The Washington Monthly

July/August 2002

Clearing the Air Why I quit Bush's EPA.

By Eric Schaeffer

Just after the 2000 election, while the nation's attention was focused on the Florida recount, my colleagues at the Environmental Protection Agency and Justice Department celebrated a dramatic victory of their own. Two of the country's largest utilities had just agreed to cut pollution from their old, coal-fired power plants by two-thirds, or more than half a million tons a year. As director of the EPA's Office of Regulatory Enforcement since 1997, I helped to bring lawsuits against some of the nation's largest electric utilities. The government charged these companies with violating the Clean Air Act by expanding their coal-fired electric plants without controlling emissions such as nitrogen oxide and sulfur dioxide--noxious gases that cause smog, asthma, lung cancer, and premature death. The post-election settlement with Cinergy and Dominion was a landmark, pressuring other companies to follow suit and clean up their act as well.

Unfortunately, Washington's energy lobbyists understood this dynamic all too clearly. And when President Bush assumed office, they wasted little time blocking this new momentum toward cleaner air by persuading the administration that the problem wasn't the polluters, but our anti-pollution laws. It wasn't a hard sell. The Bush administration quickly set about weakening the Clean Air Act, stoking public fears of energy shortages and blackouts as a rationale for leniency (even though 2001 was a record year for power plant expansion). White House staff and the Energy Department, working closely with lobbyists for the same companies we had sued, directed EPA to expand loopholes that allow 40- or 50-year-old power plants to continue pumping out 12 million tons of sulfur dioxide a year, without implementing modern pollution controls. What's more, in March, EPA Administrator Christine Whitman shocked everyone by publicly suggesting that companies hold off on settlements pending the outcome of litigation. Not surprisingly, Cinergy and Dominion backed out of their agreements and refused to sign consent decrees. (Recently, the administration rolled out a series of "reforms" making it so easy for these big plants to avoid pollution controls that they might as well have been written by defendants' lawyers.) A year and a half later, nothing has improved, and the opportunity for cleaner air that once seemed so close has been lost--the other companies, once on the path to settlement, have drifted away from the negotiating table.

In a matter of weeks, the Bush administration was able to undo the environmental progress we had worked years to secure. Millions of tons of unnecessary pollution continue to pour from these power plants each year as a result. Adding insult to injury, the White House sought to slash the EPA's enforcement budget, making it harder for us to pursue cases we'd already launched against other polluters that had run afoul of the law, from auto manufacturers to refineries, large industrial hog feedlots, and paper companies. It became clear that Bush had little regard for the environment--and even less for enforcing the laws that protect it. So last spring, after 12 years at the agency, I resigned, stating my reasons in a very public letter to Administrator Whitman.

Enforcing environmental laws has never been easy. Even in the Clinton administration there were bureaucratic turf battles, truculent congressmen, and relentless industry lobbyists to contend with. But hard work yielded progress; the job was sometimes a headache, but I never doubted that we were having a positive effect. Under Bush, the balance has shifted, to a degree few outside the bureaucracy may realize.

The administration's most obvious assaults on the environment have drawn fire. The press and environmental groups attacked recent EPA rule changes that allow coal-mining companies to dump waste in valleys and streams, and when the EPA last year overturned Clinton-era regulations to reduce arsenic in drinking water, the public reaction was so intensely negative that Whitman eventually backed off. But these public efforts to roll back regulations are only half the story. Behind the scenes, in complicated ways that attract less media attention (and therefore may be politically safer), the administration and its allies in Congress are crippling the EPA's ability to enforce laws and regulations already on the books. As a result, some of the worst pollution continues unchecked.

Gorsuch to Gore

This is not the first time this has happened. More than 20 years ago, President Reagan appointed Ann Gorsuch to head the EPA with the understanding that she would weaken the newly created agency's ability to oversee industry. As part of that campaign, Gorsuch scattered the staff of the enforcement office among various other programs, virtually eliminating its ability to keep polluters in check. She and her deputies were so ham-handed in their efforts--which led to such embarrassments as the conviction of Rita Lavelle, the head of the hazardous waste program--that the White House bowed to public pressure and unceremoniously dumped her. A period of détente followed. Though resources were never adequate, the Reagan administration--no doubt chilled by the watchful eyes of Democratic committee chairmen--generally seemed to accept that political appointees should not bow to industry requests to call off investigations.

Nearly a decade ago, the Democrats took the White House and decided to consolidate the enforcement program into one office. Part of the goal, which matured over time, was to strengthen the EPA's ability to look for patterns of violations across entire economic sectors. The conventional wisdom held that most companies complied with environmental laws on their own, and only a few bad apples fell off the tree now and then. But that model did not square with some of our investigations, where we found that diesel engine manufacturers, power plants, refineries, large animal feeding operations, and others were rather systematically ignoring the law. This is not to say that corporations are inherently evil; they simply follow the economic path of least resistance and are likely to cut corners where government oversight is lacking.

The second change under Clinton, inspired by Vice President Gore and his staff, was a new campaign to "reinvent" government. Partly as a reaction to the Republican takeover of Congress, but also out of a genuine desire to find less bureaucratic ways of solving public problems, the EPA embarked on an ambitious endeavor to "reinvent" its regulatory and enforcement programs, trying to cut red tape and give industry more flexibility in how it chose to meet performance goals. We combined this with a strong enforcement program to keep polluters accountable for their behavior. This new approach frequently suffered from incoherent objectives, haphazard leadership, and a decentralized structure that made managing anything like herding cats. But as messy and inefficient as it sometimes was, this two-pronged approach led to some real creative tension. For example, we were able to move quickly to eliminate penalties for companies that voluntarily discovered, reported, and corrected all but the most serious violations, which allowed us to concentrate our resources on major investigations. We also reached a novel settlement with 27 oil refiners, making up about one-third of the industry, which freed them up to experiment with new, money-saving technologies while meeting strict emission limits. It was the best of both worlds. Not only did refineries save money, we also reduced their pollution level.

Despite these successes, enforcement officials could see a storm brewing as far back as the late 1990s. To suggest that entire industries were systematically violating the law--as EPA has done in the cases of auto manufacturers, power plants, and large animal feedlots--was a marked change from the seemingly random interventions that had previously made up EPA's docket. Not surprisingly, the business community was furious, and we knew that many of them were among the most zealous supporters of George W. Bush's presidential campaign. Even as we won the long-sought-after settlements with coal-fired utilities during the recount, I feared for the worst. And when President Bush assumed office, my fears were quickly realized.

Leaderless Sabotage

The Bush administration faced a dilemma: How do you mount a stealth attack on environmental protection without making the most obvious mistakes of the Reagan-Gorsuch era? The first step was to appoint as EPA administrator Christine Whitman, who provides a moderate face, but already had a reputation for gutting anti-pollution enforcement programs while she was governor of New Jersey. Another was to leave the enforcement program rudderless: 18 months into his term, Bush has not yet filled the top EPA enforcement job (his first nominee, Donald Schregardus, withdrew amid criticism of his record running Ohio's program). Leaving the job unfilled not only deprives the staff of leadership, but also robs the administration's critics of an actual person to blame for poor performance. Bush political appointees in the White House and EPA quickly took up the many other ways of thwarting enforcement without drawing attention. Here are a few of their tricks:

SHRINK THE POLICE FORCE. Environmental law, just like any other, is a dead letter if not enforced. The Bush administration's first step was weakening the government's ability to uncover violations of important requirements like tailpipe emission standards. Each year, about 25 million tons of smog-causing nitrogen oxide is released into the air, about half of it from cars, diesel trucks, and construction equipment. For several years, the diesel engines of large long-haul trucks have been required to meet emission standards with catalytic converters that clean exhaust gases. But manufacturers realized that they could beat the system by developing catalytic converters that would run properly during EPA tests, but whose pollution controls could be turned off on the highway. In November 1998, EPA settled with nine diesel engine manufacturers--practically the entire industry--forcing the companies to spend about $1 billion to phase out these illegal engines. It was a textbook example of how enforcement is supposed to work: The settlements will eliminate about 1.3 million tons of illegal emissions a year, or about 10 percent of the total nitrogen oxide pollution from mobile sources. But winning a settlement like that takes thousands of hours of staff time, and Bush's Office of Management and Budget knows it. Cutting the enforcement budget by 13 percent, as President Bush has proposed, would hobble the EPA's ability to uncover and stop such malfeasance.

DIVIDE AND RULE THE BUREAUCRACY. Because the Bush crowd doesn't like enforcement, they won't hesitate to take advantage of the institutional tension between program managers and EPA's enforcement staff. When industry (or its administration backers) feels persecuted, it complains to the program managers, who in turn give us an earful. Under Clinton, we were usually able to push back when we had to; if we declared something to be an enforcement matter, we'd often win the day. A good example of how the balance has shifted is the way the Bush administration stopped enforcing agricultural pollution regulations. American agriculture is big business, comparable in scale to the refineries and steel plants that typically occupy the EPA's enforcement program. Most of the pork, beef, and poultry that Americans consume comes from factory farms where huge numbers of animals are massed together, creating waste that is widely recognized as one of the greatest threats to water quality. A large corporate hog farm churns out as much nitrogen-rich waste as a city the size of St. Louis--but without any wastewater treatment. In addition to fouling creeks and contaminating groundwater, studies show that gaseous ammonia, hydrogen sulfide, and other pollutants create serious respiratory problems for people living nearby. Few of these companies bother to obtain the required permits. So during the Clinton administration, the enforcement staff began cracking down, insisting, for example, that big hog farms monitor air emissions at sites where we had complaints. Yet when Bush officials took over, my office was asked to stop enforcing air pollution laws against waste lagoons and barns at factory farms, in favor of "voluntary studies," promoted by program bureaucrats.

PACK THE COURTS. Like most conservatives, Bush understands the importance of packing the judiciary with right-wing jurists, as his predecessors did from 1981 to 1993 (see "Tipping the Scale," page 15). A look at just one case illustrates how a conservative court can shrink the laws meant to protect the environment. Not long ago, the EPA tried to stop developers from using a tricky technique that undermines the Clean Water Act, which prohibits the filling of wetlands. Unscrupulous developers had learned they could simply drain thousands of acres of this ecologically valuable habitat by using perforated, triangular-bladed plows that punch drainage ditches into swamps. Once the swamps have been drained, they're no longer a "water of the U.S." protected by federal law. When the D.C. Circuit Court of Appeals (which has become a platform for judicial conservatives) upheld this practice, it spurred a gold rush of development in sensitive coastal areas like the Great Dismal Swamp. Developers drained about 20,000 acres of wetlands in the short space of a few months before the EPA began arguing that the sediment-choked water rushing off these drainage sites and into nearby streams violated other provisions of the statute.

TURN LAWMAKERS INTO LOBBYISTS. Bush will be able to count on the help of congressional right-wingers who love law and order, except when it upsets their campaign contributors. In August 1994, under a Democratic Congress, I was hauled before the majority staff of the Energy and Commerce Committee and warned not to give in to industries lobbying for "privilege" laws that shield evidence from environmental prosecutors. We had no intention of doing so, since in its most extreme form these privilege laws would make it easier for a company to hide evidence of criminal violations like deliberately dumping toxic waste down a drain, just by claiming the problem had been fixed. Six months later, following the Republican takeover, the EPA was attacked by the new majority for successfully rejecting privilege laws (they ultimately held no less than five hearings on this subject). Overnight, the EPA became "jackbooted thugs," in Tom DeLay's famous construction. The oversight roles were reversed. Suddenly, Congress was attacking us for too much enforcement, not too little.

Individual congressmen have always gone to bat for local industries; but after the 1994 GOP takeover of Congress, it suddenly became acceptable for lawmakers to interfere aggressively in the enforcement process on behalf of constituent polluters, to a degree unheard of a decade ago. This trend has encouraged lawmakers to step in and act as defense lawyers on behalf of home state industries or political contributors. In my favorite example, last year we received identical form letters from more than 20 different members of Congress within a two-week period, parroting the sound bites that industry lobbyists used to persuade the Bush administration to stall enforcement actions against utility companies. These members, too lazy to even alter the wording of the letter they were handed by some lobbyist, had no clue what the government's position was. They had never requested a briefing.

Congressional oversight isn't always bad. Recently, at the behest of an oil company trying to slow down enforcement action, a senator forced us to catalogue all of the "information requests" we had issued to companies suspected of violating certain Clean Air Act requirements, which led us to create a better inventory of these data and forced us to think about focusing our requests. We had to face the fact that some of our information requests were sloppier than they should have been, and that we were taking too long to review the information asked for. But as with so many other trends, congressional interference has gotten markedly worse under Bush. Congressmen have become de facto lobbyists for home state polluters.

DUMP IT ON THE STATES. According to Bush doctrine, what little environmental enforcement is necessary should be left to states. In theory, states issue most permits for air and water pollution and waste management because they have been shown capable of running such programs as required by federal law. In practice, EPA's records are so incomplete that it has little clue how well most states perform. Some, like New York, driven by Attorney General Eliot Spitzer, have outstanding enforcement programs. But periodic reviews by the General Accounting Office and the Inspector General repeatedly expose systematic failures to issue permits, track compliance, find violations, and prosecute them effectively. In addition to lacking resources, many states, especially in the South and West, are hostile to the very idea that most environmental laws should be enforced. State officials see red when EPA steps in to take enforcement action (allowed by federal law) against one of "their" businesses. Some of this is jurisdictional--aren't the local cops on TV always complaining about the FBI? But the constant and petty turf battles with state political managers were one of my most dispiriting experiences. On several occasions, state agencies, informed of an EPA investigation, rushed to cut a sweetheart deal with the target company to obviate the federal case. Once, over drinks, a state enforcement manager confessed to me that his governor had instructed him to bash the federal EPA, no matter what it did. This has always been a problem, but Clinton officials were less likely to pretend that states could do everything.

This devolution to state enforcement also serves the administration's corporate sponsors, since states are consistently more cooperative and lenient than the federal EPA. It's no small irony that Administrator Whitman, when she was governor of New Jersey, eliminated the state environmental prosecutor and made deep cuts in New Jersey's enforcement budget.

THE INNOVATION FETISH. Under Clinton, the EPA reasoned that the best way to get polluters to comply with the law was to sue whole industries, not just individual companies. Under Bush, that reasoning has cleverly been reversed. If entire industries are not complying with environmental laws, goes the Bush philosophy, then there must be something wrong with the laws.

This philosophy exploits another EPA tic: The tendency to spend more time writing new regulations and guidance than enforcing existing laws, a pattern already causing problems for the enforcement staff under Clinton. The EPA is divided between program staff, who devise the regulations, and enforcement staff, who implement them. Program officers don't simply write the rules and move on; they are under constant pressure to revise the regulations. In theory, this is a fine thing. Regulations, like anything else in life, can be improved. The problem, however, is that the process by which the "new and improved" regulations are approved is dysfunctional. It dragging on forever because of the agency's obsession with "consensus." Any new proposal must wind its way through a labyrinth of political appointees and "stakeholders" (the euphemism for lobbyists). At the end of this maze sits the famously political Office of Management and Budget and the White House, both eager to second-guess any decision. When I first came to enforcement in the spring of 1997, EPA was deep in the process of rewriting the rules that prohibit sewer overflow and discharges from farm factories. Five years later, it is still struggling just to propose these same rules for comment.

To survive this obstacle course, EPA program managers have become acutely sensitive to anything that will upset the apple cart. Such a system discourages tough environmental enforcement. My staff and I routinely fielded calls from program managers or their senior staff, irate that some enforcement action threatened to derail a pending rule that would make existing prohibitions on pollution more "flexible."

And all this is worsening under Bush. While the president talks ceaselessly about innovation, partnerships, and voluntary programs in public, privately his administration questions the costs and challenges the benefits of any worthwhile environmental rule. The White House will not hesitate to step in and tell EPA how to write a rule, especially when it benefits the energy industry. As happened under Ronald Reagan 20 years ago, the process of environmental enforcement has once again been intensely politicized. Today, major proposals setting standards for polluters are often little more than a collage of industry positions--and with the dearth of independent data or information, there's no way to show that the agency is working in the public interest.

A Teachable Moment

There are a few hopeful signs that this bleak picture may brighten in the coming months. The collapse of Enron, corporate manipulation of energy prices, and the growing realization that the nation's energy policy has been hijacked by industry lobbyists have combined to fan public mistrust of the idea that corporations will act in the public interest without government oversight. The administration's own tone-deafness to the frequent conflict between the public good and private interests--reminiscent of the early Reagan years--have made this a "teachable moment" for those who believe that big companies need oversight.

Some public interest groups, recognizing that little in the way of new rules is going to be cleared by this White House, are instead focusing on how well current laws are working. State officials, disgruntled over having been cut out of Clean Air Act negotiations between the Bush administration and the energy industry, have begun to express doubts about abandoning federal enforcement, particularly against big multinational firms. And following the Democratic takeover of the Senate, Congress reversed the administration's proposed budget cuts for environmental enforcement. Even Whitman, though still struggling to admit there might be more than one or two bad actors out there, has begun bragging about last year's enforcement record (which was actually built on cases generated under her predecessor, Carol Browner, in the Clinton administration).

It would be a mistake to take any of this as a sign that the Bush administration has had a change of heart. As demonstrated by its aborted effort to overturn the Clinton-era standard for arsenic in drinking water, the White House won't support a federal environmental enforcement program unless failing to do so will carry political costs. But as that example showed, pressure from Democrats and voters can force positive changes. As it did last year, this July the Bush administration will once again attempt to cut resources for inspections and enforcement. But this year, they at least feel compelled to try to hide it. In fact, the administration is using the danger of terrorist attacks as an excuse to cut enforcement staff. After September 11, Congress provided special funding to the EPA for counterterrorism. But instead of spending this money, administration officials paid for the counterterrorism hires by cutting 30 enforcement positions. In other words, the transfer of 30 jobs from enforcement functions to non-enforcement functions was unnecessary--Congress had already provided enough funding for both.

-- Cherri (whatever@who.cares), July 07, 2002

Answers

(cont)

More than ever, media scrutiny and congressional oversight are critical. Before the Republican takeover of Congress and the Contract with America--that is, before the EPA was viewed as the home of jack-booted thugs--pressure from Congress worked both ways. We were as likely to be chastised for providing too little enforcement as we were for providing too much. That not only made us work harder, it reassured us that we had at least some political support for protecting the environment. Since the Democrats took over the Senate last year, we have had two hearings asking whether certain environmental laws are being enforced strictly enough--a welcome change from the last eight years.

-- Cherri (whatever@who.cares), July 07, 2002.