DC Bar Bulletin interviews Milloy about overregulation

I set a new standard for level of discourse in the DC Bar Bulletin: “I’m not crapping on the general notion of regulations, but the problem is overregulation.”

My interview is below. The interview with David Bilsky is below that. You can read them on the DC Bar website here and here, respectively.

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Steven Milloy: Environmental Overregulation Is Costing Us
By Erika Winston

October 5, 2017

The true cost of environmental regulation lies in the overburdening effects of overregulation. This according to Steven Milloy, attorney, policy analyst, and author who has spent more than 25 years championing an environmental agenda based on conservative principles.

“It’s good to have general rules of the road,” says Milloy. “But today’s regulations were written in the 1970s. The environment has been cleaned up a lot since then and we have learned a lot, yet we are still trying to regulate by 1970s standards, which has led to overregulating.”

Milloy sees most actions by the U.S. Environmental Protection Agency (EPA) as gross abuses of regulatory authority that have only resulted in small, insignificant improvements to environmental health. He supports a strategy that would do away with existing EPA rules and create new, less restrictive options. “I’m not crapping on the general notion of regulations, but the problem is overregulation,” he says. “All environmental laws and regulations should be sunset, and we should have new ones based on what we’ve learned.”

Milloy is the author of several books, including Scare Pollution: Why and How to Fix the EPA (2016) and Junk Science Judo: Self-Defense Against Health Scares and Scams (2001). He also served on the Trump administration’s EPA transition team.

According to Milloy, businesses and consumers ultimately feel the effects of overregulation, though the numbers are difficult to quantify. “These costs are different for every business. I worked in the coal industry for many years and the Obama [environmental regulatory] wars on the coal industry were devastating,” he says.

Milloy says he saw local economies within these coal mining towns destroyed due to the widespread consequences of overregulation and the resulting loss of employment that affected numerous coal miners. “Small businesses that supported the coal industry and supported coal workers were devastated by these policies.”

In the broader marketplace, says Milloy, environmental regulations hamper economic growth, affecting businesses and consumers. “Businesses take longer to produce their products and some of the costs are passed on to consumers,” he says. Milloy explains that these regulations cause the products to become too expensive, which prevents potential customers from buying them. “These are needless costs, and it’s time to rethink all of this stuff.”

In response to the potential costs of environmental deregulation and the perceived goals of the conservative environmental agenda, Milloy offers strong words. “First off, it’s insane and insulting,” he declares. “We all live in the same country. We breathe the same air, drink the same water, and have the same environmental standards. No one is talking about rolling back environmental protections. What Republicans are talking about is rolling back pointless, expensive overregulation.”

Milloy also does not buy into recent assertions regarding the impact of President Trump’s policies on the environmental aftermath of Hurricane Harvey. “The Obama hurricane preparedness rules would have had no impact on Harvey and its unprecedented and unexpected levels of flooding from an unexpected type of storm. In any event and outside of the flooding, there was no special environmental disaster caused by Harvey. There are no toxic exposures resulting from Harvey that seem to have occurred,” Milloy says. “One of the things that we learned since 1970s is that incidental environmental exposure to chemicals does not cause harm to human health. If you are going to sweat exposure to chemicals/toxics in the flood waters, I would be more worried about the various releases from people’s homes/garages caused by the flooding, not Superfund sites. Then there are the snakes…”

Milloy is cautiously optimistic about the direction of the Trump administration’s environmental policy. “I am hoping it changes, but it took 47 years to get us into this mess. It’s going to take more than four years to get us out of it. However, this is the first administration since the EPA has been around to not issue new regulations. That’s an accomplishment in and of itself. They are trying to take the EPA’s boot off of the neck of the economy.”

According to Milloy, this new agenda needs some help from the courts to implement institutional changes. He says that one of the most concerning issues, from a judicial standpoint, is the 1984 U.S. Supreme Court decision in Chevron USA, Inc. v. Natural Resources Defense Council, Inc. In this landmark case, the justices created a legal standard that grants deference to government agencies when the interpretation of regulations that they administer is in question.

“As long as you have benevolent agencies that are truly trying to assist the people, that’s reasonable. But when you have an EPA that is purposely trying to target specific industries, that’s a problem,” says Milloy.

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Oceana’s Eric Bilsky: Why Environmental Regulation Matters
By Erika Winston

October 4, 2017

For attorney Eric Bilsky, the true cost of environmental regulation pales in comparison to the potential risks of deregulation. Bilsky serves as senior attorney and assistant general counsel for Oceana, an international organization focused on protecting and restoring the world’s oceans. Bilsky believes environmental regulation is essential to the continuation of our society.

“We band together and form governments because individuals cannot flourish going it alone. If my neighbor dumps his trash in my yard and his sewage in my drinking water, I am not going to make it,” he says. “From my specific work–oceans and fisheries–if people can go out and dynamite the lake or run electricity through the water and just collect all the dead fish, we will simply run out of fish. So environmental regulation is a central purpose of government.”

Bilsky does not subscribe to the assertion that the financial costs of environmental regulation outweigh the benefits. “If a business can dump mercury in the harbor without regulation, its environmental compliance cost will be low,” he explains. “If we add regulation and require it to properly dispose of the mercury as hazardous waste, the business’s compliance cost will go way up, but there will be a whole bunch of people who will not get ill from mercury poisoning, who won’t incur losses to their businesses by not going to work, who won’t incur medical costs, and so forth. When someone says regulations make it too expensive to conduct business, they are completely ignoring how very, very expensive unregulated businesses can be.”

While Bilsky does recognize that some environmental regulations fall short of perfection, he believes that the U.S. regulatory system is one that significantly adds to the protection of human health and safety.

“We probably have some of the cleanest air and water in the world because of that system. Countries around the world look to us as a leader and would like to emulate our success in providing clean air and water for our people. Not only that, there are many areas where we can see that additional regulation would be helpful and would be an investment that would add even more value to society. It is economically efficient to invest in regulation and reap the benefit of a clean environment with healthy people living in it,” he says.

According to Bilsky, environmental regulation and commercial interests do not have to be mutually exclusive. To exemplify this point, Bilsky cites regulations that assisted businesses in the fishing industry. “In 2000 the government identified 92 fish stocks as being overfished. The fishing enterprises that depended on these stocks were losing money because there were not enough fish to catch and there was a threat of things getting worse,” he says.

New regulations around that time prompted the government to develop plans to recover or rebuild those fish populations. By 2006, Bilsky says, three of those fish stocks had been rebuilt. “[Additional] legislation improved the regulation even more, [and] by 2016, 41 stocks had been rebuilt. So that regulation helped the environment, helped the industry, and helped consumers who want to eat seafood,” he says.

In the wake of such devastating natural disasters as Hurricane Harvey and Hurricane Irma, Bilsky says concerns about corporate environmental dangers are valid. “Economic theory makes clear that if enterprises don’t bear the costs of the environmental harms that they can cause, they will go ahead and cause that harm, whether it be polluting the shared atmosphere and ocean, emitting global warming gases that change the climate, or threatening right whale populations with severe behavioral harms and even extinction while exploring offshore for natural gas and oil.”

Bilsky offers several examples to support his point: the 1969 Santa Barbara oil spill, the 1989 Exxon Valdez oil spill, the 2010 BP Deepwater Horizon explosion and oil spill, the worldwide coral bleaching that may have killed 20 percent to 50 percent of the Great Barrier Reef’s coral.

“Our failure to properly regulate fossil fuel emissions has caused losses of life and property from more intense storms and flooding, and threatens to cause even more losses in the future. We can see how important it is to effectively address, and address in time, important problems like climate change pollution,” Bilsky says.

Summarizing his thoughts on potential environmental deregulations, Bilsky employs a standard as old as the legal profession itself: reasonableness.

“Reasonable people can disagree in specific cases about whether there is a market failure that requires regulation. Reasonable people can disagree about what specific way of regulating is the wisest and most economically efficient. But anti-regulation sloganeering is no substitute for reasonable discussion and does nothing to advance the interests of the American people or the people of this planet,” Bilsky says.

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