter—10 times less stringent retical life saved and $538,000 per theoreti- than the proposed EPA standard—would cal nonfatal cancer prevented.4 prove sufficient to protect public health.7 • In 1998, the NRC issued the congressionally Science mandated risk assessment, which EPA and others hailed as a new definitive finding on Early on, the EPA’s own Science Advisory radon. But the NRC assessment is not based Board (SAB) expressed serious concern regard- on new information. The report uses the ing the agency’s claims about radon: same data that raised questions in the past among the SAB members and others.8

5. Richard Stone, “EPA Analysis of Radon in Water 2. National Research Council, Risk Assessment of Is Hard to Swallow,” Science 261, no. 5128 (1993): Radon in Drinking Water (Washington, DC: National 1514–16. Academies Press, 1998), http://www.nap.edu/openbook. 6. Ibid. php?isbn=0309062926. 7. Ibid. 3. Federal Register 64, no. 211 (November 2, 1999): 8. J. H. Lubin, J. J. Boice, C. Edling, R. W. Hornung, G. 59269. Figures represent 1997 dollars. Howe, E. Kunz, R.A. Kusiak, H. I. Morrison, E. P. Radford, 4. Ibid. J. M. Samet, M. Tirmarche, A. Woodward, Y. S. Xiang, and

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• The data show elevated cancer levels among that our bodies may create defense mechanisms miners who smoked heavily and were ex- against chemicals when we are exposed at low posed to very high levels of radon as well doses. So, rather than causing cancer, low-dose as of nitrogen oxides and mineral dusts in exposures may help us fight off cancer and mines. The relevance of these studies to low- other illnesses. According to a number of re- level residential exposures is unknown. searchers: • Neither the NRC nor the EPA has been able to establish that low-level radiation • Studies have found instances in which peo- in homes causes cancer in nonsmokers or ple exposed to low levels of radiation actu- even in smokers. Accordingly, the NRC risk ally experienced less incidence of leukemia assessment indicates that the risks from than the general population, while highly ingestion could be zero, “depending on the exposed individuals experienced elevated validity of the linear non-threshold dose re- rates of leukemia.12 sponse hypothesis.”9 • Some studies have found that increasing lev- • Despite these very serious weaknesses in els of low-level radon exposure are linked the data, the NRC claimed that radon in to decreasing cancer rates.13 drinking water might cause as many as 180 • Nonetheless, even using its dubious science deaths a year.10 to exaggerate risks, the EPA’s proposed rule • On the basis of the NRC estimates, the EPA still promises more costs than benefits. (As claims that its 1999 proposal would save 62 already mentioned, the EPA estimates an- lives.11 nual costs at $407.6 million and benefits at $362 million.)14 The EPA and the 1998 NRC report ignore not only that radon may be safe under a given Having failed the cost-benefit test, the EPA exposure level but also that low-level exposures justified its proposed rule on the basis of a might even be beneficial. Some studies indicate provision of the SDWA that attempted to make the new law flexible and multimedia oriented. D. A. Pierce, Radon and Lung Cancer Risk: A Joint Anal- ysis of 11 Underground Miners Studies, NIH publication 12. Jay Lehr, “Good News about Radon: The Linear 94-3644 (Bethesda, MD: National Institutes of Health, Nonthreshold Model Is Wrong,” May 1996, http://www. 1994). See also NRC, Health Risks of Radon and Other junkscience.com/news/lehr.html. Dr. Lehr cites the fol- Deposited Alpha-Emitters (BEIR IV) (Washington, DC: lowing studies: T. D. Luckey, Radiation Hormesis (Boca National Academies Press, 1988); NRC, Health Effects Raton, FL: CRC Press, 1991); T. Sugahara, L. A. Sagan, of Exposures to Radon (BEIR VI), (Washington, DC: and T. Aoyama, Low Dose Irradiation and Biological De- National Academies Press, 1999). fense Mechanisms (Amsterdam: Exerpta Medica, 1992); 9. National Research Council, Risk Assessment of Ra- and E. J. Calabrese, Biological Effects of Low-Level Ex- don in Drinking Water. posures to Chemicals and Radiation (Boca Raton, FL: 10. Ibid, the estimate includes 160 theoretical deaths CRC Lewis Publishers, 1994). from inhaling radon gas emitted from tap water, plus 20 13. B. L. Cohen, “Test of the Linear–No Threshold The- theoretical bladder cancers resulting from ingestion of ory of Radiation Carcinogenesis for Inhaled Radon De- radon in water, 6. cay Products,” Health Physics 68, no. 2 (1995): 157–74. 11. Federal Register 64, no. 211 (November 2, 1999): 14. Federal Register 64, no. 211 (November 2, 1999): 59269. 59269.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 213 The Environmental Source

This provision allows public water systems to was setting a needlessly high standard so that it meet a less stringent standard—the “alternative could regulate . maximum contaminant level” (AMCL)—if the Moreover, this approach may not be any state, locality, or public water system sets up a less expensive. In fact, attempts to control in- multimedia mitigation program (MMM). States door radon in the past have been expensive and must gain EPA approval of an MMM by out- have produced mixed results. Poorly designed lining measures that they will take to control or installed mitigation technology can increase radon in indoor air. If a state does not submit radon levels, and successful technology has a plan, then localities and public water systems cost thousands of dollars per home. In addi- may propose plans to the EPA. Accordingly, in tion, state-led programs implemented during 1999, the EPA proposed a radon rule that in- the 1980s have proved costly. A New Jersey cludes an MCL of 300 picocuries per liter, an program during the 1980s proved disastrous, AMCL of 4,000 picocuries per liter, and a set of permanently displacing residents from their requirements for MMMs. The EPA estimated homes after the government removed soil from that if states chose the MMM route, the regula- under the houses. The New Jersey government tion would cost only $80 million.15 then spent years and millions of dollars trying However, rather than being more flexible, to dispose of the soil as political debates raged this provision gives the EPA an excuse to enter over disposal sites.17 an entirely new area of government regulation: control over levels of radon in indoor air. In Key Expert fact, the language in the EPA’s rule indicates that the agency set the MCL high to promote Angela Logomasini, Director of Risk and MMMs, not because the MCL was necessary to Environmental Policy, Competitive Enterprise protect public health. The agency explained that Institute, [email protected] it needed the higher MCL because “the equal or greater reduction required to be achieved Recommended Readings through the AMCL/MMM option would be diminished as the MCL approaches the AMCL Cole, Leonard A. 1993. Element of Risk: The of 4,000 [picocuries per liter] and that fewer Politics of Radon. New York: Oxford Uni- states and [community water systems] would versity Press. select this option. Further, the AMCL/MMM Stone, Richard. 1993. “EPA Analysis of Radon would be eliminated entirely if the MCL were in Water Is Hard to Swallow.” Science 261, set at the AMCL.”16 In other words, the EPA no. 5128: 1514–16.

17. For more information on disastrous radon policies, 15. Ibid. see Leonard A. Cole, Element of Risk: The Politics of 16. Ibid., 59270. Radon (New York: Oxford University Press, 1993).

214 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Rural Drinking Water

Angela Logomasini

Rural communities face heavy burdens 10 percent of their income for just water under uniform federal drinking water stan- and sewer.1 dards that force them to make considerable sacrifices. The executive director of the Maine Controlling costs is critical because stan- Rural Water Association provides some dards can produce net negative benefits. A U.S. examples: Congressional Budget Office (CBO) study notes that uniform federal standards translate into Tiny Hebron Water Company, with all of what CBO calls “welfare costs”––which basi- its 26 customers, must spend $350,000 to cally means that a regulation costs more than meet this rule [the Surface Water Treat- the benefits it returns. The reason for using the ment Rule (SWTR)]. Milo Water District’s word welfare is to remind us that those financial 700 customers have spent $7.3 million losses translate into reductions in quality of life. to meet the SDWA [Safe Drinking Water As the law is now written, the U.S. Environ- Act] and SWTR requirements. This cost puts the viability of the town in jeopardy. 1. Statement of Steve Levy, executive director of the There is a tax lien on one out of ten homes. Maine Rural Water Association, on behalf of the Na- tional Rural Water Association, before the Subcommittee We are rapidly approaching a time when on Health and the Environment, Commerce Committee, people on fixed incomes can expect to pay U.S. House of Representatives, January 31, 1996.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 215 The Environmental Source mental Protection Agency (EPA) considers costs • A 1994 National Rural Water Association to large systems when conducting cost-benefit survey found that monitoring regulations analyses, but because of the economies of scale, would prevent 80 percent of small commu- the costs to households in small systems are far nities from devoting resources to hook up higher than those of the large systems on which more families, to provide routine mainte- the standards are based. Heavy burdens on nance and systems improvements, to engage rural communities have not disappeared under in activities, to pay for the 1996 law: additional training for systems operators, and to make improvements in water treat- • According to the General Accounting Of- ment and in operation and maintenance fice, now the Government Accountability activities.4 Office, the annual existing compliance cost (not the total water bill, just compliance) of Regulatory Relief or Mirage? systems serving 100 to 250 people is $145 a year, and that number is expected to multi- The law gives the EPA specific author- ply as new rules come out.2 ity to provide some regulatory relief to small • A representative from the National Rural systems. Systems that cannot afford to meet Water Association noted to Congress that the rule can request variances, exemptions, or the some households must pay as much as both. Variances allow a system to delay meeting $50 per month to receive water service.3 a standard if the system uses EPA-designated Such costs are not affordable for many ru- “variance technologies.” The EPA has a process ral Americans who are living on fixed in- to directly grant variances to communities serv- comes. ing 3,300 households or fewer when a standard • Systems must spend thousands of dollars is not deemed affordable. States can also issue every year to test water for the presence of variances—provided that they obtain EPA ap- contaminants that pose very little risk or proval—to systems serving between 3,300 and that are very rare. Yet many systems might 10,000 customers. Communities can also apply find it more logical to test for those con- for exemptions to a rule if they do not have the taminants less often and to use the funds financial resources to meet it and if they have that would have gone to testing to address taken “all practical steps” to meet the rule.5 pressing needs. Yet EPA implementation of the law makes these provisions practically useless. For example, even though the EPA is supposed to consider af- 2. General Accounting Office, Safe Drinking Water: fordability to small systems, these criteria are Progress and Future Challenges in Implementing the 1996 Amendments (Washington, DC: General Account- based on what the agency deems acceptable costs ing Office, January 1999), 7. for the typical American household—which is 3. Statement of Steve Levy, executive director of the Maine Rural Water Association, on behalf of the Na- 4. Statement of Dan Keil on behalf of the National Ru- tional Rural Water Association before the Subcommittee ral Water Association before the Environment and Public on Fisheries, Wildlife, and Drinking Water of the Senate Works Committee, U.S. Senate, October 19, 1995. Environment and Public Works Committee, March 3, 5. Scott Rubin, Affordability of Water Service (Duncan, 1999. OK: National Rural Water Association, 2001).

216 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Safe Drinking Water Act

not particularly relevant to the low-income ru- that few communities ever benefit, and state ral Americans served by small systems. The EPA government find the process too complex to deems that a standard passes the affordability test implement well.9 The CBO notes that between if it keeps the total water bill costs at 2.5 percent 1990 and 1994, public water systems obtained of a median family income. This amount seems no variances and only 15 exemptions. “Given high even for median income Americans. With that approximately 200,000 public water sys- an estimated median family income at about tems are subject to federal regulations (of which $40,000 a year, 2.5 percent amounts to $1,000 over 85 percent are small), that is a strikingly a year per household.6 EPA has proposed more small number,” noted the CBO.10 Little has reasonable standards, but they will only to fu- changed since the passage of the 1996 amend- ture rules, keeping the unreasonable standard in ments. In a compliance report published in 2000, place for all existing regulations. EPA has yet to the EPA stated that “few public water systems finalize its proposal.7 were operating under a variance or exemption, In theory, the affordability test means that if and only 8 new variances or exemptions were households are estimated to spend $500 a year granted.”11 for water, the EPA could add a total of $500 in regulatory costs. However, it is not clear that Legislative Bias against Rural America that EPA fully considers existing regulatory costs when adding new ones. In addition to the high costs of uniform In any case, $1,000 might be affordable for standards to existing systems, the law has some Americans, but it is not affordable for the several provisions that actually prevent many families that the affordability provisions are communities from gaining access to piped supposed to benefit. This amount is too much water. Allegedly, these provisions are designed for low-income Americans, and it is certainly to help systems come on line, but instead they more than 2.5 percent of their incomes.8 Given erect high hurdles: such ridiculous affordability assumptions, it is not surprising that the EPA issues few variances • One of these provisions specifies that states or exemptions. may use federal drinking water loans only On top of that, procedures for obtaining to assist “public water systems,” denying variances and exemptions are so bureaucratic

9. EPA, Report to Congress: Small Systems Arsenic 6. Personal conversation with Mike Keegan, National Implementation Issues (Washington, DC: EPA, 2002), 7, Rural Water Association, July 27, 2004. See also the Ru- http://www.epa.gov/OGWDW/arsenic/pdfs/congr_ars_ ral Water Washington News Blog at http://www.rural- mar_02.pdf. water.org, which posts letters documenting EPA variance 10. CBO, Federalism and Environmental Protection: rejections, and Scott Rubin, Economic Characteristics of Case Studies for Drinking Water and Ground-Level Small Systems (Duncan, OK: National Rural Water As- Ozone (Washington, DC: CBO, 1997), 20, http://www. sociation, 2001). cbo.gov/ftpdocs/2xx/doc250/drinkwat.pdf. 7. Federal Register 71, no. 41, (March 4, 2006): 11. EPA, Office of Enforcement and Compliance Assur- 10671-10685; For more information see EPA’s website: ance, Providing Safe Drinking Water in America: 1998 http://epa.gov/OGWDW/smallsys/affordability.html. National Public Water Systems Compliance Report 8. Rubin, Economic Characteristics of Small Systems. (Washington, DC: U.S. EPA, 2000), 4.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 217 The Environmental Source

states the flexibility to assist communities Among the reforms might be a proposal to with nonpiped water supplies.12 grant states full authority (without any EPA • Another provision holds that the federal gov- approval) to issue variances and exemptions ernment will reduce federal funding to states and to decide how to expend revolving loan that help communities develop new systems funds. In addition, Congress should engage in if those systems cannot immediately meet all vigorous review of all upcoming standards to 80-plus SDWA standards.13 Though this pro- prevent the agency from passing new regula- vision has been lauded as a “capacity devel- tions that are not supported by strong science. opment policy,” one public official revealed The costs of misguided rules, particularly to ru- its real purpose in testimony to Congress. ral communities, can reduce quality of life and He praised the program for producing “five public health. state programs to prevent the formation of new non-viable water systems.”14 Thirty-six Key Experts similar programs were “on track,” he noted. This provision is essentially equivalent to Angela Logomasini, Director of Risk and telling the poor that if they cannot afford Environmental Policy, Competitive Enterprise caviar they should starve. Institute, [email protected] Mike Keegan, National Rural Water Asso- If Congress does anything in the near future ciation, [email protected] about drinking water, it should be to find means For additional information, see http://www. to provide regulatory relief to rural Americans. ruralwater.org.

12. 42 USC §300j-12(a)(2). 13. 42 USC §300g-9(a), §300j-12(a)(1)(G). 14. Testimony of Gerry C. Biberstine on implementa- tion of the SDWA of 1996 before the Committee on the Environment and Public Works, prepared by the Associa- tion of State Drinking Water Administrators, U.S. Senate, March 1, 1999.

218 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Lead in Drinking Water

Angela Logomasini

During the winter of 2004, the District of essary because the public health threat was Columbia discovered elevated levels of lead minimal. in its drinking water—levels that exceeded federal standards by many times. The issue Statutory Scheme raised concerns about lead’s potential impact on children’s learning abilities. Sensationalist The federal drinking water regulations on coverage in the media captured the attention lead established a treatment practice rather of Washington policymakers by fostering the than setting a numeric standard as is done for impression that there was a serious public other water contaminants. The rule calls for health threat in the District and possibly in “optimum corrosion control,” which is de- cities around the nation. After the D.C. story fined as public education and lead service line broke, a handful of other cities discovered replacement. Systems must use this practice if that they too had excess lead in their drink- lead levels in drinking water exceed 15 parts ing water, although at lower levels than were per billion in 10 percent of samples. Systems found in D.C. The issue forced both Con- must periodically collect and test tap water gress and regulators to examine public health samples from homes where lead concentration concerns about lead levels. However, the sci- would likely be the highest, such as homes that ence clearly shows that no action was nec- receive their water through lead pipes.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 219 The Environmental Source

Legislative History and Background panic-driven regulation.4 In fact, according to the CDC, the lead discovered in D.C. water did After the D.C. story broke, members of not raise the level of lead in anyone’s blood to Congress held hearings and began considering a point of concern. It noted that the amount of beefing up the nation’s drinking water law. Leg- lead found in individuals’ blood today is largely islation (H.R. 4268) offered by D.C. delegate the result of other exposures—particularly Eleanor Holmes Norton and a companion Sen- peeling lead paint and dust from such paint. ate bill (S. 2377) offered by Rep. James Jeffords Fortunately, we have seen progress in that area. (I-VT) in 2004 would have demanded that The average lead blood level has declined sub- public water systems begin programs to replace stantially (80 percent) since the late 1970s, ac- lead service lines—replacing portions annually cording to the CDC.5 until such lines are eliminated. Administration Not surprisingly, the District government officials argued at these hearings that new fed- and the CDC discovered that every child with eral regulations for lead were premature.1 The elevated lead levels whom they found in D.C. U.S. Environmental Protection Agency (EPA) lived in a home with peeling lead paint or pledged to review compliance with the lead rule lead-containing dust from renovations. Daniel around the nation and to issue revisions to the R. Lucey, the District’s interim chief medical rule. In March 2005, it reported that 96 percent officer, reported to that of the nation’s drinking water systems were in in tests of about 1,100 children, 14 children compliance.2 The EPA produced a new rule for were found with elevated lead levels. Six of lead, which was finalized in 2006. The new rule these children did not even live in homes with made modest revisions—while keeping the ac- lead service lines. Moreover, tests on about tion level at 15 parts per billion—with the hope 200 people of all ages from homes with the of improving communication and compliance highest lead levels in the water did not find with the rule.3 anyone with blood containing lead at levels of concern.6 Lucey explained, “We are not seeing Lead and Public Health any widespread lead toxicity attributable to the water in D.C.”7 A study conducted by the Centers for Dis- ease Control and Prevention (CDC) reinforced the EPA view that the situation did not present 4. CDC, “Blood Lead Levels in Residents of Homes a public health threat. Nor did the case warrant with Elevated Lead in Tap Water—District of Columbia, 2004,” Morbidity and Mortality Weekly Report 53, no. 30 (2004): 268–70. 1. Statement of Ben Grumbles, acting administrator 5. CDC, “Blood Lead Levels in Young Children— for water, U.S. Environmental Protection Agency, before United States and Selected States, 1996–1999,” Morbid- the House Committee on Government Reform, May 21, ity and Mortality Weekly Report 49, no. 50 (December 2004. 22, 2000): 1133–37. 2. Patricia Ware, “OMB Concludes Review of Lead, 6. Avram Goldstein, “Blood Levels Affected by Disin- Copper Rule That Would Revise Existing EPA Regula- fectant: Study Cites Impact on D.C. Children,” Washing- tion,” Daily Environment Report, May 11, 2006, A-4. ton Post, March 31, 2004, B01. 3. 40 CFR §141.81-91 7. Ibid.

220 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Safe Drinking Water Act

Regulatory Issues and potential solutions that do not warrant or require line replacement. In particular, the D.C. appears to have the worst case of el- problem appears to have resulted from an EPA evated lead levels yet discovered in the nation— regulation that caused city officials to switch its yet it did not present a public health problem. disinfection products from chlorine gas to liquid Accordingly, if the federal government had chlorine—which potentially led to more corro- mandated lead service line replacements sion of the pipes, releasing additional lead. around the nation, it would have imposed an Moreover, a federally mandated policy pro- enormous cost on the public without any ef- moting lead service line replacements assumes fect on lead blood levels. For example, the cost that there was a simple solution: replace lines to replace lead service lines in D.C. alone was and lead problems would disappear. But the estimated at $300 million to $500 million, plus reality is quite different. Because many homes an additional cost for upgrading lines owned may still have lead lines inside, replacement of by homeowners of $50 million to $60 million, service lines might still have failed to provide according to the Association of Metropolitan measurable benefits in many instances. One Water Agencies during other hearings on this problem is that lead problems may come not issue.8 If communities were forced into such ex- from service lines but directly from the tap.9 penditures, they would have much less money In addition, mandated line replacement means available to allocate to other needs, such as up- systems do not have any flexibility in determin- grading schools and providing essential services ing whether better options exist. to the community. Hence, new, more stringent lead regulations would likely produce signifi- Key Expert cant welfare losses. The D.C. lead case illustrates why these is- Angela Logomasini, Director of Risk and sues demand local solutions. The city investi- Environmental Policy, Competitive Enterprise gated several potential causes of the problem Institute, [email protected].

8. Patricia Ware, “Aging Water Pipes Cause High Lead 9. American Water Works Association, “Comments on Levels, Water Utilities Tell House Subcommittee,” Daily EPA’s Proposed Minor Revisions to the Lead and Copper Environment Report, 29 April 2004, A-8. Rule,” July 11, 1996.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 221

Solid and Hazardous Waste

Solid and Hazardous Waste Overview

Angela Logomasini

Federal regulation of solid and hazardous eral Superfund law. In general, brownfields waste includes a complicated set of regulations for are abandoned, idle, former industrial sites hazardous waste disposal, transport, and cleanup. that no one will redevelop because develop- Regulation of nonhazardous household waste ers fear costly liability associated with the has largely remained a state-level concern, but Superfund law. Congress passed a brown- members of Congress have made repeated efforts fields law to address this problem in 2002. to expand the federal role in that area as well. The At question is whether the law has improved key waste debates of recent years include: or exacerbated brownfield cleanup efforts. • Interstate commerce. This section focuses on • Superfund. The federal Superfund law is de- recent debates to regulate interstate move- signed to promote cleanups at contaminated ments of . The issue property. After several decades in operation, heated up in recent years when New York the program is widely recognized as one of City announced plans to increase its waste the greatest failures of federal environmen- exports to other states. Members of Con- tal policy. Yet attempts to reform the law gress have responded by offering legislation have stalled. to restrict trade in this industry. • Brownfields. The “brownfield” issue is a re- • Toxics release inventory (TRI). This topic sult of the faulty liability scheme of the fed- is included in solid and hazardous waste

202-331-1010 • www.cei.org • Competitive Enterprise Institute 225 The Environmental Source

because, in theory, this law is designed to Recovery Act. For information on that issue, inform the public of the byproducts of in- see the following recommended readings. dustry. Under the TRI program, companies must report all releases of waste products Recommended Readings into air, land, and water. However, as the policy brief on TRI indicates, these reports Adler, Jonathan. 1993. “The Hazards of Regu- do not convey information on actual waste lating Hazardous Waste.” Regulation 16, produced or the risks associated with such no. 2. http://www.cato.org/pubs/regulation/ byproducts. reg16n2g.html. • Waste management. During the past decade, Bovard, James. 1991. “RCRA: Origin of an Congress considered legislation to regulate Environmental Debacle.” Journal of Regu- household waste through recycling man- lation and Social Costs 1, no. 2: 46. dates, bottle deposit bills, and similar mea- Hahn, Robert. 1991. “Reshaping Environ- sures. As noted in the brief on waste man- mental Policy: The Test Case of Hazardous agement, these proposed policies have been Waste.” American Enterprise 2 (May–June): based largely on myths about solid waste. 72–80. Volokh, Alexander. 1995. Recycling Hazardous Another controversial area not covered Waste: How RCRA Has Recyclers Running in this book is the management of hazardous around in CERCLAs. Los Angeles: Reason waste under the Resource Conservation and Public Policy Institute.

226 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Superfund

Angela Logomasini

Perhaps no other environmental program ingly clear that Congress needs to devolve all has been cited more often as a failure than the Superfund responsibilities to the states, where federal Superfund law. Because of excessive sites will eventually be cleaned. litigation promoted by the law’s faulty liabil- ity scheme and needlessly expensive cleanup Statutory Scheme standards, the program has produced scant cleanups. Yet for about two decades attempts The federal Superfund law2 (also known as to reform the law have failed.1 Meanwhile, the Comprehensive Environmental Response, states have created and eventually reformed Compensation, and Liability Act, or CERCLA) their own cleanup laws, resulting in thousands is allegedly designed to hold parties responsible of state-led cleanups. This history makes strik- for polluting property. Instead, the law arbi- trarily holds anyone remotely connected to a contaminated site liable for cleanup. Respon- 1. Although legislation to address federal superfund sible parties include waste generators (anyone sites has all failed in the past couple decades, Congress did pass the Small Business Liability Relief and Brownfields who produced waste that eventually contami- Revitalization Act in 2002. It created an additional waste clean up program for non-superfund sites or so-called 2. The law is usually referred to as the “Superfund” “brownfields.” This law is discussed in the “Brownfields” law, after the name of the government fund created to brief in the Environmental Source. assist with cleanups.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 227 The Environmental Source nated property), arrangers for transport of conservative assumptions when assessing risk, waste, waste transporters (anyone who simply the cleanup standards usually demand very ex- transports wastes for legal disposal), opera- pensive cleanups. tors (those who manage waste landfills), and property owners (anyone who owns the land). Legislation and History Under the law’s strict joint and several liability scheme, each party can be held liable for 100 Although Superfund was created as a tem- percent of the cleanup costs. Liability also is porary program in 1980 to clean up 400 sites, retroactive, applying to situations that occurred the NPL now contains more than 1,635 active, long before Congress passed the law. Accord- proposed, and former sites.3 The program and ingly, parties ranging from small businesses, its taxing authority expired in 1995. Since then, schools, and churches to large manufacturing members of Congress have battled over whether plants have been held accountable for sites that to restore taxing authority, with fiscal conserva- were contaminated decades before Superfund tives blocking Superfund reauthorization bills became law. on tax issues alone. In addition, reform efforts Cleanups can proceed in a number of ways. have consisted of legislation designed to serve First, sites that the U.S. Environmental Protec- various lobbies, each seeking liability exemp- tion Agency (EPA) deems a priority for cleanup tions, leaving other parties to hold the bag.4 are listed on the National Priorities List (NPL). During recent congressional sessions, Super- After listing a site, the EPA can clean it (pay- fund reform has been high on the agenda, but it ing with funds from the federal Superfund, has repeatedly fallen victim to intense politics. which was created by taxes on crude oil and During the 107th Congress, Congress did man- other chemicals); then it can seek reimburse- age to pass a bill designed to solve problems ment from the Superfund by suing what the created by Superfund, the so-called brownfields law called “potentially responsible parties.” bill, which is discussed in another policy brief. Often, the EPA engages in long and expensive During the past several congressional sessions, litigation beforehand to collect funds from the Superfund debate has revolved around parties, and cleanup follows. In addition, par- whether to restore the Superfund tax, which ties found responsible may sue other parties to expired in 1995. gain compensation for their costs. As a result, Superfund has produced a web of lawsuits, Superfund grew out of the controversies of and it can take a decade or more to reach the Love Canal—the site that released cleanup stage. chemicals into a community in Niagara Falls, The cleanup process entails setting cleanup 3. Database list of NPL sites was accessed on the U.S. standards that are based on “applicable, rel- Environmental Protection Agency website on February evant, and appropriate requirements.” The EPA 26, 2008, at http://cfpub.epa.gov/supercpad/cursites/ sets the standards for each site based on state, srchsites.cfm. local, and federal laws. For example, sometimes 4. For example, see David B. Kopel, Privileged Pollut- the EPA will use federal drinking water stan- ers: The Case against Exempting Municipalities from Superfund (Washington, DC: Competitive Enterprise dards to decide how clean water supplies at a Institute, 1988), http://www.cei.org/gencon/025,01195. site must be. Because the EPA uses extremely cfm.

228 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Solid and Hazardous Waste

New York. Love Canal was a symbol of corpo- best studies eventually refuted numerous claims rate wrongdoing, and it raised calls for federal about health impacts.6 efforts to force industry to pay for cleanup at contaminated properties. But it is not surpris- Status of Cleanups ing that the birth of this failed law would have emerged from a lie.5 Federal Superfund cleanups can take de- In the case, Hooker Chemical Company cades. The EPA is still trying to clean sites 20 selected the site in the early 1940s because, at years after they were first listed. In fact, only a the time, it was well suited for a waste site (low handful of sites have actually reached the level population, largely impermeable clay soil). But of “complete.” According to the U.S. General the local school board forced Hooker to sell the Accounting Office (GAO), now the Govern- land by threatening to condemn the property. ment Accountability Office, it takes about 10 Under pressure, the company agreed in 1953 years to clean up a Superfund site, and some to donate the property to the school board for sites require an additional stage—for monitor- one dollar. Hooker attempted to set agreed- ing groundwater and the like—that can last an upon conditions for safe use (surface use only, additional 30 years.7 no construction that would break the lining), Of the 1,635 sites listed on the NPL, only and the deed stated that the liability would 324 have been removed or “deleted,” 1,245 are transfer to the school board and subsequent active NPL sites (meaning cleanup in occurring owners. The school board proceeded to build or pending), and 67 are on the “proposed” list. a school and then sell part of the land to devel- Of the sites currently on the NPL, 592—or opers—over Hooker’s objections. Construction 47 percent—were listed more than 20 years entailed digging into the clay cap, removing ago (between 1983 and 1988), 1,047—or 84 tons of soil, and building sewer lines that ran percent—were listed more than ten years ago through the , puncturing it and releasing (1983-1998). At this pace, it will take many waste throughout the community. more decades to address all the NPL sites. Panic ensued regarding the risks, resulting in a fear campaign about toxic waste. This So What Are the Risks? campaign eventually led to the passage of Su- perfund, based on the alleged need for govern- Although they are often depicted as cancer mental action to control industry (even though hot spots, there is little evidence that Superfund the local government should have borne blame sites pose chronic health risks. In fact, it is very at Love Canal) and hold it accountable. Ironi- cally, the chemicals at the site did not pose 6. For overviews of the scientific studies, see Aaron Wildavsky, “Love Canal,” in But Is It True? A Citizen’s the risks claimed. Although there were some Guide to Environmental Health and Safety Issues (Cam- controversial studies that postulated risks, the bridge, MA: Harvard University Press, 1995), 127–152, and Elizabeth Whelan, “The ‘Disaster’ of Love Canal,” in Toxic Terror (Ottawa, IL: Jameson Books, 1985). 5. For an excellent exposé of the Love Canal myth, see 7. Superfund—Information on the Program’s Funding Eric Zuess, “Love Canal: The Truth Seeps Out,” Reason and Status, GAO/RCED-00-25 (Washington, DC: GAO, February 1981, 16–33, http://www.reason.com/news/ October 1999), http://www.gao.gov/docdblite/summary. show/29319.html. php?rptno=RCED-00-25&accno=163047.

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difficult to determine risks associated with any mans. However, these animals are usually low-level exposures to chemicals in the envi- bred to be susceptible to cancer and are ronment, and the best research indicates that exposed to massive doses. Milloy notes, such risks are likely to be so low that they are “Without this assumption, few substances undetectable. For example: (only 24 according to the National Toxi- cology Program) would be considered hu- • In their landmark study on cancer risks, man carcinogens. According to EPA, this Richard Doll and Richard Peto concluded assumption ‘contributes to a high level of that chemicals in the environment cause uncertainty,’ and actual risks calculated on about 2 percent of cancer cases.8 this basis may be as low as zero.”11 • The National Research Council concluded • In the book Calculating Risks?, James T. in 1991, “Whether Superfund and other Hamilton and W. Kip Viscusi assess risks hazardous waste programs protect human at 150 Superfund sites (selected because health is a critical question.… Based on its risk assessment data were available). They review of the literature on the subject, the find that even using the EPA’s unrealisti- committee finds that the question cannot be cally conservative risk assumptions, 140 of answered.”9 these sites would generate no increase of cancer. Hence, spending millions—perhaps In addition, the EPA’s risk assessments grossly billions—to clean these sites would produce exaggerate the risks of these sites, thereby lead- zero benefit.12 ing to needlessly expensive cleanup standards. • Hamilton and Viscusi find that 10 sites Researchers highlight some problems with EPA might produce a total of 731 cancers over assumptions.10 Consider a few: 30 years.13 But this number is probably far higher than real risks, because it is based on • The EPA assumes that chemicals that cause EPA assumptions about exposure and risk. cancer in animals also cause cancer in hu- One site would allegedly generate 652 can- cers related to exposure to polychlorinated biphenyls (PCBs). But scientist Michael 8. Richard Doll and Richard Peto, “The Causes of Can- Gough points out, “Given the results for the cer: Quantitative Estimates of Avoidable Risks of Cancer in the United States Today,” Journal of the National Can- largest population of PCB-exposed workers cer Institute 66, no. 6 (1981): 1257. For more details see ever studied, which show that PCBs have the policy brief titled “Chemical Risk Overview.” not caused cancer in humans, the 652 ex- 9. While noting the serious limitations of the studies, pected cancer cases may be overestimated the National Research Council says that risks might ex- ist. The National Research Council proceeds to make a plea for additional research funding in this area. National Research Council, Environmental Epidemiology, Vol. 1: Public Health and Hazardous Waste (Washington, DC: 11. Ibid., 22. National Academies Press, 1991), http://www.nap.edu/ 12. James T. Hamilton and W. Kip Viscusi, Calculating openbook.php?isbn=0309044960. Risks? The Spatial and Political Dimensions of Hazard- 10. Steve Milloy, Science-Based Risk Assessment: A Piece ous Waste Policy (Boston: Massachusetts Institute of of the Superfund Puzzle (Washington, DC: National En- Technology, 1999). vironmental Policy Institute, 1995). 13. Ibid.

230 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Solid and Hazardous Waste

by 652.”14 Plus, as Gough notes, the site is Devolution Solution: a parking lot—with all the chemicals under State-Level Successes asphalt. Only if one digs up the asphalt and builds playgrounds, homes, or the like will Although the federal government’s record there be risk of exposure. with respect to Superfund is an abysmal failure, state governments are doing much better. In fact, At What Price? they take much less time to clean more sites at far lower costs. Consider some figures collected The costs are enormous: in 1995 by the former EPA assistant administra- tor for solid waste, Dr. J. Winston Porter:19 • According to the GAO, taxes paid into the Superfund between 1981 and 1998 came to • Although the EPA spent about $1 billion $13.5 billion, and the fund had a balance of working on about 1,000 sites, states were $1.4 billion at the end of fiscal year 1999.15 spending about $700 million annually • The GAO estimates that responsible par- cleaning about 11,000 sites. ties’ cleanup costs came to $13 billion from • States clean sites in a fraction of the time 1980 to 1998.16 it takes the federal government to clean • Transaction costs incurred by responsible sites, and states do so at far lower cost. For parties (for litigation and the like) ranged example, Minnesota cleans sites in two to from $3.2 billion to $7.6 billion between three years at costs of less than $5 million 1980 and 1998.17 per site. • Total costs (both transaction and cleanup) • Although the federal government had to private parties are estimated to range cleaned very few sites by 1994, states had from $19 billion to $23 billion.18 reached “construction completion” on • Congress also appropriated funds from gen- 2,844 sites. eral tax revenues for the EPA to administer the program. State programs have proven more success- • In addition, the law demands that states kick ful because they focus on setting more realistic in 10 percent for the cleanup of private sites cleanup standards (assessing risks with more and 15 percent for publicly owned sites. realistic assumptions, considering future use of the property, etc.) and provide fairer liability policies that promote voluntary cleanup activi- ties by the private sector. Superfund’s history confirms a basic point: those closer to a prob- 14. Michael Gough, “Superfund: The High Cost of En- vironmental Alarmism,” Regulation 23, no. 2 (2000): lem are better suited to fix it. Superfund sites 58–60. are exclusively a state and local concern. Given 15. GAO, Superfund—Information on the Program’s the demonstrated successes of states (in stark Funding and Status. 16. Ibid. 19. J. Winston Porter, Cleaning Up Superfund: A Case 17. Ibid. for Environmental Leadership (Los Angeles: Reason 18. Ibid. Public Policy Institute, 1995).

202-331-1010 • www.cei.org • Competitive Enterprise Institute 231 The Environmental Source contrast to serious federal failure), there is little CEI On Point 51, Competitive Enterprise reason for Congress to “reform” federal Super- Institute, Washington, DC, http://www.cei. fund. Instead, members should seek ways to org/utils/printer.cfm?AID=2411. completely devolve the program to the states. Kopel, David B. 1998. Privileged Polluters: The Case against Exempting Municipalities Key Experts from Superfund. Washington, DC: Com- petitive Enterprise Institute, http://www.cei. Angela Logomasini, Director of Risk and org/gencon/025,01195.cfm. Environmental Policy, Competitive Enterprise Logomasini, Angela. 2003. “EPA Uses Super- Institute, [email protected]. fund Tax to Target the Innocent.” Atlanta Journal Constitution, September 3. http:// Recommended Readings www.cei.org/gencon/019,03653.cfm. Milloy, Steve. 1995. Science-Based Risk As- Delong, James V. 1997. Superfund XVII: The sessment: A Piece of the Superfund Puzzle. Pathology of Environmental Policy. Wash- Washington, DC: National Environmental ington, DC: Competitive Enterprise Insti- Policy Institute. tute, www.cei.org/pdf/1197.pdf. Porter, J. Winston. 1995. Cleaning Up Super- Gattuso, Dana Joel. 1999. “Superfund Legisla- fund: A Case for Environmental Leadership. tion: True Reform or a Hazardous Waste?” Los Angeles: Reason Public Policy Institute.

232 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Brownfields

Angela Logomasini

U.S. cities are home to hundreds of thousands than remove federal controls over the lands and of old, abandoned commercial and industrial thereby allow state-level cleanup and private de- sites called brownfields. Developers avoid these velopment, the federal government set up a com- sites for fear that they might be contaminated plicated and bureaucratic brownfield program. and could fall under the jurisdiction of the fed- eral Superfund law, which would demand expen- State Successes sive cleanup. Rather than risk Superfund liability, many firms choose to develop in the so-called Most states have passed laws modeled after greenfields—property in suburban and even the federal Superfund program, and those laws more rural areas that have not been developed. have created problems similar to those caused To promote redevelopment of urban areas, many by the federal law. Fortunately, state govern- states have passed brownfield laws that attempt ments have made enormous strides in reforming to release developers from liability for state their laws to allow more flexible standards1— cleanup laws. However, these programs have been of limited value because the sites have still 1. For more complete documentation of state successes, been subject to federal Superfund liability. Con- see Dana Joel Gattuso, Revitalizing Urban America: Cleaning Up the Brownfields (Washington, DC, Com- gress attempted to fix that problem by its own petitive Enterprise Institute, 2000), http://www.cei.org/ Brownfields legislation. Unfortunately, rather pdf/1782.pdf.

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producing 40,000 site cleanups, according to field program,6 the law expands this program one estimate.2 In recent years, states have begun and federalizes brownfield development. The passing brownfield laws that provide liability law authorizes spending $200 million a year— relief to parties that voluntarily clean sites, as more than double past spending levels—for EPA well as flexible cleanup standards and financial brownfield grants of various kinds. Under the incentives. Nearly all states operate some form program, the EPA is required to produce guid- of voluntary brownfield cleanup program.3 ance for grant applications, which basically al- lows the EPA to set standards for brownfield The Federal Brownfield Program cleanups. Another section of the law specifically gives the EPA authority to apply any Superfund Initially, the U.S. Environmental Protection cleanup standards that the agency deems “neces- Agency (EPA) operated several brownfield pro- sary and appropriate” for grant recipients. grams under the authority of, and with some fi- In addition to enabling the EPA to set nancial support from, the federal Superfund law. standards at specific sites, the law basically In addition, Congress had appropriated special pays, under yet another grant provision, state funds for brownfield grants programs before governments to implement uniform federal passing a brownfield law. These programs ac- standards for brownfields rather than allow complished little more than the creation of a states to experiment with various approaches. few showcase communities that the EPA and To be eligible for a grant, states must either en- politicians have used for political purposes.4 ter into a memorandum of agreement with the Meanwhile, few sites were actually cleaned EPA regarding the structure of their programs under these programs, funds were abused, and or follow specific EPA regulations. The regula- grant recipients found themselves bound in fed- tions demand that states create inventories of eral red tape.5 brownfield sites—creating lists comparable to In January 2002, President George W. Bush Superfund’s National Priority List (NPL). As signed the Small Business Liability Relief and has been the case with the NPL, listing brown- Brownfields Revitalization Act. Despite some fields could increase disincentives for cleanups serious documented failures of the EPA brown- at those sites because listing highlights potential liability concerns. In addition, states have to en- sure that cleanups meet all relevant state and federal standards—which subjects these sites 2. Environmental Law Institute, “Developments in State Programs,” in An Analysis of State Superfund Pro- to Superfund’s onerous standards rather than grams: 50-State Study,(Washington, DC: Environmental the more reasonable and flexible standards that Law Institute, October 1998). states had applied in the past. 3. Charlie Bartsch and Christine Anderson, Matrix of Also in the section on state programs is a Brownfield Programs by State (Washington, DC: North- provision that supposedly would prevent the east-Midwest Institute, September 1998). EPA from taking enforcement actions at sites 4. For example, see Dana Joel Gattuso, “Father of De- cleaned up under these programs. This provi- ception: Gore Is the Anti-reformer,” Washington Times, August 31, 2000, A19. sion has been marketed as an effort to turn 5. For specifics, see Gattuso, Revitalizing Urban America. 6. See Gattuso, Revitalizing Urban America.

234 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Solid and Hazardous Waste brownfield responsibilities over to the states spurring private investment by removing gov- and to spur private cleanups by providing fed- ernment-created barriers to redevelopment. eral recognition for state liability relief policies. Yet the exceptions in the law undermine the Unclear Liability “Clarifications” value of this provision. The law notes that the EPA can intercede The 2002 brownfield law includes several with an enforcement action if the agency de- provisions that are supposed to provide liability termines that “a release or threatened release relief to some parties who assume ownership may present an imminent and substantial en- of a contaminated site or whose land is con- dangerment to public health, welfare, or the taminated by an adjoining property. Again, the environment.” The EPA uses this same standard goal is to spur cleanup efforts by both public to become involved in Superfund sites, which and private groups, but the exceptions greatly gives the EPA as much control over state-led undermine the usefulness of the provisions. brownfield cleanups as it has over cleanups In question is whether this new scheme will, under Superfund. Hence, the new law fails to on balance, prove more just and whether it will provide what has been called “finality”—the reduce distortions in the marketplace such as assurance that a private party will gain liabil- the perverse incentives that prevent develop- ity relief if it voluntarily acquires and cleans a ment. It is difficult to measure the complete contaminated site.7 Without such assurances, impacts of this new law; some developers have many private parties will not want to get into already cited it as inadequate in their decisions the business of cleaning brownfields. not to develop brownfield sites.8 Because it misses opportunities to spur pri- One legal analysis notes the potential vate cleanup efforts, the new grant program downsides: is exclusive to government-led cleanups. The parties eligible for grants include state and lo- This relief does not come without strings cal governmental entities, quasi-governmental attached. In fact, so significant are these entities, and nonprofit organizations. The only ‘strings’ that they raise serious questions private parties that can obtain grants are Native about the ability of the amendments to Americans. This public emphasis goes against the achieve their intended purpose.… The main goal of state-level brownfield programs. amendments could actually serve to increase States recognized that the private sector has the liability risks or other problems for parties greatest resources for site cleanup and develop- involved in brownfield transactions by cre- ment. Hence, state programs wisely focused on ating a new due care standard that may be used to impose Superfund liability where it 7. For more discussion on the finality issue, see Dana could not have been imposed previously.9 Joel Gattuso, “Senate Brownfields Bill Needs a Clean- Up,” CEI OnPoint no. 79, Competitive Enterprise In- stitute, Washington, DC, April 23, 2001, http://www. cei.org/gencon/004,02019.cfm, and Dana Joel Gattuso 8. For example, see “Brownfields Redevelopment Ham- “Superfund Legislation: True Reform or a Hazardous pered by Poor Economic Viability for Owners,” Hazard- Waste?” OnPoint 51, Competitive Enterprise Institute, ous Waste News 24, no. 16 (2002). Washington, DC, November 23, 1999, http://www.cei. 9. Steven L. Humphreys, “Taming the Superfund Jug- org/gencon/004,02411.cfm. gernaut: Impacts of the Small Business Liability Relief

202-331-1010 • www.cei.org • Competitive Enterprise Institute 235 The Environmental Source

Before the brownfield law passed, Superfund ownership, they must also demonstrate that already included a provision to protect “inno- they made all “appropriate inquiries” into the cent landowners.” However, requirements for previous ownership and uses of the property demonstrating such innocence have made the in conformance with existing commercial stan- defense nearly impossible to use successfully. dards. The EPA promulgated regulations to Key among those mandates was that the party define “appropriate inquiries” in November had to demonstrate that it was not responsible 2005.12 The new rule may clarify when the for the release in any way and that it was not, bonafide prospective purchaser defense applies, and could not have been, aware of the release. but the defense will likely remain difficult and The new law adds “clarifications” for the in- certainly is bureaucratic. nocent owner defense that actually raise the In addition, some of the mandates require bar—requiring the innocent purchaser to meet ongoing efforts to maintain liability. For ex- additional obligations. ample, to use any of the three defenses, the The law also adds two new liability relief owner must show that he or she provides all claims for “owners of contiguous properties” legally mandated notices related to any discov- and “bonafide prospective purchasers.”10 The ered hazardous substances or releases on the bonafide prospective purchaser defense allows property. Hence, simple failure to meet a pa- purchasers to be aware of the contamina- perwork mandate could undermine a liability tion and still not be liable when they obtain claim. Given the myriad laws and regulations the land. All three parties—innocent owners, in this area, it is not unlikely that at least some bonafide prospective purchasers, and owners paperwork errors would result. Similarly, the of contiguous properties—must meet numer- purchaser must take “appropriate care” to ous requirements to qualify, some of which stop, prevent, and limit human exposure and demand ongoing activities in order to retain environmental impact from any substance or liability relief. Unfortunately, these criteria release discovered on the property—a new may make these three defenses more complex mandate that seems to go far beyond the re- than the innocent landowner defense under the quirements of the old law. old law.11 As a result, the liability changes may Despite all these and other concerns, the not do much to create the stable and secure EPA says in its guidance on prospective pur- business environment that is necessary for ef- chaser provisions that this liability exemp- ficiently functioning markets. tion reduces, if not eliminates, the need for For example, to obtain liability relief, pur- prospective purchaser agreements. The EPA chasers must not only show that all disposal began issuing such agreements in 1989. These and contamination occurred before they took legal documents granted permanent liability relief from existing contamination to parties and Brownfields Revitalization Act, Part I,” Metropolitan that purchased contaminated land. But unlike Corporate Counsel 10, no. 5 (2002), 5. prospective purchaser agreements, the bonafide 10. For more details on this topic, see Steven L. Hum- phreys, “Taming the Superfund Juggernaut.” 11. Jeffrey Alan Bolin and Allan Clifford Lawton “’All Appropriate Inquiries’ —New ... and Improved?” Michi- 12. Federal Register 70, no. 210 (November 1, 2005): gan Lawyers Weekly, February 13, 2006. 66070–113.

236 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Solid and Hazardous Waste

prospective purchaser standard offers no guar- Prospective purchasers could invest time antee of relief.13 and money to investigate whether the EPA had Another concern for bonafide prospective already recovered costs at a site and, if so, try purchasers is that the new law gives the EPA to settle the lien with the agency before buying a windfall lien on brownfield properties that it the site. Such agreements may prove difficult in cleans.14 This provision requires that bonafide the future because the EPA has recently stated prospective purchasers pay the EPA an amount that it is less likely to enter into similar prospec- equal to the value added from EPA’s cleanup tive purchaser agreements. If a company cannot when the EPA cannot locate a responsible party come to an agreement with the EPA, it may find to cover those costs. This policy substantially that it incurred a substantial transaction cost adds to investment risk and increases transac- for nothing. The other option for a purchaser is tion costs—both of which will create redevel- to buy the site and risk having to pay the EPA opment disincentives. a windfall lien that could eventually wipe out Uncertainties result because it is unclear the profits. how this policy will work and how it will af- Other transaction costs related to obtaining fect profits. In particular, whether and when and developing EPA-cleaned sites may add to the EPA would seek compensation is unknown disincentives for redevelopment. Lenders may to potential buyers. The lien remains in effect be reluctant to extend financing when such until the EPA recovers all its costs. Potential liens are present and may require additional pa- perwork and investigations. The cost and time developers are basically in the dark regarding necessary to obtain title insurance also may in- whether or when the EPA will make a claim crease because title companies will also want to and how much it might cost. For example, an assess the likelihood that EPA will claim a lien. innocent party could purchase an EPA-cleaned brownfield while the EPA is suing other parties Special Liability Exemptions for cleanup costs. The EPA might collect from other parties and leave the new owner alone. The new law provides special exemptions If, however, it failed to collect from the other for two categories of parties: de minimis con- parties, it could then demand compensation tributors and small businesses. The de minimis from the new owner. But exactly how will the exemption covers transporters and generators EPA and the courts determine the value of an of fewer than 110 gallons of liquid waste or EPA cleanup? Could it be enough to absorb all 200 pounds of solid waste to sites that subse- profits from developing the property? quently were added to the NPL. After all, it does 13. For further discussion of the pitfalls of eliminating not make much sense to hold generators and prospective purchaser agreements under the new law, see transporters responsible when they disposed Stacy A. Mitchell, “Prospective Purchaser Agreements of the waste legally and did not manage the May Become a Thing of the Past,” The Legal Intelligencer property or disposal. However, the law includes 227, no. 11 (2002), 5. some exceptions to this exemption that could 14. For more information on liens, see Kermit L. Rader, undermine it completely. For example, the EPA “New Brownfield Windfall Liens: Pitfalls for Develop- ers?” The Legal Intelligencer 227, no. 33 (August 15, can still bring an action against these parties if 2002), 5. it deems that the parties’ waste “significantly

202-331-1010 • www.cei.org • Competitive Enterprise Institute 237 The Environmental Source contributed or could have significantly contrib- by the Superfund law. Because the brown- uted” to the cost of the response action—an ex- field problem is simply a government-created ception that gives the EPA broad discretion to problem, the obvious solution is to remove pursue actions against di minimis contributors. federal impediments to cleanup (where nec- The liability exemption for small businesses essary) and to development of brownfields. applies to generators of municipal solid waste To that end, Congress could have simply re- (basically household waste) in the following linquished control of the properties, thereby categories: residential property owners, small allowing states to address liability issues and businesses with 100 or fewer full-time employ- allowing private parties to do the develop- ees, and nonprofit organizations that employed ment. The costs of this solution to the fed- 100 or fewer full-time people at the site where eral government would have been zero, and the waste was generated. the costs of redevelopment would have been These provisions do provide some jus- much lower than under the current federal tice for those parties that legally generated or program; hence, there would have been more transported relatively small amounts of waste cleanups and redevelopment had the federal to disposal sites. After all, those parties are not government simply removed the obstacles to responsible if someone mismanaged the waste development that it had created. at the disposal site. However, many other par- ties are subject to Superfund liability unjustly. Key Experts Skimming out certain parties only shifts the burden to other innocent parties. A just liabil- Dana Joel Gattuso, Adjunct Scholar, Com- ity scheme would focus solely on parties that petitive Enterprise Institute, [email protected]. mismanaged waste. Although such provisions Angela Logomasini, Ph.D., Director of Risk do make the law more just for some, they make and Environmental Policy, Competitive Enter- the law less just for others, who end up bearing prise Institute, [email protected]. a larger share of the costs. Recommended Readings Conclusion Gattuso, Dana Joel. 2000. Revitalizing Urban It is true that brownfields are being redevel- America: Cleaning Up the Brownfields. oped under the new program—despite its many Washington, DC: Competitive Enterprise flaws. But the transaction costs of the program Institute. http://www.cei.org/pdf/1782.pdf. are quite high, and the amount of redevelop- ———. 2001. “Senate Brownfields Bill Needs ment is likely much lower than it would have a Clean-Up.” OnPoint 79, Competitive En- been in a truly free market. In the future, prob- terprise Institute, Washington, DC. http:// lems associated with the many exemptions to www.cei.org/gencon/004,02019.cfm. liability relief could come back to haunt those ———. 1999. “Superfund Legislation: True who decided to risk doing business under this Reform or a Hazardous Waste?” OnPoint program. 51, Competitive Enterprise Institute, Wash- Unfortunately, the federal law represents ington, DC. http://www.cei.org/gencon/004, a missed opportunity to fix problems created 02411.cfm.

238 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Interstate Waste Commerce

Angela Logomasini

For more than two decades, various states Legislative History and localities have battled over interstate and intrastate movements of municipal solid waste. Congress has attempted to deal with this States have passed import bans, out-of-state issue on several occasions, starting with the trash taxes, and other policies to block imports. 1992 attempt to reauthorize the Resource Localities have passed laws preempting the Conservation and Recovery Act (RCRA). Bills movement of wastes outside their boundaries dealing with interstate commerce and flow for disposal under so-called flow-control laws. control have been advanced during every Federal courts have struck down both types of Congress since 1992, but none have passed laws as protectionist policies that violate the into law. The issue heated up in the late 1990s U.S. Constitution’s Commerce Clause, which when New York City decided to send increas- gives only Congress the authority to regulate ing amounts of waste to Virginia for disposal. interstate commerce. Yet some federal lawmak- When localities agreed to take the waste to ers want to pass a federal law to give states the collect “host fees,” state legislators objected. As authority to regulate trade in the waste disposal a result, several bills were introduced in Con- industry. gress that would institute complicated schemes

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under which state lawmakers could regulate 1994, the Supreme Court ruled in C & A Car- waste imports and flow control.1 Since then, bone Inc. v. Town of Clarkston, NY that solid members of Congress have continued to in- waste flow-control laws were unconstitutional troduce legislation to regulate interstate waste because they violated the Commerce Clause.3 disposal. In 2005, Rep. Jo Ann Davis (R-VA) Carbone has resulted in more economically introduced H.R. 274, which allows shipments sound public policy. Flow-control laws forced to “host communities,” but it applies needless trash haulers to take wastes to the most expensive regulatory red tape and bureaucracy that could facilities. As a result, the public faced higher dis- complicate such agreements. posal costs, and cities were encouraged to invest in inefficient and otherwise uncompetitive waste Host Communities disposal facilities. After Carbone, many localities argued that they needed flow-control laws to In recent years, many communities chose to protect their investments in government-bonded host regional landfills, agreeing to allow waste facilities that were built with the assumption that imports in exchange for free trash disposal and localities could ensure revenues by directing all a cut of the landfill profits. These agreements waste business to those facilities. They claimed have enabled communities nationwide to cut that these plants would go out of business and taxes, repair and upgrade infrastructure, give their communities would pay high taxes to cover pay raises to teachers, and build schools and the debt. In an open market, some firms go out courthouses, as well as close and clean up old, of business when they are not efficient. That is substandard landfills.2 considered a good thing because it means only the best providers survive. However, Carbone did Flow Control not result in this alleged financial “disaster.” Communities benefit from a competitive The debates over interstate waste became environment because they must find ways to more complicated when the Supreme Court compete with more efficient operations, and ruled on the constitutionality of solid waste haulers may conduct business with the lowest- flow-control ordinances. Local governments cost providers. Under these circumstances, lo- passed these ordinances to mandate that haul- calities must make sounder decisions based on ers take all trash generated within the locality’s market realities, which helps their constituents jurisdiction to government-designated facilities. avoid more faulty government investments.4 Bureaucrats used these ordinances to prevent competition with facilities that local govern- 3. C & A Carbone Inc. v Town of Clarkstown, NY, 511 ments owned or backed with bonds. But in U.S. 383 (1994). 4. For a more detailed discussion of the problems with flow control, see Jonathan Adler, “The Failure of Flow 1. For a more complete overview of these bills, see Control,” Regulation 2 (1995); National Economic Re- Angela Logomasini, Trashing the Poor: The Interstate search Associates, The Cost of Flow Control (Washington, Dispute (Washington, DC: Competitive En- DC: National Economic Research Associates, 1995); and terprise Institute, 1999), 11–14. http://www.cei.org/gen- Angela Logomasini, Going against the Flow: The Case for con/025,01659.cfm. Competition in Solid Waste Management (Washington, 2. For a sampling of such benefits, see Logomasini, DC: Citizens for a Sound Economy Foundation, 1995), Trashing the Poor. http://www.heartland.org/Article.cfm?artId=4026.

240 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Solid and Hazardous Waste

However, a 1997 Supreme Court case under- • People should be concerned about truck cut Carbone to a limited extent. In 2007 the court safety—particularly those in the industry ruled in United Haulers v. Oneida-Herkimer who drive the trucks and employ others Solid Waste Management Authority that lo- who do—but the problems were not as se- calities could direct waste to government-owned vere as suggested. landfills or other disposal facilities. Because most • During the 1999 government investigation, landfills are privately owned, this ruling has lim- of the 417 trucks stopped and inspected in ited impact, but unfortunately, may encourage the District of Columbia, Maryland, and governments to invest in new, inefficient govern- Virginia, 37 experienced violations. That ment facilities so that they can essentially operate number represented a 9 percent violation a garbage disposal monopoly, which will likely rate––an above average performance, con- be needlessly costly to taxpayers. sidering the 25 percent rate nationwide.6 • Virginia’s “solution” to the traffic problem– Public Safety –banning garbage barges––could put more truckers on the road and prevent industry During 1999, public officials claimed that re- from using a safer transportation option. gional landfills posed a host of health and safety • Barges not only reduce traffic; they also problems. The landfills allegedly would lead carry cargo nine times farther using the to cancer clusters in the future. Officials in the same amount of energy, emit less than one- District of Columbia, Maryland, and Virginia seventh of the air pollution, and have the conducted an investigation of trucks transport- fewest accidents and spills of any other mode ing waste from state to state, which they alleged of transportation, according to a 1994 U.S. showed that transporting wastes created severe Department of Transportation study.7 highway hazards. They also argued that garbage • Medical waste is not more dangerous than barges were not a safe means of transporting the household waste. According to the Centers waste because waste would allegedly spill and for Disease Control and Prevention, “medi- pollute waterways. Finally, they claimed that cal waste does not contain any greater medical waste was being dumped illegally into Virginia landfills, thereby creating dire health hazards. All these claims proved specious: pal Landfills Based on U.S. Environmental Protection Agency Techniques,” Waste Management and Research • Rather than increasing public health and 10 (1992): 505–16. For some additional facts on landfill safety risks, these landfills enable communi- risks, see the policy brief titled “Solid Waste Manage- ment.” See also Logomasini, Trashing the Poor, 18–20. ties to close substandard landfills and con- 6. Craig Timber and Eric Lipton, “7 States, D.C., Crack struct safe, modern landfills. Down on Trash Haulers,” Washington Post, February 9, • It is estimated that modern landfills pose 1999, B1. See also Motor Carrier Safety Analysis, Facts cancer risks as small as one in a billion, an & Evaluation 3, no. 3 (Washington, DC: U.S. Depart- extremely low risk level.5 ment of Transportation, 1998). 7. U.S. Department of Transportation, U.S. Maritime Administration, Environmental Advantages of Inland 5. Jennifer Chilton and Kenneth Chilton, “A Critique Barge Transportation (Washington, DC: Department of of Risk Modeling and Risk Assessment of Munici- Transportation, 1994).

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quantity or different type of microbiologic the progress that the private sector has made. agents than residential waste.”8 These policies will mean a return to a system in which lawmakers impede market efficien- Finally, one key concern raised by the land- cies, thereby increasing costs and reducing fill debates involves the externalities landfills economic opportunity. Those who will feel create for people who live either near them or the real pain of these policies will be the many along transportation routes. Clearly, problems poor, rural communities that desperately seek can arise, and lawmakers should be concerned ways to improve their infrastructure and qual- about odors, , and traffic. These are the ity of life. real issues that demand local government at- tention, requiring trespass and local nuisance Key Expert laws.9 However, these local concerns are not an excuse to ban free enterprise in any industry. Angela Logomasini, Ph.D., Director of Risk and Environmental Policy Competitive Enter- Conclusion prise Institute, [email protected].

Public officials need to learn that the Recommended Readings best way to manage our trash is to stop try- ing to micromanage the entire trash disposal Logomasini, Angela. 1999. Trashing the Poor: economy. In recent years, market forces have The Interstate Garbage Dispute. Washing- begun to correct many of the problems caused ton, DC: Competitive Enterprise Institute. by faulty government planning schemes. With http://www.cei.org/gencon/025,01659.cfm the Supreme Court restoring competition, the ———. 1995. Going against the Flow: The resulting trade has proved beneficial to both Case for Competition in Solid Waste Man- host communities and states that lack landfill agement. Washington, DC: Citizens for a capacity. Allowing states to impose import Sound Economy Foundation. http://www. limits or flow-control laws will only turn back heartland.org/Article.cfm?artId=4026.

8. Centers for Disease Control and Prevention, “Per- spectives in Disease Prevention and Health Promotion Summary of the Agency for Toxic Substances and Dis- ease Registry Report to Congress: The Public Health Im- plications of Medical Waste,” Morbidity and Mortality Weekly Report 39, no. 45 (1990): 822–24. 9. See Bruce Yandle, Common Sense and Common Law for the Environment (Lanham, MD: Rowman and Littlefield, 1997).

242 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Toxics Release Inventory

Angela Logomasini

Several states and the federal government Statutory Scheme have in place various “right-to-know” laws. Based on the idea that the public has a right TRI requires that firms1 that have 10 or to know about chemical risks they face, these more employees and annually manufacture or programs require that private sector entities process more than 25,000 pounds (or otherwise report chemicals that they release, use, and sell. use 10,000 pounds) of a TRI-listed chemical2 Some environmentalists suggest that support- report the release or transfer of such chemicals. ing these regulations gives the public enough The law currently covers about 650 chemicals, information to demand lower-risk facilities and the U.S. Environmental Protection Agency that pollute less. Although these laws seem (EPA) has the authority to add and delete chemi- straightforward and reasonable, an analysis cals. Releases include emissions, discharges into of one key federal program—the Toxics Re- bodies of water, releases to land, materials recy- lease Inventory (TRI)—demonstrates serious cled, and disposals into underground injection flaws. wells. Transfers include movement of chemicals

1. For a list of regulated industries, see http://www.epa. gov/tri/report/siccode.htm. 2. For the lists of chemicals regulated under TRI, see http://www.epa.gov/tri/chemical/index.htm.

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off site for recycling, incineration, treatment year. EPA released the 2006 data in February (such as in a water treatment facility), or land- 2008, noting that TRI indicates that emissions fill disposal. have gone down in most places, yet environ- mentalists questioned those findings because Regulatory and Legislative Activity they maintain that the rule limited reporting.6 In addition, some members of Congress have In October 2005, EPA proposed a couple of proposed legislation to overturn the rule, and in rules to reform the TRI and to reduce its regula- November 2007, twelve state attorney generals tory burden. One proposal would change the commenced a lawsuit challenging the rule. frequency of TRI reporting, possibility shifting Despite all the political hype about the EPA to biannual rather than annual reporting.3 An- rule and TRI reporting, the law is actually not other would allow more firms to report on a very informative and its benefit are question- shorter form than under existing regulations.4 able as documented in subsequent sections of Currently, the EPA allows expedited reporting this brief. on what it calls “Form A” for firms that handle fewer than 500 pounds of TRI-listed chemicals. TRI’s Regulatory Burden The goal is to reduce the regulatory burden for firms that “release” low levels of TRI chemi- TRI is often marketed as a low-cost program. cals. The EPA proposed allowing all firms that But the burden placed on the private sector is produce fewer than 5,000 pounds to use Form significant. For example, electric utilities have A, hoping to lift the TRI regulatory burden for to report on 30 chemicals—with a separate TRI more firms. According to the EPA, this change form for each chemical and each plant.7 Esti- would save firms 165,000 hours of paperwork mated total costs of the TRI program range up preparation time and still ensure that 99 per- to nearly a billion dollars a year. The estimated cent of TRI releases would be reported on the costs of all EPA “right-to-know” regulations longer form.5 from TRI, and various other programs, range These changes were designed to save up to $3.4 billion.8 firms—mostly small businesses—time and Individual examples indicate that the regu- money without significantly changing the qual- latory burden is unreasonably high for some ity of data collected under TRI. EPA finalized the rule in December 2006, allowing firms to 6. Katherine Boyle, “Toxic Emissions Declined in apply it to their emission reports covering that 2006,” Greenwire, February 22, 2008. 7. J. Winston Porter, Utilities and TRI: A Primer on Electric Utility Companies and EPA’s Toxics Release 3. Federal Register 70, no. 191 (October 4, 2005): Inventory (Washington, DC: Edison Electric Institute, 57871–72. March 1999), 2, http://www.eei.org/industry_issues/en- 4. Federal Register 70, no. 191 (October 4, 2005): vironment/air/Toxics_Release_Inventory/primer.pdf. 57822–47. 8. Alexander Volokh, Kenneth Green, and Lynn Scar- 5. EPA, “Toxic Release Inventory Burden Reduction— lett, “Environmental Information: The Toxics Release Fact Sheet: Reducing Burden While Ensuring Public Inventory, Stakeholder Participation, and the Right to Access to High Quality Information,” EPA, Washing- Know, Part 1 of 2: Shortcomings of the Current Right-to- ton, DC, 2005, http://www.epa.gov/tri/tridata/modrule/ Know Structure,” Policy Study 246, Reason Foundation, phase2/Fact_Sheet.pdf Los Angeles, 1998.

244 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Solid and Hazardous Waste

businesses. Nancy Klinefelter, who owns a ce- low-level releases and subsequent low-level ex- ramic decorating business with 15 employees, posures likely pose no significant risks.10 Some detailed to a congressional committee the im- suggest that the EPA could address TRI’s failure pacts of the then proposed TRI rule on lead. to provide meaningful information on risk. But Her firm’s lead “releases” included the lead devising a risk-based system is practically im- paint used on the ceramics. She noted that lead possible and, given the investment required, not paint applied to ceramics was actually a use, desirable. Building such a system would require not a release, but she has to report it anyway. billions of dollars in expenditures—billions that She has to track how much lead paint her firm would be diverted from other wealth-creating, uses on a daily basis—by color, because each quality-of-life-improving uses. Despite this very color contains a different level of lead. Then she high quality-of-life cost, this program would has to calculate how much lead is contained in likely return few benefits because chemical risks those paints. She noted that the EPA estimated overall are relatively low.11 It is unfortunate that meeting the rule would require 124 hours that Congress chose to inhibit these modest for tracking lead usage. But the EPA estimates changes to the program. TRI had proven to be still represent a “gross underestimate,” she ex- a needless bureaucratic burden affecting many plained. Her story clearly illustrates the insanity small businesses that have difficulties meeting of many TRI regulations. Klinefelter noted: the costs. Other problems prevent TRI data from pro- I have personally spent 95 hours trying to viding meaningful information: understand the TRI forms and requirements … and I am still nowhere near the point • Safe disposal of waste is counted as a where I can complete the forms with confi- “release”—conjuring up images of dumping dence. In addition, I have spent 60 hours or sewage into rivers or releasing pollutants more reconstructing retroactive color usage into the air—even if the disposal method is data [the EPA required firms to calculate us- virtually harmless and far from most peo- age for the three and a half months before ple’s intuitive understanding of what con- it finalized the rule]. We are now spending stitutes a release. For example, TRI counts about 4 to 5 hours per week tracking lead underground injection of liquid wastes as a usage to enable us to have confidence in our “release into the environment” (see figure 2002 TRI filing.9 1). Yet underground injection is one of the safest means to dispose of liquid waste: the The Problematic Nature of TRI Data waste is injected 4,000 to 5,000 feet be- low Earth’s surface, far from places where Among TRI’s most serious flaws is that it it could damage the environment and far creates the illusion that the mere release of a from underground drinking water sources. chemical is equivalent to risk, when, in fact, 10. For a discussion of low-level exposures and chemi- cal risks, see the policy brief titled “The True Causes of 9. Nancy Klinefelter, “The Lead TRI Rule: Costs, Com- Cancer.” pliance, and Science,” prepared remarks before the House 11. See the policy brief titled “The True Causes of Committee on Small Business, June 13, 2002. Cancer.”

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Figure 1. TRI “Releases,” 2003 • Large firms emit more pollution because of their size and hence are labeled the “biggest polluters.”13 Surface Water Discharges (5%) Underground Injection (5%) • Likewise, a firm might emit a large amount

Air Emissions (36%) of an innocuous substance, but it can still be listed as a bigger polluter than one that emits a small amount of a highly toxic substance.

In addition, TRI and other “right-to-know” programs carry other tradeoffs: Solidification Stabilization (2%) Waste Broker (1%) Land Disposal (51%)

Unknown/Other (less than 1%) • Right-to-know data may jeopardize some Storage Only (less than 1%) firms’ trade secrets by making information Water Treatment (less than 1%) available to their competitors. Of particular concern was a 1997 EPA proposed expan- Source: EPA, “TRI Explorer,” http://www.epa.gov/triexplorer/. sion of TRI to include materials account- ing—which requires firms to report on the materials they merely use, not just the ones Because underground injection is called a re- they “release.” Moreover, the EPA is posting lease, it hikes TRI numbers and has become online numerous databases containing infor- the target of environmental campaigns. As mation that it collects under various laws.14 a result, companies are eliminating under- ground injection and instead are releasing Finally, TRI data are often misused by those wastes directly into surface waters—a far who want to scare the public about chemi- less environmentally sound option.12 cal use rather than to educate the public. The • TRI also counts disposal of waste in safe, following excerpt from a Reason Foundation sanitary landfills as a “release.” Such TRI study details one example:15 “releases” into landfills represent most re- leases (see figure 1), but landfilling offers In 1994, Wisconsin Citizen Action and a safe and effective to manage waste with- Citizens for a Better Environment released a out any significant public exposure to the chemicals. 13. For example, Eastman Kodak has carried the label in New York simply because it happens to be the larg- • TRI counts the reuse of chemicals within a est facility in the Northeast; see “Eastman Kodak Again production process as an additional chemi- New York’s Biggest Polluter 1997 Data Show,” Associ- cal use. This policy wrongly inflates TRI ated Press State and Local Wire, May 14, 1999. numbers by counting materials every time 14. U.S. General Accounting Office, “Environmental they go through the recycling process. Information: EPA Could Better Address Concerns about Disseminating Sensitive Business information,” GAO/ RCED-99-156 (Washington, DC: U.S. General Account- 12. For additional information on underground injec- ing Office, June 1999). tion and TRI, call the Ground Water Protection Council 15. Volokh, Green, and Scarlett, “Environmental Infor- at (405) 516-4972. mation,” 7.

246 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Solid and Hazardous Waste

study called Poisons in our Neighborhoods: toxic releases and that data reveal that those in- Toxic Pollution in Wisconsin. Accord- centives have indeed led to reductions of these ing to the study, Wisconsin manufacturers emissions. According to the EPA, total TRI re- “released over 55 million pounds of toxic leases have declined 45 percent between 1989 chemicals into air, water, and land in 1992.” and 1998.16 At question is whether all declines The study also used TRI data to compile a can be attributed to TRI. Consider some poten- list of the “Dirty Dozen” facilities—the 13 tial problems: (baker’s dozen facilities) with the largest combined air, water, and land releases along • The U.S. General Accounting Office (GAO), with discharges for sewage treatment. now the Government Accountability Of- Number 2 of the “Dirty Dozen” was fice, notes, “EPA cannot determine whether Charter Steel of Saukville, Wisconsin, which reported reductions in waste are due to released 2,645,088 pounds. “This is the improved environmental performance or amount of toxic waste we are certain is be- to other factors, such as annual changes in ing thrown into Wisconsin’s environment,” companies’ production or methods of esti- said a spokesperson for the environmental mating waste.”17 groups, indicating that the TRI numbers • The GAO notes that reductions also may be could be interpreted as a lower bound on a result of firms switching to “alternative pollution. Charter Steel disagreed. The chemicals that may be as harmful as those “toxic waste” it was releasing was spent for which reductions are reported.”18 pickle liquor, a byproduct of steel manu- • Because estimating TRI emissions often is facture which contains sulfuric acid. But its a subjective task, some firms may work on pickle liquor was not being “thrown into how they measure emissions to justify lower Wisconsin’s environment,” as the environ- numbers each year, to ensure that they can mental report suggested. Instead it was be- report lower emissions in their annual re- ing given for free to sewage treatment plants, ports. The GAO notes, “Companies often which used the sulfuric acid in the pickle change their estimation techniques from liquor to help treat their sewage water. The one year to the next, preventing data users Milwaukee Metropolitan Sewerage District, from accurately evaluating the progress of which gets 6 percent of its pickle liquor from source reduction.”19 Charter Steel and more pickle liquor from • Rather than measuring environmental per- eight other companies, saves $300,000 per formance, TRI can simply measure changes year because of Charter Steel’s production of this “hazardous waste.” 16. EPA, 1998 Toxics Release Inventory Data and 1995–1998 Trends (Washington, DC: EPA, May 2000), 2–23. TRI Is Not a Reliable Source for 17. GAO, Toxic Substances: EPA Needs More Reli- Measuring Pollution Trends able Source Reduction Data and Progress Measures,” GAO/RECD-94-93 (Washington, DC: GAO, September TRI’s most often cited achievement is its 1994). ability to measure pollution trends. Supporters 18. Ibid. say that TRI gives firms the incentive to reduce 19. Ibid.

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in the economy. Declining TRI releases can The Right to Terrorism? result as facilities close or downsize during a recession. Likewise, if a facility expands, A federal “right-to-know” provision in the TRI may indicate a “poor performance” as Clean Air Act demonstrates how far activists “releases” go up.20 will go in their quest to publicize environmental • EPA databases, such as TRI, are unreliable. data. Under the federal Clean Air Act, certain in- The GAO notes, “In various reviews, we and dustrial facilities must prepare risk management others have identified persistent concerns plans that detail accidental release prevention about the accuracy of the data in many of and management plans. These plans include a EPA’s information systems.”21 section outlining the potential impacts (includ- ing such things as the number of fatalities and However, it is not unreasonable to assume injuries to the surrounding community) that that pollution and materials use have in fact would result under the “worst-case scenario” declined. Even with increases in market activ- from a catastrophic accidental chemical release. ity, reduced pollution and more efficient mate- The law demanded that the EPA make the infor- rials use should be expected without TRI. The mation available to the public. main reason is that market incentives to cut When the EPA announced that it would waste are a stronger influence on materials use post this information on the Internet, the Fed- because such reductions translate into a finan- eral Bureau of Investigation, the Central Intelli- cial gain. The Reason Foundation compiled gence Agency, and other security organizations some examples of such market-driven source pointed out that such posting could give terror- reduction:22 ists anonymous access to a searchable database for potential targets—enabling them to select • To construct a skyscraper today, builders the targets that would produce the highest need 35 percent less material than they did number of fatalities. When the EPA agreed not a few decades ago. to post the information, “right-to-know” advo- • The amount of aluminum required to pro- cates said that they would get the information duce an aluminum can has declined by 30 and post it on the Internet themselves. percent from 1972 to 1995. Congress passed a law in 1999 asking the • The average weight of a stove declined by Department of Justice and the EPA to issue a 17 percent between 1972 and 1987. rule to minimize security risks. The final rule makes the information available in at least 50 “reading rooms” throughout the nation and at 20. Although TRI data may appear to indicate otherwise, state and local emergency planning committee as wealth improves environmental well-being improves. offices, where potential terrorists can view the See the policy brief titled “Environmental Trends.” information and where activists can copy it 21. Statement of Peter F. Guerrero, director, environmen- down and eventually post it online. In any case, tal protection issues, GAO, before the Senate Committee on Environment and Public Works, October 3, 2000, the rule allowed the EPA to post the bulk of the GAO-01-97T. risk management plan information online, with 22. Volokh, Green, and Scarlett, “Environmental Infor- offsite consequence analysis summaries included mation,” 12. on every facility. After 2001, the EPA pulled the

248 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Solid and Hazardous Waste data from its website, but anti-chemical activists J. Winston Porter, Waste Policy Center, jwp@ had already downloaded the executive summa- winporter.com ries and posted them online, where they remain today. In addition, the EPA continues to provide Recommended Readings access to the plans at federal libraries. Dudley, Susan. 1999. Persistent Bioaccumu- Conclusion lative Toxic Chemicals—Toxic Release Inventory (TRI). RSP Comment 1999-2. Ar- The TRI program is simply not equipped to lington, VA: Mercatus Center. http://www. perform the function for which it was designed: mercatus.org. TRI data fail to offer meaningful information ———. 1999. TRI Reporting of Lead and Lead to the public; TRI’s ability to prompt pollution Compounds. RSP Comment 1999-13. Ar- reduction is questionable; and the costs of the lington, VA: Mercatus Center. http://www. program are substantial, particularly for small mercatus.org. businesses. Unfortunately, members of Congress Logomasini, Angela. 1999. “The Clean Air have failed to recognize the pitfalls of the pro- Act’s Federal Terrorist Assistance Program.” gram, rejecting even the most modest attempts OnPoint 37, Competitive Enterprise Insti- to ease the program’s regulatory burden. tute, Washington, DC. http://www.cei.org/ utils/printer.cfm?AID=1600. Key Experts Volokh, Alexander, Kenneth Green, and Lynn Scarlett. 1998. “Environmental Information: Angela Logomasini, Director of Risk and The Toxics Release Inventory, Stakeholder Environmental Policy, Competitive Enterprise Participation, and the Right to Know, Part 1 Institute, [email protected] of 2: Shortcomings of the Current Right-to- Alexander Volokh, Reason Foundation, Know Structure. Policy Study 246, Reason [email protected] Foundation, Los Angeles.

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Solid Waste Management

Angela Logomasini

Americans like to recycle, and recycling waste with plans similar to the economic plans is indeed an important part of our integrated of the former socialist nations, creating a host of waste management system. This system recog- economic and environmental problems. nizes that some portions of our waste are most efficiently recycled, some are most efficiently Legislative Background placed in landfills, and some should be burned in incinerators. The key is finding the mix of op- For the most part, state and local laws govern tions that conserves the most resources, while waste management. However, federal law has protecting the environment. Market-driven an important effect on how they operate. The competition is the best way to achieve this goal. federal Resource Conservation and Recovery Each option represents its costs to society: the Act (RCRA) sets voluntary guidelines for states value of the water, energy, land, labor, and other to develop solid waste management plans. When resources that the disposal option requires. devising these plans, state and local officials esti- Hence, by allowing competition between dis- mate how much waste they expect each commu- posal options, we enable the most resource-effi- nity to create over a 5- to 30-year period; then cient (the least expensive) option to win in any they plan ways to manage that waste. Because the given case. Yet state and local governments do federal government provides financial assistance not follow this advice. They try to manage their to state bureaucracies that gain approval of their

202-331-1010 • www.cei.org • Competitive Enterprise Institute 251 The Environmental Source plans from the U.S. Environmental Protection that recycling and reuse of materials have always Agency (EPA), nearly all states and localities use been a part of industrial processes because wast- waste management planning. ing resources does not make economic sense.2 It is also true that private markets promote re- Misplaced Political Priorities cycling only when it makes sense, whereas the government regulates recycling even when it Relying on 30-year waste management requires more resources than it saves. plans presents serious problems. Public offi- cials cannot possibly estimate future waste gen- Source Reduction eration, nor can they envision future disposal technology. As a result, they often make poor The desire to reduce waste—defining waste decisions, invest in the wrong technologies, and as not using our resources efficiently—is a wor- choose less efficient disposal options.1 thy goal. But source reduction confuses waste In addition, with more government involve- reduction with plans to abolish useful products. ment, waste management increasingly serves Ironically, attempts to eliminate useful products politically popular goals at the expense of safe can increase refuse by eliminating packaging and efficient disposal. In particular, the EPA’s that prevents spoilage or product damage. For system of politically preferred waste disposal example, developing countries experience food options, called the waste management hierar- spoilage of 30 percent to 50 percent because chy, governs most state and local waste man- of inadequate packaging, storage, and distribu- agement plans. According to the hierarchy, tion. With sophisticated packaging, storage, and waste policy should first focus on reducing the distribution, developed nations experience food amount of trash that people make—so-called spoilage of only 2 percent to 3 percent.3 Manu- source reduction. Second, it should emphasize facturers know that more efficient packaging— recycling. And wastes that we cannot reduce or rather than its elimination—saves resources. recycle should go to the politically unpopular It makes more sense to use such market forces options: to the landfill (third on the list) or to than to assume that government bureaucrats can an incinerator (fourth on the list). By relying on mandate more efficient options. For example, this political formula, bureaucrats often work between 1980 and 1998, manufacturers reduced to promote source reduction and recycling at the material necessary to make a two-liter plastic any cost to the environment and consumers. bottle from 65 grams to 48 grams, an aluminum In contrast, private sector recycling is always can from 19 grams to 14 grams, a glass bottle driven toward the most efficient mix of disposal from 255 grams to 170 grams, a steel can from options. Professor Pierre Desrochers documents 2. Pierre Desrochers, “Natural Capitalists’ Indictment 1. Numerous states and localities have invested in of Traditional Capitalism: A Reappraisal,” Business waste disposal facilities—primarily waste-to-energy Strategy for the Environment 11, no. 4 (2002): 203–20. incinerators—only to find that these facilities are not 3. “Packaging in Perspective: Environmental Econom- economically efficient. As a result, states and localities ics of Packaging, Packaging and the Environment, Special went so far as to ban competition with these plants, until Report,” Packaging Week 5, no. 39 (February 21, 1990): the Supreme Court ruled such laws unconstitutional. See S17. The report cites the World Health Organization for the policy brief titled “Interstate Waste Commerce.” these figures.

252 Competitive Enterprise Institute • www.cei.org • 202-331-1010 Solid and Hazardous Waste

48 grams to 36 grams, and a plastic grocery sack tain products contain a percentage of recycled from 9 grams to 6 grams.4 content.6 As a result, local governments expend In the rush to serve the politically preferred enormous resources to promote recycling, even goal of source reduction, some public officials when that means using more resources than re- seek to reduce disposable products, such as pa- cycling saves. Note the following facts: per cups and utensils. But a Waste Policy Center report that reviewed 34 studies on disposable • Despite conventional wisdom, recycling has packaging highlights why this policy does not environmental tradeoffs. In many cases it necessarily serve public health or environmen- can be the less environmentally sound op- tal goals.5 The study found that disposables tion, because recycling can use more energy reduce exposure to dangerous bacteria. For ex- and water and can emit more air pollution ample, one study examined a sample of utensils than other alternatives.7 States spend $322 from restaurants, hotels, medical institutions, million annually to subsidize recycling, ac- and schools. It found, on average, 410 bacterial cording to one study.8 colonies on reusable utensils compared with 2 • Recycling costs are passed to the consumer bacterial colonies on disposable utensils. through trash bills or taxes. One study Because it does not require washing, dispos- found that the average cost per household able packaging uses less water and produces with curbside recycling was $144 annually; less wastewater. For example, the Waste Policy without recycling, the cost of trash disposal Center study found that washing a china cup in was $119.9 These costs can consume a con- the dishwasher just once produces more water siderable amount of a city’s budget. For pollution than the entire life cycle of a dispos- example, Sanford, Maine, spent $90,990 to able cup. Reusable products are better for the environment (in regard to solid waste disposal, 6. For information on why recycled content laws cannot air pollution, and energy usage) only if they are promote efficient recycling, see Jerry Taylor, “Minimum used several hundred times. Content, Minimum Sense,” This Just In, April 25, 1997, http://cato.org/pub_display.php?pub_id=6158, and Ken Chilton, Do We Need a Federal Garbage Man? (Los Recycling Angeles: Reason Public Policy Institute, March 1992), http://www.reason.org/ps137.html. Similarly, because recycling is so politically 7. Mathew A. Leach, Austilio Bauen, and Nigel J. D. popular, public officials developed goals as part Lucas, “A Systems Approach to Materials Flow in Sus- of their waste management plans to recycle a tainable Cities: A Case Study of Paper,” Journal of Envi- specific percentage of household waste. To meet ronmental Planning and Management 40, no. 6 (1997): 705–23. The study contends that recycling paper can these goals, local governments have used man- mean more of various emissions and more energy use. dated recycling programs and required that cer- 8. Christopher Douglas, Government Hand in the Re- cycling Market: A New Decade (St. Louis, MO: Wash- 4. J. Winston Porter, Trash Facts—In a Small Package ington University, Center for the Study of American (Leesburg, VA: Waste Policy Center, 1999), http://www. Business, September 1998), 7. The Center for the Study of winporter.com. American Business (CSAB) is now called the Weidenbaum 5. J. Winston Porter, Environmental and Public Health Center on the Economy, Government, and Public Policy. Aspects of Food Service Packaging (Leesburg, VA: Waste CSAB studies are available at http://csab.wustl.edu/. Policy Center, 1996). 9. Ibid., 14.

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recycle waste that it could have safely placed landfill 120 feet deep, with 44-mile sides.13 in landfills for $13,365.10 Wiseman’s point is clear: land disposal needs • As citizens sort their trash for recycling, are small compared with the land available in most assume that those materials then go the 3 million square miles of the contiguous to a recycling facility. But many times, local United States. governments cannot find markets for all the The real landfill problem is political. Fears goods they collect, and much of the material about the effects of landfills on the local envi- ends up in a landfill.11 It is very difficult to ronment have led to the rise of the not-in-my- determine how much governments actually backyard (NIMBY) syndrome, which has made recycle. permitting facilities difficult. Actual landfill ca- pacity is not running out. The market response Landfills and Incinerators to this problem is the construction of larger landfills, creating greater disposal capacity even Recycling is pushed largely to avoid using with fewer landfills.14 landfills or incinerating waste. Anti-landfill sen- Landfills are politically unpopular because timents arose because many needlessly feared many citizens fear the public health risks. But es- that we would run out of landfill space. The timates of landfill risks—based on EPA assump- battle against landfills heated up in the 1990s tions that “maximally exposed” individuals face when public officials wrongly proclaimed that a cancer risk of one in a million—reveal that the we faced a garbage crisis because we were run- risks to public health are not significant. When ning out of landfill space. One reason for this compared with most other forms of business problem, they said, was that existing landfills and activities that we experience in daily living, would close in 5 to 10 years.12 But that is true the risks posed by landfills to the surrounding at any point in time, because landfills last only communities are miniscule (see chart). that long. Problems arise when states fail to permit new facilities. Key Experts There was in the 1990s (and still is) plenty of land on which to place new landfills. Dur- Angela Logomasini, Director of Risk and ing the alleged landfill crisis, A. Clark Wiseman Environmental Policy, Competitive Enterprise of Gonzaga University pointed out that, given Institute, [email protected]. projected waste increases, we would still be able J. Winston Porter, Waste Policy Center, jwp@ to fit the next 1,000 years of trash in a single winporter.com. Jerry Taylor, Cato Institute, jtaylor@cato. 10. Ibid. org. 11. Bruce Van Voorst, “Recycling Stalled at Curbside: More and More People Are Sorting Their Garbage; But Industry Often Can’t Handle the Volume,” Time, Octo- 13. A. Clark Wiseman, U.S. Wastepaper Recycling Poli- ber 18, 1993, 78. cies: Issues and Effects (Washington, DC: Resources for 12. For example, see Office of Technology Assessment, the Future, 1990), 2. Facing America’s Trash: What Next for Municipal Solid 14. The growth of the regional landfill industry has led Waste? (Washington, DC: U.S. Government Printing Of- to increased interstate movement of wastes. See the olicy fice, 1998), 283. brief titled “Interstate Waste Commerce.”

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Cancer Risks One-in-a-Million Risks of Death (assumes 70 years of maximum exposure) (assumes one year of exposure) 60 percent of landfills pose a one-in-10-billion risk. Smoking 1.4 cigarettes 6 percent pose a one-in-a-billion risk. Drinking half liter of wine 17 percent pose one-in-a-million risk. Living two days in New York or Boston Incinerators pose one-in-a-million risk. Traveling 6 minutes by canoe Modern landfills pose lowest of risks. Traveling 10 miles by bicycle Traveling 300 miles by car Flying 1,000 miles by jet One chest x-ray Eating 40 tablespoons of peanut butter Sources: Jennifer Chilton and Kenneth Chilton, “A Critique of Risk Modeling and Risk Assessment of Municipal Landfills Based on U.S. Environmental Protection Agency Techniques,” Waste Management and Research 10 (1992): pp. 505–16 (landfills). Richard Wilson, “Analyzing the Daily Risks of Life,” in Readings in Risk, ed. Theodore S. Glickman and Michael Gough (Washington, D.C.: Resources for the Future, 1990), p. 57 (one-in-a-million risk comparisons).

Recommended Readings Delong, James V. 1994. Wasting Away: Misman- aging Municipal Solid Waste. Washington, Benjamin, Daniel K. 2003. “Eight Great Myths DC: Competitive Enterprise Institute. of Recycling.” PERC Policy Series 28. Boze- Douglas, Christopher. 1998. Government Hand man MT: Property Environment Research in the Recycling Market: A New Decade. St. Center. Louis, MO: Washington University, Center Desrochers, Pierre. 2002. “Natural Capital- for the Study of American Business. ists’ Indictment of Traditional Capitalism: A Reappraisal.” Business Strategy for the Environment 11, no. 4: 203–20.

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Electronic Waste

Angela Logomasini*

Increasingly, news reports and environ- cals and heavy metals that cannot be disposed mental activists are claiming that we are fac- of or recycled safely.”2 As a result of such rheto- ing a new solid waste crisis. “Electronic junk ric, Europe has passed several “e-waste” laws, [is] piling up everywhere, creating what some U.S. states have begun looking into their own experts predict will be the largest toxic waste regulations, and members of Congress have problem of the 21st century,” reads an article in proposed legislation. Unfortunately, misinfor- Environmental Health Perspectives.1 Similarly, mation about the issue and the naive belief that Greenpeace claims, “The world is consuming government is positioned to improve electronic more and more electronic products every year. waste handling is leading to misguided policies This has caused a dangerous explosion in elec- and legislation. tronic scrap (e-waste) containing toxic chemi- Background

* This brief is largely a summary of: Dana Joel Gat- In 2003, the European Union (EU) passed tuso, “Mandated Recycling of Electronics: A Lose-Lose- Lose Proposition,” Issue Analysis 2, Competitive Enter- a couple of e-waste policies that are becoming prise Institute, Washington, DC, 2005, http://www.cei. org/pdf/4386.pdf. 2. Greenpeace International, “Eliminate Toxic 1. Charles W. Schmidt, “E-Junk Explosion,” Environ- Chemicals,” http://www.greenpeace.org/international/ mental Health Perspectives, April 4, 2002. campaigns/toxics.

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models for U.S. regulation. The Directive on the their policy on misinformation, as is appar- Restriction of the Use of Certain Hazardous ent from their comments on the topic in the Substances (RoHS) phases out certain “haz- press.6 ardous substances”—lead, mercury, cadmium, During the 109th Congress, several mem- hexavalent chromium, bromated flame retar- bers offered e-waste legislation. Representa- dants—that are used in electronics. The other tive Juanita Millender-McDonald (D-CA) in- directive, the Waste Electronic and Electrical troduced H.R. 4316 and Senator Ron Wyden Equipment Directive, mandates that companies (D-OR) introduced S. 510, both of which would take back electronic equipment for disposal provide tax credits for recycling computers and starting in 2005. would ban disposal of computer monitors in The costs of these programs are likely to landfills, among other things. Representative be significant. The EU government estimates Mike Thompson (D-CA) offered H.R. 425, that both programs will cost €500 million to which would impose a tax on electronic equip- €900 million,3 and industry estimates costs of ment sales, levying up to $10 per item. The up to €62.5 billion.4 According to Gartner Inc., funds would go to the U.S. Environmental Pro- a U.K.-based technology analysis company, the tection Agency (EPA), which would use them cost of the two directives will raise personal to award grants to parties working to recycle computer prices by about $60.5 computers. The benefits of the programs are assumed, In addition, numerous states are following rather than assessed through any comprehen- Europe’s lead. For example, in 2001, California sive study. Instead, these programs are based on banned the disposal of computer monitors in the precautionary principle, which assumes that landfills, and in 2003, it passed a law to place in the absence of information about risk, regu- a sales tax on computers—which lawmak- lators should act to prevent potential risks. ers euphemistically call an “advance disposal Following Europe’s lead, several members fee.” This new tax is supposed to fund a state of Congress formed an e-waste task force in computer recycling program, but if costs of 2005 to study the issue and produce legisla- the program grow, the state can increase the tion. Members of this task force are basing tax to cover its costs. The fee is likely to grow, because it costs about $20 to $25 to recycle 3. U.K. Department of Trade and Industry, “Explana- each unit. Some program supporters advocate tory Memorandum on European Community Legisla- increasing the tax to as much as $60 per com- tion: The Common Position on a Proposal for a Euro- puter sold. E-waste policies are also in place pean Parliament and Council Directive on Waste from in Maine, Maryland, Minnesota, Washington Electrical and Electronic Equipment,” U.K. Department of Trade and Industry, London, March 2002, 7.

4. Orgalime, “Detailed Position of Orgalime’s Electri- 6. For example, see Representatives Mike Thompson, cal and Electronic Liaison Committee in Cooperation Louise Slaughter, Randy Duke Cunningham, and Mary with European Sector Committees,” Brussels, September Bono, “Electronic Waste,” Letters to the Editor, Wash- 5, 2000, 1. ington Times, July 14, 2005, responding to Dana Joel 5. Meike Escherich, “EU’s New Recycling Rules Could Gattuso, “E-Waste: Electronic Paperweight Crisis?” Drive Up European PC Prices,” Gartner Inc., January 6, Washington Times, July 12, 2005. See also Gattuso’s 2004, as quoted in Fiona Harvey, “The Greening of Your response, “Straight Scoop on E-Waste,” Letter to the Edi- PC,” National Post, February 5, 2004. tor, Washington Times, August 21, 2005.

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State, Connecticut, Oregon, North Carolina, ing yet.”9 Retailers are already having a prob- and Texas. lem complying with WEEE’s take back and recycling mandates.10 California had similar Fundamental Problems with These problems associated with stockpiling when it Policies banned the disposal in landfills of computer monitors. Despite claims to the contrary, there are Likewise, RoHS-styled bans on substances many problems with the EU e-waste programs used in electronic products are problematic and the U.S. versions of these laws. The re- for a number of reasons. First, they ignore cycling mandates, like those under Europe’s important benefits of the so-called hazardous WEEE program, may actually mean more air, substances that are being banned—benefits water, and solid waste pollution as products are that may make final products safer and lon- collected, sorted, and recycled. In fact, the U.K. ger lasting. Moreover, the risks of these sub- Department of Trade and Industry notes, “For stances can be managed without banning them certain items, [the directive] may not be the best completely. practicable environmental option.”7 Ironically, the risks created by the RoHS In addition, WEEE presents some serious program itself may be more problematic than practical problems associated with collect- the risks it attempts to control. Consider the ing and recycling all the products concerned. ban on using lead as solder in computers. Lead When the EU implemented a similar program is banned for this purpose even though there for refrigerators in 1998, the products were are no proven problems associated with using collected but there was nowhere to recycle lead in computers. However, the substance con- them, leading to a massive stockpiling of re- veys many benefits, which substitute substances frigerators, now known as the “fridge fiasco.” might not deliver. An estimated 6,500 refrigerators piled up For one thing, lead solder is very energy ef- daily—2.4 million annually. According to the ficient; it requires less energy than alternatives U.K. government, the cost of managing these because it melts at low temperatures. Accord- wastes was £75 million.8 WEEE’s impacts ing to a U.K. Trade and Industry study, substi- could be much worse. According to the U.K. tutes increase energy usage by 6 to 18 percent.11 Environment Agency, “Fridges are just one tiny Similarly, a University of Stuttgart study of sub- part of the WEEE directive—if we think we stitutes for lead solder indicates that the envi- have problems now, then we ain’t seen noth-

9. “Government Warned to Avoid Fridge-like Crisis for 7. U.K. Department of Trade and Industry, “Consulta- Electronic Directive,” letsrecycle.com, January 30, 2002, tion Paper: Proposed EC Directive on Waste Electrical http://www.letsrecycle.com/news/news.jsp?story=1002. and Electronic Equipment and Proposed EC Directive 10. Graham Grant, “Phony War on Waste: Scots Face on the Restriction of the Use of Certain Hazardous Sub- Huge Bill for Growing Mountain of Discarded Electri- stances in Electrical and Electronic Equipment,” U.K. cal Goods as Shops Fail to Comply with New Recycling Department of Trade and Industry, London, August 11, Directive,” Daily Mail (UK), January 4, 2008. 2000, 52. 11. U.K. Department of Trade and Industry, Consulta- 8. Nicholas Watt, “Taskforce to Tackle #75m ‘Fridge tion Paper, U.K. Department of Trade and Industry, Lon- Mountain,’” Guardian, January 21, 2002. don, 48.

202-331-1010 • www.cei.org • Competitive Enterprise Institute 259 The Environmental Source ronmental impacts of the substitutes—carbon dent studies—involving exhaustive test emissions, acidification, human toxicity, and programs to evaluate the performance of —are all significantly higher lead-free alloys in high reliability systems— than those for lead.12 have revealed situations where lead-free al- Moreover, substitutes are likely to reduce loys directly compromise electronic circuit product performance and reliability. For ex- reliability.”14 ample, tin solder forms tiny strains called whiskers when too much moisture is present; Similar problems are associated with the these whiskers can spread along circuit boards ban on bromated flame retardants. These were and produce short-out failures. Other substi- banned because they allegedly release danger- tute solders are not strong enough; they con- ous levels of dioxin. Yet the EU risk assessment sistently fail stress tests and shorten computer on the topic found “no identifiable risk.”15 There life, thereby increasing e-waste.13 Such prob- were similar findings in studies conducted by lems are currently being cited as firms attempt the National Academy of Sciences,16 the World to comply with RoHS. For example, one firm Health Organization,17 and the U.S. Consumer notes: Product Safety Commission.18 Yet the absence of such flame retardants presents an increased “Worse still, standards bodies have already risk of fires. A Swedish study found that exist- discovered some serious technical misgiv- ing limits on the flame retardants in Europe ings about the long-term performance of may explain a higher number of television fires lead-free, high tin alternatives such as SAC in Europe: There are currently about 165 fires alloys. What is known so far is that lead-free per million televisions in Europe. Meanwhile, solders are certainly not a “drop in” solution in the United States, where flame retardants are for their lead forefathers. This presents a used in televisions, there are only five fires per daunting prospect for many manufacturers, million television sets.19 particularly those making high-reliability products used in safety critical applications where failure puts lives at risk … Indepen- 14. Graham Naisbitt (Managing Director of UK-based Gen3 Systems), “Learning from the RoHS Experience,” Electronic News (Australia), November 1, 2007. 12. N. Warburg, C. Herrmann, P. Eyerer, “Lead-Free Sol- dering Paste from Different Stakeholders’ Point of View,” 15. Kara Sissell, “EU Finds Deca-BDE Poses No Health Keynote presentation, APEX Conference, Anaheim, CA, Risk,” Chemical Week, June 9, 2004. March 31–April 2, 2003. For more on this issue, see 16. Bromine Science and Environmental Forum, “Study Erik de Kluizenaar, Environmental Impact of Solder and Finds Very Low Detection of DecaBDE,” press release, Solderable Finishes, Philips CFT Electronic Packaging & June 10, 2004. Joining, Eindhoven, Netherlands; and Jack Geibig and Maria Socolof, Summary of Activities for a Life-Cycle 17. World Health Organization, International Pro- Environmental Impact Evaluation of Tin-Lead and gramme on Chemical Safety, “Environmental Health Lead-Free Solder, Center for Clean Products and Clean Criteria 172: Tetrabromobisphenol A and Derivatives,” Technology, University of Tennessee, Knoxville, TN, World Health Organization, Geneva, 1995. April 2003. 18. Bromine Science and Environmental Forum, “Study 13. Raymond A. Fournelle, “Lead-Free Solders and Pro- Finds Very Low Detection of DecaBDE.” cessing Issues Relevant to Microelectronics Packaging,” 19. Margaret Simonson and Hakan Stripple, “LCA Journal of Electronic Materials 56, no. 6 (2004): 33–49. Study of Flame Retardants in TV Enclosures,” Swedish

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Ongoing Private Computer Recycling Conclusions

In contrast to the many problems with gov- Despite claims to the contrary, there is no real ernment recycling programs, private efforts to e-waste crisis, and the risks and costs of e-waste recycle commuters have proven much more are manageable. Government programs promise effective. In 2004, Dell, Hewlett-Packard, and to promote inefficiencies, increase environmental IBM collected and recycled 160 million pounds problems, and hinder market solutions. Market of computer equipment. These programs are forces can and will produce optimal management voluntary, fee-based, and affordable. At this of e-waste—if only the regulators allow them. point, Dell recycles computers for $10. (This service provides users with an airway bill for Experts shipping the computer to Dell.) Ironically, Representative Thompson’s bill Dana Joel Gattuso, Adjunct Scholar, Com- would tax consumers who buy computers to petitive Enterprise Institute. provide grants to fund computer recycling— Angela Logomasini, Director of Risk and but computer recycling is already occurring Environmental Policy, Competitive Enterprise in the private sector. The difference is that the Institute, [email protected] private initiatives operate without taxing con- sumers and charge only those who dispose of Recommended Reading waste, not everyone who buys a computer. If the Thompson bill passed into law, it could Gattuso, Dana Joel. 2005. “Mandated Re- have undermined the productive private efforts cycling of Electronics: A Lose-Lose-Lose by replacing them with a less efficient govern- Proposition.” Issue Analysis 2, Competitive ment program. Enterprise Institute, Washington, DC, 2005. http://www.cei.org/pdf/4386.pdf.

National Research and Testing Unit, Borås, Sweden, Feb- ruary 2, 2000, 3–4, 8.

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About the Authors

Fred L. Smith Jr. is the Founder and President a research associate with the Capital Research of the Competitive Enterprise Institute (CEI). Center. He graduated from the American Uni- Before founding CEI, Mr. Smith served as the Di- versity with a BA in political science and history. rector of Government Relations for the Council He holds a JD from George Mason University. for a Competitive Economy, as a senior econo- Michael De Alessi is the Director of Natu- mist for the Association of American Railroads, ral Resource Policy at Reason Foundation. He and for five years as a Senior Policy Analyst at worked on The Environmental Source while he the Environmental Protection Agency. Mr. Smith was a policy analyst at CEI. Mr. De Alessi holds holds a BS degree in Theoretical Mathematics and a MS in Engineering Economic Systems and Political Science from Tulane University where a BA in Economics from Stanford University. he earned the Arts and Sciences Medal (Tulane’s He also has a MA in Marine Policy from the highest academic award) and was elected to Phi Rosenstiel School of Marine and Atmospheric Beta Kappa. He has also done graduate work in Science at the University of Miami. mathematics and applied mathematical econom- J. Bishop Grewell practices law at Mayer ics at Harvard, SUNY Buffalo, and the Univer- Brown LLP in Chicago. He contributed to this sity of Pennsylvania. book while a visiting fellow at CEI. Gregory Conko is the Director of Food Safety Sam Kazman is General Counsel of CEI. In Policy at CEI. Before joining CEI, Mr. Conko was 1992, Mr. Kazman won a federal appeals court ruling that the National Highway Traffic Safety Iain Murray is Director of Projects and Administration had illegally concealed the lethal Analysis and Senior Fellow in Energy, Sci- effects on highway safety of its auto fuel econ- ence and Technology at CEI. Before coming omy standards, the first judicial overturning of a to CEI, Mr. Murray was Senior Analyst and fuel economy standard in the program’s history. then Director of Research at the Statistical As- Ben Lieberman is a Senior Policy Analyst, sessment Service, and he worked as an advisor Energy and Environment, Thomas A. Roe In- to the British Department of Transport. Mr. stitute for Economic Policy Studies at the Heri- Murray holds a BA and MA from the Univer- tage Foundation. He received his JD from the sity of Oxford, an MBA from the University of George Washington University. London and the Diploma of Imperial College Angela Logomasini is Director of Risk and of Science, Technology and Medicine. Environmental Policy at CEI. Ms. Logomasini Jennifer Zambone is Publications Manager served as legislative assistant to Senator Sam at the Mercatus Center. Ms. Zambone has a BA Brownback from 1996 through 1998, advising in Biology and English from Washington and the senator on energy and environmental issues. Lee University, where she also earned her JD. She has a PhD in Politics from the Catholic She contributed to this book as a policy analyst University of America. at CEI. The Competitive Enterprise Institute is a non-profit public policy organization ded- icated to the principles of free enterprise and limited government. We believe that consumers are best helped not by government regulation but by being allowed to make their own choices in a free marketplace. Since its founding in 1984, CEI has grown into an influential Washington institution.

We are nationally recognized as a leading voice on a broad range of regulatory issues ranging from environmental laws to antitrust policy to regulatory risk. CEI is not a traditional “think tank.” We frequently produce groundbreaking research on regulatory issues, but our work does not stop there. It is not enough to simply iden- tify and articulate solutions to public policy problems; it is also necessary to defend and promote those solutions. For that reason, we are actively engaged in many phases of the public policy debate.

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