Whitman in the Balance

The Bush presidency has already been a nauseating roller coaster ride for environmentalists. "There was tremendous disappointment once it became clear that George W. Bush would be president," says a senior attorney at the Environmental Protection Agency (EPA). "That was followed by a real sense of hope when Christie Todd Whitman came in [as EPA director]. Then shock and disbelief when Bush reversed on carbon dioxide. Then hope again when it came out that Whitman had urged him not to."

Many of these confusing ups and downs have been a result of conflicting agendas between Whitman and the White House--which has led to a series of humiliating gaffes, including the president's decision to rescind drinking-water arsenic standards, his reversal of a campaign pledge to clamp down on carbon dioxide emissions, and his abrupt declaration that the Kyoto Protocol on global warming was "dead." Each of these moves undercut Whitman, the former New Jersey governor whom many believe took the EPA position to restore her image as a national political figure. Yet even as she's suffered public embarrassment, Whitman has managed to impress career staffers at the EPA, earning their respect and sympathy. If Whitman can somehow resist pressure from the White House to roll back environmental protections further, she'll be able to build on that respect. But given her demonstrated loyalty to Bush, a more likely scenario is that she'll wind up undoing much of what the EPA has achieved over the last eight years. In that case, sympathy for Whitman among the environmentally minded will be short-lived.

The transition at the EPA has been every bit as smooth and well orchestrated as the rest of Bush's administration. Nominating Whitman, a moderate with a respectable environmental record, did much to reassure nervous agency staff. And Whitman has gone out of her way to win over staff. On her first day, each employee received a voice-mail greeting from Whitman. She held an agency-wide meeting in which she laid out specific goals like carbon dioxide regulation, global-climate-change initiatives, and cleanup of Superfund sites. Later, she went floor-to-floor meeting with senior personnel in each department, a move that allayed mistrust and quickly earned her admiration. "She's very intelligent, easy to get along with, and brings to the table her own considerable skills," says a former EPA attorney. "When you deal with her, you come away impressed."

But coupled with recognition of her talent is a fear that Whitman lacks the political courage to use it. After each of Bush's environmental blunders, Whitman quickly assumed responsibility, to the consternation of those beneath her. "She's fiercely loyal to the president," complains one EPA lawyer. "That's the big concern." Another puts it more bluntly: "The impression among career staff is that there is such a short chain on Whitman that it might not matter what she thinks. The feeling is that she's here to rehabilitate her political career and will play to the Bush line. There's not a lot of confidence in her ability to push an agenda."

Before Bush released his energy plan on May 17, the mood at the EPA had become cautiously optimistic. After the administration's unpopular moves on carbon dioxide and arsenic--and after Vice President Dick Cheney's sneering dismissal of conservation--Bush's approval numbers declined. The president responded by changing tack. Even as he talked up an energy "crisis," Bush was moving to appease environmentalists by upholding diesel-fuel standards and rehabilitating Whitman's battered image. Perhaps, EPA staffers thought hopefully, things weren't so bad. Then Bush released his energy plan.

Bush's plan calls for rapid increases in the supply of oil, natural gas, and nuclear power--a production- and extractionbased policy that promises greater environmental damage. "The Bush administration has put forth a proposal that is fundamentally not good for the environment," says David Gardiner, former EPA assistant administrator for policy under Clinton. More production means more pollution. The most worrisome part of Bush's plan is that it demonizes environmental regulation as the primary obstacle to energy-policy reform--which means that the president intends for Whitman's EPA to play an integral role in the weakening of environmental regulations and enforcement.

Bush's regulatory rollback centers on a part of the Clean Air Act called "new source review," a provision mandating that all power plants and refineries that fail to meet emission-control standards be brought up to code when they modify or expand operations. Until the energy plan was released, Bush's Justice Department had continued to prosecute new-source-review cases, even settling four of them on terms unfavorable to corporations. In fact, on May 11, just six days before the plan came out, Attorney General John Ashcroft announced that the Justice Department had settled the last of these four suits, against Marathon Ashland Petroleum. "This is a victory for the environment," Ashcroft said. "Enforcing environmental law is a top priority for the Justice Department, and I look forward to protecting our natural resources and helping ensure that companies are in compliance with the law." And as recently as February, Ashcroft had filed a brief in federal court reaffirming the legal basis for the cases. But EPA insiders say that as a result of a relentless campaign by gas and oil companies--which, according to the Center for Responsive Politics, contributed $25.5 million to Republican campaigns in 2000--the White House was on the verge of dropping these enforcement lawsuits entirely before Whitman won a temporary reprieve. "She was successful in watering down what otherwise would have been a strong negative statement against the enforcement cases, potentially killing them," says an attorney in the air-quality department.

Instead, the energy plan contains an awkward compromise: The EPA will launch a "study" of new-source-review permitting, delaying any new action, while the Justice Department has been ordered to "review" its own lawsuits against industry for consistency with the law. "Everyone in Washington knows this is a thinly veiled effort to eventually abandon the cases and weaken the regulations," says an EPA attorney. "It's stunning," says a top Clinton enforcement official of the stipulation that the Justice Department must vet pending lawsuits against companies that have run afoul of clean-air laws. "That sort of political intervention is not only uncalled for but unheard of." John Walke, a senior attorney at the Natural Resources Defense Council (NRDC), is even blunter: "This is pure and simple political interference with the enforcement of the law."

Though he's stumbled politically in dealing with carbon dioxide and arsenic, Bush seems aware of the danger of being painted as an environmental extremist. So while his administration has quietly begun to hobble the federal government's ability to enforce environmental laws, it has been careful to find creative ways to make it appear as though it isn't. One method is by quietly underfunding the agency, thereby limiting its effectiveness. The 2002 EPA budget request is $7.3 billion, nearly $500 million less than the previous year's allocation, and far below the 4 percent increase Bush himself set as a reasonable benchmark for discretionary spending growth.

The administration has tried to fend off criticism by earmarking an additional $25 million in spending for enforcement of state laws. But even this is a backhanded way to weaken environmental protection. Though the $25 million is supposed to strengthen state enforcement, Bush is using it to justify slashing 269 federal enforcement positions. In her budget presentation to the Senate Environment and Public Works Committee, Whitman characterized the move as a simple transfer of power from federal to state officials; but it's more than that. "The impact will be to weaken federal enforcement," says a top Clinton enforcement official. "What that does is disperse the resources and make them less effective."

Furthermore, state enforcement is often weaker than federal enforcement. "At the state level, these industries are large employers and have huge political clout," says a senior enforcement attorney, echoing the comments of others. "States don't bite the hand that feeds." Under previous administrations, federal officials could be counted on to serve as a backstop for the states, to assist with complicated problems, and to handle cases that span multiple states. Under Bush's plan, that's much less likely to happen. And because states vary widely in their effectiveness, federal officials will also have a harder time ensuring consistent enforcement. This bodes ill for residents of southern and midwestern states, which have the weakest enforcement. "If everyone did the job of environmental enforcement we've seen in Texas, we'd all be in big trouble," says one federal enforcement official.

Moreover, in a move that received little attention, regional EPA offices recently reassigned 60 enforcement agents away from front-line duties. "We're already seeing a major shift out of line-enforcement activities in the regional offices," says a senior federal enforcement lawyer.

Though Bush has tried to balance rollback efforts with symbolic concessions to environmentalists, for the most part these concessions aren't new initiatives, just promises not to revoke old ones. For example, the promise to uphold Clinton air standards on soot and smog--a pledge timed to offset negative reaction to Bush's energy plan--was not exactly a bold concession, given that the Supreme Court had already voted unanimously to uphold them. If Bush had eliminated the Clinton air standards, it would have been tantamount to declaring himself somewhere to the right of Antonin Scalia on this issue, enraging environmentalists and likely driving his approval ratings down sharply. "It would have been costlier than his reversal on carbon dioxide," says John Walke of the NRDC.

Meanwhile, on important matters like carbon dioxide emissions, the president has given every indication that he'll bow to industry. "It wasn't just that Bush decided not to aggressively pursue this," says an EPA lawyer of Bush's very public reversal of his promise to crack down on carbon dioxide emissions. "The manner in which he did so spoke volumes about how much he was paying off the interests lined up against it--the coal industry, the utilities, and the conservative element that wanted to see Whitman hacked at the knees for talking about this."

If Whitman is to find allies, they'll likely come from outside the administration. Oddly enough, one possibility is industry itself. While one segment of business has bankrolled Bush's repeal effort, others favor a compromise with environmentalists that establishes federal regulations on a number of pollutants, including carbon dioxide. Reasons for this willingness to compromise vary. Some companies have already invested in pollution control and want competitors to face the same costs. Others, especially companies in the Northeast that face stricter state standards, view federal regulation of competitors as an equalizing measure. Still others believe that sooner or later they'll have to meet regulations for multiple pollutants and prefer to limit costs by addressing them all at once.

In the end, Whitman's effectiveness as EPA director will be measured by how the administration handles a number of upcoming decisions: what to do about "new source review," reauthorizing Superfund, setting water pollution standards, and regulating three major pollutants--sulfur dioxide, nitrogen oxide, and mercury. How the agency budget is allocated--whether money goes to enforcement or to voluntarycompliance programs--will be another telling indicator.

"The real issue is going to be, will the administration listen to her," says David Gardiner, Clinton's EPA policy chief. "The debate has been between Whitman and Cheney--the Green Side versus the Dark Side. She's losing policy fights not because she's wrong, but because Bush has chosen to steer in another direction." Whitman may indeed be a skilled administrator with a balanced environmental agenda. But if Bush won't adopt it, that hardly matters.