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Eco Science - Six - Legal System & Public Interest Groups

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CHANGING AMERICAN INSTITUTIONS / 829 tence." 54 We believe that a technological society, espe- cially a democracy, cannot afford such a large proportion of poorly educated citizens. Every citizen should be drawn into the problems of societal decision-making. We would suggest that all people be required to take sabbatical leaves every seventh year, which could be financed in various ways depending on the choice of activity (this and the employment "problems" created by such a program are considered under "Economic and Political Change"). Each person would be required to spend the year bettering society and himself or herself in a way approved by the individual's immediate colleagues. A physician might petition his or her county medical society for permission to study new surgical techniques or anthropology. A garbage collector might petition coworkers to permit him or her to take a year's course in sanitary engineering or recycling tech- niques at a university. A secretary might apply to the government for a grant to spend a sabbatical serving on an ad hoc citizens' committee to evaluate the direction of research in high-energy physics. A business executive might apply for one of the open sabbatical chairs that could be established on the city council (as well as in all other legislative bodies). A flight instructor might per- suade the local pilot's association to appoint him or her to one of the exchange positions in the local Federal Aviation Administration office, with an FAA counterpart being required (if qualified) to take over the instructor's job for a year. All bureaucrats should be required to take some of their sabbaticals as nongovernmental workers in the areas they administer and all professors to take some of theirs outside the groves of academe —or at least outside their own fields. The details of such a program would be complicated, but its benefits, we believe, would far outweigh its costs. A growing rigidity of roles in our society must be broken, and virtually everyone must be brought into its deci- sion-making processes. Indeed, the discontent expressed today by many groups is based on their feeling of being cut off from participation in important decisions that affect their lives. Some moves in this general direction have been made in the People's Republic of China, where city people and 54 Based on a U.S. Office of Education study, reported in Time, November 10, 1975, p. 6. academics have been forced to join rural communes and participate in completely different work from what they had done before. It would be interesting to know what success the Chinese have had. We would certainly not advocate forcing people to change their occupations against their wishes, any more than we would advocate adopting the Chinese communist system of government. But the basic idea behind this policy seems valuable, and an adaptation of it that fit our political system might well be worth exploring. As an example of how citizen participation in political decision-making can work, a group of scientists led by ecologist C. S. Holling at the University of British Columbia have involved local businessmen, politicians, and private citizens in a computer simulation of a prospective development project, as an experiment in the results of citizen decision-making. 55 Everyone contrib- uted to the assumptions of the model, and all were satisfied with the model created. Then various people were allowed to try out their pet development plans on the model. When a politician found that his or her plan led to environmental disaster, the politician had to acknowledge the error. The politician could not blame the model because he or she had been involved in building what was believed to be a realistic one. We believe that it is possible, at least in theory, to get away from a we-they system of running the country, to give everyone a chance to participate. Grave problems would unquestionably accompany the attempt, but since we are both morally committed to some form of democ- racy and intellectually convinced that the present system is both undemocratic and lethally ineffectual, we see no choice but to try a change. THE LEGAL SYSTEM Perhaps the greatest potential for reversing environmen- tal deterioration in the United States and for bringing our population growth under control lies in the effective utilization of our legal system. 56 A law may be defined as 55 Personal communication. "Much of this section is based on discussions with attorney Johnson C. Montgomery, whose death in December 1Q74 was a loss deeply felt by people in the ZFG movement.
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Page 1: Eco Science - Six - Legal System & Public Interest Groups

CHANGING AMERICAN INSTITUTIONS / 829

tence."54 We believe that a technological society, espe-cially a democracy, cannot afford such a large proportionof poorly educated citizens.

Every citizen should be drawn into the problems ofsocietal decision-making. We would suggest that allpeople be required to take sabbatical leaves every seventhyear, which could be financed in various ways dependingon the choice of activity (this and the employment"problems" created by such a program are consideredunder "Economic and Political Change"). Each personwould be required to spend the year bettering society andhimself or herself in a way approved by the individual'simmediate colleagues. A physician might petition his orher county medical society for permission to study newsurgical techniques or anthropology. A garbage collectormight petition coworkers to permit him or her to take ayear's course in sanitary engineering or recycling tech-niques at a university. A secretary might apply to thegovernment for a grant to spend a sabbatical serving onan ad hoc citizens' committee to evaluate the direction ofresearch in high-energy physics. A business executivemight apply for one of the open sabbatical chairs thatcould be established on the city council (as well as in allother legislative bodies). A flight instructor might per-suade the local pilot's association to appoint him or her toone of the exchange positions in the local FederalAviation Administration office, with an FAA counterpartbeing required (if qualified) to take over the instructor'sjob for a year. All bureaucrats should be required to takesome of their sabbaticals as nongovernmental workers inthe areas they administer and all professors to take someof theirs outside the groves of academe —or at leastoutside their own fields.

The details of such a program would be complicated,but its benefits, we believe, would far outweigh its costs.A growing rigidity of roles in our society must be broken,and virtually everyone must be brought into its deci-sion-making processes. Indeed, the discontent expressedtoday by many groups is based on their feeling of beingcut off from participation in important decisions thataffect their lives.

Some moves in this general direction have been madein the People's Republic of China, where city people and

54Based on a U.S. Office of Education study, reported in Time,November 10, 1975, p. 6.

academics have been forced to join rural communes andparticipate in completely different work from what theyhad done before. It would be interesting to know whatsuccess the Chinese have had. We would certainly notadvocate forcing people to change their occupationsagainst their wishes, any more than we would advocateadopting the Chinese communist system of government.But the basic idea behind this policy seems valuable, andan adaptation of it that fit our political system might wellbe worth exploring.

As an example of how citizen participation in politicaldecision-making can work, a group of scientists led byecologist C. S. Holling at the University of BritishColumbia have involved local businessmen, politicians,and private citizens in a computer simulation of aprospective development project, as an experiment in theresults of citizen decision-making.55 Everyone contrib-uted to the assumptions of the model, and all weresatisfied with the model created. Then various peoplewere allowed to try out their pet development plans onthe model. When a politician found that his or her planled to environmental disaster, the politician had toacknowledge the error. The politician could not blamethe model because he or she had been involved inbuilding what was believed to be a realistic one.

We believe that it is possible, at least in theory, to getaway from a we-they system of running the country, togive everyone a chance to participate. Grave problemswould unquestionably accompany the attempt, but sincewe are both morally committed to some form of democ-racy and intellectually convinced that the present systemis both undemocratic and lethally ineffectual, we see nochoice but to try a change.

THE LEGAL SYSTEM

Perhaps the greatest potential for reversing environmen-tal deterioration in the United States and for bringing ourpopulation growth under control lies in the effectiveutilization of our legal system.56 A law may be defined as

55Personal communication."Much of this section is based on discussions with attorney Johnson C.

Montgomery, whose death in December 1Q74 was a loss deeply felt bypeople in the ZFG movement.

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830 / THE HUMAN PREDICAMENT: FINDING A WAY OUT

a "rule of conduct for a community, prescribed by agoverning authority and enforced by sanction." Thesanction enforcing a law may be either a reward or apunishment. For instance, to control agricultural pro-duction, the government might pay a subsidy for notraising crops on part of his land (a reward) or jail a farmerwho raises crops (a punishment). Where a governmentwishes to induce an affirmative action, a promised rewardis often more effective than the threat of punishment. Inthe United States, constitutional questions involving dueprocess, equal protection, and so forth are more likely toarise where punishment, rather than reward, is involved.Bonuses for not having children would certainly raisefewer constitutional questions than jail for overrepro-ducers, for example.

Law is also sometimes defined as codified custom. In asense, legislators, police officers, and judges are merelysocial instruments for enforcing customary behavior.Historically they have also helped to create custom by-defining acceptable conduct. This has been especiallytrue of legislators and is becoming increasingly true ofjudges. When the new problems of local and globaloverpopulation and environmental deterioration arose,they clearly demanded the establishment of new rules ofconduct and new customs—in short, new laws. Just as theancient laws relating to trespass had to be modified by thecourts and by the legislatures to handle the new circum-stances created by automobiles and airplanes, new de-vices are now being developed for dealing with pollutionand population pressure. The laws of the free-enterprisesystem were failing to meet the needs of everyoneeverywhere as long as they permitted—let alone en-couraged—unrestricted reproduction and pollution.

Environmental Law and Lawsuits

Many aspects of environmental deterioration can becurbed or controlled through legal means. Probably theeasiest form to control is pollution, whether caused byindustry in the processes of mining and manufacturing orby individuals in their ordinary lives (air pollution fromautomobiles and home heating, for instance). Before1965, there was relatively little control by law ofpollution, and the existing regulatory mechanisms were

quickly becoming obsolete and inadequate as the volumeand variety of pollutants multiplied. Fortunately, thereare many legal precedents that have permitted society tooppose polluters legally. Two examples are the legalprecepts of nuisance and trespass.

Nuisance. Under common law (the law generallyapplicable in the United Kingdom and former Britishcolonies) and under civil law (the law generally applica-ble in the rest of the Western world), the concept ofnuisance has for centuries permitted governments tobring some of their coercive powers to bear on those whocreate excessive smoke, noise, odor, filth, and the like. Insome jurisdictions access to sunlight and even an attrac-tive view are among the aesthetic values protected bypublic administrators. Public administrators, however,in general have not been noted for their diligence incomplaining about local businesses. Nuisances havemore often been successfully stopped by individualcitizens who have obtained injunctions to stop them.(Private citizens may receive money damages for injuriescaused them by a nuisance.)

Existing nuisance laws have presented a number ofdifficulties, however. First, the nuisance doctrine gener-ally serves only to protect rights associated with realproperty. As matters now stand, a private nuisance can bestopped only by a person occupying adjacent or nearbyproperty. Even in the most enlightened jurisdictions,little if anything can be done to protect people in thevicinity who do not own or occupy property.

Second, the nuisance doctrine requires that a com-plainant show a causal relationship between the condi-tion he or she is complaining about—for example, smokeor noise—and a direct injury to himself. Generally he hasto show that the condition is the cause of injury.Obviously, if each of several polluters contributes a littleto the overall problem, the nuisance doctrine is not muchhelp. On the other hand, there is growing authority forthe proposition that if a suit is filed against all the personswho are contributing to a nuisance, it is up to them toshow to what extent each has contributed. Thus therehave been successful cases involving river pollution inwhich all upstream contributors have been sued.

Third, the nuisance doctrine is applied only if in theeyes of the court the polluter is causing more harm than

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CHANGING AMERICAN INSTITUTIONS / 831

good. Unfortunately, it has been held by many courtsthat a so-called lawful business (paint manufacturing, forexample) cannot constitute a nuisance. Today there is anincreasing public tendency to recognize the dangers frompollution, however, and, in balancing them againsteconomic considerations, to require businesses to dowhatever a court or an administrative agency may think iseconomically reasonable. For instance, in the case ofBoomer versus Atlantic Cement Company,*1 individualplaintiifs were awarded damages for cement dust fallingon their property, but the court refused to issue aninjunction that would halt the plant's operations, eventhough it found those operations created a nuisance. Thecourt reasoned that the economic activities of the com-pany were too valuable to the area and too many otherpeople would be harmed if the plant were closed down.

That the economic interests of the polluters are takeninto consideration by government authorities, however,often leads to spurious arguments based on the notionthat restrictions would foster unfair competition: "Wecan't compete with the Jones Company if we can't sprayour crops with DDT." The answer to this argument ofcourse is: "We will stop the Jones Company too." Oftenthe best way of avoiding unfair-competition arguments isto pass legislation that affects an entire industry. Forexample, if a law were passed prohibiting the manufac-ture of all persistent insecticides (for instance, all thosewith half-lives of more than one week under average fieldconditions), the chemical companies would very quicklyincrease production of those that met the requirementsand would develop new ones that would also break downrapidly.

The serious defects in the existing nuisance laws mightmake it appear that they cannot really assist in controllingpollution, but that is not so. With relatively minoradjustments, those laws could be made very effective.These are among the changes that must be made: (1)expand the nuisance doctrine to include people who arehurt by the pollution but who do not occupy nearbyproperty; (2) permit individuals to bring actions not onlyon their own behalf, but also on behalf of all otherindividuals in similar circumstances who are beingdamaged by pollution; (3) permit recovery of punitive

"1970. 26 N.Y. 2d 219, 257 N.E. 2d 870, 309 N.Y.S. 2d 312.

damages (damages in excess of the dollar value of theinjury suffered) in cases where the polluter could haveavoided some or all of the pollution; (4) organizepublic-spirited scientists so that they might become amore readily available source of testimony. The realvalue of the nuisance laws is that they provide an existingframework within which to elaborate newer and morerestrictive rules of conduct without also requiring thedevelopment of previously unrecognized rights andduties.

Trespass. Another ancient legal doctrine, that oftrespass, can also assist in stopping pollution. Accordingto law, if you hit another person with your fist or withyour automobile, or if you hike over another person'sland, you have committed a trespass. Trespass is both acrime (a public offense) and a tort (an individual, privateinjury).

For many years there have been metaphysical ar-guments concerning what constitutes a trespass—forexample, whether it is necessary to be able to seewhatever hits you or falls on your land. It has been saidthat rays of light cannot constitute a trespass, and in thepast not even smoke could constitute a trespass. How-ever, the old idea that it was necessary to be able to see,feel, and even weigh the offensive object is going out ofstyle. The decision in one California case permittedrecovery of substantial damages for lung injuries sus-tained by a motorist who drove through invisible chemi-cal fumes emitted by a factory.

One serious defect in applying the trespass laws to thecontrol of pollution is that the most an individual canrecover are the damages to that individual, which aregenerally limited to the monetary value of the privateinjuries. In one case, however, the Oregon SupremeCourt permitted a private individual to collect punitivedamages in addition to his actual personal damages. Thecourt reasoned that some private wrongs are so evil thatthe wrongdoer should be punished as well as beingforced to pay for the actual injury to the complainant.Punitive damages have long been recognized in our legalsystems. If industries guilty of pollution are assessed forpunitive damages, private individuals will have someincentive to initiate lawsuits against them. Recently, thispossibility has induced some industries to curtail their

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832 / THE HUMAN PREDICAMENT: FINDING A WAY OUT

pollution. It has also induced some insurance companiesto withdraw insurance against such suits, and a few stateshave contemplated the prohibition of insurance forpollution liability.

Like nuisance laws, the trespass laws could be mademuch more effective merely by permitting an individualto sue for the value of the injuries sustained by allindividuals similarly situated. Such suits are called classactions, and the individual represents not only himself orherself, but also all others similarly situated or in thesame class. There exists ample authority for class actionsin other circumstances. For example, a stockholder haslong been able to bring a class action on behalf of allstockholders against a corporation or its officers ordirectors. Today, there is evidence that trespass laws willincreasingly be used in what are essentially class actionsagainst polluters. The suits against the Union OilCompany by the State of California and by individuals inconnection with the 1969 oil leak in the Santa BarbaraChannel were class actions. In 1973, however, theclass-action approach to legal intervention to improveenvironmental quality received a setback. The UnitedStates Supreme Court declared that each member of aclass must suffer damages of more than $10,000 (ratherthan pooled damages amounting to that much) before afederal court could hear an environmental lawsuit.38

Since such individual damage is rarely demonstrable,environmental class actions successfully prosecuted infederal courts will become relatively rare.

Suits and interventions by public-interestgroups. Perhaps the most impressive success story inthe legal battle for the environment has been the risinginfluence of a relatively few organized public-interestgroups that have been using the lawsuit and other formsof legal intervention in a persistent and systematic way. Apioneer in this respect has been the EnvironmentalDefense Fund (EOF). This organization, composed ofscientists, lawyers, and other citizens, has been going intothe courts and appearing before government regulatoryagencies since the late 1960s in its efforts to protect theenvironment. It started in 1966 by using the courts tostop spraying with DDT in Suffolk County, Long Island.

As a result of the publicity accompanying the EDF suit,the state of Michigan rigidly restricted the use of DDT.Then, in an adversary-style hearing before the WisconsinDepartment of Resources between December 1965 andMay 1969, EDF was able to demolish the flimsy case ofthose attempting to defend continued use of DDT.59

Faced with the certainty of cross-examination, many ofthe scientists who usually defended the petrochemicalindustry were noticeably absent from the witness chair(although not from the public press).

As a result of those hearings, DDT was banned inWisconsin. EDF then carried its battle to the federallevel, where it played a major role in persuading theEnvironmental Protection Agency to declare a virtuallycomplete ban on use of DDT in the United States at theend of 1972 (see below).60 Originally a shoestringoperation, EDF has gained considerable admiration andsupport from scientists and others aware of such en-vironmental threats. Other groups, such as the NationalResources Defense Council (NRDC, founded in 1970),^have also become very active in taking environmentalissues to court. In 1975 NRDC had a staff of fourscientists and fourteen attorneys, and had on its docketmore than 100 lawsuits and other legal actions of nationalsignificance. Environmental groups like Friends of theEarth and the Sierra Club have also been involved, aloneor in coalition with other groups, in many such actions indefense of the environment, frequently in cooperationwith the legal staffs of EDF or NRDC. Some of the mostnotable accomplishments of the legal actions undertakenby the growing and increasingly sophisticated collectionof environmental public-interest groups are discussed inthe sections that follow.

Legislation and Administrative Agencies

Both the need for and the effectiveness of legal actionby individuals and citizen groups are linked to the larger

58Zahn versus International Paper Company, 42 U.S.L.W. 4087.

MThc story of the EDF at Madison is told in a very lively fashion by H.Henkin, M. Merta, and J. Staples, The environment, ike establishment, andthe law.

""The ban was lifted in 1974 so that DDT could be used against thetussock moth in the Northwest a very unfortunate decision. See RobertF. Harwood, Economics, esthetics, environment, and entomologists: Thetussock moth dilemma.

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CHANGING AMERICAN INSTITUTIONS / 833

framework of existing laws and the agencies that admin-ister them. In some sense the easiest route to improve-ments in environmental protection would seem to bethe passage of more comprehensive controls and theestablishment of streamlined procedures for administer-ing them. Almost certainly, the courts would have noconstitutional objections to any reasonable legislativelimitations on the activities of polluting industries—forexample, requirements that effluents be purified, re-duced, or eliminated. The courts could even sustainstatutes that would put certain corporations out ofbusiness.

There are two major difficulties in getting effectivelegislative action. First is the notion that if a highergovernment authority (for example, the United StatesCongress) enacts a law regulating a certain activity, itmay have preempted the field so that a lesser governmentauthority (for example, a state) cannot enact legislationdealing with the same subject. This has led die tobaccoand automobile industries to push for federal regula-tion in order to avoid the enactment of possibly more-restrictive state laws. Inconsistencies in laws of differentjurisdictions create a problem for industry, and there isno easy answer. A national economy does require na-tional standards; it would be extremely difficult for theautomobile manufacturers to satisfy fifty different statu-tory schemes to regulate automobile pollution. Yet somelocal problems are so severe that they require moredrastic solutions than need be applied to the country atlarge. Thus California (and only California) is permittedtougher automobile emission standards than those es-tablished by the Environmental Protection Agency forthe rest of the nation.

The second difficulty with legislative action is thatlegislators are often not cognizant of new problems, andsome are notoriously at the beck and call of establishedpressure groups, such as the automobile manufacturersand die oil industry. Furthermore, in those situationswhere a legislature has taken action, the action hasgenerally consisted of setting up regulatory agencies likethe Food and Drug Administration, the Federal TradeCommission, or the Federal Communications Commis-sion. Such agencies in time have tended to becomedominated by the industries they are intended to regu-late—ultimately the foxes wind up minding the

chickens.61 Nevertheless, as public pressure has grown,the public has already seen and can expect to see moreresults from legislation and from regulatory agenciesthan it has in the past.

In the early 1970s steps were taken in the United Statestoward placing stricter controls on the release of pollut-ants into air and water. The Clean Air Act (as amended in1970) and the Federal Water Pollution Control Actamendments (1972) set national pollution standards forair and water.62 As we discussed in Chapter 11, however,it was clear by the mid-1970s that the high expectationsof environmentalists were not to be realized—at least notas rapidly as they had hoped. There remains a need forestablishing and implementing a nationwide (to saynothing of worldwide) program drastically limitingemissions of harmful materials from industry, automo-biles, homes, and other sources.

National Environmental Policy Act. A majorlandmark in the fight for environmental quality in theUnited States was the passage of the National Environ-mental Policy Act (familiarly known as NEPA)63, whichbecame law on January 1,1970. The bill was modeled inlarge part after the Employment Act of 1946, which"declared a responsibility in the Federal Government tomaintain a prosperous and stable national economy."64

In a similar vein, NEPA declared a responsibility in thefederal government to restore and maintain environ-mental quality.

NEPA created in the Executive Office of the Presidenta three-member Council on Environmental Quality(CEQ), which was charged with assisting and advisingthe president in the preparation of the annual Environ-mental Quality Report and with carrying out a number ofother survey and advisory capacities for monitoring thequality of the environment and the influence of govern-ment agencies and actions on it.

"For a fascinating description of industry-government "cooperation"on air pollution, see J. C. Esposito, Vanishing air, which, althoughsomewhat out of date, gives the flavor of interactions among politicians,agencies, and businessmen.

62For a useful citizen's guide to these acts, see J. Cannon, A clear view."The National Environmental Policy Act of 1969, public law 91-190,

January 1, 1970 (42 U.S.C. 4321-4347).^Council on Environmental Quality, Environmental Quality,

1972, p.222.

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834 / THE HUMAN PREDICAMENT: FINDING A WAY OUT

The key provision of NEPA, however, is its famousSection 102(C):

The Congress authorizes and directs that, to thefullest extent possible: (1) the policies, regulations, andpublic laws of the United States shall be interpretedand administered in accordance with the policies setforth in this act and (2) all agencies of the FederalGovernment shall—

(C) Include in every recommendation or report onproposals for legislation and other major Federalactions significantly affecting the quality of thehuman environment, a detailed statement by theresponsible official on—

(i) The environmental impact of the proposedaction,

(ii) Any adverse environmental effects whichcannot be avoided should the proposal beimplemented,

(iii) Alternatives to the proposed action,(iv) The relationship between local short-term

uses of man's environment and on the maintenanceand enhancement of long-term productivity, and

(v) Any irreversible and irretrievable commit-ments of resources which would be involved in theproposed action should it be implemented. Prior tomaking any detailed statement, the responsibleFederal official shall consult with and obtain com-ments of any Federal agency which has jurisdictionby law or special expertise with respect to anyenvironmental impact involved. Copies of suchstatement and the comments and views of theappropriate Federal, State, and local agencies,which are authorized to develop and enforce en-vironmental standards, shall be made available tothe President, the Council on Environmental Qual-ity and to the public as provided by section 552 oftitle 5, United States Code, and shall accompany theproposal through the existing agency reviewprocesses.

This is the section of NEPA that established theEnvironmental Impact Statement (EIS), which provideda crucial legal lever for public intervention on the side ofthe environment. The vast majority of environmentalsuits have been in the area of public law (concerning therelationship of citizens to the government) in contrast toprivate law (which deals with the relationship of citizens

with one another). An early instance was the famousStorm King case,65 a lawsuit brought by an environmen-tal group against the Federal Power Commission, whichhad granted Consolidated Edison of New York a permitto build a pumped-storage hydroelectric plant belowscenic Storm King Mountain on the Hudson River. The1965 decision in the Storm King case helped establish thestanding (a position from which to assert legal rights orduties) of individuals or groups with records of concernfor the environment—in other words, it established thatenvironmentalists could sue to protect environmentalvalues from the adverse effects of administrativedecisions.

That legal step forward was followed by a half-stepback in another public law case (the Mineral King case),in which the Sierra Club sued to prevent Walt DisneyProductions from turning a lovely part of the SierraNevada into a plastic wonderland.66 In the Mineral Kingcase, the United States Supreme Court held that mem-bers of the Sierra Club had to use the area in question inorder to gain standing; the interest of the club membersin preserving the wilderness was not sufficient cause tostop the Disney project. (For a novel approach to thequestion of standing—an approach that would haveserved the environment well in the Mineral King case—see Box 14-2.)

In the context of concerned groups having standing inenvironmental cases, NEPA's requirement of environ-mental impact statements (and the required public airingof the EIS) has proven to be a godsend. A series of casesbrought by groups such as the Committee for NuclearResponsibility, the Environmental Defense Fund, theSierra Club, and the Natural Resources Defense Councilhave determined that an EIS is to provide "full disclo-sure" of the environmental implications of any impend-ing decision, that it must set forth opposing views onsignificant environmental issues raised by the proposal,that it must contain a full analysis of costs and impacts ofalternatives, and that it must balance adverse environ-

65Scenic Hudson Preservation Conference versus Federal PowerCommission, 1965.354 F 2d 608. For a brief discussion of the case, see J.Holdren and P. Herrera, Energy, pp. 181—183.

"'Sierra Club versus Morton, 1972, U.S.L.W. 4397. For good discus-sions of the question of standing and environmental law in general, see J.E. Krier, Environmental law and its administration; and C. D. Stone,Should trees have standing? Toward legal rights far natural objects.

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BOX 14-2 A Note on Standing

The legal machinery and the basic legal notionsneeded to control pollution are already in exis-tence. Slight changes in the legal notions anddiligent application of the legal machinery are allthat are necessary to induce a great reduction inpollution in the United States. One change inthose notions that would have a most salubriouseffect on the quality of the environment has beenproposed by law professor Christopher D. Stonein his celebrated monograph, Should trees haveStanding?* In that tightly reasoned essay, Stone

*Originaily published in 1972 in the Southern California LamReview; available as a book, which also reprints the U.S.

points out the obvious advantages of givingnatural objects standing, just as such inanimateobjects as corporations, trusts, and ships are nowheld to have legal rights and duties. If this weredone, questions such as that of the standing ofthe Sierra Club in the Mineral King case,mentioned earlier, would disappear—for, as Jus-tice William 0. Douglas pointed out in hisdissenting opinion in that case, Sierra Clubversus Morton would "be more properly labeledas Mineral King v. Morton."

Supreme Court's opinions in Sierra Club versus Morton (theMineral King controversy).

mental effects against the benefits of the proposal.67

Failure to conform fully to the requirements has been thebasis of numerous successful lawsuits in which projectshave been stopped until proper environmental impactstatements were prepared.

The strength of NEPA lies in the formal commitmentof the government to environmental quality and therequired public airing of potential impacts by the EISprocedures. In the five years 1970 through 1974, morethan 6000 impact statements were filed. In the opinion ofthe CEQ, by 1974 NEPA had "succeeded in its objectiveof incorporating an environmental perspective into thedecision-making process of Federal agencies."68 Thisstatement seems accurate to us, both because it agreeswith our impressions and because, when it was made,Russell W. Peterson, one of the brightest and moststraightforward of Washington bureaucrats, was chair-man of the CEQ.68a In addition, the general approach ofNEPA has been adopted by local and state governments.By 1974 twenty-one states and Puerto Rico had adoptedthe EIS process, as had governments in such nations asAustralia, Canada, and Israel.69 One of the most impres-sive of the state acts is California's 1970 EnvironmentalQuality Act (amended), which requires impact state-

67CEQ Environmental Quality, 1972, pp. 242-246.MCEQ, Environmental Quality, 1974, p, 372. This report has a good

brief historical account of the evolution of NEPA (pp. 372^13).^"In 1976 he resigned and in 1977 was succeeded by Charles Warren, a

California State legislator with a thorough understanding of environ-mental issues. President Carter's appointment of Warren continues thetradition of excellence in this position.

MIbid., pp. 399-413.

merits on all projects, private or government, that willsignificantly affect the environment. In the mid-1970ssome 6000 statements were being filed annually.70

As far-reaching and successful as NEPA has been inthis context, some weaknesses are also evident. While ithas raised consciousness of the environment in govern-ment agencies and in the business community, concreteresults in terms of prevention and repair of environmen-tal deterioration have been less apparent. Thus far,NEPA has been mainly an instrument for disseminatinginformation rather than one for guiding policy. It cannot,in itself, lead to the cancellation of a project—eventhough citizens groups have repeatedly employed it todelay projects where EIS provisions have not beenmeticulously followed. Indeed, a key flaw in the act asfirst applied was that its enforcement depended entirelyupon the public, and the public could use it only to delay,not to halt, projects that would have massive negativeimpacts on the environment.71 As far as NEPA wasconcerned, the Army Corps of Engineers legally couldplow the United States under, or the Nuclear RegulatoryCommission could permit the country to be totallycontaminated with lethal amounts of radioactive wastes,as long as the EIS requirements of the law were followedscrupulously. In applying NEPA, the courts seem to bemoving toward substantive rather than procedural re-

70In California they are technically known as environmental impactreports (EIR).

"D. W. Fischer, Environmental impact assessment as an instrumentof public policy lor controlling economic growth. The appendix 10 ihearticle contains an informative critique of NEPA.

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view, however. This means that projects may be haltedfor reasons other than failure to follow the ELS provisionmeticulously.72

Several landmark court cases have clarified the obliga-tions of government agencies under NEPA. In CalvertCliff's coordinating committee versus A EC (1971), theUnited States Court of Appeals for the District ofColumbia held that the Atomic Energy Commissioncould not exclude water quality considerations from itsenvironmental impact statement merely because thepower plant in question had already received a certificateof compliance with federal water quality regulationsfrom the state. The court found that the "crabbedinterpretation" of NEPA by the AEC would prevent theAEC from making a balanced determination of the bestcourse of action. In Scientists' Institute for Public Infor-mation versus AEC (1973), the District of ColumbiaCourt of Appeals ruled in connection with the liquidmetal fast breeder reactor (LMFBR) that comprehensiveenvironmental impact statements must be prepared foracknowledged programs, not merely for individual facil-ities; that is, the combined impact of many LMFBRs andthe associated facilities had to be examined in advancesince the AEC had acknowledged that it had a programand not a single facility in mind. In Sierra Club versusMorton (1974), involving fossil-fuel development on theGreat Plains, the District of Columbia Court of Appealsdenned requirements for a programmatic environmentalimpact statement in certain circumstances even where anagency had not recognized its actions as a program.

NEPA was one important step in the right direction,and it may become a prime weapon in the fight forenvironmental quality. But it will prove inadequateunless ways are found to introduce comprehensiveenvironmental planning throughout the nation, in whichlegal standards for balancing environmental valuesagainst other values are applied to all projects withsignificant impact, government or private. How thismight be accomplished—and some existing legislation isleading in this direction—is discussed further in "Eco-nomics and Political Change." That section also dis-cusses the possibility that relatively simple legislationdealing with the consumption of resources might even-

tually replace much of the cumbersome ad hoc systemthat is now evolving for the control of environmentalimpact.

Environmental Protection Agency. Contrary to arather widespread misimpression, the EnvironmentalProtection Agency was not created by NEPA but ratherby an administrative reorganization that took place inDecember 1970. It consolidated the Federal WaterQuality Administration (formerly in the Department ofInterior); the National Air Pollution Control Adminis-tration (formerly in the Department of Health, Educa-tion and Welfare, HEW); the pesticide registration,research, and standard-setting programs of the Depart-ment of Agriculture and the Food and Drug Adminis-tration; the solid-waste management programs of HEW;and some of the functions of the Federal RadiationCouncil and the Atomic Energy Commission for settingstandards for radiation exposure. The EPA was given allthe functions and responsibilities necessary to carry outthe Clean Air Act and the Federal Water PollutionControl Act; and under its first administrator, William D.Ruckelshaus, it made a reasonably rapid start at doingso.73 His successor, Russell E. Train, continued to buildan increasingly effective organization in an often difficultpolitical environment.

Unlike CEQ, which is a small advisory group in theExecutive Office of the President, the EPA is a largeoperating agency with a staff in 1976 of 8800 people andestimated budget outlays in that year of $3 billion. I:maintains research laboratories in several parts of thecountry. The best concise record of the accomplishmentsas well as the shortcomings of the EPA are the CEQ'sannual reports on the state of the nation's environment.

Occupational Safety and Health Act. As noted inChapter 10, workers are often exposed to much higherconcentrations of dangerous substances than are consid-ered acceptable for the population at large. The ma;r,legal protection for workers is provided under theOccupational Safety and Health Act of 1970, whichauthorized the Labor Department to establish standard:for exposure of workers to hazardous pollutants. :c

2J. E. Krier, personal communication. 7J See CEQ, Environmental quality, 1970 and 1971.

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provide training programs, and to set up a system forreporting occupational illness and injury. These dutiesare carried out by the Occupational Safety and HealthAdministration (OSHA). The National Institute of Oc-cupational Safety and Health (NIOSH) does research forand recommends standards to OSHA.

Three types of standards for exposure to pollutants canbe set by OSHA: consensus standards adopted from a listprovided by a group of government and industrialscientists, permanent standards, and temporary emer-gency standards. Permanent standards generally include,in addition to the eight-hour limits for worker exposureprovided by consensus standards, regulations coveringwork practices, monitoring, and medical surveillance.Temporary standards are effective only for a six-monthperiod, an interim during which permanent standards aredeveloped.

By_1975, consensus standards had been set for about.400 chemicals, and OSHA and NIOSH were moving tochange them to permanent standards. Permanent stan-dards had already been established for asbestos, vinylchloride, and a group of fourteen carcinogens; andpermanent standards have been proposed for arsenic,coke-oven emissions, and noise. Some groups feel thatthose standards are not strict enough; for example, achemical workers union unsuccessfully challenged incourt those established for the fourteen carcinogens.

It seems certain that a constant tug-of-war will ensuebetween consideration of the costs (real or imagined) toindustry of lowering workers' exposure to hazards andconsideration of the legitimate desires of workers toprotect their health. In view of the large numbers ofpeople directly or indirectly involved (remember, haz-ardous materials like asbestos and plutonium can betaken home inadvertently by workers, placing theirfamilies and friends at risk), it seems clear that OSHA'sactivities are a long-overdue step in the right direction.

Population Law

The impact of laws and policies on population size andgrowth has, until very recently, largely been ignored bythe legal profession. The first comprehensive treatmentof population law was that of the late Johnson C.

Montgomery/4 an aitnrnpy who was president of ZeroPopulation Growth, and whose ideas are the basis ofmuch of the following discussion.

To date, there has been no serious attempt in Westerncountries to use laws to control excessive populationgrowth, although there exists ample authority underwhich population growth could be regulated. For exam-ple, under the United States Constitution, effective.population-control programs could be enacter) u."d,er theclauses that empower Congress to appropriate funds toprovide for the(general welfare and to regulate com-

e^ or under the equal-protection clause: _of_ theFourteenth Amendment.^5 Such laws constitutionallycould be very broad. Indeed, it has been concluded that_compulsory population-control laws, even includinglaws requiring compulsory abortion, could be sustained _under the existing Constitution if the population crisis,became sufficiently severe to endanger the society. Fewtoday consider the situation in the United States seriousenough to justify compulsion, however.

The most compelling arguments that might be used tojustify government regulation of reproduction are based .upon the rapid population growth relative to the capacityof environmental and social svstems to absorb theassociated impacts. To provide a high quality of life forall, there must be fewer people. But there are other soundreasons that support the use of law to regulate repro-duction.

It is accepted that the law has as its proper function theprotection of each person and each group of people. Alegal restriction on the right to have more than a givennumber of children could easily be based on the needs ofthe first children. Studies have indicated that the largerthe family, the less healthy the children are likely to beand the less likely they are to realize their potential levelsof achievement.76 Certainly there is no question thatchildren of a small family can be cared for better and can

"Population explosion and United States law.75"No state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States, nor shall anyState deprive any person of life, liberty, or property, without due processof law; nor deny to any person within its jurisdiction the equal protectionof the laws."

76Joe D. Wray, Population pressure on families: Family size andchild-spacing, in Roger Revelle, ed.. Rapid population growth: Con-sequences and policy implications, Johns Hopkins Press, Baltimore, 1971;R. B. Zajonc, Family configuration and intelligence, Science, vol. 192, pp.227-236 (April 16,1976).

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be educated better than children of a large family,oxfcvir . ec\\vaV. TVve \aNV

properly say to a mother that, in order to protect thechildren she already has, she could have no more.(Presumably, regulations on the sizes of adopted families ._wpuld have to be the same.1)

A legal restriction on the right to have children couldalso be based on a right not to be disadvantaged byexcessive numbers of children produced by others.^Differing rates of reproduction among groups can giverise to serious social problems. For example, differentialrates of reproduction between ethnic, racial, religious, oreconomic groups might result in increased competitionfor resources and political power and thereby underminesocial order. If some individuals contribute to generalsocial deterioration by overproducing children, and if theneed is compelling, they can be required by law toexercise reproductive responsibility— just as they can berequired to excercise responsibility in their resource-consumption patterns— providing they are not deniedequal protection.

Individual rights. Individual rights must be bal-anced against the power of the government to controlhuman reproduction. Some people— respected legisla-tors, judges, and lawyers included— have viewed the .right to have children as a fundamental and inalienable _right. Yet neither the Declaration of Independence nor_the Constitution mentions a right to reproduce. Nor doesthe UK Charter describe such a right, although aresolution of the United Nations affirms the "rightresponsibly to choose" the number and spacing of chil-,dren (our emphasis). In the United States, individualshave a constitutional right to privacy and it has been heldthat the right to privacy includes the right to choosewhether or not to have children, at least to the extent thata woman has a right to choose not to have children. Butthe right is not unlimited. Where the society has a"compelling, subordinating interest" in regulating pop-ulation size, the right of the individual may be curtailed.If society's survival depended on having more children,women could be required to bear children, just as mencan constitutionally be required to serve in the armedforces. Similarly, given a crisis caused by overpopula-

tion, reasonably necessary laws to control excessivereproduction could be enacted.

It is often argued that The t\gYix to Yiave ctexYdteu w sopersonal that the government should not regulate it. In anideal society, no doubt the state should leave family sizeand composition solely to the desires of the parents. Intoday's world, however, the number of children in afamily is a matter of profound public concern. The lawregulates other highly personal matters. For example, noone may lawfully have more than one spouse at a time.Why should the law not be able to prevent a person fromhaving more than two children?

The legal argument has been made that the FirstAmendment provision for separation of church and stateprevents the United States government from regulatingfamily size. The notion is that family size is God's affairand no business of the state. But the same argument hasbeen made against the taxation of church property,prohibition of polygamy, compulsory education of andmedical treatment for children, and many similar mea-sures that have been enacted. From a legal standpoint,the First Amendment argument against family-size reg-ulation is devoid of merit.

There are two valid constitutional limitations on thekinds of population-control policies that could be en-acted. First, any enactments must satisfy the require-ments of due process of law; they must be reasonablydesigned to meet real problems, and they must not bearbitrary. Second, any enactments must ensure that equalprotection under the law is afforded to every person; theymust not be permitted to discriminate against anyparticular group or person. This should be as true of lawsgiving economic encouragement to small families as itwould be of laws directly regulating the number ofchildren a person may have. This does not mean that theimpact of the laws must be exactly the same on everyone.A law limiting each couple to two children obviouslywould have a greater impact on persons who desire largefamilies than it would on persons who do not. Thus,while the due-process and equal-protection limitationspreclude the passage of capricious or discriminatorylaws, neither guarantees anyone the right to have morethan his or her fair share of children, if such a right isshown to conflict with other rights and freedoms.

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It is often argued that a fetus or an embryo is a personwho has a right to life, and therefore abortion as abirth-control measure must be rejected. Supporters ofthis argument point out that certain rights of a fetus havebeen legally recognized. For example, some states permita fetus to recover money damages for personal injuriessustained before birth. Under some circumstances thecommon law has permitted a fetus, if subsequently bornalive, to inherit property. The intentional killing of afetus (through injury to the mother) has been declared bystatute to constitute murder, although under the statutethe fetus is not defined as a human being.

Although some rights of the fetus after quickeninghave been protected in some states, most of those statesrequire that the infant be born and living before therights vested prior to birth actually are recognized andenforced. Most jurisdictions afford no protection toproperty rights or personal rights of the unquickenedfetus, and no jurisdiction has protected the rights ofembryos. Furthermore, analysis of the situations inwhich rights of the fetus have been recognized disclosethat it is generally not the fetus's rights, but rather therights of its parents or others that are being protected.For example, when a fetus did receive money damagesfor prenatal injuries, in reality it was the parents' and thesociety's economic interests that were being protected.

Those who argue that a fetus has a right to life usuallyproceed from the assumption that life begins at or soonafter conception. As stated elsewhere, the question,When does life begin? is misleading. Life does not begin;it began. The real question, from a legal as well as fromreligious, moral, and ethical points of view, is as follows:in what forms, at what stages, and for what purposesshould society protect human life? Obviously overweightpeople regard their fat cells differently from their braincells. A wandering sperm cell is not the same thing as afertilized egg; nor is a fetus a child. Yet a fat cell, a spermcell, a fetus, a child, an adult, and even a group of peopleare all human life.

The common law and the drafters of the U.S. Consti-tution did not consider a fetus a human being. Feticidewas not murder in common law because the fetus was notconsidered to be a human being, and for purposes of theConstitution a fetus is probably not a "person" within

the meaning of the Fourteenth Amendment. Thus, underthe Constitution, abortion is apparently not unlawful,although infanticide obviously is. This is a very impor-tant distinction, particularly since most rights, privileges,and duties in our society are dated from birth and notfrom some earlier point in time. Capacity to contract, tovote, to be drafted, to obtain Social Security rights,drivers' licenses, and the like, are all dated from birth,which is a very convenient, relatively definite point intime from which to date most rights. Certainly, themoment of birth is easier to ascertain than the moment ofconception, implantation, or quickening. Such an easilyascertainable point in time is a sensible point from whichto date Constitutional rights, which should not dependupon imprecisions.

The fact that a fetus is probably not a "person" with _Constitutional rights does not, however, mean that _ y^society has no interest in the fetus. Society does have an

in ensuring that an appropriate number ofhealthy children are born. To protect the health of themother, some regulation of abortion is still necessary andappropriate. For example, laws requiring that abortionsbe performed only by qualified medical personnel inappropriately licensed institutions now exist in moststates, and there are regulations governing eligibility forinsurance or other financial aid.

\ Legal reform.) In predecessors of this book, werecommended a series of reasonable, constinitinnaj. anddesirable lep;ai chants in rhp TTnir^

age population growth;

1. A federal statute could be enacted that wouldprohibit any restrictions on safe, voluntary coptra^p- _tion, sterilization, and abortion, and the dissemination oL_information about them.,

2. State and federal governments could subsidizevoluntary contraception, sterilization, and abortion^\ .aws could require that birth-control clinics be openedat public expens_e in all suitable locations. They couldalso require that group and individual health insurancepolicies cover the costs of abortion and sterilization.

i. Tax laws could be revised, and new laws could be _passed that would provide incentives for late marriage,

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smaU families, and alternative roles for women. The taxdisadvantage to single, childless persons could be_jliminated. _

4. State and federal laws could make sex education,.including instruction about contraception, mandatory inall schools, and the government could sponsor publiceducation programs designed to encourage people towant fewer children.

5._ Federal support and encouragement for the devel-opment of more effective birth-control drugs and device;could be greatly increased.

We are to report that between J97Q ?n(Jall of these _changes took place, at least toMuch of what remains to be done consists of extendingor more fully implementing programs that now exist.The only real exception is mandatory sex education, buteven on a voluntary basis the trend is toward expansion,and there is support and encouragement both from theDepartment of Health, Education and Welfare and fromprivate organizations such as the Sex Information andEducation Council of the United States (SIECUS).

If these relatively uncoercive policies should fail tomaintain a low American birth rate, more coercive lawsmight well be written (see Chapter 13 for examples). Atthe moment, there might be little justification or publicsupport for such laws, but if the resource and environ-mental situations are allowed to deteriorate, popularsupport might develop rapidly. There has been consid-erable talk in some quarters at times of forcibly sup-pressing reproduction among welfare recipients (perhapsby requiring the use of contraceptives or even byinvoluntary sterilization). This may sadly foreshadowwhat our society might do if the human predicament getsout of hand. We hope that population growth can becontrolled in the United States without resorting to suchdiscriminatory and socially disruptive measures. That, infact, has been one purpose of this and our previousbooks— to stimulate population control by the leastcoercive means before it is too late. The decline in birthrates in the United States and other developed countriessince 1970 is a most hopeful sign that population controlcan be easily achieved in those countries, but we mustreiterate that the United States and most other DCs arestill a long way from zero population growth.

BUSINESS, LABOR, AND ADVERTISING

Although legal and legislative action are essential to thesolution of pollution problems in the United States, it isto be hoped that American industries will not wait to becoerced into responsible behavior. In fact, a few indus-tries took the initiative for cleaning up their effluentsbefore it was legally required, and some found it possibleto make profits from pollution by-products. Such unex-pected bonuses are not possible in all cases, of course.Tax incentives and government subsidies for cleaning uppollution may be applied when costs are high, but in thelong run abating pollution will best be achieved as a partof a complete overhaul of our tottering economic system.

Meanwhile, many industrial organizations are explor-ing technological methods for dealing with various kindsof pollution; indeed, new companies have appearedwhose entire business is pollution abatement or wastedisposal of one sort or another. On the preventive side ofthe coin, environmental consulting firms have begun toappear. Their business is to advise communities andbusinesses in planning development with the least possi-ble damage to the environment and the most benefit tothe human inhabitants. Many of them are involved inwriting the environmental impact statements required bythe NEPA and several states. These trends and others,such as research on recyclable or biodegradable contain-ers, should certainly be encouraged.

Labor ,

Labor also has an important role to play in easing thepressure on the environment. In the United States anunfortunate "jobs versus the environment" attitude waspromoted as the mid-1970s recession developed. Manybusiness and labor leaders, believing that the onlysolution to problems of unemployment was to fire up theold ecologically destructive economic machine onceagain, lobbied for the relaxation of measures to protectthe environment. The basic message of environmen-talists that not only were many jobs threatened by thecontinuing rape of the environment, but that many lives,and indeed the persistence of civilization, were threat-ened also, obviously had not penetrated.

Environmental protection in reality has proven to be

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far more a creator of jobs than a destroyer. The Councilon Environmental Quality in 1975 estimated thatthrough 1974 fewer than 14,000 workers had lost theirjobs as a result of environmental controls, most of themthrough closure of plants that were obsolescent, ineffi-cient, and already only marginally profitable. In mostcases environmental controls only hastened the inevita-ble. But, although a precise estimate would be difficult tomake, it is clear that thousands more jobs have beencreated by environmental protection. Building and mod-ernizing urban sewage systems alone provides perhaps85,000 jobs for each $1 billion spent. People are neededto administer and enforce environmental programs andto build, install, operate, and maintain pollution abate-ment equipment, and so forth.77

Labor should be among the leaders in the movement tomaintain environmental quality, even though workers,along with the rest of society, will have to pay part of thecosts. Many more working people are exposed to en-vironmental hazards, from poor safety standards inworkplaces to smog, than are industrialists and bankerswho work in plush, air-conditioned offices and canafford to live beyond the smog belt.

In Australia, labor has moved into the forefront,battling against development of Australia's uraniumdeposits and against other projects deemed socially orenvironmentally injurious. Led by Jack Mundey, aleader in the building trades in New South Wales,"Green Bans" have been instituted, in which unionmembers simply refuse to work on such projects.78 In1974 many millions of dollars' worth of constructionwork was being held up by Green Bans in Sydney alone.If only such a sense of social responsibility pervaded thelabor movement everywhere!

There is every reason to believe that in years to comeenvironmentalists and workers (two groups whose inter-ests already greatly overlap) more and more will findtheir interests becoming congruent. For example, en-vironmentalists are increasingly concerned about theenergy-intensiveness of our economic system—as aremany people in the labor movement as they see energy

77Environmental quality—1975, pp. 533—536. See also Patrick Heffer-nan, Jobs and the environment.

78 l̂. Hardmann and P. Alanmng, Green bans; The Green Bans, SierraClub Bulletin, April 1975, p. 18; R. Roddewig and J. S. Rosenberg, InAustralia, unions strike for the environment.

being substituted for workers. The important idea thatimprovements in energy efficiency not only spare theenvironment (by reducing energy requirements) but alsoincrease employment is well illustrated in the followingdiscussion by Schipper:

Compare, for example, two air conditioners of equalcapacity, operating in similar homes under similarloads in the same climatic region, one requiring halfthe power of the other. If a consumer buys the moreefficient unit, some of the money otherwise spent onenergy is used for extra materials and labor, and thisexpenditure results in a more carefully constructed,more efficient air conditioner. Since manufacturing isgenerally more labor-intensive than electric utilities,the redirection of spending—from paying for electric-ity to investment in a more efficient unit— raises thetotal demand for labor per unit of air conditioning andstill provides for the consumer's desire for comfort.[Moreover] when the consumer spends the moneysaved by energy conservation, the new purchase willrequire increased labor in comparison to buyingelectricity. The result is more goods or services andmore employment, with less energy consumed.79

Higher energy costs, which are now resulting from theappearance in the balance sheets of the costs of depletionand pollution, increase the potential savings and em-ployment benefits derivable from greater energy effi-ciency (see also Chapter 8).

A reorientation of business, labor, and consumer val-ues is obviously in order. Resources of all kinds arelimited, but Americans behave as though they were not.The neglected virtues of economy and thrift must berestored to the pedestals that they once occupied in thiscountry.

Advertising

Advertising plays a leading role in perpetuating theAmerican system of consumerism. Whether the blamefor this lies largely with industry or with the consumers isdifficult to determine and probably does not muchmatter. What does seem evident is that advertising doesnot have to be mostly antienvironmental. In the late1960s many advertisements began to appear featuringvarious companies' efforts at pollution abatement. Such

79Lee Schipper, Raising the productivity of energy use.

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concern over the corporate image with respect to pollu-tion was no doubt a necessary first step, but more thanadvertising of environmental protection is required.

Environmentalists have been increasingly irritated by-self-serving ads showing how Company XX has alwaysbeen deeply involved in protecting the environment.Those emanating from oil companies—among the great-est destroyers of the environment—are especially galling.Ads from polluters posing as environmentalists havebeen christened "ecopornography." Much more accept-able are ads that offer useful information to consumers onhow they can cooperate with business in environmentallybeneficial projects, such as energy conservation or re-cycling materials. While we certainly do not condoneheavy promotion of new versions of products whoseenvironmental contribution is negligible or questionable,such as certain gasoline additives or disposable flash-lights, we welcome ads that feature genuine improve-ments, such as unleaded gasolines or non-aerosol spraycontainers. Admittedly, the line dividing such cases isnot always easy to draw.

The advertising industry can do much more than it hasso far to encourage its clients to promote products bystressing such qualities as durability, economy, andversatility. For example, automobile advertising shouldemphasize economy of purchase and operation, espe-cially low gasoline consumption, durability, compact-ness, comfort (but not massiveness—interior room can bemaintained even as weight is greatly trimmed), engineefficiency, safety, and low pollution emissions. For a timeafter the energy crisis of 1974 the trend was in thatdirection, but by 1976 there was a move back toward thebad old days. Advertising that stresses large size and highpower in cars should be permanently discontinued.

Beyond cooperating with clients in antipollution pro-motions, advertising companies could by agreementrefuse to design ads promoting wasteful or pollutingproducts—for example, ads featuring throwaway prod-ucts, food in throwaway cans and bottles, or goodswrapped in unnecessary layers of packaging. Above all,every effort should be made to expunge from advertisingthe idea that the quality of life is closely related to the rateat which new products are purchased or energy isconsumed.

Advertising agencies can also make a contribution to

the population situation by refusing to produce adsfeaturing large families. Under pressure from populationand women's organizations, some of the obvious changeshave already been made in ads for many products. Otherways have been found to promote heavy-duty washingmachines than as an item for large families—dormitories,hospitals, and other institutions use them also, forinstance. Families with three or more children havelately been depicted as large families, and the two-childfamily appears the norm. Women are increasingly fea-tured playing roles other than homemaker and mother,and the convenience of many goods is being stressedmore as a value for working women than for theoverburdened mother, as they once were exclusively.This trend should be encouraged.

The critical problem, of course, is to find a way toswing both advertising clients and agencies in the rightdirection. While public utilities, for example, could andshould be prohibited from promoting greater use ofelectric power through advertising, similar legal controlsover all advertising would undoubtedly prove toocumbersome.

A court decision in August 197180 held that, under thefairness doctrine, radio and television stations that carryadvertising for big, high-horsepower cars also mustbroadcast information about the environmental threatsuch cars represent. The suit had been brought byFriends of the Earth and the Environmental DefenseFund after the Federal Communications Commissionhad ruled against such a policy. If it were widely applied,this interpretation of the fairness doctrine might dis-courage manufacturers and advertisers from promotingsocially and environmentally undesirable products; todate, unfortunately, it has not been widely applied.

The late 1970s and early 1980s will be crucial years foreveryone. The business community in the United Statesand around the world is faced with a particularly difficultchoice. It can continue to pursue the economic goals ofthe past decades until either an environmental disasterovertakes civilization or until governments and thepublic compel a change; or it can actively initiate novelapproaches to production and industry, with a view toprotecting the environment, preserving limited re-sources, and truly benefiting humanity.

""Washington, D.C. Court of Appeals.

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ECONOMIC AND POLITICAL CHANGE

Practical men, who believe themselves to be quite exemptfrom any intellectual influences, are usually slaves tosome defunct economist. Madmen in authority, who hearvoices in the air, are distilling their frenzy from someacademic scribbler of a few years back.

—John Maynard Keynes, 1936

In relation to the population-resources-environmentcrisis, economics81 and politics can usually be viewed astwo sides of a single coin. A very large number ofpolitical decisions are made on an economic basis,especially those relating to environmental and resourceproblems. Illustrating the influence of economics, LordKeynes wrote (in the lines just preceding the epigraph ofthis chapter): "The ideas of economists and politicalphilosophers, both when they are right and when they arewrong, are more powerful than is commonly understood.Indeed the world is ruled by little else."82 If anything, hisstatement is even more true today than it was then.

Economics nevertheless is sometimes wrongly blamedfor political problems. Although the major politicaldivision of the developed world—that between capitalistand communist nations—is thought to be based ondifferences in economic ideology, the actual differencesare relatively few. A major cause of humanity's currentplight lies not in the economic differences between thosetwo political spheres but in the economic attitudes thatthey hold in common.

Gross National Product andEconomic Growthmanship

Economists are not unanimous in their views of eco-nomic growth. Some have perceived that perpetual eco-nomic growth is as impossible to sustain as perpetual

"For a general review of orthodox economics, we recommend thelatest edition of Paul A. Samuelson's fine text, Economics (latest edition atthis writing, the tenth, 1976). For a more detailed treatment of environ-mental economics, see Richard Lecomber, Economic growth versus theenvironment. For the latter, familiarity with economic concepts such asindifference curves and inferior goods (explained in Samuelson) isrequired.

82 The general theory of employment, interest, and money, Harcourt, NewYork, 1964 (originally published in 1936).

population growth. Herman Daly in 1975 told a Con-gressional committee:

In 1936 John Maynard Keynes remarked that "Thepart played by orthodox economists, whose commonsense has been insufficient to check their faulty logic,has been disastrous to the latest act." The same wordsring true in 1975. It is easy to be trapped by theexcessive rigidity of our own values and goals. TheSouth Indian Monkey Trap, for example, works solelyon the basis of rigid goals. A hollowed-out coconut isfilled with rice and fastened by a chain to a stake in theground. There is a hole in the coconut just largeenough to allow the monkey to insert its extendedhand, but not large enough to permit withdrawal of hisclenched fist full of rice. The monkey is trapped bynothing more than his refusal to let go of the rice, toreorder his goals, and to realize that in the givencircumstances his freedom is more important than diefistful of rice. We seem to be trapped in a growth-dominated economic system that is causing growingdepletion, pollution, and disamenity, as well as in-creasing the probability of ecological catastrophe. Wemust open our collective fist and let go of the doctrineof perpetual growth, or else we will be caught by theconsequences.83

In the 1967 edition of his classic economics text, bycontrast, Paul A. Samuelson of M.I.T. wrote: "The ghostof Carlyle should be relieved to know that economics,after all, has not been a dismal science. It has been thecheerful, but impatient, science of growth."84 In 1976,viewing the prospects for continued economic growth inthe United States and the rest of the world, he still foundthem cheering.85 The majority of economic theoristsagree with Samuelson, as do most businessmen andpoliticians. Some economists besides Daly have ques-tioned the growth ethic, however. For example, E. J.Mishan stated in 1967:

The skilled economist, immersed for the greaterpart of the day in pages of formulae and statistics, doesoccasionally glance at the world about him and, if

"Herman E. Daly, in testimony before the Joint Economic Committeeof Congress, hearings on economic growth, October 23, 1975.

^Economics: An introductory analvsh, McGraw-Hill, Ne\v York, 1967.8iLimits to growth: VX'hat lies ahead? Honolulu Advertiser, March 15.

1976. In fairness to Samuelson, part of his cheer was engendered by thedeclining rate of population growth in the United States.

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perceptive, does occasionally feel a twinge of doubtabout the relevance of his contribution. . . . For amoment, perhaps, he will dare wonder whether it isreally worth it. Like the rest of us, however, theeconomist must keep moving, and since such misgiv-ings about the overall value of economic growthcannot be formalized or numerically expressed, theyare not permitted seriously to modify his practicalrecommendations.86

GNP. In much of the world—indeed, in all countrieswith any aspirations toward modernization, progress, ordevelopment—a general economic index of advancementis growth of the gross national product (GNP). The GNPis the total national output of goods and services valued atmarket prices. Stated another way, it consists of the sumof personal and government expenditure on goods andservices, plus the value of net exports (exports minusimports) and private expenditure on investment. It canbe a very useful economic indicator.

More important than what the GNP is, however, iswhat it is not: it is not a measure of the degree of freedomof the people of a nation; it is not a measure of the healthof a population; it is not a measure of the equity ofdistribution of wealth; it is not a measure of the state ofdepletion of natural resources; it is not a measure of thestability of the environmental systems upon which lifedepends; it is not a measure of security from the threat ofwar. It is not, in sum, a comprehensive measure of thequality of life, although, unhappily, it is often believedto be.

When the standards of living of two nations arecompared, it is customary to examine their per-capitaGNPs. Per-capita GNP is an especially unfortunatestatistic. First of all, it is the ratio of two statistics that areat best crude estimates, especially in the LDCs whereneither GNP nor population size is known with anyaccuracy. More important, comparisons of per-capitaGNP overestimate many kinds of differences. For in-stance, a comparison of per-capita GNPs would lead tothe conclusion that the average person in the UnitedStates lives almost 10 times as well as the averagePortuguese and some 60 times as well as the average

&<tThe costs of economic grow til, pp. i.t—x, Praeger, New York.

Burmese. This, of course, is meaningless, since virtuallyall services and some goods are? much cheaper in theLDCs, and GNP calculates only what enters the re-corded money economy. Americans pay perhaps 5 or 10times as much for farm labor, domestic help, haircuts,carpentry, plumbing, and so forth as do people in theLDCs, and the services in the United States may be ofinferior quality. And yet, because of the accountingsystem, those services contribute between 5 and 10 timesas much to our GNP as the same services do to the GNPsof, say, Burma or India.

Furthermore, figures on the increase of per-capitaGNP in LDCs do not take into account such things asrise in literacy rate, and thus may underrate the amountof progress a country has made toward modernization.Nor does the GNP measure many negative aspects of thestandard of living. Although the average Burmese un-questionably lives much less well than the average personin the United States, the average American may cause100 times as much ecological destruction to the planet.

Another problem with GNP and per-capita GNPreckoning is that they are measures devised by and forDCs, in which accurate government record-keeping is anestablished tradition and virtually all of a society'sproductive activity enters the money economy, where itis recorded and can be totaled. Yet even in the UnitedStates, agricultural, dairy, and livestock production con-sumed on the farm either is ignored or loosely estimatedin the calculation of our total food production. This doesnot significantly affect decisions based on food produc-tion because production for consumption on the farmrepresents only a small part of overall United States foodproduction (even though it would still account formillions of dollars' worth of food). In an LDC, wheresubsistence agriculture, home manufacture of householditems, barter, and money transactions too small andcasual to be noted are the rule, an analysis of the overallsituation by government-published production recordscan and commonly does lead to very serious misjudge-ments about the real condition of an economy andsociety.

Finally, it must be remembered that the per-capitaGNP statistic can and often does conceal gross inequitieswithin countries in the distribution of goods and services.This makes it an even more fallible index of well-being.

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Growthmanship. A serious criticism that can beleveled at the majority of economists applies equally tomost people and societies: they accept a doctrine ofeconomic determinism. The myths of cornucopian eco-nomics, as opposed to the realities of geology andbiology, have already been discussed, but the problem ismuch more pervasive than that. Economic growth hasbecome ffe standard for progress, the benefit for whichalmost any social cost is to be paid.

This prejudice in economic thought can be fullyappreciated by a perusal of Samuelson's Economics. Thebook, of course, is oriented toward economic growth.The increasing scarcity of nonrenewable resources ispresented in it only briefly as a problem of less developedcountries. The eventual physical constraint placed onmaterial growth by the conversion to heat of all theenergy people consume is not discussed in the text, norare the more imminent environmental constraints con-sidered in our earlier chapters. Implicit in Samuelson'streatment of economic development is the idea that it ispossible for 5 billion to 7 billion people to achieve astandard of living similar to that of the average Americanof the 1960s. Excessive technological optimism is explicitor implicit throughout the book.

Nevertheless, Samuelson's text reveals more under-standing of problems related to population size andenvironmental quality than the writings of many othereconomists. He does realize that growth of GNP must be"qualified by data on leisure, population size, relativedistribution, quality, and noneconomic factors." In the1970 edition, Samuelson added two chapters dealingwith economic inequality, the quality of life, and prob-lems of race, cities, and pollution. Furthermore, in 1969Samuelson wrote:

Most of us are poorer than we realize. Hidden costs areaccruing all the time; and because we tend to ignorethem, we overstate our incomes. Thomas Hobbes saidthat in the state of nature the life of man was nasty,brutish and short. In the state of modern civilization ithas become nasty, brutish and long.87

Most economists subscribe to the "bigger and more isbetter" philosophy: the growing mixed economy issomething to analyze, improve, and by all means to keep

growing. In an article that appeared in the New YorkReview of Books, Nobel laureate economist WassilyLeontief of Harvard remarked, "If the 'external costs' ofgrowth clearly seem to pose dangers to the quality of life,there is as yet no discernible tendency among economistsor economic managers to divert their attention from thissingle-minded pursuit of economic growth."88

Indeed, when those external costs (various kinds ofenvironmental and social deterioration) do come to theattention of economists, growth is seen as the way to dealwith them. Walter Heller, once chairman of the Presi-dent's Council of Economic Advisers, has stated, "Icannot conceive a successful economy withoutgrowth."89 Accordingly, he urges expansion of theUnited States economy so that resources will becomeavailable to fight pollution. Heller, like many othereconomists, confuses more of the disease with the cure!

That economists have clung to their "growthmania" isnot surprising, however. After all, natural scientists oftencling to outmoded ideas that have produced far lesspalpable benefits than the growing mixed economies ofthe Western world in the twentieth century. The ques-tion of whether a different economic system might haveproduced a more equitable distribution of benefits is notone that Western economists like to dwell on. Further-more, the idea of perpetual growth is congruent with theconventional wisdom of most of the businessmen of theworld; indeed, of most of the world's population.

The people of the LDCs naturally wish to emulate theeconomic growth of the West, and they long for "devel-opment" with all its shiny accoutrements. Why shouldthey be expected to know that it is physically andecologically impossible for them to catch up with theUnited States when many of the "best informed" Amer-icans are still unaware of that fact? Before attempting topursue the Western pattern of development, perhapsthey should contemplate Heller's belief that the best

"Newsweek, October 6, 1969.

""Quoted in Ehrlich and Ehrlich, Population, resources, environment,2nd ed., p. 382.

"'Undoubtedly an accurate statement. This quote and some of his otherviews are cited in E. F. Schumacher, Small is beautiful; Economics as ifpeople mattered, pp. 111-112. For direct access to the views of Heller andother modern growthmen, see his Perspectives on economic growth. See alsoWilliam Nordhaus and James Tobin who conclude in Is growth obsolete?that it is not, and that GNP is a pretty good measure of "secular progress."For a wonderful (if unintentional) parody of the writing of an uninformedeconomist, see Norman Macrae, America's third century.

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hope for pulling the United States out of its environ-mental difficulties is yet more growth—even though theUnited States already co-opts some 30 percent of theworld's resource use. Under that prescription, evencatching up would not suffice.

New approaches to the national product. It is bynow abundantly clear that the GNP cannot grow forever.Why should it? Why should we not strive for zeroeconomic growth (ZEG) as well as zero populationgrowth? As John Kenneth Galbraith pointed out in Thenew industrial state, it would be entirely logical to setlimits on the amount of product a nation needs and thento strive to reduce the amount of work required toproduce such a product (and, we might add, to see thatthe product is much more equitably distributed than it istoday). Of course, such a program would be a threat tosome of the most dearly held beliefs of this society. Itwould attack the Protestant work ethic, which insists thatone must be kept busy on the job for forty hours a week.It is even better to work several more hours moonlight-ing, so that the money can be earned to buy all thosewonderful automobiles, detergents, appliances, and as-sorted gimcracks that must be bought if the economy is tocontinue to grow. But this tradition is outmoded; the onlyhope for civilization in the future is to work for quality inthe context of a nongrowing economy, or at least aneconomy in which growth is carefully restricted tocertain activities.90

A number of interesting suggestions about GNP havebeen made by economist Edwin G. Dolan in his fine little1969 book, TANSTAAFL: The economic strategy forenvironmental crisis, TANSTAAFL (which stands forThere Ain't No Such Thing As A Free Lunch) contains alucid consideration of population-environment econom-ics, and we recommend it, even though we differ with theauthor on some points. Dolan, along with some othereconomists, would rename the GNP the gross nationalcost (GNC).91

Tor an informative, brief discussion of work, leisure, and ZEG, seePaul W. Barkley and David W. Seckler, Economic growth and environ-mental decay: The solution becomes the problem. See also Chapter 3 ofPirages and Ehrlich, Ark II.; Herman Daly, The economics of the steadystate; and Fred Hirsch, Social limits to growth.

9!Kenneth E. Boulding has long championed that name change. Secalso the chapter on "GNP-Fetishism" in Victor A. Weisskopf s Alien-ation and economics.

More important, Dolan would distinguish betweentwo types of GNC. Type I GNC would measure thatfraction of GNC produced with renewable resources andrecycling of wastes. Type II GNC would be thatdepending on the depletion of nonrenewable resourcesand the production of indestructible wastes. The prob-lems of discrimination might be difficult (consider, forinstance, calculating the energy component involved inthe production of Type I GNC), but the basic ami issound. As Dolan says, "Politicians and economists wouldthen design their policies to maximize Type I andminimize Type II. In the eyes of world opinion a highType I component would be a source of national pride,while high production of the Type II variety would be asource of shame."

In a more technical vein, economists William Nord-haus and James Tobin, recognizing the problems inher-ent in GNP as a measure of what people value, havesuggested some tentative (and sensible) modifications inGNP to produce a measure of economic welfare(MEW).92 Their discussion gives hope that better eco-nomic measures can and should be developed—eventhough it is obvious to them and other thoughtfuleconomists that no single measure of economic welfare isever going to be fully satisfactory.93

The problem of finding even a partially satisfactorymeasure of total welfare, or quality of life (QOL), isinfinitely more difficult.93" Beyond the question ofrefining the concept of GNP as a measure (or perhaps,more realistically, of disseminating the limitations of itsusefulness throughout the economic, business, and po-litical communities, which all too often act as thoughmaximizing GNP were the ultimate human value), lies amore important issue. That is the perception by manypeople that the relationship between GNP and QOL hasbecome negative; as GNP rises, QOL declines.94

Since there is no agreed-upon measure of QOL, thisperception is unlikely to be tested by classical economicmethods—but that does not mean that the phenomenon isnot real. Perhaps the attempts by economists to refine the

"Is growth obsolete?"See, for example, Arthur M. Oltun, Social welfare has no price tag.93"An extensive discussion of the problem of defining QOL is

contained in Peter W. House, The quest for completeness: Comprehensiveanalysis in modeling, indicators, gaming, planning and management.

94P. R. Ehrlich and R. Harriman, How to be a survivor: A plan to saveSpaceship Earth.

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concept of GNP or to define QOL95 eventually willpermit a more precise tracking of the relationship, but itseems unlikely that human social systems or the ecologi-cal systems of the planet can afford to wait. We suspectthat the era of indiscriminate growth will come to an endsoon—preferably through political action generated bysubjective perceptions of declining QOL by largenumbers of people—but if not, by the intervention ofecocatastrophes. Hints of the former could be seen insuch phenomena as the popularity in 1976 of Californiagovernor Jerry Brown's "limits to growth" campaign forthe presidency.

Cost-benefit analyses. One of the problems withgrowthmania is that for too long the penalties of growthhave been ignored by the economic system. Cost-benefitcalculations until very recently were done with toonarrow an outlook and over too short a time span.

For example, consider the history of a contemporaryhousing development. A developer carves up a southernCalifornia hillside, builds houses on it, and sells them,reaping the benefits in a very short time. Then societystarts to pay the costs. The houses have been built in anarea where the native plant community is chaparral(Chapter 4). Chaparral, known to plant ecologists as a"fire climax," would not exist as a stable vegetation typeunless the area burned over occasionally. When it does,the homes are destroyed, and the buyers and the publicstart paying hidden costs in the form of increasedinsurance rates and emergency relief.

Of course, there are hidden costs even in the absence ofsuch a catastrophe. A housing development puts a furtherload on the water supply and probably will be a con-tributing political factor in the ultimate flooding ofdistant farmland to make a reservoir. Perhaps windpatterns cause smog to be especially thick in the area ofthe development, and as it begins to affect the inhabitantsthey and society pay additional costs in hospital bills andhigh life-insurance premiums. And, of course, by help-ing to attract more people into the area, the developmenthelps to increase the general smog burden.

"See, for example, Lowdon Wingo, The quality of life: Toward amicroeconomic definition. See also the discussions in Chapter 12 andbelow of the connections between quality of life and diversity of personaloptions, and Richard Easterlin's fascinating Does economic growthimprove the human lot?

Then there are the problems of additional roads,schools, sewage-treatment plants, and other communityrequirements created by the subdivision. While thebuilder may have put the roads in the subdivision,increased taxes must pay for increased upkeep on roadsin the subdivision area, and eventually for new roadsdemanded by increasing congestion. Among the saddestphenomena of our time are the attempts by politiciansand chambers of commerce to attract industry anddevelopers to their areas to "broaden the tax base." Theusual result, when the dust has settled, is that the peoplewho previously lived in the area have a degradedenvironment and higher taxes.

In short, the benefits are easily calculated and quicklyreaped by a select few; the costs, on the other hand, arediffuse, spread over time, and difficult to calculate. Forexample, how would one assess the cost of weathermodification by pollution, which might result in thedeaths of millions from starvation? What is the value ofan ecological system destroyed by chlorinated hydrocar-bons? What is the value of one life lost to emphysema?

The disparity between the few elements accounted forin present methods of cost-benefit analysis and the realcosts borne by society is even more obvious when theproblem of industrial pollution is considered. Here thebenefit is usually the absence of a cost. Garbage is spewedinto the environment, rather than being retained andreclaimed. The industry avoids real or imagined finan-cial loss by this process. The term imagined loss is usedbecause some industries have found that reclaimingpollutants has more than paid for the cost of retainingthem. More often than not, however, the industrybenefits from pollution, and the public pays the short-and long-term costs. Air pollutants damage crops, ruinpaint, soil clothes, dissolve nylon stockings, etch glass,rot windshield-wiper blades, and so on. Pollutants mustbe removed, often at considerable expense, from watersupplies. People with emphysema, lung cancer, livercancer, and hepatitis must be given expensive hospital-ization. Insurance costs go up. In these, and in myriadother ways, everyone pays.

Perhaps the most subtle and least appreciated costs arethose society must shoulder when it damages or destroysecosystems that formerly performed essential free ser-vices. For example, destruction of natural areas, espe-

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848 THE HUMAN PREDICAMENT: FINDING A WAY OUT

daily forests, can change climate locally, often resultingin greater frequency and intensity of floods and droughtsand a need for water management projects. Soil erosioncan be greatly accelerated, leading to silting of streamsand lakes, with damage to fisheries and polluted watersupplies. With the loss of the air purifying functions ofecosystems, air pollution is increased.95'1

These costs are what accountants euphemistically callexternal diseconomies, because they are external to theaccounting system of the polluter. A persuasive case canbe made that, at an advanced stage of industrialization,the diseconomies far outweigh the benefits of growth.Such a case was made in detail by economist Ezra Mishansome years ago and refined since.96

That the costs to society of pollution and environ-mental destruction far exceed those of abatement orprevention is no longer in serious doubt. U.S. nationalpollution-control expenditures for 1972, both public andprivate, amounted to $19 billion; the annual costs of justair and water pollution were variously estimated (so far asthey could be) in a range from $10 billion to $50 billionaround 1970.97 And those estimates probably left outmany of the indirect costs, which are often impossible tosort out from other causes, and some for which there is noprice tag, such as aesthetic value.

The simplest way to attack external diseconomiesdirectly is to require industry to internalize them.Companies can be forced by law to absorb the costs ofgreatly reducing the release of pollutants. Profits wouldthen be added on after all costs were paid. Clearly, themost sensible solution in most cases is for society to insiston pollution abatement at the source. It is cheaper inevery way to curtail it there, rather than attempt toameliorate the complex problems pollutants cause afterthey are released into the environment.

Society, having permitted the pollution situation todevelop, should also shoulder some of the burden of itscorrection. As a theoretical example, Steel Company X,located on the shores of Lake Michigan, is pouring filthinto the lake at a horrendous rate. A study shows that it

95aF. H. Bormann, An inseparable linkage: Conservation of naturalecosystems and the conservation of fossil energy.

9(>The costs of economic growth; Ills, bads, and disamenities: The wagesof growth.

97CEQ, Environmental quality, 1975, pp. 496-543.

would cost two dollars per share of common stock tobuild the necessary apparatus for retaining and process-ing the waste. Should the company be forced to stoppolluting and pay the price?

Certainly it must be forced to stop, but it seems fairthat society should pay some of the cost. When CompanyX located on the lake, everyone knew that it would spewpollutants into the lake, but no one objected. The localpeople wanted to encourage industry. Now, finally,society has changed its mind, and the pollution muststop. But should Company X be forced into bankruptcyby pollution regulations, penalizing stockholders andputting its employees out of work? Should the localpoliticians who lured the company into locating thereand the citizens who encouraged them not pay a cent?Clearly society should order the pollution stopped andpick up at least part of the bill. It would be a bargain in thelong run; society is already paying a much higher cost forthe pollution.

Such a situation actually occurred in 1971. Congressrefused to vote funds for the continuance of the SSTproject, in part because of environmental considerations.As mentioned earlier, the decision cost thousands ofexisting jobs and even more potential jobs. Society mustfind mechanisms to compensate people who lost jobs insuch a way, and it must retrain and, if necessary, relocatethem. Such dislocations are certain to occur more oftenand on a larger scale as polluting, energy-wasting, andsocially dangerous industries and projects are phased out.Fortunately, time should be available to smooth thetransitions in most situations.

It has become obvious that one needed change in theeconomic system is to adopt a new method of cost-accounting that fully incorporates such items as resourcedepletion and environmental degradation, even thoughsuch a change might involve grave political reper-cussions.

Economics, Resources,and the Environment

The Bucky Fulfilling dreams of technologically basedabundance of the sixties now seem adolescent and remote.—Hazel Henderson,

Planning Review, April/May 1974

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Economist Kenneth Boulding once described thepresent economic system of the United States as a cowboyeconomy.9* The cowboy metaphor refers to a reckless,exploitive philosophy based on two premises: more re-sources are waiting just over the horizon, and nature has aboundless capacity to absorb garbage. For practical pur-poses, those premises were valid in the days of the Amer-ican frontier. In that world it made some sense to seekrapid improvements in human welfare strictly througheconomic growth, with little regard for what kind ofgrowth or for the sorts of waste that accompanied it.

But today the old premises are wrong. It is now clearthat physical resources are limited and that humanity isstraining the capacity of the biological environment toabsorb abuse on a global scale. The blind growth of acowboy economy is no longer a viable proposition—eventhough, as noted above, an astonishing number ofeconomists (and others) still cling to the belief that it is.

The accepted measure of success in a cowboy economyis a large throughput. Throughput refers to the rate atwhich dollars flow through the economy and, insofar asdollar flow depends on the sale of physical goods ratherthan services, to the speed with which natural resourcesare converted into artifacts and rubbish. A conventionalindicator of throughput is the GNP.

Boulding has described a rational alternative to theGNP-oriented cowboy economy, calling this alternativethe spaceman economy, in harmony with the concept ofSpaceship Earth. Consistent with the finiteness of thisplanet's supply of resources and the fragility of thebiological processes that support human life, such aneconomy would be nongrowing in terms of the size of thehuman population, the quantity of physical resources inuse, and human impact on the biological environment.The spaceman economy need not be stagnant, however;human ingenuity would be constantly at work increasingthe amount of actual prosperity and well-being derivablefrom the fixed amount of resources in use.

Quite the opposite of the cowboy economy, whichthrives on throughput, the spaceman economy wouldseek to minimize the throughput needed to maintain itsstable stock of goods. This is an obvious goal for anyeconomy as regards population. A given population size

96The economics of the coming Spaceship Earth.

can be maintained by a high birth rate balanced by a highdeath rate (high throughput) or by a low birth ratebalanced by a low death rate (low throughput). Mostpeople would agree that the low-throughput situation ispreferable. Applying this to material goods, the "birthrate" is the production rate and the "death rate" is therate at which the goods wear out or become obsolete. Agiven level of affluence, measured in terms of the stock ofgoods per person, can be maintained by very differentlevels of resource flow. Thus, a society with one refrig-erator for ever}' three people can maintain this level ofaffluence with refrigerators that need replacement everyten years (high throughput) or every forty years (lowthroughput).

Quality of life in a spaceman economy. Couldpeople's desires for material comforts and a high qualityof life be met in a spaceman economy? There are goodreasons to believe the answer is yes. With an unchangingnumber of people, society's efforts can be devotedentirely to improving conditions for the population thatexists, rather than to struggling to provide the necessitiesof existence for new additions. Moreover, focusingattention on the quality of a fixed stock of goods in aspaceman economy is in many respects a more directroute to prosperity than emphasizing throughput in acowboy economy. This is so because, as Boulding hasargued, quality of stock is often a better measure ofwell-being than throughput. Most people would ratherown one Rolls Royce than a succession of Fords.

Furthermore, once a good diet, adequate housing,clean water, sanitation facilities, and a certain basic levelof well-made material goods have been provided, qualityof life becomes largely a matter of the availability ofservices and personal options. Services include educa-tion, medical care, entertainment and recreation, fire andpolice protection, and the administration of justice.Services do involve the use of material resources and doaffect the environment. For example, commercial officespace, much of it associated with the provision ofservices, is a major consumer of electricity for lighting,heating, and air conditioning. Nevertheless, there is greatpotential for improving and extending services whilereducing the associated material, energy, and environ-mental demands.

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Personal options consist of access to a variety oflandscapes, living accommodations, career possibilities,cultural environments, recreational opportunities, inter-personal relationships, degrees of privacy, and so forth.Personal options are an important part of the quality ofan individual's life even when they are not exercised—itpleases us to know we could live in the country, eventhough we may choose to live in cities. Options also havevalue beyond the preferences of the majority of people inany given society. If the majority of citizens preferred anurban environment, that would not be sufficient reason totransform all living areas of the planet into urbanenvironments—this is tyranny of the majority. Eventhose who enjoy neither canoeing nor golf shouldconcede that a society with room for golf courses andfree-flowing rivers is preferable to a society without thoseoptions. It is even reasonable to suppose that in humansociety diversity on a small scale (individual choice)promotes stability on a large scale (society as a whole).

Insofar as personal options are part of quality of life,the spaceman economy is a clear choice over the cowboyeconomy. Population growth and the transformation ofan ever larger fraction of the biosphere to maintain thegrowth of throughput are destroying options in theUnited States now and for the future. By stabilizing thepopulation and reducing the level of environmentallydisruptive activities associated with throughput of re-sources, the spaceman economy would preserve remain-ing options; by focusing on services and finding newways that "people can live more gently on the Earth,"99 itwould create new ones.

( Converting to a spaceman economyjHow can theworld society make the transition from a cowboy econ-omy to a spaceman economy? How do we get from hereto there?_(Population controfcof course, is absolutely,essential, with an eventual target of a smaller populationthan today's.100 Another task that must be faced squarelyis the ^redistribution of wealtl^ within and betweennations. Otherwise, fixing the quantity of physical goods

in use would freeze the majority of human beings instate of poverty.

"See S. Page, Jr., and W. Clark, The new alchemy: How to survive inyour spare time.

lo°See, for example, Emile Benoit, A dynamic equilibrium economy,Bulletin of the Atomic Scientists, February 1976; Ehrlich and Ehrlich,Population, resources, environment, 1st ed., p. 322.

Within rich countries such as the United States, theproblem could be alleviated by a relatively moderate,amount of redistribution. Economist Herman Daly hascalled for the establishment of a distributist institution,which would limit the range of financial inequity in theUnited States. He suggests establishing maximum andminimum incomes, arguing, "Most people are not sostupid as to believe that an income in excess of say$100,000 per year has any real functional justifica-tion . . . especially . . . when the high paid jobs arealso usually the most interesting and pleasant." He wouldalso limit personal and corporate wealth and then "putresponsible social Emits on the exercise of monopolypower by labor unions, since the countervailing monop-oly power of corporations will have been limited."101

The critical question, of course, is how to get arnnnHthe extraordinary power interests that would be unalter-_ably opposed to maximum income limits and (if possible1)even more opposed to direct taxation of wealth^ Greedand the desire for power are extraordinarily strong forcesagainst any serious attempts to curb income and wealth,and many conventional economists (with their handsfirmly clenched on Daly's symbolic rice) would opposesuch limitation on the grounds that it would kill theincentive system that keeps the economy growing. Dalysuggests gradual implementation as a strategy—andperhaps that could be made to work, since the principlesof progressive income taxation and some sort of "floor"under individual income are rather well established inour society. The real sticky wicket would be directtaxation of wealth, since that would threaten the en-trenched power of the Rockefellers, Carnegies, Fords,Kennedys, and countless other beneficiaries of enter-prising and acquisitive ancestors. But once some systemof further redistribution were established in the UnitedStates, it would then be justifiable to implement atransition to a spaceman economy as quickly as possible.

In the poor countries, a degree of careful expansion ofproductive activities—that is, continued economicgrowth sufficient to raise per-capita living standards—as

""Testimony before the Joint Economic Committee of Congress,October 23, 1975, pp. 10 and 11; see also the book he edited, Toward asteady-state economy.

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well as massive transfers of goods and technical assis-tance from the rich countries (see Chapter 15) will benecessary before the notion of a spaceman economy canbe seriously entertained. It is clear that redistributionalone would be insufficient to give all human beings anacceptable standard of living—at least, acceptable bytoday's DC standards. That would mean a per-capitaGNP of only about $1000, even if population size werealso frozen at 4 billion.

Reducing throughput. The strategy of convertingproductive capacity from frivolous and wasteful enter-prises to legitimate social needs should be accompanied,even in the short term, by efforts to minimize thethroughput of resources associated with production.Herman Daly has suggested a specific mechanism foraccomplishing such a reduction: putting strict depletionquotas on the natural resources of the United States.102

That is, limits would be placed on the total amount ofeach resource that could be extracted or imported by theUnited States each year. This would not only directlyreduce the pressure Americans place on the resources ofthe planet, but would also automatically generate a trendtoward recycling and pollution abatement. With re-sources scarce (and thus expensive), a premium would beplaced on the durability of goods, recycling, and therestriction of effluents (which often contain "resources"not now economically recoverable). Environmental de-terioration from the processes of resource extraction andtransport would be reduced, as would that resulting frommanufacturing resources into finished goods. Less en-ergy is usually required to recycle materials than to startanew from basic resources. And depletion quotas onfossil fuels and fissionable materials would encourage thefrugal use of energy.

Limiting the amount of energy available would, ofcourse, also tend to limit the weight and number ofautomobiles, encourage the use of mass transit, andpromote the substitution of efficient high-speed trains forenergetically wasteful short- and medium-haul jet air-planes. As Daly notes, a basic system of depletion quotaswould have to be supplemented to some degree with such

102The stationary state economy. See also his Toward a steady-stateeconomy, for expansion of these ideas.

devices as taxes on effluents, but we agree with him thatoperating at the resource rather than the rubbish end ofthe system is fundamentally the better approach. Itrequires controls at many fewer points and thus would besimpler to institute, because it tackles the system wherethe materials are still concentrated rather than dispersed.

One of the most difficult problems in implementingthe Daly system would be dealing with imports. Ob-viously, quotas would have to be established on importedraw materials, or the primary result of the system wouldbe merely to shift pressure from U.S. resources to theresources of the rest of the world. If American manufac-turers alone were strictly rationed, there would surely bean upsurge in manufactured imports. Restrictions there-fore would have to be placed on the import of manufac-tured goods, perhaps based on their "resource content."Those restrictions might best be put only on importsfrom other developed countries to encourage them toestablish depletion quotas also. Restrictions could beomitted for certain manufactured goods from less devel-oped countries wherever it seemed that access to UnitedStates markets would be a genuine economic help to theexporter.

Another suggestion for a government system thatcould be employed to limit throughput has been putforward by two ecologists (described in Box 14-3). It is amore complex system than Daly's, but has the bigadvantage of making the public aware of the environ-mental impact of human activities.

Daly claims that cornucopians should make no object-ion to schemes that limit resource depletion, for they areeternally assuring us that technological progress (such assubstitutions for depleted resources) would beencouraged by rising resource prices, and that suchadvances would make resource supplies virtually infi-nite.103 Since depletion quotas would increase the priceincentives, they could be viewed as a test of the faith ofthe technological optimists—a test that would simulta-depletion quotas would increase the price incentives,they could be viewed as a test of the faith of thetechnological optimists—a test that would simulta-neously conserve our resource heritage in case notenough technological rabbits appear from the hat.

101See, for example, H. E. Goeller and A. Weinberg, The age ofsubstitutability.

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BOX 14-3 A Novel Scheme for Limiting Environmental Deterioration

Two Australian ecologists, Walter E. Westmanand Roger M. Gifford, have put forth a novelsuggestion for maintaining the quality of theenvironment at any level desired by society.*They propose establishing a money-independent"price" on every activity that has a clear en-vironmental impact. The basic nonmonetaryunit would be the natural resource unit (NRU).NRUs would be distributed equally amongindividuals and by special means to businessfirms, government entities, and nonprofitorganizations.

The overall level of environmental impactwould be regulated by government establish-ment of both the total yearly allocation of NRUsand the price in NRUs of every good, service,and activity of environmental significance. Thiswould lead in effect to a "rationing" of rights topollute, destroy habitats, add to populationpressure, or extract natural resources.

The advantages of such a system are nu-merous. Open, rather than covert, decisions onthe quality of the environment would be made.Since NRUs would not be transferable, thesystem would be equitable—the rich would notbe allowed greater per-capita impact than thepoor. Individuals, however, would be able toaccumulate NRUs throughout their lives and

* Environmental impact: Controlling the overall level.

could determine how to spend them free ofarbitrary government decision-making. It mightbe possible, for instance, for an individual tohave a second child or to fly a light aircraft 100hours per year, but not both. Or one mightdecide to have an air-conditioned house, but ifso, an overseas vacation might be possible onlyonce every ten years. Instead of direct constraintsbeing placed by society on activities, each per-son's life-style would be partially determined bya series of environmental trade-oifs of his or herown choosing.

On the debit side would be the enormousbureaucratic problem of setting up the equiva-lent of a second monetary system, the greatproblem of assigning reasonable values to goodsand activities, and the inevitable corruption andscheming that institution of such a plan wouldinduce. Its authors present a most interestingdiscussion of its details and offer it in the fullknowledge that it is not politically feasible atpresent. But it is hard to disagree with one oftheir major conclusions: "Although involvingmore planning and more governmental regula-tion than is currently deemed feasible or accept-able, we believe the mechanism would lead toless restriction of personal freedom in a steady-state society than would the current trend towardunsystematic imposition of governmentalregulations."

Daly summarized his distributive and throughput-limiting proposals as follows:

In spite of their somewhat radical implications, theseproposals are based on impeccably respectable conser-vative premises: private property and the free market.If private property is good, then everyone should sharein it; and, making allowances for a range of legitimateinequality, no one should be allowed to hog too muchof it, lest it become the instrument of exploitationrather than the barrier to exploitation that was itsclassical justification. Even orthodox economic theoryhas long recognized that the market fails to dealadequately with depletion, pollution, and distribution.These proposals supplement the market at its weakpoints, allowing it to allocate resources within imposed

ethical and ecological limits.104

Much additional effort by economists and others willbe required to work out details of the changes required inorder to minimize throughput in the economic system.One further step, however, is already clear. Both beforeand after depletion quotas are established, ways must befound to control advertising. Advertising plays a key rolein promoting growthmania in the DCs. In those nationsthe basic human needs for food, clothing, shelter, medi-cal care, and education are being met for perhaps 90percent of the populations. In order to keep thoseeconomies growing, therefore, new "needs" must becreated. E. F. Schumacher has written, "The cultivation

1041975 testimony, p. 12.

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CHANGING AMERICAN INSTITUTIONS / 853

and expansion of needs is the antithesis of wisdom. It isalso the antithesis of freedom and peace. Every increaseof needs tends to increase one's dependence on outsideforces over which one cannot have control, and thereforecreates existential fear. Only by a reduction of needs canone promote a genuine reduction in those tensions whichare the ultimate cause of strife and war."105

The employment problem. Redirecting pioductioninto more useful channels and reducing the throughputassociated with production will entail considerable re-training and temporary unemployment in the work force.These problems will be all the more difficult in theUnited States because of the unemployment problemthat already exists. The 4 to 10 percent unemploymentfigures commonly quoted as the economy cycles betweenboom and recession do not reveal the true seriousness ofthe problem. First of all, this overt unemployment is veryunevenly distributed in the population. Racial minor-ities, young workers, women, and, above all, youngminority workers suffer disproportionately. The pressureof unemployment at the younger end of the labor pool isprobably a major reason that American society has beenso rigid about retirement around the age of 65. Manytalented people are removed from the labor force eventhough they may still be capable of ten years or more ofproductive work and do not wish to be "put out topasture." The enforced separation of older people fromtheir economic lives also clearly contributes to theirgeneral problems.

Added to these components of the employment pictureis disguised unemployment: people doing jobs that areeither unnecessary or detrimental to society, or both.Anyone familiar with government, big business, univer-sities, the military, or any large bureaucracy, knows howmany people are just doing busywork or pushing paper.When those people are combined with workers who areengaged in such fundamentally counterproductive activ-ities as building freeways, producing oversized cars andunneeded appliances, devising deceptive advertising, ormanufacturing superfluous weapons systems, thenumber of people who are unemployed, underemployed,or misemployed is seen to make up a substantial portionof the work force.

Of course, the whole employment problem would bebadly aggravated if society attempted to discontinue tooabruptly those jobs that are unnecessary or socially andenvironmentally destructive. Maintaining some of thoseactivities is probably necessary in the short run whilechanges in employment patterns are worked out. Butnow is the time to start planning and maneuvering tophase out both disguised unemployment and destructiveproducts without damaging society and without creatingenormous levels of overt unemployment.

The transition should be greatly assisted by theobvious potential for expanded employment in servicessuch as health care and education (including adulteducation); in developing energetically efficient trans-portation systems for people and freight; in perfectingand deploying solar and other environmentally desirableenergy technologies; in recycling and pollution-controlindustries; in environmental improvement activities suchas reclamation of strip-mined land, reforestation, and theconstruction of urban parks; in converting the foodproduction system to more wholesome, less wasteful andenergy-consumptive practices; and in the development,production, and distribution of better contraceptives.106

The transition should also be eased somewhat becausethe numbers of new young job-seekers will begin todecline after 1980, because of the smaller number ofbirths in the United States in the 1960s compared to the1950s. And, if the trend of past decades in which workershave been increasingly replaced by fuel-burning ma-chinery is reversed, the result obviously will be morejobs.

In the longer term, even with greater use of laborinstead of machines in some areas of the economy, thesolution to the employment problem may well require areduction in the amount of work done by each worker inorder to create more jobs. Gradually shortening the workweek (ultimately to twenty-five hours or less) or decreas-ing the number of work weeks per year (companies couldhave different spring-summer and fall-winter shifts)would accomplish this. There would be more time forleisure, which might be better enjoyed by a moreeducated population. There would also be more time forpeople both to obtain that education and to put it to good

105'Small is beautiful, p. 31. 106See, for example, Patrick Heffernan, Jobs and the environment.

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856 / THE HUMAN PREDICAMENT: FINDING A WAY OUT

within the agricultural sector—namely, the decliningefficacy of pesticides with the development of resistancein pests—demanded greater attention to alternativemethods of pest control. The committee was especiallyconcerned with the impact of regulation on the develop-ment of new technologies to replace the conventionalbroad-spectrum chemicals that have dominated the pest-control scene since 1950. It is clear, of course, that therequired technologies are unlikely to be generated withinthe chemical industry. The NAS report went on to pointout:

The products produced by the chemical industryappear admirably to meet the economic goals that weassume dominate the decision-making processes inprivate industry. Unfortunately, the sole example ofoverlap between the properties desired by the industryand those of the most promising alternatives wouldseem to be the observation that the industry favorsshort persistence over long by a wide margin. Con-versely, however, industry favors a broad spectrum ofbiological activity over a narrow spectrum by almostthe same margin.1''

In short, a compound that must be repeatedly applied,that kills natural enemies, and produces rapid evolutionof resistance is preferred by pesticide manufacturers—merely because, in the process of not working, it can berecommended in ever-increasing doses and eventuallycan be replaced by another ecological sledgehammermarketed by the same industry. Pest-control techniquesthat were truly effective, of course, would be a disasterfor the pesticide industry.

Implementation of one regulatory recommendation ofthe NAS study, that the availability of alternatives shouldinfluence registration judgements, would be anotherserious blow for the industry, as well as a major steptoward protecting humanity from its activities. Tougherregulations quite likely would cause some decline intraditional firms involved in manufacturing pesticides.Fortunately, as noted in Chapter 11, ecologically soundpest management (which would include sparing use ofchemicals integrated with other techniques) would bemore labor-intensive than the present broadcast-spray

'"Ibid., vol. l,p. 139.

system. At least in theory, then, a transition to suchmanagement could be accomplished with a net gain ofjobs in the economy, although many individuals wouldcertainly have to be retrained.

Economics versus environmental reality. Defen-sive reactions have also come from other industrieswhose activities contribute heavily to pollution. Repre-sentatives of the inorganic-nitrogen-fertilizer industryhave given extensive testimony before Congress, most ofwhich confirmed the belief of many biologists that theindustry just cannot (or does not want to) grasp thedimensions of the problems that result from failure tomaintain an adequate supply of humus in the soil.Manufacturers of fluorocarbons and aerosol cans havevigorously lobbied against restrictive legislation. Makersof nonreturnable containers and poisonous food addi-tives have fought to continue marketing their products.The list is both interminable and understandable; noperson or corporation likes to see income or economicsurvival threatened.

It is most difficult to protect the environment wheneconomists, industries, and government agencies team upto wreak havoc, as they did, in effect, in the case of thesupersonic transport. Building and marketing a com-mercial SST was "justified" in the United States largelyon the grounds that it was needed economically to protectthe balance of payments. President Richard M. Nixon, inendorsing the nation's SST program in 1969, stated, "Iwant the United States to continue to lead the world inair transport." The economic penalties that would beincurred from damage caused by sonic booms wereprobably not included in the administration's consider-ation of whether to proceed with the project, nor were thepsychological and emotional damages people wouldsuffer, nor the possible effects on the world's climate(which themselves might cause heavy economic damage)from the operation of these high-altitude jets. Indeed,even the lethal possibility of reducing Earth's ozoneshield took second place to the balance of payments.

Fortunately, a combination of factors, including in-tensive lobbying on the adverse side effects of the SST byenvironmental organizations and testimony by severaldistinguished economists that it was an economic boon-


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