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Asleep on the Beat
Who would have thought that the Clinton administration would fail to enforce our environmental laws
By Robert Worth
When Newt Gingrich and his fellow Republicans forced a temporary government shutdown in late 1995, Environmental Protection Agency Administrator Carol Browner scored points for the president by warning that "the environmental cop is not on the beat." Her warning worked. The image of government standing idly by while corporate polluters fouled the air and water was an effective scare tactic, and it was credited with helping to ward off deeper cuts in environmental spending.
Yet Browner's image was a little disingenuous, even at the time. As House Commerce Committee Chairman Tom Bliley observed less than a year later, the environmental cops appeared to have been "at the donut shop all along." In a press release, Bliley noted that "inspections of toxic waste sites are down, administrative actions against polluters are down, civil penalties are down, and so are criminal penalties."
Since then the environmental cops have strayed even farther from their beat, but no one in Congress---or anywhere else, for that matter---seems to care. Promoting a new philosophy of "compliance assistance," state and federal regulators now focus more on educating polluters than inspecting them or punishing them when they break the law. The result has been a precipitous nationwide drop in enforcement activity. Over the past five years inspections, referrals for civil or criminal prosecution, and sanctions---including fines---have dropped in almost every state. In some cases the drop has been more than fifty percent, and hazardous waste inspections have declined more than any other category. Although many of the worst offenses have occurred at the state level, the EPA has been remarkably lax in its oversight role. "Browner has massively disinvested in enforcement," says one former high-level EPA official.
Environmental officials are quick to respond that measuring inspections and fines doesn't tell you whether the air or water is getting any cleaner. After all, if everyone were to comply with the law, enforcement activity would drop to zero (inspections aside).
Unfortunately, that is not what has been happening. It's true that we've made some enormous strides in protecting the environment over the past 30 years. Catalytic converters have made cars far cleaner than they used to be, and removing the lead from gasoline has made all of us breathe easier. Many nearly extinct species have recovered, and forests have returned to barren areas throughout the country.
But these gains could be reversed if we don't do a better job of enforcing the law. Ground-level ozone, which causes a range of respiratory ailments, remains a serious health risk in most American cities, and in some areas it's getting worse. Many of the industrial sources that create the bulk of ozone-forming polllution are in violation of the law. According to a recently-released study of EPA records by the Environmental Working Group, almost 40 percent of major U.S. auto assembly, iron and steel, petroleum refining, pulp manufacturing, and metal smelting and refining industries were "significant violators" of the Clean Air Act between January 1997 and December 1998. Only one third of them have been fined, and the fines were almost always too small to have any deterrent effect. According to the report, EPA oversight of state enforcement is "virtually nonexistent."
Or consider water. In early September over 1,000 people drank contaminated water at a county fair in upstate New York. Two died and 65 others were hospitalized. If you think this couldn't happen to you, think again. A recent federal audit found that nearly 90 percent of all violations of the Safe Drinking Water Act go unreported. Some of those violations are harmless data-entry errors, but they also include potentially lethal problems such as contamination with pesticides and fecal coliform bacteria.
Meanwhile, 40 percent of U.S. waters are unsafe for fishing and swimming. Why? EPA studies have found that 40 to 50 percent of major water pollution sources are in significant non-compliance with the Clean Water Act. The true figure could be far worse, because, according to a report written by current and former environmental officials and published by Public Employees for Environmental Responsibility, the EPA does a stunningly poor job of monitoring water quality. The report concludes that the states are "free to manipulate numbers in order to falsely portray continuing progress in water quality when, in fact, what fragmentary reliable information exists often suggests the exact opposite."
Or consider what has happened to the coal mining industry during the Clinton-Gore years. Strip mining operations frequently contaminate drinking water, destroy topsoil and forests, poison workers, and damage houses. That's why they're governed by one of the strictest environmental laws on the books. Lately, however, that law hasn't meant much. In West Virginia, the second-largest coal-producing state, federal and state regulators made 470 inspections of mines in 1993, and found 514 violations. In 1998 they made 92 inspections, and found 67 violations. "These coal companies didn't just get religion after 1993," says Carolyn Johnson of the Citizens Coal Council. "The Clinton administration made a conscious decision to back off enforcement of the federal mining law."
The problem is worst at the state level, where 90 percent of all environmental enforcement is carried out. When the states do discover violations, according to Nikki Tinsley, EPA's Inspector General, they often assess penalties that are too small to offset the economic gain a polluter has reaped by breaking the law. Moreover, enforcement approaches vary wildly from state to state. This variability defeats the whole purpose of federal environmental laws, which were passed three decades ago to supply a common standard, so that poor states would not compete for the business of polluting industries in a "race to the bottom." That race is on again, according to many observers, and the EPA has done precious little to stop it. "The states don't like to enforce the law, and frankly EPA doesn't like to enforce the law either," says one former high-level EPA official.
EPA officials respond that their own (federal) enforcement program is in good health, and there is some evidence for that: fines collected from polluters and civil referrals to the Justice Department have grown in recent years. Yet in its larger role as a watchdog for the states, the agency has been far from vigilant. In 1998 the EPA's Inspector General released a series of reports blasting several states for failing to police clean air and water laws. The stakes got higher a few months ago when a reporter for the trade journal Inside EPA began publishing internal EPA documents (acquired through Freedom of Information Act requests) that showed a drop-off in enforcement in almost every state. Amazingly, not a single mainstream newspaper or magazine reported on this.
When the reports were published in May, the states angrily disputed them. There were, in fact, some glaringly obvious arithmetical errors and a number of inaccurate statistics. But if the data are faulty, the states are partly to blame, because they submit them in the first place. "It's not clear that anyone oversees or checks them," says one veteran EPA observer. "The databases are all old, and they don't communicate with each other." The feds are at fault too, because they're supposed to be supervising this process. Instead, they often create more problems by failing to add and tally the data accurately. In some cases the EPA's pollution categories don't match up with those of the states. Sometimes even the EPA's own categories don't match up from year to year. This smog of confusion is self-perpetuating, and it makes it very hard to hold anyone accountable for failures to apply the law.
Still, the EPA will admit that enforcement activity has declined, as will some state officials---off the record. That's when you start hearing about how the traditional "bean counting" approach to enforcement is obsolete, and how we need to emphasize helping businesses to comply, not policing them. As Virginia's Secretary of Natural Resources told Congress in 1997, "[t]he truth is that enforcement action means failure, not success." Businesses understand the need for a clean environment and want to abide by the law. What they need is trust and encouragement, not the big stick.
Carrots, Not Sticks
This approach, known as "compliance assistance," first emerged at the EPA in 1993 when Administrator Carol Browner approved a massive reorganization of EPA's enforcement office, renaming it the Office of Enforcement and Compliance Assistance. Initially, compliance assistance was viewed as a supplement to traditional "deterrence-oriented" enforcement tactics like inspections and fines. Environmental laws can be dauntingly complex, and many businesses---especially small ones---lack the money and know-how to comply. Putting more effort into training made sense.
Yet compliance assistance took on a new coloration after the Republicans swept Congress in 1994. Suddenly EPA was under ferocious attack, with Tom DeLay labeling it "the Gestapo of government" and Newt Gingrich calling it the enemy of small businesses across the country. Although the Republicans' fury subsided in '96, Browner was clearly under pressure to help the administration forge a political compromise with Congress and with the states, where a legion of newly-elected Republican governors was complaining about the costs of regulation.
The substance of this compromise was a stronger emphasis on compliance assistance, at the expense of traditional enforcement. At EPA headquarters, for instance, the number of people doing enforcement work dropped from 340 in 1993 to 140 in 1997. The states, which embraced compliance assistance much more quickly and wholeheartedly, tended to make deeper cuts in enforcement budgets and staff, with predictable results.
Some environmental observers argue that Browner should have known better. "Compliance assistance has always been a code word for Œdon't enforce the law,'" says one former EPA official. While that may be an overstatement, there's little doubt that the promoters of compliance assistance have exaggerated the rigidity and harshness of traditional enforcement. "Generally, [violations] have to be repeated and serious before they're even considered," says Clifford Rechtschaffen, an enforcement expert and professor at Golden Gate Law School. One extensive study of the Clean Water Act found that "the intent of the enforcement process" as it has traditionally been practiced is "not to punish violators but rather to coax them toward compliance."
This is not to say that helping companies comply isn't a good idea. It is telling, however, that when asked for a "compliance assistance" success story, or some indication that the new method works, EPA officials I spoke with were stumped. Finally I was referred to a program that educates drycleaners on how to properly dispose of the toxic chemicals they use. The federal EPA office based in New York City sought out over 200 drycleaners and even printed up instructions for them in Korean, just to make sure they understood what was required of them. But when I called the New York office to find out how the effort was going, I was told "Unfortunately, we've found that there's still only a very small number of drycleaners in compliance, and we've had to move back toward an enforcement approach."
Part of the problem with compliance assistance is that its successes are hard to measure. A 1998 GAO study found that there is no clear indication of how such efforts are working. When federal and state agencies do try to measure them, they use relatively meaningless indicators such as the number of brochures distributed, or names on a conference sign-in list. Talk about bean-counting.
Whatever the original goals of compliance assistance, there's no question that its "flexible" and "business-friendly" aspects are what have made it catch on like a cult in statehouses across the country in the past five years. Some states have supplemented the new approach with cabinet-level offices to run interference for businesses, helping them to cut deals or avoid penalties. Former Virginia Gov. George Allen pioneered this movement, modeling his own effort on former Vice President Dan Quayle's Council on Competitiveness, which became notorious during the Bush administration for its efforts to gut environmental laws. New York Gov. George Pataki has followed suit with the Governor's Office of Regulatory Reform. Technically, the office existed before, but only as a three-person ombudsman for small businesses. Now staffed by about thirty, the office was developed by Pataki's current budget director Bob King, and "they are in the driver's seat when it comes to environmental regulation," says one source in the New York state government. "They've had a major chilling effect on enforcement."
There's also no doubt that when states use compliance assistance without holding businesses accountable through inspections and a credible threat of enforcement, they are virtually inviting polluters to ignore the law. "There's been a massive shift in the approach to enforcement," says one New York state official. "The [enforcement] numbers have gone down. When you confront [agency officials] they say compliance is up. But there's no way to check. What I've heard from business is that no one is watching. They couldn't be happier."
Taking It Easy
An avalanche of anecdotal information suggests that in this new era, officials who prosecute the law vigorously are often pressured to cool it. If they don't, they face retaliation. Consider Captain Ronald Gatto, a cop in New York City's Department of Environmental Protection. You might suppose that Mayor Rudolph Giuliani would be proud of Captain Gatto. After all, Gatto has a law enforcement record to match Mayor Rudy's. He has personally made 156 arrests for environmental crimes since 1990, with a 100 percent conviction rate. The DEP's police unit is tiny, and local environmentalists claim that Gatto is almost single-handedly responsible for protecting the network of reservoirs that supply the city's drinking water.
But instead of rewarding Gatto for his good work, Giuliani's administration has subjected him to a steady campaign of harassment, including denial of pay raises and promotions, and a series of probes of his conduct by the city's Department of Investigations, all of which came up with nothing. (In one instance the investigators broke into his office and stole his personal and police documents.) Gatto and his unit have been so starved of necessary equipment that he was forced to buy his own police telephone, fax machine, video camera and the dye tablets necessary for conducting wastewater investigations. In June he was reassigned away from enforcement activities and effectively demoted.
Giuliani's critics claim that his reluctance to police the watershed is a favor to upstate developers and politicians, who don't like to see environmental laws getting in the way of business, and whose support happens to be vital to Giuliani's upcoming Senate bid. Whatever the reasons, there's no doubt that the mayor is flirting with disaster. If its water supply deteriorates much further, the city will be forced under federal law to construct a filtration plant for $8 billion, at an annual operating cost of $300 million. By then, of course, Rudy will either be sitting in the Capitol or in his favorite lawn chair. Either way, he won't be mayor.
Stories like Gatto's may sound like something out of the movie "Chinatown" to the rest of us. But some regulators say they're run of the mill. Take Beverly Migliore, who had been running the Rhode Island Department of Environmental Management's hazardous waste program for eight years when the department was reorganized in the mid-1990s. "We were under lots of pressure to be more business-friendly," says Migliore. Suddenly, her new supervisor began finding fault with her decisions. "I'm not a strict, high-penalty close- 'em down kind of person," she says, but it soon became clear that her new supervisor "didn't believe in assessing penalties or even strongly worded statements." He began overriding her decisions, with the approval of the program director. In one case, a company called American Shipyard left drums full of solvents festering in a Newport shipyard for several years. Worried that the drums would erode and leak solvents into the bay, Migliore pressed her superiors to do something for two years. Finally she gave up and made a public statement. "Then I came back one afternoon and found my chief wheeling my computer out of my office into a closet." She is now suing the department under state whistle-blower laws.
A few months ago the EPA's Inspector General filed a report that backs up Migliore's claims, calling the state's enforcement "inadequate" because "serious violations, such as leaking battery acid and drums of hazardous waste, did not receive formal enforcement actions. Thus, the health and protection of the state's population and environment was put at risk."
A series of recent federal audits suggests that Migliore's experience is common in state enforcement bureaucracies.
---In Florida, an Escambia county grand jury issued a 120-page report in late June condemning the state Department of Environmental Protection and demanding that its regional director be replaced. Pointing to extensive pollution of the bays, rivers, bayous and beaches of the Florida Panhandle, the report concluded that "[t]he district [DEP] director, and others acting on his behalf, ignored and concealed environmental violations against the sound advice of staff employees. Š In several instances, he and or others acting in his behalf, disciplined or threatened to discipline DEP employees who tried to implement and enforce environmental laws."
---In Texas, where inspections and enforcement have dropped considerably in the past five years, regulators took an average of 651 days to complete enforcement actions for the ten significant violator cases reviewed by the EPA's Inspector General last year. This is six times longer than federal guidelines allow. Texas polluters often get off with no penalty at all. In the mid-1990s a French-owned uranium mining company injected radioactive water into the soil in Duval county. When the state environmental agency found out, the company offered to pay a large penalty. But the state, after initiating a criminal investigation, dropped it---and then failed to pursue any civil or administrative penalties.
---In Virginia, a scathing audit by the state's General Assembly in 1996 found that the state failed to take enforcement actions against persistent and serious violators. One investigator concluded that the state's regulators "work with industry [and] don't enforce the law."
---In Pennsylvania, EPA's Inspector General found in 1997 that state regulators routinely failed to report significant violators because they wanted to avoid "federal meddling." Understandably suspicious of the state's reports, auditors reviewed files for 270 of the state's 2,053 major polluters and found 64 significant violators the state had failed to report.
In most cases, the regulators aren't corrupt. They fail to enforce because their funding and staff have been cut, or in response to a demand for more "business-friendly" policies.
But sometimes it's an old-fashioned quid pro quo. In Connecticut, one of Gov. John Rowland's officials literally demanded cash from polluters in exchange for easy treatment by the DEC, according to a report written by a group of state employees and published by Public Employees for Environmental Responsibility. The employees describe this scandal, which is currently under federal investigation, as only one part of a campaign which has "systematically dismantled [the state's] enforcement program to the direct detriment of public health." One of the many examples they provide: A chemical manufacturer whose executives were also Rowland campaign contributors caused a toxic spill which killed 12,000 fish, but paid no fine, thanks to a back room deal with the governor's bag man.
State agencies aren't the only ones who cave in to polluters or their political flunkies. The EPA has ten regional offices spread throughout the country which oversee the states and have some enforcement responsibilities as well. One regional official told me her administrator "will reduce or eliminate our enforcement response after congressmen get in touch with him." This is a direct violation of EPA ethics rules---not to mention the public interest. But she claims that it happens in up to one quarter of the cases she oversees. The administrator has expressed interest in running for Congress and has no desire to alienate his future colleagues. "I had one case where we were told not to do a penalty," says the official. "They allowed congressional aides to show up at the settlement negotiations [on an enforcement case]. We were instructed to zero out the penalty." She adds that "most people are afraid to speak out because of reprisals."
Missing In Action
In theory, a regional EPA office can take its own enforcement action where the state has failed to do an adequate job. Yet "over-filing," as it's called, happens only a few times a year. The regions tend to use it only as a last resort, because it's likely to infuriate congressmen and state politicians. Furthermore, the courts have been known to frown on overfiling, viewing it as double jeopardy for the polluter in question (since they are subject to both state and regional actions). Eight years ago the regional EPA office in St. Louis discovered that a company called Harmon Electric, which manufactured electrical components for the railroad industry, had illegally dumped toxic solvents on its property over a period of several years. The solvents might easily have gotten into the groundwater, endangering the health of people living nearby. The state had done nothing, so the regional office investigated and sought a $2 million penalty against the company. Only then did the state file its own action, which did not include any penalty. In late 1994 an EPA administrative law judge set a penalty of $586,000. After several years of appeals, the Eighth Circuit Court of Appeals ruled in early September that the EPA had no right to overfile.
"This could have a massive chilling effect on enforcement," says one former EPA official who has followed the case. Supposing a company is caught dumping toxic waste on its property, threatening the health of thousands of people living nearby. The EPA might judge the company liable for millions of dollars in fines, based on the harm done and on similar cases. But suppose also that the state environmental commissioner owed a favor to the governor, who owed a favor to (or wanted to please) the company in question. The state could bring its own case, and demand a fine of only a few thousand dollars. If the Harmon precedent holds, the EPA could do nothing about it.
If a state is consistently refusing to apply the law, EPA does have the authority to revoke the state's authority to enforce federal laws such as the Clean Air and Water acts. But this is virtually an empty threat. It has never happened, and as one law review article puts it, "[t]he procedures for withdrawal of state programs would be suitable for the Nuremberg trials, and will be invoked only upon epochal occasions." Taking over a state program is enormously expensive, and as it is the EPA can barely afford to do its own meager share of enforcing environmental law.
Even the last resort in the face of failing government entities---citizen enforcement---has been weakened. Although citizen suits were envisioned as an important bulwark of enforcement in the major federal laws passed in the late '60s and early '70s, Congress barred them in 1987 in Clean Water Act cases where the state was "diligently prosecuting" the violation. Since then, the courts have tended to apply that standard to all environmental laws, and they have defined "diligent prosecution" to mean any kind of state action, including friendly negotiations.
Silent But Deadly
Why has the failure of enforcement received so little attention---not only from politicians and the press, but from the environmental community itself? For one thing, unlike signing an environmental bill into law, which makes a politician look like an instant hero, enforcing that law doesn't offer much payoff. By the time the number-crunchers have figured out whether he's been doing it or not, the average politician may be out of office. Besides, complying with environmental laws costs money and creates enemies. Major environmental groups are also dependent on grants and donations, and enforcement doesn't play well on the cocktail circuit.
The data smog that surrounds enforcement issues only makes matters worse. State and federal regulators routinely respond, when asked about declining enforcement rates, that the data can't be trusted. As if that were supposed to comfort us. An internal EPA report written earlier this year acknowledges that the agency's data on "significant non-compliers" with environmental law are so poor, thanks to mismatches between state and federal definitions and databases, that they are not reporting it for this year.
One thing that is clear, however, is that companies cannot be trusted to comply with environmental laws out of the goodness of their hearts. The data may not be perfect, but they do suggest that where enforcement is down, compliance with the law is down too. Politicians need to start recognizing that if they're going to "get tough" on crime, they had better get tough on environmental offenders as well.
Luckily, there's some evidence that tougher laws can make a difference. New Jersey's Clean Water Enforcement Act, passed in 1995, includes mandatory minimum penalties for serious violations and significant noncompliance, and requires that penalties recover the economic gain polluters have realized through noncompliance. In other words, the state has insisted (unlike most other states) on an enforcement program with teeth. So far, the warning appears to have worked: Clean Water Act violations have dropped 78 percent since 1992.
That should hardly be surprising. Street crime has dropped in the past five years, thanks to more vigorous policing of minor offenses. Maybe it's time we put the environmental cops back on the beat too.
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