Environmental Legislation and political reality

Little Rock 1970

When Ronald Reagan was Governor of the state of California and chairman of the Republican Governors conference of the United States, he invited Victor Yannacone to address the 33 republican governors at their annual meeting in Little Rock, Arkansas on December 10, 1970 and advise them about politically feasible ways to enact and implement ecologically sophisticated, environmentally responsible, socially relevant, economically rational and politically acceptable legislation to protect the environment for unborn generations.

Yannacone then surprised all the Governors with his moderate philosphy and practical suggestions.

Environmental Legislation And Political Reality

I am not going to berate you and it would be inappropriate to plead with you because you work for me and all the other tax paying citizens of the United States. I don’t even intend to propose simplistic solutions to very complicated problems, nor am I going to suggest that the appointment of a committee of scientists, or lawyers, or sociologists, or even billionaires, self-made or otherwise, will solve your problems.

However, as a poor country lawyer from the East, I will attempt to help all of you and each of you, in whatever way I can, to meet the environmental crisis we all must face together.

Most of our environmental problems stern from the misguided and inept attempts of ecological illiterates to control the uncontrollable.

What have we done so far?

GMOs (genetically modified organisms) and pesticide abuse are classic examples. Throughout the history of modern large scale farming and animal “husbandry,” agribusiness has ignored the potential value of integrated control techniques where specific chemical bullets are used to augment the armory of natural and biological insect controls.

The indiscriminate use of broad-spectrum, persistant chemical biocides such as DDT, and the DEATH group: dieldrin endrin, aldrin, toxaphene and heptachlor— so altered the ecology of agricultural ecosystems that total reliance on these chemicals for pest control only created new and more resistant pest species. Using GMOs to modify the natural properties of plants and animals to make them resistant to the chemicals we market and sell to defeat the natural processes of biological control in complex ecosystems because they are too slow to be really profitable is not the answer. It just compounds the problems and makes matters worse.

Utilizing our water resources for waste disposal creates other problems. Oceans, and rivers, lakes and streams are just like any other sink—they have a finite capacity for waste, after which they back up. Moreover, they fight back as algae blooms quickly decay into stinking sulfurous miasmas.

Our atmosphere is not a limitless sink into which we can pour countless tons of noxious gases and poisonous particulates. The atmosphere too has a finite capacity for waste, and Nature will not give us much notice when we reach that limit.

It should be obvious that our apparent dominion over the environment is really but a license from nature with the fee yet to be paid. We should have learned from the disastrous effects of radionuclide fallout that what we sow we must also reap, yet the fallout of lead and other heavy metals, chlorinated hydrocarbons and other toxicants continues at an increasing rate.

Human beings have ears, yet we do not hear the warnings shouted from the environment all around. Noise is tolerated and we even have a new unit for its measure—the PNdb. The standard-makers took the noise equivalent of a four engine jet transport on take-off as the maximum sound level which a human being can tolerate and now consider any noise of less intensity even more tolerable even though there is ample evidence that continued random awakenings can produce transient psychoses.

The warnings

There is a legend in the folk history of almost all cultures about a young man who made a pact with Death in which Death agreed to give him 3 warnings before he finally took the man. After many years, as the man lay dying, he demanded Death honor the bargain and give warning. Death told him that he had honored the bargain, but the man never heard the warnings hidden in the miraculous recovery, the narrow escape, and the passage of time.

We have been warned. We have been given a rare choice as the result of our attempt as a species to act as Lord and Master of the environment rather than conservatively manage its limited natural resources. We can either drown in our own sewage, die buried under our own garbage, choke to death on air we cannot breath, or be driven to homicide and suicide by the noise around us.

The worst offenders in the process of environmental degradation are not the ruthless entrepreneurs dedicated to wanton exploitation of our natural resources— the profiteers and abusers of the air, water, and arable soils which belong to al of us— but the shortsighted, allegedly public interest alphabet agencies of the federal and state governments and their unassailable unresponsive bureaucracies staffed by unaccountable bureaucrats. Their mission oriented determinations preclude any consideration of the long term ecological consequences of their decisions.

Highest and best use of all our natural resources

With the litigation against DDT which launched what is now called the Environment Movement, Carol Yannacone finished the work of Rachel Carson by raising the public hue and cry against DDT, the compound that was once hailed as the chemical savior of mankind which would lead to a world without insect borne diseases such as malaria.

You can write a law absolutely banning the use of DDT or any other chemical just as they wrote the constitutional amendment prohibiting the sale of alcoholic beverages with pretty much the same results. Instead of speakeasys and bathtub gin, we’ll have the Grange and bootleg DDT.

The ultimate legislative question

How do you draft a law that is ecologically sophisticated, environmentally responsible, socially relevant, economically rational, and politically feasible?

The Supreme Court’s ruling on “one man-one vote” and even the subsequent reapportionment of many state legislatures have not eliminated voting blocs from the political structure of all the states, their municipal subdivisions, and the United States.

There are still Italians, Irish, Poles, Germans, Slavs, Blacks, Jews, Hispanics from all the Spanish speaking countries of the world, Teachers, Union members, non-union blue collar and white collar workers, Miners, Farmers, Ranchers, Cattlemen, Sheepmen, Oilmen, Gasmen, City dwellers, Suburbanites, Tobacco companies, Big Pharma, “beverage” makers, industries of all kinds, public power interests, private utility companies, the highway lobby, the senior citizens, the teenagers, the young people, students, the middle aged, the Hawks and the Doves, the Hippies, the Yippies, the YAFs, the Conservatives, the Liberals and yes, even Republicans and Democrats. All of them must be at least partially satisfied with your overall voting record and the programs you legislate and execute or you just won’t get re-elected. And even scientists and conservationists are beginning to understand that an elected official is only effective while they remain elected officials. The best intentioned elected officials in the world can do little good if they lose the next election, or cannot steer effective legislation through their legislature.

Remember the “good old days” of conservation? When conservationists used to contribute. All they wanted were ducks in the marsh, deer in the forest, trout in the streams, salmon in the rivers, robins on the lawn, a few parks here and there, some scenic highways to get to them, and a Conservation Commissioner, just so that they knew they had the ear of the goverment. Those were the “good old days.” Today the environmentalists demand clean air and clean water—NOW! But they still want cheap food and transportation no matter what the cost— to someone else.

It is very easy for these self-styled protectors of the environment to tell you about the environmental crisis and all the ecological disasters mankind faces and how it is all your fault as elected officials that the country is being ruined and that it is up to you to do something about it immediately.

It is very easy for acolytes of Big Data to tell you that the new deus ex machina the great God in their Computers will tell you how to do it just so long as you appropriate enough money for them to ask their computers the right questions.

Also, the conservationists and environmentalists conveniently forget that government action programs cost public monies and that the source of these funds depends in large measure upon the very interests whose activities are being challenged.

The DDT problem

Any law simplistically banning the use or sale, or distribution of DDT or any other environmental toxicant in your state, without any further attempt at developing an ecologically sophisticated pesticide regulation program, is a bad law. It won’t satisfy anyone very long, and it will permanently polarize agriculture and conservation in a way that common problems can no longer be solved by reasonable discussion.

I suggest that you all profit from the DDT litigation. The Courtroom is indeed an arena in which scientific opinion can be tested in the crucible of cross-examination, and the only real risk is to the combatants. And you have all learned by now, lawyers are politically expendable.

In 1966, a citizen sought equitable relief from a toxic insult to the community ecosystem, suing not just a local mosquito commission using DDT, but 1,1,1-1richloro-2,2-bis(parachlorophenyl) ethane—DDT itself.

Finally in a New York court of equity the full weight of scientific evidence against DDT was presented to the social conscience of the community in a forum protected from the political, economic and bureaucratic pressures that for 20 years had successfully suppressed the evidence of DDT’s worldwide damage to the environment.

Finally, the Agrichemical-Agribusiness political complex was forced to put its propaganda to the test.

Three years later, at Madison, Wisconsin, Dr. Harry W. Hays, Director of the Pesticides Registration Division of the U.S. Department of Agriculture testified: “If the data appear to us… to be adequate … the product is registered. We look at the data, but we don’t do it analytically. We don’t check it by the laboratory method.” At last Americans were told that the Department of Agriculture relies entirely on data furnished by pesticide manufacturers and does not conduct any test on its own.

This incredible lack of concern for the safety of the American people became apparent on further cross-examination when Dr. Hays admitted that if a pesticide was checked at all, it was checked by an entomologist only for its effectiveness against the target insect and not for its effects on beneficial insects or fish and wildlife. “We don’t assume that the intended use will cause any damage,” he explained.’

Moreover, Dr. Hays further admitted that although he has personal knowledge of scientific studies showing damage to fish and wildlife from DDT, USDA is “not doing anything” about possible environmental hazards from the pesticide. Dr. Hays proudly stated, however, that the Department of Agriculture is completely responsible for the registration of pesticides and for determining whether they may be shipped in interstate commerce.

He reluctantly admitted that the public has no access to USDA records of pesticide registration. Only in an adversary judicial proceeding was it finally demonstrated that the United States Department of Agriculture is really serving the Agrichemical industry and not the American people.

It has long been obvious that the existing pesticide regulation laws are fatally flawed and patently inadequate, but the initial reaction of conservationists all over the country is to demand a majority of conservationists on the Pesticide Control Boards that are now almost wholly dominated by agricultural interests.

Again the antithesis of American representative government. Their mantra is, “You make me the boss and all will be well!

A model Pesticide Control Law

In 1968, we began to search for a way to write a pesticide control law that would be essentially immune to the makeup of the body administering that law. A law that would protect the environment whether the board adminstering it was made up entirely of farmers or entirely of bird-watchers. A law that would insure maximum agricultural production over the long term, at minimum cost to the farmer and with minimum disturbance to the environment.

The key to such a law is in the criteria for administrative action. Write the criteria for administrative judgment into the law so that the determination of the administrative bodies could be later tested in a Court of law, if necessary, against some kind of objective standard.

The conservationists would have us prohibit the use of any material that killed anything other than target insect organisms. This of course would reduce insect control methods to certain specific control processes, the flyswatter and the hammer and block. Totally inadequate for feeding all of us who are hungry.

Again the DDT lawsuits furnished the answer. Economic entomologists supplied by the Industry Task Force For DDT of the National Agricultural Chemicals Association told us about the damage from insects and experts from the University of California told us about biological controls and it became obvious that the ultimate control of insect predation on food crops and domestic animals would be an integrated combination of biological controls and selected chemical controls.

Finally it became obvious that that the key definitions for any pesticide control law were three: “pest ,” “economic threshold,” and “control.” Our definitions were definitions that each vested interest— Agriculture, Chemical Company and Environmentalist— could live with. Grumble as they might, they were acceptable. And acceptability is the hallmark of politically successful legislation.
The next important clement of pesticide legislation is the information requirement. Again we must satisfy both the farmers and the bird watchers.

to encourage national standards, the applicant for registration— and we can assume that this will be the chemical company manufacturing the product rather than any individual user— must demonstrate compliance with the registration procedures of the federal government and then, in order to protect the environment, the applicant must furnish, and make publically available, reliable scientific data showing: (a) The amount of pesticide, determinable in units of treatment concentration for specific methods of application, required to reduce pest populations to at or below the economic threshhold. (b) The ecological characteristics of the pesticide in the environment, particularly its: 1. chemical stability (persistence) 2. mobility 3. solubility characteristics 4. effect on non-target organisms

Immediately there will be a hue and cry as to the difficulty of furnishing this information, but again, the law must place the burden on those most able to pay, the agricultural chemical industry itself, and impose a duty of continued disclosure of reported adverse effects.

Even if these companies do contribute, directly or indirectly to your election, they still cannot produce the number of actual votes that a good pesticide law satisfying a majority of agricultural and conservation interests will produce.

As a wise old political mentor in my home town told me a long time ago, “People still vote, even when they vote for machines.”

Finally, no law is complete without a safety valve, that provision in the law that makes it acceptable to all parties: the provision for judicial review on demand by citizens or industry. This means that in a matter of great controversy the issues will be settled in Court. Since our courts are non-political, and all elected officials have a declared policy of non-interference in judicial matters, whatever the courts decide, you will have done your best, and you will have done it in the highest and best political spirit of non-partisan government. In other words, whatever the court decides, its not your fault.

The model law provides for a speedy, summary appeal for industry through familiar administrative review channels, while the citizen is afforded a declaratory judgment procedure and provision is made to protect the industry from harassment or frivolous litigation.

In 1969 the problem was persistent chlorinated had to carbon pesticides in a short time later PCBs and shortly after that dioxin. The real problem, however, it is toxic substances and hazardous wastes and their impact on the environment in general, and the air, water, and soils upon which we all depend for the quality of our lives and our very existence. The same structural model for legislation regulating toxic substances and hazardous wastes of any kind could be implemented today and allow the American Free Enterprise System to grow and prosper while the unproductive and unaccountable bureaucracy shrinks.

Interstate cooperation

Environmental protection in the long run requires and really demands inter-state cooperation and to a certain extent regional planning. Every state and every municipal subdivision of every state is engaged in an economic Life and death competition for the tax revenue from Business and industrial operations throughout the United States. The art of industrial piracy, even when euphemistically referred to as “incentives for industrial relocation” threatens every state or municipal subdivision that attempts to enforce laws restricting environmental contamination with toxic substances and hazardous wastes, or limit the use of nonrenewable natural resources, or protect unique National natural resource treasures pollution control laws. The political reality, however, is that some businesses and even entire industries are captives of the geopolitical areas in which they are located, and some geopolitical units and even the entire region of which they are apart are captives of their principal businesses and industries.

Let us consider first the states which own their industries. The enormous clouds of soot and ash from the open burning of wood dust from logging operations in Oregon were allowed to continue because the timber industry threatened that if laws were inactive to prohibit such Open burning, the timber industry would move away. Yes indeed, I am sure that the giant timber companies— the Paul Bunyan’s of Wall Street— would pick up their douglas fir forests from the slopes of our West Coast Mountains and move to Kansas. Sure they would, if they could.

The same way, the aluminum companies would move away from the cheap electric power of the major federal hydroelectric installations. The same way Agribusiness would leave the Great Plains. Nonsense! Those industries will stay where they are and they will spread the cost of pollution control over the entire market for their product just as they have spread the cost of all social legislation affecting their industry: social security, unempolyment insurance, workers’ compensation, disability benefits, health insurance… Isn’t it a lot simpler to have the cost paid by the consumer as a small increase in price at the market level, rather than with a large increase in federal taxes and encouragement for an ever expanding federal bureaucracy?

Learn from the history of Rome. Two thousand years ago Romann Legions ruled the world and Roman roads and Roman law united it. The brought peace and prosperity. Italy was blessed with seaports and became the center of world trade, but it stood still while the rest of the world passed by. As the world grow dark into the Middle Ages, the city states of Italy refused to deal with regional problems on a cooperative basis. They competed for what should have been national treasure, and no nation was built until, awash in the backwaters of time where they had fallen from the heights of empire, power and culture, they turned first to a King and then to a dictator.

Elected representatives and public serants are essential

Our Federal system can only survive if the states contribute their fair share to the development of the nation. Clean air and clean water are regional problems. They are also political problems. If we are to have air fit to breath and water safe to drink, it will depend on the skills and talents of those of you who are now elected officials or who wil eventually become eected officials.

I don’t berate our elected officials and public servants, and all those aspiring to replace them. I salute you. You have succeeded in highest endeavor of human beings and accepted the greatest challenge of human society: government of your fellow men and women and protection of their children. You have successfully practiced the noblest art of our species, the art of politics, the art of the possible.

You have each been chosen by the people of your states to lead, and you were chosen because you were able to satisfy a majority of the Italians, Irish, Poles, Germans, Slavs, Blacks, Jews, Hispanics from all the Spanish speaking countries of the world, Teachers, Union members, non-union blue collar and white collar workers, Miners, Farmers, Ranchers, Cattlemen, Sheepmen, Oilmen, Gasmen, City dwellers, Suburbanites, Tobacco companies, Big Pharma, “beverage” makers, industries of all kinds, public power interests, private utility companies, the highway lobby, the senior citizens, the teenagers, the young people, students, the middle aged, the Hawks and the Doves, the Hippies, the Yippies, the YAFs, the Conservatives, the Liberals and yes, even Republicans and Democrats.

You each have the skills, yes, the genius necessary to meet the environmental crisis facing the nation today. Unfortunately, the ways of Congress are too slow and the problems too specific to the disparate regional environmental systems of our country for a common solution to come from the marble halls of Washington.

The war against environmental degradation will be fought in the states and in their municipal subdivisions: Counties, towns, villages, and hamlets. The victory will be won in the state houses and peace and prosperity will come from those “backrooms” where political compromises are forged. In the last analysis, you may literally choke on those decisions, but, with the grace of God, and by the political intuition that you bring to elected office, together with the support of all those who helped make you each an elected official, the environmental crisis can be met successfully.

It is up to you, each and every one of you. May God bless each of you and God help all of us.