'The Polluters' Explores a History of Regulatory Capture

January 20, 2011

By Benjamin Ross and Steven Amter. Ross is president and Amter is senior environmental scientist at Disposal Safety Incorporated, a consulting firm in Washington, D.C.

Is regulatory capture inevitable? Our new history of environmental regulation, The Polluters, says no. Frequent, yes, but by no means unavoidable.

Conflict over pollution control follows a long-standing pattern that goes back to the 1920s and before. No force of nature makes regulators do the bidding of those they are supposed to oversee. Nor is it the effect of some vague intellectual influence. Direct political and economic pressure, it turns out again and again, has been the cause of capture.

Industrial polluters were challenged early on by conservation groups and affected economic interests. Competition in the political sphere was mirrored by conflicts among government agencies. From the beginning, many regulators tried to enforce environmental controls. Almost invariably before the regulatory revolution of the 1970s, and not infrequently since, they were the victims of political decisions that deprived them of needed legal authority or transferred their functions to more pliant organizations.

The New York Harbor Act of 1888 and the Rivers and Harbors Act of 1899 put the first federal controls over water pollution in the hands of the Army Corps of Engineers. When oil slicks plagued coastal waters after World War I, the Corps called for federal regulation of mines and factories as well as ships at sea. Lobbying by the American Petroleum Institute, backed by Secretary of Commerce Herbert Hoover, convinced Congress that only marine vessels should be regulated under the Oil Pollution Act of 1924.

By the 1930s, the Food and Drug Administration was pushing the limits of its authority over pesticides. Its seizures of apples contaminated with lead arsenate ran into trouble in court - under the Pure Food and Drug Act of 1906, food sellers charged with violating concentration limits could question the science behind the limits as a defense - so the FDA started a study. But the experiment was halted with the slaughter of five thousand rats when the House Appropriations Committee cut off funding. Felix Wormser, a lead industry lobbyist who is known to history for his efforts to stop publication of warnings against the use of lead paint on cribs and toys, suggested transferring the money to the Industrial Hygiene Division of the Public Health Service. This organization, whose head had earlier vouched for the safety of leaded gasoline and suppressed reports of Black Lung disease, recommended a doubling of the allowable arsenic in food and a tripling of the lead limit.

Air pollution came into the national spotlight in 1948 after twenty people in Donora, Pa., were killed by four days of intense smog. The Bureau of Mines, since 1910 the preeminent federal agency researching air pollution, called for stronger regulation. But when the Eisenhower administration took office in 1953, Felix Wormser gained direct authority over the BOM as Assistant Secretary of the Interior. The Air Pollution Control Act of 1955 shut down the Bureau's pollution work and made the Industrial Hygiene Division the sole federal air pollution agency.

Environmental laws passed after World War II - the Water Pollution Control Act of 1948 and a 1947 pesticide law as well as the air legislation - were not, as is often carelessly assumed, initial steps on a seamless march toward today's national system of control. They limited the federal role to research and education, consciously rejecting the imposition of regulatory authority. Effective federal pollution control had to await the legislation of the 1970s.

Many readers find this history discouraging, but we draw hopeful lessons from it. Internal chemical company records which we uncovered as expert witnesses show that many industrial scientists, engineers, and managers were trying to clean things up early on. Although economic and political interests have been able to distort scientific discourse about toxic substances, the scientific community has a powerful ethic of truth-telling and suppressed knowledge has a way of coming out in the end.

With committed leadership, government agencies can create a culture of dedication to the public interest that persists in the face of political pressure. The environmental revolution of the 1970s showed how an aroused public can overcome vested interests. It created a structure of regulation that, notwithstanding initial limitations and later setbacks, has never abandoned its fundamental commitment to environmental protection.