| 摘要 | Introduction
Change is in the air. After a century of growing national control, Americans are rethinking the role of the federal government vis-à-vis the states. This reconsideration has led to welfare reform and to a nationwide debate over education. Now it is beginning to focus on environmental policy, too.
Dissatisfaction with Washington-imposed environmental policy is well known.
Local government officials are outraged by unfunded mandates–regulations imposed from Washington but paid for locally. For example, Montanans must clean up the naturally-occurring arsenic in the Madison River because arsenic levels coming from geysers in Yellowstone Park exceed national standards. Yet, according to Environmental Protection Agency (EPA) estimates, a person would have to consume two liters of untreated water from the sourceandeat 6.5 grams of fish every day for 70 years to increase his or her risk of cancer by 1 in 10,000.
Towns such as Aspen, Colorado, and Triumph, Idaho, are locked in an unending battle with the EPA because it claims that hazardous waste sites (places that have old mine tailings) must be cleaned up even though the communities do not feel the risks warrant the disruptions (Stroup 1996).
Federal regulations to protect endangered species and wetlands have forced property owners to stop farming, logging, and building on their property (Lund 1995).
Costs of complying with national environmental regulations have risen from $53 billion in 1980 to over $150 billion today, a figure representing 2 percent of the nation’s gross domestic product.
Recognizing the excesses, Washington officials have attempted to address them through a “reinventing government” program. This has failed to downsize government or reduce regulations. Just the opposite has occurred, in fact.
Since 1993, the number of regulations proposed or issued by the Environmental Protection Agency has increased by 20 percent, as indicated in Figure 1, from a paper published by the Competitive Enterprise Institute. Of the 430 regulations in the “pipeline” in April 1996, 46 are expected to cost business at least $100 million annually. Only nine are receiving scrutiny under the “reinventing government” agenda. Hence, 37 regulations will have an economic impact in excess of $3.7 billion per year (Crews 1996, 13-14).
These federal regulations are also costly to state and local governments. The Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, and other laws require states and municipalities to meet national environmental standards at significant expense to local taxpayers but do not provide the funds to do so. The growth in these unfunded mandates between 1945 and 1994 was $109 billion. Though not all of these are related to the environment, the projected costs for 1994 through 1998 total $54 billion (Crews 1996, 17)! Reinventing government is not working.
We believe there is an alternative–environmental federalism. To examine how this alternative might work, PERC devoted its June 1996 Political Economy Forum to “Environmental Federalism in the West.” ThisPERC Policy Seriespaper summarizes the key research results.(1)It is based on papers by PERC’s Wiegand Adjunct Scholars–David Haddock, Robert Nelson, Dean Lueck, Barton Thompson, and Bruce Yandle–as well as several other contributors–Andrew Morriss, Sally Fairfax, Karol Ceplo, and Jonathan Yoder. These papers are not yet published and therefore only a generalized citation can be given. (The published book should appear in 1997.)
The goal of this “Reader’s Digest-condensed” version is to consider the potential for the devolution of environmental policy to state and local governments. This paper will examine state and local controls that have worked and those that have not and propose steps to reverse the tendency to solve all environmental problems at the national level. We will concentrate on four examples that show the prospects and pitfalls of devolution, especially in the West: water allocation and quality, land management, wildlife management, and pesticide control.
By devolution we mean returning standard-setting and policy-making to lower levels of government where appropriate and, where possible, to private individuals. Devolution will advancefederalism, the term traditionally used to describe powers distributed among the state governments, not thefederal governmentin Washington, D.C.
The national government has been heavily involved in natural resource management in the West since the turn of the century, when the sale and disposal of nationally owned land to private owners stopped rather abruptly. As a result, the federal government owns about 30 percent of the nation’s land, most of it in the West. In addition, the federal government controls most of the West’s water through the Bureau of Reclamation and the Army Corps of Engineers.
However, in spite of this broad government ownership, before the 1960s land-use policies were mostly set locally and water allocation was guided by state water law. Federal lands were mainly for commodity production–forests were used for the production of timber and grassland for grazing livestock–and commodity users had de facto property rights to them (see Nelson 1995). Forest Service officials worked with local commodity users to determine annual harvest rates for local timber, and Bureau of Land Management officials cooperated with livestock producers to determine grazing policy. The Taylor Grazing Act of 1934, for example, established local grazing committees and codified grazing allotments. Permittees believed that their rights were secure, and they invested in resource stewardship.(2)
This all changed in the late 1960s and early 1970s. Across the country, environmental groups, adopting the activism of the 1960s’ antiwar movement, began to insist on tougher laws against pollution and began to argue that forests and grassland were more valuable for recreation and wilderness than for commodity production.
This activism fostered national rather than state or local regulation for several reasons.
Confidence in the federal government was high. The nation had just embarked on the War on Poverty, and the Apollo program to land a man of the moon was nearing its objective (Shaw 1996).
By making air, water, wildlife, and land use matters of the national “public interest,” environmentalists could trump state and local laws without concern for the costs. Claiming “third-party effects” and “free rider” problems, environmental groups also benefited from recreation on public lands provided by the taxpayer virtually without charge.
Activists feared that state and local governments would dilute environmental laws in order to compete with one another for business. If one state attempted to keep or attract industry by lowering air quality standards, other states would do the same, they argued, in order to keep or attract jobs and income.(3)
Industry lobbyists found they could do one-stop shopping in Washington instead of 50 state capitals, and national environmental laws allowed privileged market arrangements that would not have been legal if states or markets were in charge. The Clean Air Act amendments of 1977, for example, reflected a coalition of environmental groups who wanted national control of pollution laws, industries who wanted to regulate competitors, and eastern mining companies that did not want competition from cleaner-burning western coal. Out of this coalition we got higher utility rates, higher pollution control costs, and air that was dirtier than it would have been (see Ackerman and Hassler 1981).
More recently, the push toward national control has been bolstered by the view that all things in the environment are interconnected.(4)If the environment is one giant web of interconnections, then local action is too narrow and must be inferior to centralized coordination. Indeed, environmental activists have shifted focus again, seeking international, not just national, regulations to deal with global issues such as endangered species, climate change, or ozone depletion. The result has been treaties such as the Basel Convention on the Control of Transboundary Movements of Hazardous Materials and Their Disposal, the Convention on Trade in Endangered Species, and the Montreal Protocol that phased out CFCs (chlorofluorocarbons).
The history of growing intervention by the national government over the past three decades can be juxtaposed against federalism, which has deep roots in American life.(5)PERC Wiegand Scholar David Haddock (1997) notes that the original colonists always referred to their union astheseUnited States, emphasizing the fact that the individual states were united but not a unitary national state. Known as federalism, the system of “united states” allowed competing sovereign states to pursue their own policies for most issues. The role of the national government was to promote free trade, provide national defense, dispose of the public domain, and settle disputes between states.
Federalism contrasts with the current system of political centralization, in which a national government delegates powers to state and local governments acting as the agent of the former. Under federalism, the power emanates from the state rather than from the national government. This “delegation model” typifies current environmental regulations.
Federalism has several advantages over a single sovereign government.
It forces states to compete for people and resources by providing the legal environment that citizens want. Lower levels of government tailor their policies and programs to the demands of their citizens. In other words, the flexibility that the environmental activists of the 1960s and 1970s so detested is what makes the system work for a wide variety of citizens.
Federalism allows policy to be set at a level where citizens can better monitor and constrain their political agents. These tasks are far more difficult with national politicians, who are farther removed from their constituents.
Federalism allows competing states to enjoy the benefits of a common market without trade barriers between states. The experiences of Europe and of the states under the Articles of Confederation illustrate the detrimental impact of trade barriers.
Federalism allows for national control where necessary. Under the Articles of Confederation, the states had found that a weak national government whose funding depended on voluntary contributions from the states was incapable of providing some important services, including national defense and the conduct of foreign policy. Some of the states were getting away with being “free riders” by failing to make the sufficient contributions. The dilemma the founders faced was deciding how to give the national government the power to overcome these “free rider” problems without letting it abuse its power.
The system of federalism created by the Constitution generated unprecedented economic growth. However, as Haddock points out, it also contained the seeds of its own demise by gradually increasing the demand for national control. As trade, migration, and pollution crossed state boundaries, there were increasing calls for uniform national regulations.
By the early twentieth century, centralization was well underway. Among the factors shifting power toward the national government, says Haddock, were:
the large peacetime standing army that remained in place after the Civil War, the Supreme Court insinuating national authority over local affairs under the Interstate Commerce Clause, the New Deal rising phoenix-like from the ashes of the Great Depression, and on and on.
To the “on and on,” we would add the reservation of large tracts of western lands for control by the national government. This land retention policy gave Washington politicians enormous power over how the lands would be used. Not surprisingly, politicians and bureaucrats in Washington today are loathe to give up the power they have accumulated over this century.
True, centralization can be rationalized on several grounds. Arguably, there may be instances where pollution crosses state borders or where water use in one state affects downstream states. But centralization clearly has come with high costs.
It reduces the number of experiments with alternative policy options and generates “one-size-fits-all” policies that may be appropriate for some places but not for others.
It reduces the ability of citizens to monitor their governments. As decisions are further removed from constituents, it is more difficult to know whether political agents are acting in the public interest or on behalf of special interests.
Because citizens cannot easily “vote with their feet” by moving to a different jurisdiction, the national sovereign government is in a position to abuse its power. Centralization in government is like monopoly power in markets; it reduces the options of citizens and raises the cost of services.
Decentralization and federalism offer ways to reduce these costs by providing experiments with different policies, by making it easier for citizens to monitor their political agents, and by giving citizens alternative jurisdictions from which to choose the policies they desire. Complete privatization of decisions reduces these costs even further, but as long as resources are in a “commons,” and therefore subject to abuse, some governmental control may be necessary. Hence, the following principle should guide environmental federalism:
To minimize the costs of monitoring regulatory agencies, authority should devolve to the lowest level of government that also allows for control of pollution or other spillover effects.
Though environmental policy in the past three decades has been mostly dictated from Washington, there is a rich history of states’ success in solving resource and environmental problems. The management of water, state lands, wildlife, and pesticides will illustrate such successes. On the following pages, we explore the states’ experience in these four areas, noting where they have been successful, where the national government has usurped state authority, and where the balance between state and national power seems appropriate.
Water: Allocation and Quality
In the West, independent miners and farmers preceded formal government. They hammered out a legal framework for water rights that became the basis for most western water law. This framework was born of necessity as miners and farmers discovered that eastern riparian water law was insufficient for their needs. Riparian water rights gave landowners along a stream rights to an undiminished quantity and quality of water but did not allow diversion of water. This limitation was inappropriate in the arid West, where water was seldom near the mines or fields on which it was used (see Anderson and Snyder 1997).
The history of water policy shows that states effectively managed their water resources until the federal government intervened to expand its control. PERC Wiegand Scholar Barton Thompson (1997) identifies four periods of U.S. water policy: the “Gestation Period,” 1849-1901; the “Embryonic National Period,” 1902-1914; the “National Empire Period,” 1914-1968; and the “Environmental Period,” 1968-present.
During the Gestation Period, from 1849 to 1901, local miners and farmers forged water policies that met their specific needs. Generally these policies centered around the prior appropriation doctrine, which awarded water rights to individuals on a “first-in-time, first-in-right” basis. Those who first diverted water had first claim on water. This simple doctrine provided sufficient security of water rights to encourage investments in small-scale, locally funded diversion projects that moved the water from streams to mines and fields.
As state governments became stronger, the prior appropriation doctrine was codified in ways that further protected water rights but limited the role of markets in allocating water. Usually, state water laws required diversion in order to establish a right, required that the water be used or be forfeited (“use it or lose it”), and specified a hierarchy of uses that restricted transfers. So while the states provided secure individual rights, they also interfered with the ability of individuals to transfer those rights through market processes.
The Embryonic National Period began in 1902 when the role of the federal government in water allocation expanded significantly. Two events were especially significant: congressional passage of the Reclamation Act of 1902 and theWinters v. United StatesSupreme Court decision in 1908. The Reclamation Act initiated national government investment in massive water projects that subsidized water storage and delivery to western farmers. TheWintersdecision reserved water for use on Indian reservations, giving the reserved right a priority based on the date of the establishment of each Indian reservation. Even if the Indians did not use that water, the early appropriation date gave them, in many cases, “first-in-time” water rights and therefore priority over other users. Later, this federal reserved water doctrine was expanded to water use on all federal lands.
Despite both of these events, however, the role of the national government in western water allocation was limited through much of the twentieth century. The Reclamation Act specifically stated that >nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory related to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder.(6)
And interference with western water rights under theWintersdoctrine was restricted because Indian reservations did not have the funds to divert much water, and, regarding other federal lands, the Supreme Court interpreted the doctrine to apply only to those “appurtenant lands withdrawn from the public domain for specific federal purposes.”(7)
It was not until the Environmental Period, which Thompson identifies as beginning in 1968, that the national government really began to dominate state water policy. This occurred through national regulation of water quality.
One might surmise that this takeover occurred because states were not effectively dealing with clean water issues, but the evidence does not support this interpretation. Karol Ceplo and PERC Wiegand Scholar Bruce Yandle conclude that “prior to 1970, state management of water quality involved a mixture of statutes and common law” that provide “a positive history of responding to water-related problems.” They found “significant diversity” among the states. Building on a common-law base, state water quality agencies quite often grew out of the agencies that managed water rights and water supply. States such as Arizona, California, and Oregon have “long-developed elaborate administrative mechanisms to control and prevent water pollution,” while others, such as New Mexico, have done less.
According to Ceplo and Yandle (1997),
Some of these differences reflect historical disparities: pollution posed greater threats in some states than in others, and thus was addressed earlier or more fully in affected states. Some differences may indicate that special-interest groups have played an important role in developing water quality control programs [e.g., Texas and Oregon]. . . .
They contend that states showed themselves capable of creating appropriate programs to manage pollution. Certainly there is no evidence of a general race to the bottom–that is, competition to weaken water quality standards to attract industry.
In spite of the assumption of responsibility by the states, overconfidence in the federal government led to monopolization of water policy at the national level. Especially under the Clean Water Act and the Endangered Species Act (ESA), the national government usurped more and more control.
Section 404 of the Clean Water Act specifies that anyone discharging material into navigable water must first obtain a national permit and show that the discharge will not have adverse environmental consequences.
The ESA requires all agencies to ensure that any action they authorize, fund, or carry out “is not likely to jeopardize the continued existence” of an endangered or threatened species. A number of these species inhabit streams and rivers.
Combined, these two acts expanded national authority to nearly all water in the United States.
The history of water policy is a classic example of nationalism replacing federalism without a principled reason for doing so. The usurpation of power from states does not follow the environmental federalism principle stated above, and it does not improve resource use.
Water policy can be devolved to individuals operating through water markets. While there may be impacts on “third parties,”–the usual rationale for government intervention–these impacts can be controlled through state or regional authorities. The following are recommendations for moving from water nationalism to water federalism.
Western water law is built on the prior appropriation doctrine, which quantifies and prioritizes private rights to water. National policies such as the federal reserved water claims, the Clean Water Act, and the Endangered Species Act have clouded these private rights. Furthermore, where water rights were created by reclamation projects, the rights have generally not been transferable except when the land irrigated by the water is transferred. All national water policy should be reviewed for the purpose of clarifying private water rights and of making them fully transferable through willing buyer/willing seller transactions.
Even at the Bureau of Reclamation, home of water projects that subsidize water use, a task force was established in 1995 to explore the possibilities of privatizing bureau projects. Discussions centered on selling government-owned projects to make a profit or cut losses. The task force addressed such questions as: What would determine the sale price of a project? How could long-term contracts between the bureau and water users be enforced? Would existing agricultural users have the right to sell their water to nonagricultural users? These questions should continue to be asked, and Congress should move forward with a privatization agenda for all national reclamation projects.
Because water often flows across state borders, an authority larger than a single state may be necessary to apportion water among the states and to determine water quality policy. This authority does not have to be the national government, however. Interstate commissions should clarify private rights to water quality and quantity, encourage water transfers across state borders, and establish water quality standards where appropriate.
Karol Ceplo and Bruce Yandle (1997) document that common law–specifically, the right of a person to sue a party that has harmed his or her property–has fostered private solutions to many water quality problems. They also point out that prior to national monopolization of control, state regulations codified and supplemented the common law. The Clean Water Act should be amended to allow states to set and enforce their own water quality standards except where water quality has interstate impacts. (These interstate effects should be handled by the interstate commissions described above.)
David Riggs and Bruce Yandle (1996) describe the success of a decentralized approach with the Tar-Pamlico Sound in North Carolina. There, the Environmental Protection Agency helped set a water quality standard and then allowed local authorities, environmental groups, industry, municipalities, and farmers to determine how the standard would be met. Cost savings, which are potentially as large as $50 million in Tar-Pamlico, could be achieved elsewhere, too.
Public Land Management
Because the West is almost 50 percent public land, the national government plays a major role in western land management. Initially, policies under such laws as the Homestead Act, the Timber-Stone Act, and the Mining Law of 1872 dictated settlement and land use. For the most part, these acts provided for the sale or disposal of land to the private sector. As states were admitted into the Union, some of the public domain was given to states. The proceeds from sale or management of these lands were earmarked for public schools (see Souder and Fairfax 1995). However, late in the nineteenth century, Congress reserved millions of acres from disposal and began the process of establishing a vast system of lands managed by bureaucracies in Washington.
The federal government’s grant of school trust lands to the states and its simultaneous retention of other (often adjacent) lands created a vivid contrast between management regimes. This comparison illustrates the efficacy of federalism. Because state school trust lands are managed to generate income for public schools, their managers face a discipline that federal land management lacks.
Donald Leal (1995b) studied state and federal forest management in Montana. He found that state forests earn $2.16 for every $1 they spend, while neighboring national forests earn only $0.51 for every $1 spent. A major reason for the difference is the higher costs of national forest timber sales. Leal’s comparison of labor costs and labor hours in central Montana showed that the Gallatin National Forest required more than two and a half times the number of hours of labor to prepare a thousand board feet for sale and harvest than did the state office.
Leal also reviewed grazing land management in Montana. He found that management costs for Montana’s state lands are approximately $0.82 per acre, compared to $3.79 per acre for BLM lands (Leal 1995a). If Montana were to manage BLM lands for $0.82 per acre and to collect the same revenues currently received by the BLM, it would net $48 million per year, compared with the BLM’s annual loss of approximately $5 million.
If land management can be so lucrative, why aren’t states clamoring to take over the federal estate? PERC Wiegand Scholar Robert Nelson points out that even though the management of these lands causes losses to the U.S. Treasury, the losses represent money spent within the states. Even if states made money from a transfer of BLM lands, a transfer of the lands would mean loss of the large infusion of funds associated with the presence of BLM lands now coming from the federal treasury. This would mean “significant losses of jobs and income for many state residents.” To compensate for this loss of federal funds, says Nelson, a state would have to earn between $25 to $75 million in net revenues from lands that are now losing $10 to $40 million per year under BLM management. While Don Leal’s (1995a) figures for Montana suggest that revenues would go up substantially under state management, a turnaround of this magnitude in all the states is not assured.
Of course, privatization is another option, but this option failed to gain support even in the Reagan administration, partly for the same fiscal reasons. Under private management, most national forests and public grazing land could generate more value through more efficient commodity use and fees for recreational use. But the infusion of funds from the national treasury would not occur.
Public land federalism must address state fiscal concerns and the fears of existing public land users. Nevertheless, the combination of severe national losses on federally managed land and successful revenue generation on state land provides persuasive evidence that change is needed. The following policy steps could begin this process.
All U.S. Forest Service and Bureau of Land Management lands in the western states should be inventoried to determine which could be sold to the private sector. Certainly, public lands that are “inheld” (that is, largely surrounded by private land) or that are leased exclusively to single users for single purposes should be privately owned. There are thousands of small parcels that are costly to manage and that have no–or minimal–multiple-use values that dictate national control.
Over the years, permits for exclusive use of federal lands have become less secure. This is most clear with grazing permits.(11)As environmental interests have increased their power over federal grazing land, permittees have become less sure about what demands will be made in the future and are even uncertain about whether they will be allowed to use the land for grazing.
Ranchers facing such insecurity have less incentive for good stewardship. In addition, the process becomes increasingly politicized as the change in the level of certainty encourages groups (environmental groups opposed to cattle grazing, for example) to fight for greater control.
Making existing permits secure and transferable would enable competing users, including environmental groups, to trade rights to use federal lands among one another. Secure, transferable permits would encourage cooperation, not conflict.
The discipline of the bottom line is crucial to changing government land management. Unlike the national agencies, state land managers do not have a bottomless trough from which to draw their budgets. Furthermore, because revenues from state land management are designated for schools, there is pressure for economic performance. Nelson concludes that “most western states would be capable of earning positive net revenues from BLM lands” that now earn a loss for the national treasury. Finding support for this transfer, however, will not be easy because federal spending in each state “can well be regarded as a benefit within a state,” says Nelson. “From the state perspective, the more the federal government spends, the better off the state will be.” Nonetheless, Nelson believes that with careful attention to its design, states could develop a transfer proposal that would be “a winning proposition for the federal government, for the state, and for the affected user groups in the state.”(12)
Wildlife
Like the management of water, management of wildlife until recently has mostly resided with states but is partly shared with individuals and the national government. State and local control, in contrast to national governance, is appropriate because most wildlife problems are confined to state boundaries. To understand why we have moved to greater national control, consider wildlife management as discussed by PERC Wiegand Scholar Dean Lueck and economist Jonathan Yoder.
Lueck and Yoder (1997) point out that wildlife management is complicated by the costs of coordinating among the various landowners over whose property wildlife may range. If the range is confined to a single parcel of private land (either naturally or by fencing), there are few coordination problems. In this case the landowner can manage the species and can capitalize on this management by charging fees to people who want to hunt or view the animals.
As the value of wildlife has risen, private landowners have had more incentive to overcome the organizational costs and capture the value. Large landowners such as International Paper in the southeastern United States, the White Mountain Apache Indians in Arizona (Anderson 1996), and television magnate Ted Turner in Montana (see Anderson and Leal 1997a) contract with hunters, charging a fee for access. In South Africa, where private ownership of wildlife is highly developed, game laws give a landowner complete control of habitat management and wildlife harvests as long as the land is fenced.
For species with large territories extending over land owned by multiple parties, however, it is more difficult for private owners to coordinate management. If landowners cannot contract with one another to capture the benefits of wildlife management, wildlife becomes a common-pool resource. As with bison in the late nineteenth century, under these circumstances wildlife will be overexploited and perhaps even driven to extinction. This potential for the tragedy of the commons explains why wildlife agencies can improve management through regulation.(13)
State agencies can eliminate the tragedy of the commons by limiting seasons and harvest. Such federalism may be appropriate for game species that have territories larger than typical ranches or that cannot be easily fenced. For example, |
