NYLS law professor David Schoenbrod began his legal career with the Natural Resources Defense Council, fighting to remove lead from gasoline. This effort was largely successful -- today gasoline is unleaded and lead levels are down dramatically. Nonetheless, Schoebrod argues that the bulk of America's federal environmental regulatory system is a failure. In Saving Our Environment from Washington: How Congress Grabs Power, Shirks Responsibility, and Shortchanges the People, he makes the case for decentralizing environmental decisionmaking and reducing legislative delegation to expert agencies.

I review Schoenbrod's book in the latest issue of The Independent Review. An excerpt follows, the full review is here.

Unlike some critics of contemporary environmental policy, Schoenbrod does not wish away important environmental concerns, nor does he dismiss all federal efforts. The relevant question is not whether, by some measure, environmental conditions have improved (they have) or even whether the current federal regulatory system deserves some of the credit for such trends (it does). Schoenbrod is more interested in whether the existing arrangements are the best ones that we can devise. A given program cannot be deemed a "success" if other approaches might have achieved the same or better results at lower cost. Environmental protection is important, but so are other societal goals. If federal environmental regulations suppress economic growth, discourage technological innovation, and constrain individual liberty, then available alternatives deserve consideration. Such is the ground on which Schoenbrod ultimately rests his case.

Saving Our Environment is powerful especially because it is based on Schoenbrod's own experience as an environmental advocate fighting in the trenches of environmental law and policy. Though now a legal academic, Schoenbrod approaches environmental policy from the inside, having once relied on the policy mechanisms he now seeks to challenge. Saving Our Environment offers guiding principles rather than a step-by-step plan of action, perhaps because of the obstacles Schoenbrod's ideas face. Not the smallest such obstacle is the institutional inertia against policy change: "Congress will let go of local environmental problems only if its members take responsibility for the environmental laws, and they can take responsibility only if Congress lets go of local environmental problems." . . .

Today, environmental decisions with profound effects on local communities are often made hundreds or thousands of miles away in Washington, D.C., and even there the most important policy judgments are made by unelected bureaucrats rather than by the people's elected representatives. "This arrangement lets members of Congress profit from the environment issue on the cheap," and it encourages the proliferation of environmental rules. The nation's constitutional structure was not created with environmental protection in mind. Nonetheless, Saving Our Environment makes a powerful case that more attention to the constitutional values of federalism and legislative accountability would improve the environmental protection we have today.