Wrong Way on Water
The EPA’s arsenic decision is bad news.

By Jonathan H. Adler, assistant professor of law at Case Western Reserve University School of Law.
November 13, 2001 2:00 p.m.

n the post-September 11 world, the Environmental Protection Agency (EPA) is learning to cope with a new set of risks. Water supplies are a "logical target," according to the FBI, and EPA Administrator Christie Todd Whitman has focused on ensuring that our nation's water supplies are safe from a potential terrorist attack. Fortunately, the risk to water systems is small — it would take a massive amount of poison to contaminate a major city's water supply successfully. As an extra precaution, Whitman appointed a task force to ensure that water systems are sufficiently protected. For many smaller water systems, however, the EPA may be a greater threat than the potential of a terrorist attack. By preventing local authorities from setting their own public-safety priorities, the EPA's decision could make some people less safe.

On October 31, Whitman announced that the EPA would ratify the Clinton administration's decision to lower the national standard for arsenic in drinking water from 50 parts per billion (ppb) to 10 ppb. The Clinton EPA had announced the lowering of the standard in that administration's closing hours. Upon taking office, the Bush administration said it would suspend the arsenic rule, along with all of Clinton's last-minute "midnight regulations," pending further review. Environmental activists cried foul, and the DNC ran television spots suggesting that the Bush decision would increase arsenic levels — a patent falsehood. Stunned by the attacks, Whitman did little to defend the decision, and promptly announced that the arsenic standard would be lowered eventually, after her team could complete its own evaluation. Whitman commissioned an updated study of recent scientific research from the National Academy of Sciences (NAS), and sought additional comments from affected groups and the general public. Yet before all the comments were received, Whitman had made her decision to adopt the Clinton 10 ppb standard.

Most debate over the arsenic standard has focused on the science. There is no doubt that arsenic can be nasty stuff. It's poisonous at extremely high doses; and small doses, such as those found in some drinking-water systems, may increase the risk of lung or bladder cancer. How much is a subject of much scientific debate. Studies from Chile and Taiwan suggest that arsenic concentrations well above those found in the United States could increase cancer risk substantially. If arsenic in drinking water at low levels (below 50 ppb) is so dangerous, critics of the new rule suggest, increased cancer rates would be easy to find in domestic studies. A controversial Utah study, however, found no increased risk of cancer among people exposed to 166 ppb — over three times the existing standard, and an order of magnitude greater than arsenic levels in most of the country. This later study was ignored by the EPA, and excluded from the NAS review due to methodological flaws.

But the debate over arsenic science obscures the larger issue: whether the EPA should be in the business of setting national contaminant standards at all. While the new standard will apply uniformly nationwide, its impacts will not be so even. As the EPA's own experts concluded, the net benefits of the arsenic rule will "vary substantially" from place to place. Smaller communities, in particular, will bear substantial costs to comply with the new standard, and receive minimal health benefits in return. By the EPA's own estimates, annual water bills in some rural communities could increase by over $300 per household, while some city residents would only pay a fraction of that amount. Officials in Albuquerque, New Mexico, where natural arsenic levels are high, expect local water bills to increase by 50 percent, or $130 to $240 per year.

Is $300 a reasonable amount to spend to reduce a lifetime cancer risk at the margins? It depends who you ask. For some families, the $300 would be a bargain. For others, that $300 could be spent on preventative medical care, an automobile child-safety seat, or some other life-enhancing expenditure. In some cases, the added water costs are likely to drive some families off of public water systems altogether, in favor of untreated — and potentially less safe — well water. Even for those families who continue using local water systems, the cost of the new standard might far outweigh any benefit they receive. Drinking water accounts for only a small portion of the average family's water usage. In those areas where arsenic levels are a concern, it might be less expensive for families to purchase bottled water than to pay for system-wide arsenic controls. In an effort to make everyone "safer," the new arsenic standard could make some significantly less safe.

Rather than wade into a debate over how much arsenic is acceptable in drinking water, the Bush administration should have reframed the issue as a debate over who is to make decisions for local communities: local citizens or the Feds. Unlike with many environmental problems, there is no compelling justification for federal control of local drinking-water systems. Whatever standard is adopted, both the costs and the benefits are local. And — as is not the case with air pollution — if a local community adopts a law rule, there is no threat of interstate spillovers. Because the costs of drinking-water standards are largely borne by public water systems and the public at large, there is no risk that communities will adopt lax standards to attract corporate investment.

There's nothing wrong with the EPA advising local communities about the risks of different standards. The EPA has scientific expertise that many community officials lack. Whether the risks of arsenic justify the costs of added safety measures, however, is a determination local officials are uniquely qualified to make. Nothing stands in the way of state and local adoption of a 10 ppb standard. (Delaware adopted a 10 ppb standard in just the last several weeks.)

President Bush came into office promising to pay more attention to local communities, and issue fewer dictates from Washington. The appointment of Whitman, herself a former governor, suggested that the EPA would pay greater attention to local concerns. With its decision on arsenic, however, the EPA has reverted to the "Washington-knows-best" mindset that has dominated environmental policy for far too long. Whitman can claim she's protecting Americans from arsenic in their water, but users of small water systems will be left holding the bill.