A look at EPA's Lack of Clean Air Enforcement from the Inside
Eric V. Schaeffer Testimony to Congress
Christine Whitman, Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Dear Ms. Whitman:
I resign today from the Environmental Protection Agency after
twelve years of service, the last five as Director of the Office
of Regulatory Enforcement. I am grateful for the opportunities I
have been given, and leave with a deep admiration for the men and
women of EPA who dedicate their lives to protecting the environment
and the public health. Their faith in the Agency's mission is
an inspiring example to those who still believe that government
should stand for the public interest.
But I cannot leave without sharing my frustration about the fate of
our enforcement actions against power companies that have violated
the Clean Air Act. Between November of 1999 and December of 2000,
EPA filed lawsuits against 9 power companies for expanding their
plants, without obtaining New Source Review permits and the up to
date pollution controls required by law. The companies named in
our lawsuits emit an incredible 5.0 million tons of sulfur dioxide
every year (a quarter of the emissions in the entire country)
as well as 2 million tons of nitrogen oxide.
As the scale of pollution from these coal-fired smokestacks is
immense, so is the damage to public health. Data supplied to the
Senate Environment Committee by EPA last year estimate the annual
health bill from 7 million tons of SO2 and NO2: more than 10,800
premature deaths; at least 5,400 incidents of chronic bronchitis;
more than 5,100 hospital emergency visits; and over 1.5 million
lost work days. Add to that severe damage to our natural resources,
as acid rain attacks soils and plants, and deposits nitrogen in
the Chesapeake Bay and other critical bodies of water.
Fifteen months ago, it looked as though our lawsuits were
going to shrink these dismal statistics, when EPA publicly
announced agreements with Cinergy and Vepco to reduce Sox
and Nox emissions by a combined 750,000 tons per
year. Settlements already lodged with two other companies - TECO
and PSE&G - will eventually take another quarter million tons
of Nox and Sox out of the air annually. If
we get similar results from the 9 companies with filed complaints,
we are on track to reduce both pollutants by a combined 4.8 million
tons per year. And that does not count the hundreds of thousands
of additional tons that can be obtained from other companies with
whom we have been negotiating.
Yet today, we seem about to snatch defeat from the jaws of
victory. We are in the 9th month of a "90 day review" to
reexamine the law, and fighting a White House that seems determined
to weaken the rules we are trying to enforce. It is hard to know
which is worse, the endless delay or the repeated leaks by energy
industry lobbyists of draft rule changes that would undermine
lawsuits already filed. At their heart, these proposals would
turn narrow exemptions into larger loopholes that would allow old
"grandfathered" plants to be continually rebuilt (and
emissions to increase) without modern pollution controls.
Our negotiating position is weakened further by the Administration's
budget proposal to cut the civil enforcement program by more than
200 staff positions below the 2001 level. Already, we are unable
to fill key staff positions, not only in air enforcement, but in
other critical programs, and the proposed budget cuts would leave us
desperately short of the resources needed to deal with the large,
sophisticated corporate defendants we face. And it is completely
unrealistic to expect underfunded state environmental programs,
facing their own budget cuts, to take up the slack.
It is no longer possible to pretend that the ongoing debate with the
White House and Department of Energy is not effecting our ability
to negotiate settlements. Cinergy and Vepco have refused to sign
the consent decrees they agreed to 15 months ago, hedging their
bets while waiting for the Administration's Clean Air Act reform
proposals. Other companies with whom we were close to settlement
have walked away from the table. The momentum we obtained with
agreements announced earlier has stopped, and we have filed no
new lawsuits against utility companies since this Administration
took office. We obviously cannot settle cases with defendants who
think we are still rewriting the law.
The arguments against sustaining our enforcement actions don't
hold up to scrutiny.
Were the complaints filed by the U.S. government based on
conflicting or changing interpretations? The Justice Department
doesn't think so. Its review of our enforcement actions found
EPA's interpretation of the law to be reasonable and consistent.
While the Justice Department has gamely insisted it will continue
to prosecute existing cases, the confusion over where EPA is going
with New Source Review has made settlement almost impossible,
and protracted litigation inevitable.
What about the energy crisis? It stubbornly refuses to materialize,
as experts predict a glut of power plants in some areas of the
U.S. In any case, our settlements are flexible enough to provide for
cleaner air while protecting consumers from rate shock.
The relative costs and benefits? EPA's regulatory impact analyses,
reviewed by OMB, quantify health and environmental benefits of
$7,300 per ton of SO2 reduced at a cost of less than
$1,000 per ton. These cases should be supported by anyone who
thinks cost-benefit analysis is a serious tool for decision-making,
not a political game.
Is the law too complicated to understand? Most of the projects our
cases targeted involved big expansion projects that pushed emission
increases many times over the limits allowed by law.
Should we try to fix the problem by passing a new law? Assuming the
Administration's bill survives a legislative odyssey in today's
evenly divided Congress, it will send us right back where we
started with new rules to write, which will then be delayed by
industry challenges, and with fewer emissions reductions than we
can get by enforcing today's law.
I believe you share the concerns I have expressed, and wish you
well in your efforts to persuade the Administration to put our
enforcement actions back on course. Teddy Roosevelt, a Republican
and our greatest environmental President, said, "Compliance
with the law is demanded as a right, not asked as a favor."
By showing that powerful utility interests are not exempt from
that principle, you will prove to EPA's staff that their faith
in the Agency's mission is not in vain. And you will leave the
American public with an environmental victory that will be felt
for generations to come.
Sincerely,
Eric V. Schaeffer,
Director Office of Regulatory Enforcement