“Our relations to the earth are more than economic; they are moral. We are custodians of the bountiful land, its waters, its plant and animal life, its hidden riches, and perhaps most important of all, its soils….” – Walter Clay Lowdermilk (1888-1974)
“We don’t need powdered milk; we need Lowdermilk.” – Mordechai Bentov, Israeli Minister of Development (1955-1961)
Before Israel became a nation, before drip irrigation and before desert agriculture became commonplace, one American soil scientist drove 30,000 miles across a collapsing world to answer a deceptively simple question: were these lands ruined by climate—or by human neglect?
The answer mattered to America. By the late 1930s the question was no abstraction. The Dust Bowl had blackened the American sky. Rome’s former granaries lay eroded. North Africa’s terraces had collapsed into dust. If food was the currency of nations, he liked to say, soil was the capital. Without that capital North Africa and the Levant were bankrupt.
To find out, Walter Clay Lowdermilk set out to examine the regions that had once fed empires—the Levant, where agriculture began, and North Africa, Rome’s breadbasket. In the shadow of a Second World War, he loaded his wife, Inez; their two children, Billy and Winnifred; his niece Elizabeth; his secretary Cleveland McKnight; and eventually even an incontinent puppy named Maktub (It is written) into a 1938 Buick. Over nearly two years they visited 3 continents, 17 countries, 124 sites, and traveled more than 30,000 miles.
The others might be looking for interesting scenery. He, the Assistant Chief of the Soil Conservation Service was interested in proof.
At fifty, Lowdermilk kept a schedule that exhausted men half his age, leaving at dawn and returning long after dark.
He may be the most influential man you have never heard of—unless you are Israeli.
While surveying British-controlled Palestine under the League of Nations Mandate, found Palestine to be like much of what he had seen in North Africa, “A sad commentary on man’s stewardship of the earth.” The only bright spots were the kibbutzim staffed by Jewish Zionists, most of whom had never farmed before their arrivals. Green oases blossomed in and around each kibbutz, which were often placed on the poorest of soils.
After Palestine, the Lowdermilks worked among the cedars above Beirut writing reports for H.H. Bennett, chief of the Soil Conservation Service. There, Inez read a newspaper report: a small, aging “one-funnel” Greek freighter carrying 655 Czechoslovakian Jews had sent an SOS. Fleeing Hitler, the refugees had been denied entry to Palestine. The ship was towed into Beirut so it could be cleared of vermin.
Inez went to the harbor.
Later she wrote of what she saw: 160 people crammed into each hold, stacked six tiers high on wooden shelves lined with straw. No light. No stairways. Toilets installed only after pleading. Water hauled up by bucket for washing or flushing. For eleven weeks they had drifted in summer heat. Many had developed scurvy.
These refugees were trying to reach the homeland promised in the Balfour Declaration. British authorities, wary of Arab unrest and dependent on Middle Eastern oil, refused to let them land. Palestine had been roiled by revolt since 1936. London would not risk further upheaval. The British were not the only government denying entry to Jews fleeing Hitler. That June the United States government had denied entry to the 937 Jewish refugees aboard the passenger ship MS St. Louis. The ship returned to Europe. Tragically, 254 of these were eventually murdered in the Holocaust.
Inez brought Walter to the docks.
“What is happening to the Jewish people is terrible,” she told him. “It is long past due for Christians to give the Jews a new deal.” When they returned to America, she said, she would tell anyone who would listen what Hitler was doing—and how Britain was locking the doors of the Jews’ ancestral home.
The encounter changed him. For years Lowdermilk had studied soil erosion. Now he saw another kind of erosion: erosion of humanity. Here were people barred from soil they believed was theirs. If soil could determine the fate of civilizations, it might also determine the fate of a nation not yet born.
Both Inez and Walter Lowdermilk belonged to a generation that believed prosperity could be scientifically engineered. Born in 1888, he grew up in an America intoxicated with reform and scientific optimism. Darwin had redrawn the map of life; just as Adam Smith had redrawn the map of society. Many believed the future could be managed, improved—even perfected. Lowdermilk absorbed that faith early.[1] At one point, young Walter wondered how he can become a great man. Inez Marks would later provide the answer.
After serving in the First World War with the Army’s Lumberjack Regiment, he joined the young U.S. Forest Service in Missoula, Montana. In 1922, while building a reputation as a research officer, he proposed to Inez Marks, a missionary home on furlough from Sichuan. She agreed—on one condition: he would return to China with her. She told him he could help end famine there. It was, her father quipped, “a marriage made in Heaven—because there wasn’t enough time for it to happen on earth.”
In Nanjing, Lowdermilk taught forestry as part of the China International Famine Relief Commission’s effort to make relief “scientific.” The river carried the pulverized remains of hillsides tilled bare.
When he traced the silt to its source, he found gullies carved into loess as soft as flour. Crops grew on exposed slopes. Trees clung only to temple groves. The contrast was unmistakable. Where forests stood, soil held. Where trees fell, land bled into rivers.
There he formed the conviction that would define his life: soil mismanaged is civilization undone. “[U]nless the farmer is prosperous, no one is prosperous,” he would say.
He and Inez might have stayed in China for the rest of their lives except the experiment ended abruptly on March 20, 1927, during the Nanjing Incident. Revolutionary troops entered the city shouting, “Kill the foreign devils.” A man beside Lowdermilk was shot and killed; a rifle was raised toward him. He escaped with his life.
The lesson was indelible. Political instability, hunger, and land mismanagement were intertwined.
The Lowdermilks returned to America penniless and shaken. Back in California, Lowdermilk resumed his work. At the University of California’s Forest Experiment Station he earned a doctorate and began pioneering research in soil conservation. His work drew the attention of Rexford Tugwell, Assistant Secretary of Agriculture, who recruited him to Washington to help establish what became the Soil Erosion Service under Hugh Bennett.
By the late 1930s, the Dust Bowl had demonstrated that even modern nations could exhaust their land. Someone proposed a comprehensive survey of territories once ruled by Rome—regions that had flourished agriculturally before sliding into decline. Lowdermilk seized the opportunity. If food was the currency of nations, he liked to say, soil was the capital. To squander it was a crime against both humanity and nature.
On August 10, 1938, the Lowdermilks boarded the S.S. Manhattan and began their three continent odyssey. They examined abandoned terraces, ruined aqueducts, overgrazed hillsides, and river valleys stripped of topsoil. They also saw signs of renewal—proof that disciplined stewardship could restore damaged landscapes.
When they returned home, Walter and Inez secluded themselves for six months in their basement and wrote with urgency. The result, published in 1942 as Palestine, Land of Promise, electrified Zionists worldwide. It challenged the British claim that the country could not absorb more immigrants. Lowdermilk argued that through coordinated water management, erosion control, and regional planning—what he called a Jordan Valley Authority, modeled on the Tennessee Valley Authority—Palestine could sustain millions more people.
The future of a homeland, he insisted, would be decided in watersheds.
Lowdermilk believed that restored soil would yield more than crops. Protect the land, manage the water, prevent famine—and allow people to live in harmony with nature and with one another. The land, he was certain, could be redeemed by science and stewardship.
Whether human conflict could be redeemed as well was another matter.
History would test that faith in ways he did not foresee.
It appears we are witnessing the crumbling of the green movement, as we know it. Dr. James Lovelock, who postulated the ‘Gaia hypothesis’ of earth operating as a self-regulating organism, is the latest to stray, if not exactly leave the faith. The list non-orthodox greens grows continually and now includes Mark Lynas, the author of The God Species and Stewart Brand, the author of the iconic Whole Earth Catalog. Perhaps the first to change his mind and leave the Greens was Dr. Patrick Moore, a co-founder of Greenpeace. He felt those in the environmental movement had made their point,“[W]hen a majority of people decide they agree with you it is probably time to stop hitting them over the head with a stick and sit down and talk to them about finding solutions to our environmental problems,” he says.
Greens have always been fractious; they hate compromise. Former Greenpeace director Paul Watson berated Patrick Moore in an email: “you’re a corporate whore, Pat, an eco-Judas, a lowlife bottom-sucking parasite…” And, Bjorn Lomborg, author of The Skeptical Environmentalist took a pie in the face from then true believer, Mark Lynas.
At the heart of the disagreement sits the use of technology. “There is a battle underway for the soul of environmentalism,” writes freelance journalist Keith Kloor, “It is a battle between traditionalists and modernists. Who prevails is likely to be determined by whose vision for the future is chosen by a new generation of environmentalists.”
Traditionalist Greens say, “Stop!” Technology is the Problem. The Worldwatch Institute says we should not simply stop growing our economies, but we must actually contract: “The rapidly warming Earth and the collapse of ecosystem services show that economic ‘degrowth’ in overdeveloped countries is essential and urgent…. Degrowth can be achieved through policies to discourage overconsumption, raising taxes, shortening work hours, and ‘informalizing’ certain sectors of the economy.” The goal, Rik Scarce writes in his book “Eco-Warriors,” is to arrive at “a steady-state relationship with all of nature’s creations, wherein human attitudes and actions dominate no one and no one thing. Their alternative seeks to guarantee life, liberty, evolution, and happiness for humans and non-humans alike.”
Modernist Greens say that technology has a role in making the world greener and more livable for all creatures, including humans. Stewart Brand says “If Greens don’t embrace science and technology” they risk becoming irrelevant.
The modernists are in favor of cities, people, and technology (including genetically engineered food).
Cities, people, and technology are…good? What is happening? Has the world gone crazy?
Perhaps the world is crazy. (Not exactly a news flash now, is it?)
As you know, I have argued on these pages that people, cities, technology, and economic growth have not only improved our lives here in the United States, but have improved the environment. Economic growth using non-renewables has overall been beneficial. The author of “The Rational Optimist,” Matt Ridley notes that technology takes less land and uses materials other species do not want:
“[E]conomic development leads to a switch to using resources that no other species needs or wants…. Contrast Haiti, which relies on biomass (wood) for cooking and industry, with its much (literally) greener neighbour the Dominican Republic, which subsidises propane for cooking to save forest…. [E]conomic growth leads to a more sparing use of the most important of all resources – land.”
Is economic growth and technology a wonder cure? A panacea that works with no side effects? No. But, then everything has its upsides and downsides. If we humans continue to move from rural to urban (cities are denser), drill and mine for our energy rather than grow it, continue to wring more food and fiber from each acre, and develop incentives for conserving water and our fisheries, we will yet leave a better place for our (and Nature’s) children and grandchildren.
Matt Ridley sums it up well:
“Seven billion people going back to nature would be a disaster for nature.”
“If Greens don’t embrace science and technology and jump ahead to a leading role in both, they may follow the Reds into oblivion.” Brand, Stewart. Whole Earth Discipline: Why Dense Cities, Nuclear Power, Transgenic Crops, Restored Wildlands, and Geoengineering Are Necessary · “When the facts change, I change my mind. What do you do, sir?” http://en.wikiquote.org/wiki/John_Maynard_Keynes
Assadourian, Erik. “The Path to Degrowth in Overdeveloped Countries.” Worldwatch Institute, STATE OF THE WORLD 2012: Moving Toward Sustainable Prosperity
Never let a crisis go to waste, even, or especially, if it’s a manufactured one. It’s “plastics versus our planet,” California Environmental Protection Agency secretary Yana Garcia tells the camera. Secretary Garcia invoked the memory of the first Earth Day commemoration to announce California’s new regulations on . In doing so, she mixed politics with science.
This #EarthMonth🌎, we're focused on the plastics pollution crisis. The 1st Earth Day was created in response to oil spills + toxic waste impacting communities + our planet. 54 years later, CA is working to implement the nation's most ambitious plastic pollution reduction agenda. pic.twitter.com/gTn8rydIsy
— Secretary Yana Garcia (@CalEPASecretary) April 2, 2024
Wearing a nylon jacket, Cal-EPA Secretary Yana Garcia came out into the courtyard of the Cal-EPA building complex to warn us of the dangers of “plastics pollution crisis.” As I noted in “It’s a plastic world. Part 1” plastics are ubiquitous and nanoplastics have been detected in our arteries. That Ms. Garcia somewhat ironically wears a plastic jacket, holds a plastic microphone while being video recorded by, most likely, a camera made at least partially of plastic, illustrates that plastic products are so much a part of life that we are oblivious to them.
On March 8, 2024 California’s Governor released this statement:
SACRAMENTO – California today took another step in implementing the nation’s most comprehensive measure to tackle the rise in plastic waste polluting our communities and ecosystems.Plastic waste is a major contributor to climate and trash pollution, with less than 9% of plastic recycled in California and the rest of the U.S.
“For too long, plastic polluters have passed the buck on the growing burden of plastic waste contaminating the air we breathe, the water we drink and the food we eat,” said Governor Newsom. “California is leading the way to hold producers responsible, drive sustainable innovation and green jobs, and support the most impacted communities. We have to act now, with urgency, to give our kids a future without plastic pollution.”
We have seen this movie before. The ending just too hard to take.
Moreover, banning plastic bags can have unexpected, inconvenient results. A new study shows California’s ban eliminates 40 million pounds of plastic annually. However, many banned bags would have been reused for trash, so consumption of trash bags went up by 12 million pounds, reducing the benefit. It also increased consumption of paper bags by twice the saved amount of plastic – 83 million pounds. This will lead to much larger emissions of CO₂.
Secretary Garcia’s agency, Cal-EPA, is tasked with writing regulations and enforcement of the Plastic Pollution Prevention and Packaging Producer Responsibility Act. Cal-EPA also writes and enforces California’s Proposition 65, The Safe Drinking Water and Toxic Enforcement Act, the law which places warning labels on coffee and baked bread. “California’s Proposition 65 list is a quintessential example of government bureaucracy gone berserk. It contains 900+ chemicals that the state declares are carcinogens or reproductive toxins. Anything that is made with, or contains any of these, now carries a ridiculous warning sticker.” American Council on Science and Health points to Prop 65, which is a political stunt more than anything, as one reason Americans have lost faith in science.
Given these bona fides, I expect little in the way of science to be employed in the Cal-EPA regulations. They are self-anointed experts. This is not science; it’s politics. It is forcing us to behave like obedient children.
California's progressive government has "The vision of the anointed": https://t.co/jgABn7IWZA
As Alabama’s state meteorologist testified to congress,
“’Science’ is not a set of facts but a process or method that sets out a way for us to discover information and which attempts to determine the level of confidence we might have in that information.”
What is missing in our scientific knowledge vis-à-vis plastics is harm. Political action short circuits most or all gathering of information, employing the precautionary principle and simply assuming harms. This politicization of science has lead many in our state and country to lose confidence in science. It seems that politics treats science as a religion to believed, when science is a culture of questioning all belief. Even where something has proved itself to be “true,” science looks for gaps in the thing.
Liberalism’s great contribution to civilization is the way it handles conflict….The liberal innovation was to set up society so as to mimic the greatest liberal system of them all, the evolution of life. Like evolutionary ecologies, liberal systems are centerless and self–regulating and allow no higher appeal than that of each to each in an open-ended, competitive public process (a game). Thus, a market game is an open-ended, decentralized process for allocating resources and legitimizing possession, a democracy game is an open-ended, decentralized process for legitimizing the use of force, and a science game is an open-ended, decentralized process for legitimizing belief. Much as creatures compete for food, so entrepreneurs compete for business, candidates for votes, and hypotheses for supporters. In biological evolution, no outcome is fixed or final—nor is it in capitalism, democracy, science. There is always another trade, another election, another hypothesis. In biological evolution, no species, however clever or complex, is spared the rigors of competition—nor are the participants in capitalism, democracy, science. No matter who you are, you must conduct your business in the currency of dollars, votes, or criticism—no special fiat, no personal authority.
Jonathan Rauch, Kindly Inquisitors: The New Attacks on Free Thought (emphasis mine)
There are debates to be had in the public square about the costs (downsides) and benefits of plastics.
High-density polyethylene is a miracle of materials science. Despite weighing less than 5 grams, one bag can hold 17 pounds, well over 1,000 times its own weight. At about a penny apiece, the bags are cheap enough for stores to give away and sturdy enough to carry home two gallons of milk in the evening and still be up to the task of scooping Cujo’s poop the next morning.
Yet almost as soon as grocers started offering their customers the choice of “paper or plastic?” these modern marvels became a whipping boy for environmentalists, politicians, and other well-intentioned, ill-informed busybodies.
Plastic Bags Are Good for You What prohibitionists get wrong about one of modernity’s greatest inventions Katherine Mangu-Ward from the October 2015 issue of Reason magazine
Yet much research indicates that politicians and regulators are exceptionally bad at these types of analyses. In this case, rather than start with a null hypothesis that plastics are beneficial, they go by gut that plastic is a net harm and use state force to achieve their required result.
Science comes in various shades of grey, with the hues shifting as new information comes to light. Risks, and there always are some, have to be evaluated in relation to benefits.
Joe Schwarcz is director of McGill University’s Office for Science & Society, “The Right Chemistry: Ban plastic bags? It’s not so simple” | Montreal Gazette
In my humble opinion, California’s actions are premature. They assume harm and that their “doing something” will help lessen what they see as a crisis. Mandates and regulations ought to be the port of last resort, with our present government, the default is to make it the first.
“Every government law, or regulation is a demand that someone do what he doesn’t want to do, refrain from doing what he does want to do, or pay for something he doesn’t want to pay for, and those demands are backed up by police with guns.”
Harry Browne
What might government do instead of using a stick? It might try incentivizing innovation. How about an X prize to the person(?) who can develop a market for cost effective recycling? Or who can return plastic to its component parts? If plastics are worth the panic, then focusing on single use plastic is focusing on less than one percent of the problem and bigger and better ideas are needed.
Micro- and nanoplastics, found in the plaque within our arteries, are born from the ubiquitous presence of plastics in our environment. They are raising eyebrows and heart rates among scientists and physicians, courtesy of a groundbreaking study in the New England Journal of Medicine (NEJM).
This is how Chuck Dinerstein, MD, MBA at the American Council of Science and Health begins a very balanced view of the state of knowledge of what we know and what we don’t know plastics being found in our arteries. It is well worth your time to read the article.
There can be little doubt that our air, food, and water are contaminated with MNPs [micro and nanoplastics] and can be inhaled or ingested. There have been many studies of these particulates in “model organisms,” such as rodents and fish. MNPs might cause harm….But the key word is might; we simply do not know, as current researchers point out.
Of course, findings such as this has not stopped politicians and environmentalists from jumping to conclusions on how to address and fix what they are sure needs to be addressed and fixed by fiat and force.
Have no fear that California is anxious to be the first to leverage any possible moral panic into full blown regulations. California Senate Bill No. 1422 (2018) requires the State Water Board to:
(1) adopt a standard methodology to be used in the testing of drinking water for microplastics; (2) adopt requirements for four (4) years of testing and reporting of microplastics in drinking water, including public disclosure of those results; (3) consider issuing a notification level or other guidance to aid consumer interpretation of results; and (4) accredit qualified California laboratories to analyze microplastics.
You might think that California lawmakers are just being proactive…that they want to be on the forefront if MNPs (micro and nanoplastics) are indeed hazardous…that they are applying the precautionary principle to plastic pollution. You might think that.
Let’s assume that MNPs accumulate in our arteries, and that they do the same in other species. Let’s assume that plastics are a problem in the oceans, lakes, and streams, and that various forms of plastics kill non-target species by various means. These are not great leaps of imagination to assume that plastics can cause problems.
That said. Are plastics a net positive or a net negative?
I will be submitting a letter to California’s State Water Resources Control Board, since the “workshop” went way beyond time and it began to look like I would not get to speak until midnight, if at all.
My name is Norm Benson. I am a retired Cal-Fire forester, and until our water plant was purchased by a larger private company, I was the water master for the Crescent Bay Improvement Company’s water plant which served 24 connections. I am also a libertarian who prefers recommendations to regulations.
There is an adage: if something cannot go on forever it will stop.[1] The state legislature, not content with allowing the problem to be addressed by people and their water providers and wait for the increased storage passed by voters in 2014,[2] over time, yelled “We have to do something about our phony baloney jobs, gentlemen (and gentlewomen)! CLIMATE CHANGE!!!!” So, in 2018, they passed Assembly Bill (AB) 1668 and Senate Bill (SB) 606 which directed the California State Water Resources Control Board (State Water Board or Board) to adopt standards for urban retail water suppliers (suppliers) for the efficient use of water and performance measures for commercial, industrial, and institutional (CII) water use.
WE’VE GOT TO PROTECT OUR PHONY-BALONEY JOBS!
Thus it is that we have, as a result of a five year effort by the Water Board, a draft regulation to Force Conservation to be a Way of Life.
Every regulation is a demand that someone do what he doesn’t want to do, refrain from doing what he does want to do, or pay for something he doesn’t want to pay for, and those demands are backed up by agents with guns.[3] The California State Water Board’s proposed regulation for “Making Conservation a California Way of Life” is no different. Chairman’s Joaquin Esquivel’s protestations notwithstanding, the velvet glove still covers the state’s iron fist.
Mandates are not magic bullets. Mandates get enforced with real bullets.
At its core, government is force. If California’s policymakers want to regulate society toward their vision of perfection, they are going to need ramp up government force. During my career with Cal-Fire, I enforced the state’s forest and fire laws. I can tell you firsthand, every enforcement action is a confrontation. And confrontations do not always end well. The more rules on the books, the more enforcement agents will interact with people who don’t share the vision of the regulator, and who resent constant harassment. This is especially true for a regulation that will cost twice the sum of its benefit.[4]
This proposed regulation is a very very very bad idea indeed. This regulation hits the trifecta for bad.
It will make water providers to Californians and visitors do something they do not want to do: more red tape, reporting to a regulatory agency, and acting as a surrogate enforcer for the state to comply with this regulation.
It will make Californians and visitors refrain from doing something they want to do, like laundry or bathing.
Both water users and water providers will be paying in money, time, and frustration to meet a standard that applies to only 10% of California’s water use. The remaining 90% goes to agriculture and fish.
Both my wife and I have allowed our water operator’s license lapse, since our water company has been bought by a larger private water company. I was the only paid employee, and I was part-time employee paid less than a fast-food worker. If our company were not purchased, and this regulation were to go into effect, we and our water company would give up and turn the task of providing water over to the state.
Some rules are obviously necessary. Everyone agreeing to drive on the right side of the road, for instance, is a sensible check on chaos of complete liberty to drive on the left, the right, or down the middle. The goal of government therefore is to provide just enough rules to allow the maximum amount of liberty with the minimum of chaos. Yet we now have too many rules that get frequently changed. This will, as James Madison wrote, “poison the blessings of liberty itself.[5]”
The presentations, given at the October 4, 2023 workshop, show that conservation takes lots of time, money, and communication. They are telling you that the point of diminishing returns has been hit. The low hanging fruit has been picked. The presentations also show that to meet the proposed regulations will require extensive and expensive work. Technical work that is expensive and hard to come by. It will undoubtedly hit disadvantaged communities hardest. For those who point to Los Angeles or other large metropolitan areas, let me say that finding licensed engineers to take one technical specialty to meet this board’s regulation is not just difficult, it is impossible where I live.
I will end by quoting from a 2012-piece Senator George McGovern wrote in the Wall Street Journal, he notes that ultimately consumers pay the higher prices for the increased operating costs that accompany public regulation and government reporting requirements with reams of red tape.
“[C]onsumers do have a choice when faced with higher prices. You may have to stay in a hotel while on vacation, but you can stay fewer days. You can eat in restaurants fewer times per month or forgo a number of services from car washes to shoeshines. Every such decision eventually results in job losses for someone. And often these are the people without the skills to help themselves — the people I’ve spent a lifetime trying to help….
“The problem we face as legislators is: Where do we set the bar so that it is not too high to clear? I don’t have the answer. I do know that we need to start raising these questions more often.”
I believe the bar has been set much too high. I hope the Water Board will reconsider this regulation which will disrupt the lives of visitors and the citizens of California while providing very little to zero benefit to them.
[2] In November 2014, California voters passed Proposition 1, the Water Quality, Supply, and Infrastructure Improvement Act, which authorized $7.5 billion in general obligation bonds to fund ecosystems and watershed protection and restoration, water supply infrastructure projects, including surface and groundwater storage, and drinking water protection.
Proposition 1 included $2.7 billion for investments in water storage projects, which is being administered by the California Water Commission through the Water Storage Investment Program (WSIP). The WSIP funds projects that provide public benefits, such as ecosystem improvement, flood control, and recreation.
As of October 2023, the WSIP has committed funding to eight projects that will collectively boost California’s water storage capacity by 2.77 million acre-feet. These projects are currently in various stages of development, and some are expected to be completed within the next few years.
[5] “The internal effects of a mutable policy are still more calamitous. It poisons the blessings of liberty itself. It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is today can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed?” – excerpt from James Madison, Federalist Paper #62, 1788
Dear members of the California Water Resources Control Board,
Everything I ever needed to know about rules, I learned in kindergarten: don’t hurt other people and don’t take stuff that doesn’t belong to you. Based on these simple principles, I want to convince you that your proposed conservation law, which will be another thorn in the regulatory thicket, is a bad idea. It addresses a 5 percent drop of California’s water usage and ignores the other 95 percent. It will neither make a significant dent in overall water consumption, nor cause Californians to respect the rule of law.
In 1788, James Madison wrote in Federalist Paper #62, “The internal effects of a mutable policy are still more calamitous. It poisons the blessings of liberty itself. It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is to-day can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed?”
Some rules are obviously necessary. Everyone agreeing to drive on the right side of the road, for instance, is a sensible check on chaos of complete liberty to drive on the left, the right, or down the middle. The goal of government therefore is to provide just enough rules to allow the maximum amount of liberty with the minimum of chaos. Yet, too many rules that get frequently changed, “poisons the blessings of liberty itself.”
Mandates are not magic bullets. Mandates are enforced with real bullets.
At its core, government is force. It presumes its use of force is for the welfare of the citizens it serves. Yet, if California’s policymakers want to regulate society toward their vision of perfection, they are going to need enforcers. And the more regulatory requirements placed on the populace the more it needs enforcers to make sure these laws are met. And every enforcement action is a confrontation. And confrontations do not always end well. The more rules, the more enforcement agents will interact with people who don’t share that vision, and who resent the constant enforcement attempts.
As an example of a well-intentioned government regulation turning deadly consider this: The state of New York had a significant sin tax on cigarette packs as a health measure to lower smoking. The city of New York levied an additional tax, making an unpopular law even more so. It was so unpopular that more than half of cigarettes sold in New York were smuggled from neighboring states. Flagrantly disobeying a law that was, obviously, for the people’s own good, upset New York city officials. They sent out officers to send a message that this behavior would not be tolerated. Officers were assigned to track down shipments of smuggled cigarettes and often small-time street vendors, many of whom live on the edge of poverty. Small time vendors serving poor customers: these are people who need to be creative to make it through a day.[1] On July 17, 2014, a shop owner reported that a black man known for selling single cigarettes was near his store. Police then went to investigate. They stopped the man on a sidewalk on Staten Island and he told them, “Please just leave me alone.” This response was not the one Officer Daniel Pantaleo wanted to hear and he put Eric Garner into an illegal chokehold and murdered him for a health code violation.
I will end by quoting from a 2012 piece Senator George McGovern wrote in the Wall Street Journal, “’Can we make consumers pay the higher prices for the increased operating costs that accompany public regulation and government reporting requirements with reams of red tape.’ It is a simple concern that is nonetheless often ignored by legislators…..
“[C]onsumers do have a choice when faced with higher prices. You may have to stay in a hotel while on vacation, but you can stay fewer days. You can eat in restaurants fewer times per month or forgo a number of services from car washes to shoeshines. Every such decision eventually results in job losses for someone. And often these are the people without the skills to help themselves — the people I’ve spent a lifetime trying to help….
“The problem we face as legislators is: Where do we set the bar so that it is not too high to clear? I don’t have the answer. I do know that we need to start raising these questions more often.”
I am raising this question because I believe the Water Board does not consider it often enough. I hope the Water Board will reconsider this regulation which will disrupt the lives of the citizens of California while providing very little to zero benefit to them. If the Water Board passes this mandate, it will hurt other people by poisoning their liberty and taking their stuff.
[1] “US adults with low socioeconomic status generally have high prevalence of cigarette smoking in relationship to various sociodemographic characteristics, irrespective of sex.” Garrett BE, Martell BN, Caraballo RS, King BA. Socioeconomic Differences in Cigarette Smoking Among Sociodemographic Groups. Prev Chronic Dis 2019;16:180553. DOI: http://dx.doi.org/10.5888/pcd16.180553external icon
In a Los Angeles Times article in early September came this non-sequitur of a sentence, “The proposed regulation, dubbed “Making Conservation a California Way of Life,” would establish tailored goals for each urban retail water supplier in the state, providing them with more flexibility to account for local conditions, according to the State Water Resources Control Board.”
Regulations remove choice; they do not provide flexibility. Every regulation is a demand for someone to do something the person does not want to do, a demand not do the thing the person does want to do, or a demand to pay for something the person does not want to pay for, and each demand is backed up by agents with guns.
Every regulation is a demand for someone to do something the person does not want to do, a demand not do the thing the person does want to do, or a demand to pay for something the person does not want to pay for, and each demand is backed up by agents with guns.
According to the State Water Resource’s Control Board, “Making Conservation a California Way of Life is a new regulatory framework proposed by State Water Board staff that establishes individualized efficiency goals for each Urban Retail Water Supplier. These goals are based on the unique characteristics of the supplier’s service area and give suppliers the flexibility to implement locally appropriate solutions. Once implemented, these goals are expected to reduce urban water use by more than 400-thousand-acre feet by 2030, helping California adapt to the water supply impacts brought on by climate change.” If you read on further, they tell you “Urban Retail Water Suppliers are publicly and privately run agencies that deliver water to 95% of Californians.” So basically, everyone who pays a water bill will be affected.
“Once implemented, these goals are expected to reduce urban water use by more than 400-thousand-acre feet by 2030.”*
While the “more than 400-thousand-acre feet1” sounds impressive, it is merely a drop in the river. California’s urban water usage, according to the Public Policy Institute of California “On average, communities use 10%, agriculture uses 40% of water statewide, and the environment uses 50%.”2 That’s right, 90% goes to agriculture or the ocean, in essence. “The proportions vary depending on the region and whether the year is wet or dry.” Community (or “Urban Retail Water Supplier” in Water Board speak) water use is 7.44-8.24 million-acre feet per year, this is between 8 and 12 percent of water usage in the state.
If urban use is 7.44-8.24 million-acre feet per year and we only need to cut use by 400-thousand-acre feet,what’s the big deal? The big deal is we have hit the point of diminishing returns. The easy to do things have been done. In fact, now more efficiency in one realm means less efficiency or more waste in another.
And they keep ratcheting down the cuts. As the LA Times article observes, “In 2035, 18% of urban water users would live in areas required to reduce by 30% or more. By that time, suppliers serving more than half of urban water users would need to cut back by at least 10%. Suppliers could face fines of up to $1,000 a day for failing to meet targets, or as much as $10,000 a day during drought emergencies, according to the board.”
If you wish to tell the Water Board what you think of this idea, you can email them at commentletters@waterboards.ca.gov. Put “Comment Letter—Proposed Making Conservation a California Way of Life Regulation” in the subject line to facilitate timely identification and review of the comment.
One acre foot is one foot of water that would cover one acre. It is 325,851.4 US gallons ↩︎
1) The public assumes your regulations are based in science, not supposition.[1]
2) I believe regulations must be a last resort and fashioned using facts, not fables.[2]
a) Erin Brockovich is a Hollywood movie, a fable, not a factual documentary. [3]
i) Masry & Vittitoe’s law clerk, Erin Brockovich sued the sockets off PG&E via the Texas Sharpshooter Fallacy.[4]
(a) By sheer chance, people with specific diseases can be found clustered near one another.[5]
3) Chromium-6 is a natural substance; it can be found in rocks, volcanic dust, and soil.[6]
a) This means it will be found naturally in water and the food we eat.[7]
4) Your white paper asserts that ingesting chromium-6 at a Maximum Contaminant Level of 10 parts per billion is so toxic at that level that the associated cancer risk is 1 in 2,000.[8]
5) Chromium-6 is equivalent in its reference dose[9] (RfD) with a natural insecticide.
(1) Every substance no matter how benign, has a level at which it is toxic; and every substance no matter how toxic, has a level at which it is benign.[12]
c) Since caffeine is like chromium-6 in its toxicity, what does the proposed MCL look like if applied to a beverage, like Coca-Cola?
i) A toddler would be allowed 1/50th of a milliliter (1/3 drop) of Coca-Cola per day.[13]
(1) Any more than that would exceed the proposed MCL of 10 parts per billion.
d) Under the current federal MCL of 100 ppb: 1/5th ml (3 drops) of Coca-Cola is allowed per day.[14]
i) Lo siento, but I have a hard time swallowing an assertion that 4 drops of Coca-Cola per day will damage a toddler! [15][16][17][18]
(1) Rather than assert, you should be able to show that your current 50 ppb MCL has produced benefits above the federal standard of 100 ppb such as fewer deaths and lowered cancer rates.[19][20]
iii) 3. Make more public water systems provide drinking water in plastic bottles that meet the federal standard for chromium 6.[24]
7) This proposed regulation is based on virtue-signaling politics, not science[25].
8) The federal law is bad. This proposed law is a magnitude worse.[26]
I thank the Water Board for taking my statement.
[1] For example, when chromium 6 exceeded the Maximum Contaminant Levels in the Coachella Valley Unified School District: High levels of chromium 6 shown in school’s well water “We have take [sic] action right away it inched up from 10 parts-per-billion (ppb) to 13 parts-per-billion,” said Dr. Darryl Adams, superintendent for the Coachella Valley Unified School District. http://www.kesq.com/news/high-levels-of-chromium-6-shown-in-schools-well-water/38795706 Remember, the toxicity of chromium-6 is much the same as the toxicity of caffeine. The amount of a caffeinated Coke (~ same as chromium-6 toxicity in Mg/Kg/Day) allowable at the 10 ppb MCL is about 2/3 of a drop. To say that one drop of Coca-Cola per day does harm is a result of moral panic politics, not science.
[2] I am dubious of their claims that they use science. “The progressives combined their extravagant faith in science and the state with an outsized confidence in their own expertise as a reliable, even necessary, guide to the public good. They were so sure of their own expertise as a necessary guide to the public good, so convinced of the righteousness of their crusade to redeem America, that they rarely considered the unintended consequences of ambitious but untried reforms. Even more so, they failed to confront the reality that the experts—no less than the partisans, bosses, and industrialists they aimed to unseat—could have interests and biases of their own.” — Illiberal Reformers: Race, Eugenics, and American Economics in the Progressive Era by Thomas C. Leonard
[3] “Scientific consensus does not believe Chromium-VI causes cancer after ingestion exposure from food or drinking water. On the other hand, inhalation of high levels of Chromium-VI can cause lung cancer, as demonstrated in occupational studies.” The Corruption of Chromium, https://www.acsh.org/news/2023/04/25/corruption-chromium-17014
[4] A form of confirmation bias where certain patterns or data are accepted but others are ignored. The name comes from a joke about a Texan who shoots at the side of a barn, then paints a around the tightest cluster of hits and claims to be a sharpshooter.
[7] “In long-term balance studies, Tipton has analyzed diets and excreta for 17 elements. His subjects were consuming three times as much chromium as was present in a hospital diet and much more than normal.
“Variations in average daily intake, however, are wide, from 5 μg well into the hundreds of micrograms. Foods vary considerably in chromium content. The largest sources are meats, mollusks and crustaceans, vegetables, and unrefined sugar. In general, fish, vegetable oils, and fruit have been reported to contain smaller amounts of chromium…” Chromium. National Academy of Sciences.
[9] . “The final RfD [reference dose for caffeine] would be 0.0025 mg/kg-day, a very small dose in the same range as RfDs for known toxicants such as hexavalent chromium and potassium cyanide.” Sorell TL. Approaches to the Development of Human Health Toxicity Values for Active Pharmaceutical Ingredients in the Environment. AAPS J. 2016 Jan;18(1):92-101. doi: 10.1208/s12248-015-9818-5. Epub 2015 Sep 3. PMID: 26338232; PMCID: PMC4706294.
[10] Sorell TL. Approaches to the Development of Human Health Toxicity Values for Active Pharmaceutical Ingredients in the Environment. AAPS J. 2016 Jan;18(1):92-101. doi: 10.1208/s12248-015-9818-5. Epub 2015 Sep 3. PMID: 26338232; PMCID: PMC4706294. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4706294/
[11] The reason we don’t hear of people overdosing on caffeine from coffee is that it is excreted it before one can overdose on it. If one were to not excrete, one still would not die from the caffeine but rather from water intoxication. See: Jennifer Strange autopsy.
[12] e.g., water intoxication or water poisoning: hyponatremia, lower than normal concentration of sodium in the extracellular space. It is essentially drowning cells.
In early 2007, Jennifer Strange, a 28-year-old mother of 3, was found dead in her suburban Rancho Cordova home. After taking part in the “Hold Your Wee for a Wii” contest in which radio station KDND 107.9 promised a Nintendo Wii video game system to the person who could drink the most water without urinating, after a few hours of downing 8 ounces of water every 15 minutes she complained of dizziness and a headache. She soon gave up and vomited in the restroom. The coroner’s autopsy determined that Ms. Strange had died from water intoxication after drinking nearly two gallons of water. Consumption of too much water disrupts the body’s salt balance, (known as hyponatremia, which causes cells to swell. This ultimately causes the brain to swell, resulting in seizures, respiratory distress, and then very likely death.
[13] Assuming my assumptions are correct, (feel free to check my math) a 10 ppb for a 10 kg child would be the same as the reference dose of 0.0025 mg/kg-day. 12 oz of Coca Cola has 35 mg of caffeine.
[14] “[T]he RfD process [on which the EPA bases its MCL] is still very conservative and results in doses that may be many times below actual levels of concern. Conservatism is useful in screening and for ensuring protectiveness, but can present a challenge in risk management. In some cases, conservatively derived concentrations may be overprotective, resulting concentrations that are difficult or expensive to detect analytically, cannot be environmentally achieved, are based on intakes well below typical or voluntary exposures, or are otherwise unreasonably low.” Sorell TL. Approaches to the Development of Human Health Toxicity Values for Active Pharmaceutical Ingredients in the Environment. AAPS J. 2016 Jan;18(1):92-101. doi: 10.1208/s12248-015-9818-5. Epub 2015 Sep 3. PMID: 26338232; PMCID: PMC4706294. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4706294/
[15] or water with chromium-6 which has the same toxicity.
[16] “[T]he whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by an endless series of hobgoblins, most of them imaginary.” – H. L. Mencken
[17] Given the equal toxicity of chromium and caffeine, an adult (weighing about 8-10 times more than a toddler) ordering a Starbucks “grande” (16 oz) would be allowed to drink 0.02 milliliters (1/3 drop) from the cup per day at the proposed MCL for chromium-6.
[18] One Starbucks medium roast grande and your dead! A Starbucks 12 oz (“tall”) Pike Place (medium roast) has about 235 mg of caffeine, e.g., similar in toxicity to 235 mg of chromium-6. There are journal articles indicating stomach cancer is less prevalent in non-caffeine (and no alcohol) drinking Mormons when compared to the U.S. population. Cancer Incidence in Mormons and Non-Mormons in Utah, 1966–1970 https://www.nejm.org/doi/full/10.1056/NEJM197601152940303 Lyon, J.L., Gardner, K. & Gress, R.E. Cancer incidence among Mormons and non-Mormons in Utah (United States) 1971–85. Cancer Causes Control 5, 149–156 (1994). https://doi.org/10.1007/BF01830261 Classics in oncology: Cancer incidence in Mormons and non-Mormons in Utah, 1966-1970 https://doi.org/10.3322/canjclin.33.5.309
[19] The Hexavalent Chromium MCL Economic Feasibility Analysis mentions “cancer” 7 times. At no time does it put any number on cases or deaths averted due to the Board’s MCL. What it does say and then proceeds to not prove, “[T]he MCL set by the State Water Board will be through a policy decision that considers traditional concepts such as treatment costs and number of cancer cases averted, as well as the costs and benefits of the regulation…”
[20] Meanwhile, according to the American Cancer Society in 2023, “In the US, the number of new cases of stomach cancer has been dropping by about 1.5% each year over the last 10 years.” In part “due to a decreasing prevalence of Helicobacter pylori infection associated with improved hygiene and overall improvements in diet and food storage practices.”
[21] “The post-liberal temptation is to believe that government power can be a substitute for the hard labor of institution building and cultural change. It isn’t. The solution must begin at home—on the front porch, around the kitchen table, and in the mirror. The law is not a magic wand. There are no magic wands, and there is no shortcut to the good society.’ Slade, S. Is There a Future for Fusionism? https://reason.com/2021/02/10/is-there-a-future-for-fusionism/
[22] “Every government law, or regulation is a demand that someone do what he doesn’t want to do, refrain from doing what he does want to do, or pay for something he doesn’t want to pay for, and those demands are backed up by police with guns.” – Harry Browne
[23] If a water provider produces water that is not in compliance, it has broken the law: this is a criminal act.
[24] “Coyote Valley Elementary School is continuing to distribute bottled water to students and staff more than a week after administrators told students not to drink tap water due to contamination concerns.” http://www.record-bee.com/article/NQ/20160322/NEWS/160329992
[25] “Science is an open-ended, decentralized, self–regulating, competitive public process for legitimizing belief. The process allows no higher appeal than that of each to each; there is always another hypothesis; another test of the assumptions of the belief.” Jonathan Rauch, Kindly Inquisitors: The New Attacks on Free Thought, pg 57
[26] The public will believe that 1/100,000,000,000 of a gram of CR(VI) will harm them if the water tests at 11ppm and not 10ppm. See: http://www.record-bee.com/article/NQ/20160322/NEWS/160329992 This is not how toxicology works. A reference dose is magnitudes lower than the lowest observed adverse effect level (LOAEL). There is a huge margin of safety.
“The reference dose (RfD) is an adaptation of the ADI used by the US EPA and serves as the principal risk assessment toxicity tool for evaluating toxic effects other than cancer and mutagenicity. The uncertainty factors (UFs) used by the US EPA in developing RfDs are 10-fold to extrapolate from a lowest observed adverse effect level (LOAEL) to a NOAEL; 10-fold to extrapolate from animal to human data, 10-fold to extrapolate from subchronic to chronic results; and 10-fold to protect sensitive human populations (26). The RfD approach also provides for an additional modifying factor (MF) in addition to uncertainty factors to address the identified uncertainties and deficiencies in ADIs, such as failure to consider the shape of the dose-response curve, selection of the appropriate adverse endpoint, and the strength of the underlying study, particularly the number of exposed individuals. The US EPA also provides a confidence (high, medium, or low) the evaluators have in the RfD and its likelihood to prevail in the future (26). Despite a more rigorous review of the data compared to the ADI, the RfD process is still very conservative and results in doses that may be many times below actual levels of concern. Conservatism is useful in screening and for ensuring protectiveness, but can present a challenge in risk management. In some cases, conservatively derived concentrations may be overprotective, resulting concentrations that are difficult or expensive to detect analytically, cannot be environmentally achieved, are based on intakes well below typical or voluntary exposures, or are otherwise unreasonably low.” Source: Sorell, Tamara L, Approaches to the Development of Human Health Toxicity Values for Active Pharmaceutical Ingredients in the Environment
Yes, the State Water Resources Control Board has “proposed emergency adoption of section 996, subdivision (b), prohibits the irrigation, with potable water, of non-functional turf in the commercial, industrial, and institutional sectors statewide…” I, of course, thinks this is a gloriously dumb idea and told them so. Here is my letter to them.
May 21, 2023
Courtney Tyler Clerk to the Board State Water Resources Control Board PO Box 100 Sacramento, CA 95812-0100
Comment Letter – Emergency Regulation to Ban Decorative Grass Watering Dear Chairman Esquivel and State Water Board members, I hope this letter finds you well. I am writing to express my strong opposition to the proposed emergency regulation that aims to ban the watering of commercial lawns. While I understand the need to conserve water resources, I believe that this measure is potentially dangerous, unnecessary, a regulatory faux pas given the current water conditions and historical data; and, as such it erodes respect for our rule of law and our criminal justice system. Please, allow me to elaborate on these points.
The commercial watering ban is potentially dangerous: As you are aware, every law, regulation, and ordinance, is a command to stop doing something the person wants to do, or to make a person do something the person does not want to do; and these commands are backed up by people with guns. In this case, it is telling commercial landowners that they may not use water, legally purchased, for lawn care. The potential for heated tempers and escalation, or simply mistaken actions can, and has, led to fatal encounters with law enforcement. Black Lives Matter began as a response to fatal police encounters for minor offenses. Stephen L. Carter, a professor at Yale Law School wrote, “On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce …. I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.”
A regulatory faux pas: The proposed ban is being presented as a regulation to address an immediate emergency. “The State Water Board finds that an emergency exists due to drought conditions and that adoption of the proposed emergency regulation is necessary to address the emergency.” However, as of May 17, 2023, the state’s snowpack stands at 150 percent of normal, and reservoirs are at 105 percent capacity. Additionally, Tulare Lake, which has not experienced flooding since 1938, is currently flooded. These facts clearly indicate that we are not facing an immediate emergency in terms of water scarcity. Certainly, it appears to the average person as histrionic, and haste does not appear warranted given the current conditions. Therefore, hurriedly implementing such a drastic measure as a commercial lawn watering ban seems disproportionate, unjustified, and frankly silly.
It can erode respect for our rule of law and our criminal justice system: While a ban may feel like an accomplishment it is corrosive to the rule of law. By banning an act that had previously been legal and making that once legal act punishable by the state, you make honest individuals into criminals overnight. There are antecedents that give me pause, such as The Great Experiment: Prohibition. Of Prohibition, preacher Billy Sunday said, “The reign of tears is over. The slums will soon be only a memory. We will turn our prisons into factories and our jails into storehouses and corncribs. Men will walk upright now, women will smile, and the children will laugh. Hell will be forever for rent.” Bans, history shows, impose immense economic and social costs, yet they don’t achieve their policy aims, all the while fostering violence, corruption, and black markets along the way–other than that, bans work perfectly. This ban appears to be merely performative, without significant impact on overall water conservation efforts. It seems silly and ham handed. The data show that in dry years, urban (domestic and commercial) water usage accounts for 11 percent of the available water usage, equivalent to 6.73 million acre-feet (MAF). Even in wet years, when water availability increases, urban usage remains relatively low at 8 percent (8.32 MAF). What data are you relying on that shows that commercial lawn watering is a huge waste of water, and that this regulation will make any kind of dent in overall water consumption? On May 20, the San Francisco Chronicle questioned proposed hikes of water rates, “All that rain and snow captured in California’s reservoirs this year means plenty of water to go around. But it isn’t doing anything to reduce your household water bill.” Given this backdrop of an emergency not being obvious, if I were a commercial owner, I would simply put a “Watered with Recycled Water” sign on the lawn and keep watering. The sign is even factually correct. All water on earth has been recycled. Our Bill of Rights proscribes the government’s depriving life, liberty, and property without due process, and taking property without just compensation. While this watering ban may not be classed as a taking, there is ample case law to argue pro or con, it is certainly immoral, in that a property right an owner had before will be removed retroactively, if the Water Board thinks it is a good idea. Let’s assume for argument’s sake, watering of commercial lawns represents half of overall water consumption, the savings of all water in California would 4 to 5.5 percent, leaving more than 90 percent of water untouched. Obviously, the percentage is much, much smaller. Implementing a ban on lawn watering without addressing other major sources of water consumption (environmental and agricultural) seems arbitrary and ineffective, and frankly, mean spirited.
Summary: The United States were founded on the Enlightenment ideal of pluralism where people holding differing beliefs, creeds, ideologies, aesthetics, etc., would coexist peacefully. Telling people how to run their businesses down to how they might use a product they purchased legally is anti-pluralistic. I understand the temptation to believe that government power can be a substitute for the hard labor of cultural change. It isn’t. The change begins with discussion—on the front porch, around the kitchen table, and in the mirror. The law is not a magic wand. There are no magic wands. There is only the hard work of suasion. Instead of imposing a sweeping ban on lawn watering, I urge you to consider alternative strategies that can achieve meaningful water conservation while respecting the needs and rights of individuals. For instance, promoting education campaigns to raise awareness about water-efficient irrigation methods, encouraging the use of drought-resistant plants, and providing incentives for homeowners to install water-saving technologies are all viable options.
In conclusion, I respectfully request you to reconsider the proposed emergency regulation banning the watering of commercial and industrial lawns. The current water conditions, coupled with the relatively minor impact on overall water usage, make such a ban counterproductive. Let us focus our efforts on comprehensive, long-term solutions that address all sectors of water consumption while promoting responsible water stewardship.Thank you for your attention to this matter. I trust that you will take my concerns into consideration, and I remain available for any further discussion or clarification.
Jeanine Townsend Clerk to the Board State Water Resources Control Board PO Box 100 Sacramento, CA 95812-0100
Re: Comment Letter – Hexavalent Chromium Workshop
Dear Ms. Townsend:
As a contract water treatment operator for Crescent Bay Improvement Company, I submit the following brief comments and response to the White Paper On Economic Feasibility Analysis In Consideration of a Hexavalent Chromium MCL (“the White Paper”), released for public comment by the State Water Resources Control Board in February 2020 and presented in public workshops in April 2022.
Executive Summary
The State Water Resources Control Board’s White Paper Discussion On: Economic Feasibility Analysis of a Hexavalent Chromium MCL does not do what the title claims. It is deficient in its analysis of economic feasibility and dismissive of costs to the consumers, who are purportedly to be the beneficiaries of a new and more stringent Maximum Contaminant Level (MCL) for chromium-6 (i.e., hexavalent chromium or CRVI). The White Paper takes a bold stand by using, in essence, the opposite of a progressive tax system. In a progressive system, the richest pay more in taxes than the poor. The White Paper’s approach is to have the poorest pay the most. The White Paper uses a weighted average to whitewash the costs. What level of Dante’s hell is it where a few people will have crushing weights put on them and the majority will be burdened with feathers?
Also missing is any attempt to quantify any benefit of the new MCL, other than to say the Water Board will be able to tout their new MCL is closer to the Office of Environmental Health Hazard Assessment’s Public Health Goal as required in statute. Previous White Papers produced by the Division of Drinking Water have noted the number of cancer cases they expect to avoid at different MCLs. The 2020 White Paper provides no enumerated benefits at all, much less at the different possible MCLs.
To be fair, the authors of the White Paper were handed a fool’s errand. They were to justify the cost of something with an infinitesimal or zero benefit. Consider this: one drop of cola is more than 250 times above the safe level for caffeine. This safe level is known as the Reference Dose (RfD). Interestingly, caffeine and chromium-6 have nearly identical RfDs, and thus nearly identical toxicities. A daily drop of cola or coffee on the tongue does not scare me. Thus, whatever cost for implementation the White Paper’s authors could conjure would vastly exceed the benefit, which is virtually zero.
And the White Paper ignores or elides the fact that 12.9 million Californians (36.1%) live in poverty and people of color are twice as likely as whites to be in poverty.[1] These low-income communities are often serviced by cash-strapped small public water systems. Furthermore, as noted by the Central Valley Clean Water Alliance (CVCWA), these people face what “Hernandez (2016) describes the ‘heat or eat’ dilemma wherein low-income households are forced to choose between food and energy, oftentimes trading one for the other.”
While my particular water system probably won’t have to address this issue at these levels, I speak on behalf of the two-thirds of water systems in our state serving fewer than 200 connections. The Water Board has noted that 95% of our population is served by large water companies, but two thirds of all water companies that would bear these costs are classified as small.
For an agency that claims to care about minorities and the poor, making a basic need more expensive seems an odd approach, especially considering the diminishing benefits and exponential costs of incrementally lower maximum contaminant levels. The Water Board will continue the beatings until the populace feels better.
Background
Everyone now knows hexavalent chromium as the chemical made famous in 2000 by the movie “Erin Brockovich.” The result, following the movie’s premier, could be described as a moral panic. A moral panic is where media reporting creates a folk devil, and so the public demands the authorities do something about it. This is useful for the state. American journalist, essayist, satirist, and cultural critic H.L. Mencken put it plainly in his In Defense Of Women, “The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by an endless series of hobgoblins, most of them imaginary.”
The Erin Brockovich movie, which so many believe to be a documentary, rather than movie fiction “based on a true story,” blamed Pacific Gas & Electric for putting a highly dangerous chemical in their groundwater. It is even in the Water Board’s timeline of events relating to chromium-6.
On July 1, 2014, a maximum contaminant level (MCL or drinking water standard) of 10 ppb (parts per billion) for hexavalent chromium (CrVI) was approved by the Office of Administrative Law. This MCL was 1/10th of the federal MCL for total chromium (100 parts per billion) that was established under the federal Safe Drinking Water Act and 1/5th of the current California MCL for total chromium (50 parts per billion). This new MCL was issued by the California Department of Public Health (CDPH) right before its Division of Drinking Water transferred jurisdiction to the State Water Resources Control Board (State Water Board).
On May 31, 2017, the Superior Court of Sacramento County issued a judgment invalidating the MCL on the basis that CDPH had not properly considered the economic feasibility. “Because the Court remands this case to the Department for further consideration of economic feasibility, it need not decide whether the MCL is economically feasible, although, as will become apparent below, it has concerns about the MCL’s economic feasibility for small water systems and their users…. The Department essentially equates its economic feasibility analysis with its cost-benefit analysis.”
For the purposes of determining economic feasibility, the State Water Board must consider the cost of compliance to: • Public water systems • Customers • Other affected parties
Discussion
Background
Chromium-6 is a natural substance and can be found in rocks, plants, soil, and volcanic dust.[2] This means it can be found naturally in water. This also means that all animals, including humans, have been interacting with and consuming chromium-6 at various levels for millennia. Since we evolved surrounded by millions of compounds, we have incorporated them into our bodies as we evolved. For example, did you know you have 20,000,000 plutonium atoms in your bone marrow? Every animal that has ever lived does and did as well. We interact with our environment; it interacts with us.
Despite incorporating compounds from our environment into our bodies and their function, every compound, no matter how dangerous, has a level at which it is safe, and can even be beneficial. Every compound, no matter how benign, has a level at which it is dangerous. At higher levels, chromium-6 is known to be toxic in two ways. First, by contact. Long duration direct exposure to skin can produce an irritating allergic reaction. And second, by inhalation,[3] which is why the workers at PG&E wore respirators to protect against chromium-6 fumes. A paper claiming it caused stomach cancers in China was retracted.
Chromium-6 is comparable in toxicity to caffeine. A toxicologically safe dose is called a Reference Dose (RfD). Chromium-6 and caffeine have nearly identical RfDs. The RfD for caffeine is 0.0025 milligrams per kilogram of body weight per day.[4] That is about 3-4 drops of a Coca-Cola for a 70-kilogram adult.[5] According to one research paper about toxicity published in the Journal of the American Association of Pharmaceutical Scientists, “[Caffeine’s] final RfD would be 0.0025 mg/kg-day[6], a very small dose in the same range as RfDs for known toxicants such as hexavalent chromium and potassium cyanide. For a 10-kg child, this dose is the quantity of caffeine in 1/50th of a milliliter[7] (mL) of cola (based on the content of Coca-Cola, 35 mg per 12 fl oz).”[8](Parentheses in original)
And while the Board may well point out that chromium-6 has no use in the body, this is not exactly true, since chromium-6 is ingested and changed to chromium-3 by the body’s functions. Chromium-3 is an essential mineral that the body needs. It is involved in the breakdown and absorption of carbohydrates, proteins, and fats, and enhances the action of the hormone insulin. And according to a report by the National Research Council, “In its hexavalent state (as chromic oxide, chromate, or dichromate), chromium is a strong oxidizing agent and readily reacts with organic matter in acidic solution, leading to reduction to the trivalent form” aka chromium-3.[9]
Yet, Erin Brockovich proved there were clusters of cancers in Hinkley due to the drinking water, right? No.
According to Dr. Alex Berezow a PhD microbiologist and science writer, Brockovich used the “Texas Sharpshooter Fallacy[10].” “By sheer chance alone, patients with particular diseases — even rare ones — can occasionally be found in close proximity to one another.” In fact, an epidemiological survey conducted by the state found no extra cases of cancer in Hinkley than what normally would be expected. He goes on to say, “Ms. Brockovich’s case did not make biomedical sense, because she not only blamed hexavalent chromium for causing cancer but a myriad of unrelated conditions[11].” In other words, her linkage of chromium-6 to all those diseases was as sound as the ailments listed by people who believe in “chem-trails” or are afraid of genetically modified corn.
Interestingly, the Division of Drinking Water abandoned their typical cost-benefit analysis for the chromium-6 White Paper. “The chrome 6 MCL [maximum contaminant level], adopted by the California Department of Public Health (CDPH) in April 2014, stands out as a significant departure from [CDPH] past practice and from the legislative intent of the 1996 CSDWA [California Safe Drinking Water Act] amendments,” the Southern California Water Coalition noted. “Cost estimates were developed for seven alternative MCLs. However, the incremental public health benefits were not compared to the incremental costs of compliance at each alternative MCL. It also does not appear that a balancing exercise was undertaken to ensure that the small incremental benefits that would be achieved justified the incremental costs and the increased burden on public water systems and their customers.”[12]
In other words, the California Department of Public Health, for whatever internal reasons, did not do a cost-benefit analysis to show that the benefit to the people of California outweighed the additional burden of cost.
Science
The White Paper states, “The level at which the State Water Board sets an MCL is a policy decision. It is not an arbitrary or capricious decision but based on applying available scientific evidence to rulemaking requirements of applicable statutes.”[13] This is the paper’s only nod to science. We are being asked to believe that science has gone into the review. Yet as physicist Richard Feynman said, “Religion is a culture of faith; science is a culture of doubt.”
“’Science’ is not a set of facts but a process or method that sets out a way for us to discover information,” said John R. Christy, Professor of Atmospheric Science, University of Alabama in Huntsville in Congressional testimony,[14] “and which attempts to determine the level of confidence we might have in that information.” Anyone can participate in science. That’s the point. Science is a decentralized self–regulating process for legitimizing belief. It usually consists of observations, hypotheses, experimentation, and open-ended public adjudication. In science, nothing is ever settled, except that as more people see evidence and are persuaded by its proponents, a consensus may form and be generally agreed upon.
Toxicology, epidemiology, economics, statistics, risk-assessment, and other scientific disciplines go into providing safe and affordable drinking water to our neighbors. These can be difficult topics to relay in clear language, yet that is what the California Legislature requires the Water Board to do. The Water Board needs to show its work as to the data, the manipulation of the data, the interpretation of the data, and how that affected the formation of a regulation.
The British Royal Society’s motto, Nullius in verba, is Latin for “Take nobody’s word for it.” “Because we said so” is not the intent of the California Legislature; they want the Water Board to be transparent in how they determined this was necessary. The California Legislature through the Administrative Procedure Act mandates the Water Board explain what is being promulgated, the reasons the Water Board believes it will make our world safer, and why it is worth the cost.
Costs
All regulations come with a cost. They are a form of governmental taking, and at the very least, a taking of time. At the very worst, a taking of time and money. In this case, any decrease in the MCLs for chromium-6 will cost money and time. Paperwork, testing, labs, all take time and money, even before factoring in changes treatment processes. In a 2008 report, the Small Business Administration calculated the annual cost of federal regulations in the United States at $1.75 trillion. “Had every U.S. household paid an equal share of the federal regulatory burden, each would have owed $15,586 in 2008.”[15] State, regional, and local regulations then pile on more costs per household. Additional regulation hits small water companies harder since there are fewer people to shoulder the cost.
Weighting the costs, as done in the White Paper, is economic sleight of hand to hide the devastating effect on almost two-thirds of California Water Companies (those serving fewer than 200 connections). Since the Water Board had to resort to hiding the true cost, why pursue this at all?
A table in the White Paper provides estimated Annual Cost per Service Connection (dollars per year) for a range of possible MCL values. Compliance with the proposed chromium-6 MCL (10 parts per billion) will result in a $5,630-per-connection annual cost for users of small systems (less than 200 service connections), $857 for systems with 200 to 999 service connections, $326 for systems with 1,000 to 10,000 connections, and $64 for systems greater than 10,000 connections – based on information derived from the 2014 California Department of Public Health Initial Statement of Reasons.
MCL (mg/L)
Less than 200 Services
200 to 999 Services
1,000 to 10,000 Services
10,000 or more Services
Weighted Average ANNUAL Cost per Connection for all impacted systems
After seeing numbers such as those in their table, one wonders why the Water Board did not simply stop, declare that people would need to purchase bottled water for drinking, and use tap water supplied by public water systems for other domestic uses. They also should wonder why the costs drop to $857 per connection for 10 parts per billion, and costs at 25 and 30 parts per billion are not applicable for public water systems with between 200 and 999 service connections. Please show your work to explain why there is no applicable cost for these categories.
Trade-Offs
I do not know if the members of the Water Board must consider, as I do, the cost of something when considering a purchase. I consider the costs and benefits of a good or a service before I buy. When the cost of something goes up, I buy less of it. Yet, as noted before, the Water Board’s White Paper has tried to hide the cost. As Bjorn Lomborg said when evaluating public health goals, “[I]gnoring costs doesn’t make difficult choices disappear; it makes them less clear.” The White Paper has made options less clear, seemingly by design. California’s public water systems have finite wallets. Some are deeper than others.
The government of California must make some hard choices. They must decide which targets offer the greatest returns on the money and time taken from the taxpayers, who they are supposed to serve. As for the Water Board, where is the balancing act suggested by the California Safe Drinking Water Act and the Human Right to Water Act to both protect public health through maximum contaminant levels and acknowledging the competing demands for limited economic resources? This new contemplated maximum contaminant level is exactly what SB 1307 aimed to prevent. It ignores any checks and balances to prevent unsustainable outcomes. SB 1307 further repealed the requirement that large water systems attempt to reach the Public Health Goal levels. There seems to be no consideration to the disproportionately expensive maximum contaminant level compared to any public health benefit.
One hard choice, since money and time are the most limited of resources, is what is more important to California residents: replacing aging water infrastructure or ratcheting down a maximum contaminant level to possibly prevent health issues that have not been established by the science? Forcing water companies to divert funds from replacing aging infrastructure will have a cost that is more immediate in the form of system failures.
Additionally, there will be unexpected consequences. Increasing water bills will probably have knock-on effects in reduced sanitation, increased risk of infectious diseases when people try to minimize their water use because it has become so expensive.
hy has the chromium-6 White Paper differed so radically from past practice and from the intent of the California Safe Drinking Water Act? Why are there no public health benefits presented to compare to the incremental costs at the differing proposed MCLs as SB 617 requires and past practice with setting other MCLs? What happened to cause this abandonment of using the incremental cost-benefit approach in the White Paper? What is the cost of no change to California’s chromium-6 maximum contaminant level? At the standard $4,000,000 per life, how many dollars (lives) will saved under the proposed chromium-6 maximum contaminant level? Since cancer cases averted has been used in the past, what dollar amount does the Water Board assign to the average cancer case, and why isn’t it assigned here?
Conclusion
I and my customers want more than moral panic and unmoored speculation from the Water Board and its staff. Science is the pursuit of knowledge and understanding of the natural and social world using a systematic, evidence-based methodology. While the numbers and abbreviations can cloud the issue, it seems that the Water Board is mandating a standard based on voodoo toxicology, economics, and other disciplines. The ingestion of less than a drop of something similar in toxicity to cola each day sounds extremely unlikely to be risky.
Science requires observation and measurement of predictions. ‘I believe in science’ is a statement of belief. Belief is the realm of religion; science inhabits that which can be observed and measured. Show us the science behind your reasoning for making this change, show us the benefits expected, and the true, unweighted, costs incurred for each proposed for each level of water company.
Lastly, if the Water Board adopts what I see as an ill-advised step and adopts this lower maximum contaminant level, then the Water Board must develop public health metrics (e.g., fewer cancer cases) to show that the benefit was worth the cost. California has had a maximum contaminant level that is half of the Federal EPA total chromium standard for many years, and yet the White Paper makes no effort to show that this has resulted in any benefit at all. Why should we all line up behind a proposal to lower the maximum contaminant level still further, in the absence of any data at all supporting the first reduction from 100 parts per billion to 50 parts per billion?
[8] Sorell, Tamara L. 2016. “Approaches to the Development of Human Health Toxicity Values for Active Pharmaceutical Ingredients in the Environment.” The AAPS Journal 18 (1): 92–101. https://doi.org/10.1208/s12248-015-9818-5 [9] National Research Council. “Committee on Biologic Effects of Atmospheric Pollutants. Chromium.” National Academy of Sciences, Washington, DC (1974).
[10] The sharpshooter fallacy is a form of confirmation bias where certain patterns or data are accepted but others are ignored. The name comes from a joke about a Texan who shoots at the side of a barn, then paints a around the tightest cluster of hits and claims to be a sharpshooter.
[13] State Water Resources Control Board, White Paper Discussion On: ECONOMIC FEASIBILITY ANALYSIS In Consideration of a HEXAVALENT CHROMIUM MCL February 2020
[14] J.R. Christy 29 March 2017 testimony U.S. House Committee on Science, Space & Technology
[15] Nicole V. Crain and W. Mark Crain, The Impact of Regulatory Costs on Small Firms. September 2010
[16] Why does it cost more per service connection for 0.015 mg/L than the most stringent standard of 0.001 mg/L?
“Our relations to the earth are more than economic; they are moral. We are custodians of the bountiful land, its waters, its plant and animal life, its hidden riches, and perhaps most important of all, its soils….” – Walter Clay Lowdermilk (1888-1974)
Nullius in Verba 