February 28 -- These might seem like heady days for enviros, with the National ResourcesDefense Council celebrating its big win against the Department of Energy. But this victory shouldn't overshadow less promising news: Environmental Protection Agency senior official Eric Schaeffer resigned yesterday, citing frustrations with a pro-industry administration bent on weakening environmental laws and undermining EPA enforcement actions.
In a dispirited letter to EPA administrator Christie Todd Whitman, the 12-yearEPA veteran charges that his agency has been hobbled by delays, staff cuts, andWhite House-favored industry lobbyists. Schaeffer claims that in 2000, four yearsinto his stint as EPA's head of the office of Regulatory Enforcement, he hadhopes of using the now-imperiled Clean Air Act to shrink emissions and improvepublic health. "Yet today, we seem about to snatch defeat from the jaws ofvictory," he writes. Schaeffer calls on Whitman to persuade the administration ofTeddy Roosevelt's words, "Compliance with the law is demanded as a right, notasked as a favor."Schaeffer's letter is copied out in full below:
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 ofservice, the last five as Director of the Office of Regulatory Enforcement. I amgrateful for the opportunities I have been given, and leave with a deepadmiration for the men and women of EPA who dedicate their lives to protectingthe environment and the public health. Their faith in the Agency's mission is aninspiring example to those who still believe that government should stand for thepublic interest.
But I cannot leave without sharing my frustration about the fate of ourenforcement actions against power companies that have violated the Clean Air Act.Between November of 1999 and December of 2000, EPA filed lawsuits against 9 powercompanies for expanding their plants, without obtaining New Source Review permitsand the up to date pollution controls required by law. The companies named in ourlawsuits emit an incredible 5.0 million tons of sulfur dioxide every year (aquarter of the emissions in the entire country) as well as 2 million tons ofnitrogen oxide.
As the scale of pollution from these coal-fired smokestacks is immense, so isthe damage to public health. Data supplied to the Senate Environment Committee byEPA 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 chronicbronchitis; more than 5,100 hospital emergency visits; and over 1.5 million lostwork days. Add to that severe damage to our natural resources, as acid rainattacks soils and plants, and deposits nitrogen in the Chesapeake Bay and othercritical bodies of water.
Fifteen months ago, it looked as though our lawsuits were going to shrinkthese dismal statistics, when EPA publicly announced agreements with Cinergy andVepco 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 willeventually take another quarter million tons of Nox and Sox out of the airannually. 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 peryear. And that does not count the hundreds of thousands of additional tons thatcan 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 inthe 9th month of a "90 day review" to reexamine the law, and fighting a WhiteHouse that seems determined to weaken the rules we are trying to enforce. It ishard to know which is worse, the endless delay or the repeated leaks by energyindustry lobbyists of draft rule changes that would undermine lawsuits alreadyfiled. At their heart, these proposals would turn narrow exemptions into largerloopholes 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 budgetproposal to cut the civil enforcement program by more than 200 staff positionsbelow the 2001 level. Already, we are unable to fill key staff positions, notonly in air enforcement, but in other critical programs, and the proposed budgetcuts would leave us desperately short of the resources needed to deal with thelarge, sophisticated corporate defendants we face. And it is completelyunrealistic to expect underfunded state environmental programs, facing their ownbudget cuts, to take up the slack.
It is no longer possible to pretend that the ongoing debate with the WhiteHouse and Department of Energy is not effecting our ability to negotiatesettlements. Cinergy and Vepco have refused to sign the consent decrees theyagreed to 15 months ago, hedging their bets while waiting for theAdministration's Clean Air Act reform proposals. Other companies with whom wewere close to settlement have walked away from the table. The momentum weobtained with agreements announced earlier has stopped, and we have filed no newlawsuits against utility companies since this Administration took office. Weobviously cannot settle cases with defendants who think we are still rewritingthe law.
The arguments against sustaining our enforcement actions don't hold up toscrutiny.
Were the complaints filed by the U.S. government based on conflicting orchanging interpretations? The Justice Department doesn't think so. Its review ofour enforcement actions found EPA's interpretation of the law to be reasonableand consistent. While the Justice Department has gamely insisted it will continueto prosecute existing cases, the confusion over where EPA is going with NewSource Review has made settlement almost impossible, and protracted litigationinevitable.
What about the energy crisis? It stubbornly refuses to materialize, as expertspredict a glut of power plants in some areas of the U.S. In any case, oursettlements are flexible enough to provide for cleaner air while protectingconsumers from rate shock.
The relative costs and benefits? EPA's regulatory impact analyses, reviewed byOMB, quantify health and environmental benefits of $7,300 per ton of SO2 reducedat a cost of less than $1,000 per ton. These cases should be supported by anyonewho thinks cost-benefit analysis is a serious tool for decision-making, not apolitical game.
Is the law too complicated to understand? Most of the projects our casestargeted involved big expansion projects that pushed emission increases manytimes over the limits allowed by law.
Should we try to fix the problem by passing a new law? Assuming theAdministration's bill survives a legislative odyssey in today's evenly dividedCongress, 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 emissionsreductions than we can get by enforcing today's law.
I believe you share the concerns I have expressed, and wish you well in yourefforts to persuade the Administration to put our enforcement actions back oncourse. Teddy Roosevelt, a Republican and our greatest environmental President,said, "Compliance with the law is demanded as a right, not asked as a favor." Byshowing that powerful utility interests are not exempt from that principle, youwill prove to EPA's staff that their faith in the Agency's mission is not invain. And you will leave the American public with an environmental victory thatwill be felt for generations to come.
Sincerely,
Eric V. Schaeffer, Director
Office of Regulatory Enforcement
