These laws cover a diverse set of environmental problems, but they reflect a few key principles. First, the federal government should take charge of the American environment. As David Schoenbrod, Richard Stewart, and Katrina Wyman write in their new book Breaking the Logjam, the individual states were federally “conscripted” to do the day-to-day management of the environmental system, obeying detailed federal instructions for controlling land, air, and water pollution. Many individual property owners were also federally required to dedicate parts of their lands to protect environmental assets such as endangered species and wetlands.

Congress told the relevant federal agencies to achieve certain goals and then authorized them to exercise strong federal powers — in essence, to do whatever it takes — to achieve those goals. The result has often been described as a “command-and-control” system of regulation, although Schoenbrod, Stewart, and Wyman label it as a “hierarchical” system. As they explain, the Environmental Protection Agency administrator and other federal agency administrators sit “atop a hierarchical chain of command that reaches down their various headquarter offices to regional offices, states and localities, and finally businesses and other targets of regulation. Detailed orders go down the chain of command, and detailed reports are required to come back up. This is a hierarchical system of control par excellence.” Its hallmarks are that it is “centralized and complex,” features they regard as making it expensive and even unworkable for some of the most important environmental problems.

Success, Then Stagnation While they may have been considerably more expensive and federally intrusive than necessary, the 1970s environmental laws did have three large successes. Air pollution from large new industrial sources was substantially curbed, air pollution emitted by new automobiles was reduced even more sharply, and water pollution from large industrial and municipal sources was also significantly reduced. By the 1990s, there had been substantial improvements in air and water quality across the United States.

The 1970s approach worked best when hierarchical federal organizations could direct the actions of hierarchical public and private organizations further down the chain of command. Under the Clean Air Act, the EPA instructed General Motors, Ford, and other large automakers in the U.S. market to reduce their auto pollution emissions by 90 percent by 1976. While initially resisting, the automakers soon developed suitable technology (the catalytic converter) and the goal was met by 1981. Today, after further government tightening of the rules, a typical car emits 1 percent or less of the pollution levels of 1970.

Matters were more complicated, however, when federal authorities had to deal directly with the behavior of “non-point” sources — individual drivers, farmers, property owners, housing contractors, timber harvesters, and many other small sources of pollution. These sources are much too numerous to be routinely visited by federal and state inspectors. Moreover, they resent any federal attempts to control their actions, and their large numbers make them politically potent. Even though agriculture is a main source of water pollution in the United States, farmers to this day remain largely unregulated by the Clean Water Act.

Following the initial successes of controls on large industrial sources of pollution, more-recent progress has largely stalled. The command-and-control strategy of the 1970s worked in a fashion for industrial “end-of-the-pipe” emissions. Further reductions, however, require broader changes in business operations such as changes in product lines, whole new production processes, new types of manufacturing inputs, and a host of other internal changes that could slow or even eliminate the amount of pollution that reaches the end of the pipe. Those reductions would require dramatic change by both consumers and producers. Even if the EPA had the requisite knowledge of business methods (which it does not) to bring about such change, any attempt to mandate sweeping alterations in internal business practices would be seen as a virtual federal takeover, incompatible with American traditions of private property ownership.

As Breaking the Logjam observes, the pace of environmental gains in the United States thus bogged down in the 1990s. There was one major exception, however. The Clean Air Act Amendments of 1990 authorized for the first time the use of a “cap-and-trade” system of pollution control. Although it had been proposed by U.S. economists since the 1970s, both the EPA and leading environmental groups had long resisted such an approach. But the adoption of a cap-and-trade system in the 1990s led to large reductions in sulfur dioxide emissions from power plants at a lower cost than had been expected. By granting industrial sources the rights to certain levels of pollution emissions and to buy and sell those rights, along with the flexibility to devise their own methods of emissions reduction, strong private incentives to curb pollution throughout every area of business operations were created. As Schoenbrod, Stewart, and Wyman recommend, the extension of this approach to other common air pollutants could “achieve greater reductions than are now possible” at lower costs and “would be a vastly simpler system for EPA, the states, and regulated sources to administer.” They further recommend that any future U.S. controls over greenhouse gas emissions should be based on a cap-and-trade approach, finding this preferable to the other leading market method, a carbon tax.

The Environment as Property Breaking the Logjam makes recommendations for a number of other aspects of the U.S. environmental system. A system of “tradeable catch permits,” successfully pioneered in New Zealand, Iceland, Australia, and a few fisheries in the United States, is recommended for much wider American application. It would follow the example of the public lands in the West where the Taylor Grazing Act of 1934 established a system of rancher permits for livestock grazing. Concerning ranching, Schoenbrod, Stewart, and Wyman propose that ranchers be allowed to sell their grazing permits to environmental groups who might then modify the historic grazing practices or even retire public land areas from livestock use altogether.

In general, the authors seek to expand the scope for new or revised property rights as a means of addressing environmental problems. Environmentalists in the 1970s and 1980s typically saw pollution and other environmental problems as a moral failure of industry, ranching, and other private parties in American society, but Schoenbrod, Stewart, and Wyman see them as part of a conventional economic problem. Lacking a properly structured system of rights, the environment becomes a free good, and rampant overutilization (“pollution”) of the environmental commons becomes a virtual certainty. With an appropriate system of rights, however, the flexibility, efficiency, and other benefits of markets can be harnessed to work for the greater environmental purposes of American society. It is not a complete free-market approach — governments must still fix the overall environmental objectives — but it is superior to the old command-and-control strategies.

The Book This book is not the first to make these arguments. Indeed, Schoenbrod and Stewart have been longtime advocates of these ideas in their own individual writings, and Wyman is a more recent contributor. Since at least the late 1990s, think tanks such as Resources for the Future and the American Academy of Public Administration, along with other students of the U.S. environmental system, have been lamenting the gridlock, polarization, lack of flexibility, and the need for a turn away from the hierarchical methods of the past. The question — not fully answered in Breaking the Logjam — is why it is taking so long.

The authors’ purpose for the book was not a pioneering analysis. Breaking the Logjam was initially conceived as a collective effort to advise the new presidential administration that would follow the 2008 elections. About 50 environmental analysts — a virtual who’s who of environmental scholarship — were invited to write papers that were presented at the New York University School of Law in 2007 and then in revised versions in 2008. The final papers were published in a special 2009 issue of the New York University Environmental Law Journal. A report based on this work was delivered in early 2009 to the new Congress and the Obama administration. Breaking the Logjam is intended as a popularly accessible review of the results of these efforts. More broadly, it serves usefully as a brief summary of the failings of traditional U.S. environmental policy, and the need for basic redirections as advocated by the mainstream of environmental scholarship for at least the past decade.

There are some caveats that should be mentioned. For a book authored by three law professors, there is surprisingly little about the large role played by judges in shaping American environmental policy. Schoenbrod, Stewart, and Wyman often make it sound as though Congress established that policy when it wrote the Clean Air Act, the Clean Water Act, and other environmental laws, and then federal agencies administered those laws. It would be more accurate to say that Congress set out a few broad directions and then left it to federal judges to fill in many — maybe most — of the details.

Perhaps reflecting the long period of its genesis, Breaking the Logjam is also somewhat dated in places. Very little is said about the impressive results of the cap- and-trade program for nitrogen oxides introduced in 2003 involving 20 Eastern and Midwestern states. The European Union initiated a cap-and-trade system for greenhouse gases in 2005, with major revisions in 2008, yet that is not discussed. There is no mention of the technological breakthroughs in recent years (based on horizontal drilling followed by hydrofracking) in producing natural gas from shale deposits widely distributed across the United States. Given the believed immensity of shale gas reserves, there is a good prospect of ending American coal-fired power production over the next decade and replacing it with natural gas, resulting in major reductions not only in greenhouse gases but also conventional air pollutants. If this becomes a reality, a leading environmental issue of the next decade will be how to manage the transition to natural gas, given the large past investments of financial and human capital in coal mining and power production.

The authors could have said more about another critical issue. The United States’ dependence on foreign oil creates major national security and economic concerns. The nation spends upwards of $350 billion per year, around half of the total trade deficit, on oil imports, much of it from politically unstable parts of the world. Greenhouse gas policies, including the development of new domestic energy sources, and greater conservation of energy, could help significantly on this front. Even if increasing levels of greenhouse gases turn out to pose less of a threat than many climate change researchers have suggested, there are important foreign policy and international economic policy reasons for changing U.S. energy sources.

Breaking the Logjam also gives less attention to the past failings of environmental science than is warranted. Although the Clean Air Act passed in 1970, the basic chemical process by which smog forms in the atmosphere, especially the role of nitrous oxides, was not adequately understood until around 1990, defeating much of the previous heroic efforts to reduce smog levels. Schoenbrod, Steward, and Wyman appropriately criticize the failure of State Implementation Plans to achieve their purposes in reducing smog, but they say little about a key reason for that failure: the science was not developed until the 1990s to show the long-range character of much air pollution. Chinese-emitted air pollutants are now affecting Los Angeles, while Northeastern states’ air quality is at the mercy of Midwest states’ pollution laws.

As another example, the EPA has mandated the spending of many tens of billions of dollars based on estimates of long-run risks from human exposure to chemical and other hazardous substances, based on animal methods of testing for such risks that may have been close to meaningless. (See “Regulating Unknown Risks,” Spring 2010.) In the case of very small particles in the air, by contrast, there was little appreciation until the 1990s of the large dangers they pose. In the field of clean water, the scientific understanding of the ground movement of phosphorus — the main nutrient form of water pollution, along with nitrogen — was significantly revised in the 1990s, here again defeating earlier efforts and requiring new directions in water policy.

New Pragmatism The reality is that for at least 25 years after the enactment of the Clean Air Act in 1970, leading environmental groups treated air, water, and other pollution as more of a moral issue than an economic and scientific problem. Schoenbrod, Stewart, and Wyman hope to change that, and thus they do little finger pointing at the authors of past regulatory failures — except at Congress, which does in fact deserve much blame. But it is impossible to understand the character of American environmental policy without recognizing the moral crusade it has represented for so many of the leading participants. For some, any pollution of the environment is an intolerable evil that reflects the sinfulness of the polluters, who should be punished. For others, any new limits on pollution emissions present a challenge to the American faith in economic progress. The widespread righteousness has been a poor substitute for carefully crafted scientific and economic solutions.

Fortunately, the moralizing of the environmental debate may now be fading. The environmental era began with the Wilderness Act of 1964. How much land to devote to the national wilderness system is almost a religious question — how many cathedrals of nature, places of genuine spiritual inspiration for millions of Americans, are needed? Today, by contrast, the leading environmental issue is climate change, posing technically and economically complex questions having implications for virtually every aspect of the American economy. Advocacy groups hoping to have credibility in the climate debate will have to engage many economists and others with specialized professional expertise.

A newly evolving breed of environmental pragmatists would do well to consider the recommendations that Schoenbrod, Stewart, and Wyman make in Breaking the Logjam. Readers interested in a more complete discussion might profit equally from reading the many individual writings of these distinguished scholars, as well as others that they assembled at New York University Law School.