Abusing the Law
By Catherine Crier
Imagine the many ways to undermine thirty years of environmental protections. The Bush administration is implementing all of them in its relentless march to dismantle these protections. Laws are not being enforced. Civil suits are down by 75% since President Clinton’s second term prosecutions. Penalties have plummeted to a fifteen year low. Even worse, these laws are being gutted surreptitiously with little or no opportunity for public comment.

Often a single word change can alter the entire meaning of an environmental regulation. When coal-mining debris in West Virginia became "fill" instead of "waste," everything but literal garbage became acceptable material to dump into the nation’s waterways. Alternatively, just change the classifications. Power plants are responsible for 40% of the county’s mercury pollution, yet their mercury emissions are no longer listed as hazardous. This gives the industry an extra fifteen years in which to install pollution controls, although the EPA reports that over 15% of U.S. women of childbearing age now have
unacceptable levels of mercury in their bodies. That increases harmful exposure to 600,000 babies born every year.

Manipulating science has become a trademark of the administration. Last summer more than 4,000 scientists, including 48 Nobel Prize winners, signed a statement chastising the White House’s misuse and politicization of scientific recommendations. Politically beholden to the administration, many government scientists issue "appropriate findings" that support the President’s policies. This tactic has ratcheted up acceptable levels of arsenic in our drinking water and delayed our response to the very serious problem of global warming.

If that method is unsuccessful, then a gag order can be effective. EPA scientists found a component of rocket and missile fuel called percholate present in drinking water in twenty states. This substance causes thyroid dysfunction and possibly cancer. They were silenced and any federal regulation of the chemical has been postponed indefinitely. Just as efficient is a simple instruction to cease enforcement of certain provisions on the books. The popular Wetlands Reserve program has been stymied by the administration’s instruction not to implement the Clean Water Act provisions regarding so-called "isolated waters." This may exclude up to twenty million acres of wetlands from federal protection, thus permitting abuse by industries such as mining and agribusiness.

Delay is an excellent method by which to avoid protection or compliance. The herbicide atrazine, banned this January by the EU, has been repeatedly shown to create hermaphroditic frogs at 1/30 the level permitted in U.S. drinking water, but no action has been taken because the government doesn’t yet have an official “hormone disruption” test. In December, the EPA extended longstanding deadlines on harmful emission reductions for many oil refineries with no notice to interested parties.

If progress is still made despite these roadblocks, then just reduce or cease funding an agency’s enforcement efforts altogether. Ronald Reagan was the first to cut EPA enforcement money to achieve this end, and the Bush administration has not forgotten those lessons. In addition, the Administration has cut the budgets for the National Institute of Health and the National Science Foundation to impede the research necessary to support arguments for improved regulation.

Scientific findings can become entirely irrelevant by simply allowing the affected industries to write their own legislation. In September, no less than twelve paragraphs from coal-fired power plant attorneys were inserted directly in the administration’s mercury regulation proposals by Jeffrey Holmstead, a Bush-era EPA official who worked with those very lawyers before joining the government. He now oversees air pollution. Consider the case of David Laurisky, a former mining executive. He has revived his failed 1997 proposal to allow certain mines to increase acceptable levels of coal-dust, the substance responsible for black lung disease. As the Bush-appointed head of the Mine Safety and Health Administration, he will likely succeed this time.

If that fails, just rename your proposals. This will usually pacify the uninformed, which often includes members of the media. The Clear Skies Initiative provided the moniker for one such effort. Despite the attractive title, this bill failed in Congress, so the agency simply circumvented the legislators by going the regulatory route to ease restrictions on polluters. When the administration decided to manipulate mercury regulations, it did so under the guise of "Utility Mercury Reductions."

Then there is the "state’s rights" argument. Send these problems back to state and local governments so citizens have more control over what happens in their own back yards. This is part of the administration’s executive order to decentralize environmental management–but to what effect? Last month, in a move that derails significant portions of the National Forest and Endangered Species Acts, the administration delegated national forest planning to regional and local managers who will no longer need to consider the threat to park wildlife prior to implementing development plans. The policies are monitored by "independent" auditors and through voluntary environmental impact reviews…or not at all. They get to decide. If you think corporate pressure is effective on the national level, just imagine how powerful it is in a single community or district.

However, decentralization is a selective practice. The White House Task Force on Energy Project Streamlining stepped in when state and Forest Service officials forbade El Paso Corporation, a Texan oil company, from exploring part of New Mexico’s Carson National Forest. The federal government is there when the companies need it.

Finally, there is the “can’t we all get along" tactic which consists of asking violators to play nice and regulate themselves. A recent example occurred when the White House let the factory farm industry, responsible for 500 million pounds of waste annually, manage disposal with no regular supervision by state or federal authorities. This will literally leave a bad taste in your mouth.

Public awareness and citizen activism is crucial as the White House makes increasingly brazen attempts to castrate our environmental laws. California residents have challenged the sweetheart deal the government made with Chevron Texaco that will absolve the company of years’ worth of environmental and public health liabilities once they estimate rather than prove that they have complied with state clean up ordered years ago. Thanks to continued efforts by The Wilderness Society, the Bureau of Land Management must release all documents related to its 2003 decision to discontinue wilderness protection for public lands.

The Bush administration has consistently made a mockery of the transparency and accountability necessary for a healthy democracy. It ignores laws, delays implementation or simply changes inherent meanings at will. The powerful industries affected by such regulations buy their way into the editorial process. When laws are promulgated with wonderful titles like the Clear Skies Initiative, few citizens decipher the fine print to reach the actual truth–that the headline is often cover for permission to abuse rather than protect the subject of the legislation. While my comments deal with environmental problems, be clear that these practices are utilized in agencies throughout the government. It is time to retake our role as active, informed participants in our government to protect our health and environmental well-being. On a grander scale, we must shoulder this task if the very democracy we imagine is to remain a
reality.

Catherine Crier is a former judge, Court TV host, and author of "The Case Against Lawyers."
www.criercommunications.com