SPECIAL INTEREST TAKEOVER

The Bush Administration and the Dismantling of Public Safeguards Produced by The Center for American Progress & OMB Watch for The Citizens for Sensible Safeguards Coalition

SPECIAL INTEREST TAKEOVER

The Bush Administration and the Dismantling of Public Safeguards Produced by The Center for American Progress & OMB Watch for The Citizens for Sensible Safeguards Coalition

Acknowledgments Reece Rushing, associate director for regulatory policy at the Center for American Progress, is primary author of Special Interest Takeover. Mr. Rushing worked for more than seven years at OMB Watch before joining the Center in March 2004. Melissa Brennan, formerly of OMB Watch, also contributed significant writing and research for this report. Gary D. Bass, executive director of OMB Watch, and Mark Agrast, senior vice president for domestic policy at the Center for American Progress, provided overall guidance. Shannon Ferguson and Robert Shull of OMB Watch stepped in to contribute in the final stages of the project.

In addition, a number of reviewers provided essential feedback, including Deborah Weinstock of the AFL-CIO; Thomas O. McGarity and Rena Steinzor of the Center for Progressive Regulation; Eric Schaeffer of the Environmental Integrity Project; Amy Mall of the Natural Resources Defense Council; and Winifred DePalma, Allison Zieve, Peter Lurie, and Leah Barron of Public Citizen. Other coalition partners also provided valuable assistance.

Sustain, a Chicago-based organization that provides multi-media assistance to nonprofits, designed the report. Brian Murray was the primary designer and Bridget Gavaghan provided leadership over the design phase.

None of this would have been possible without the support of several foundations, including the Bauman Foundation, Beldon Fund, Compton Foundation, and Homeland Foundation. We appreciate their support and continued commitment to educate the public about government decision-making.

About Citizens for Sensible Safeguards In 1995, more than 200 public interest organizations – representing everything from environmental and consumer concerns to workers and civil rights – came together to form the Citizens for Sensible Safeguards coalition, chaired by OMB Watch. Through the remainder of the 90s, this coalition successfully beat back a string of regulatory “reform” bills that sought to prevent new public and environmental safeguards. Since then, coalition members have actively worked to spotlight special- interest influence over the executive branch. This report represents a compilation of their efforts. For more information go to http://www.sensiblesafeguards.org.

The Center for American Progress is a nonpartisan research and educational institute dedicated to promoting a strong, just and free America that ensures opportunity for all. The Center works to find progressive and pragmatic solutions to significant domestic and international problems and develop policy proposals that foster a government that is “of the people, by the people, and for the people.”

OMB Watch is a nonprofit research and advocacy organization dedicated to promoting government accountability and citizen participation in public policy decisions. This mission centers on four main areas: the federal budget; regulatory policy; public access to government information; and policy participation by nonprofit organizations. OMB Watch was founded in 1983 to lift the veil of secrecy shrouding the powerful White House Office of Management and Budget (OMB). The organization has since expanded its focus to include the substantive areas that OMB oversees.

Center for American Progress OMB Watch 805 15th Street, NW 1742 Connecticut Ave., NW Suite 400 Washington, D.C. 20009 Washington, D.C. 20005 Phone: 202-234-8494 Phone: 202-682-1611 E-mail: [email protected] E-mail: [email protected] Web: http://www.ombwatch.org Web: http://www.americanprogress.org Table of Contents

A Record of Rollbacks pg11 -Backing Off Power Plants & -Exempting the Military Undoing Clean Air Standards 12 from Environmental Laws 35 -Bowing to Mining Interests 21 -Undoing Protections for Workers 37 -Drilling on Public Lands 25 -Stripping Patient Protections 42 -Clearing the Way for Logging 29 -Undoing Food Labeling Protections 44 -Rewarding Developers 33 -Relaxing Media Ownership Rules 45

White House Roadblock pg47 -Standards Weakened 48 -New Blockades 53

The TollToll of Neglect pg59 -Security 60 -Food Safety 68 -Clean Air 63 -Auto Safety 69 -Clean Water 64 -Health Care 69 -Worker Health and Safety 65 -Consumer Product Safety 70

Cop Off the Beat pg71 -Lessons form the SEC 72 -Neglecting Food Safety 80 -Backing Off Polluters 73 -Backing Off Drug Companies 85 -Jeopardizing Worker Health and Safety 78

Sworn to Secrecy pg87 -Turning FOIA on its Head 88 -Stonewalling Congress 89 -Cracking Down on Whistleblowers 93 -Hiding Information in the Name of 9/11 95

Politics Over Science pg100 -Suppressing Scientifi c Information 101 -Stacking Scientifi c Advisory Committees 108

Irresponsible Contracting pg115 -Turning Away from -Muzzling and Intimidating Grantees 120 Contractor Responsibility 116 -Privatizing the Federal Workforce 121 -Federal Funding for -Secret Contracts for Iraq 124 Religious Organizations 117

Whose Government Is This? pg130

Endnotes pg133 Introduction Special interests have launched a sweeping assault on protections for public health, safety, the environment, and corporate responsibility – and unfortunately the Bush administration has given way. Crucial safeguards have been swept aside or watered down; emerging problems are being ignored; and enforcement efforts have been curtailed, threatening to render existing standards meaningless. This agenda puts special interests above the public interest, sacrificing a safer, healthier, more just America at the behest of industry lobbyists, corporate campaign contributors, and professional ideologues – many of whom the president has appointed to “regulate” the very interests they used to represent. Over the last 30 years, we have made significant progress through strong public safeguards. Our air and water are cleaner, our food, workplaces, and roads are safer, and corporations and the government are more open and accountable to the public. These protections have saved thousands upon thousands of lives and improved the quality of life for all Americans – without hobbling industry or the economy. Nonetheless, significant problems remain. Every year, more than 40,000 people die on our nation’s highways. Foodborne illnesses kill an estimated 7,000 and sicken 76 million. Nearly 6,000 workers die as a result of injury on the job, with an additional 50,000 to 60,000 killed by occupational disease. And asthma – linked to air pollution – is rising dramatically, afflicting 17 million, including six million children. We should address these problems, and others, by building on past successes. Instead, as detailed in this report, the Bush administration has reversed course. Specifically, the administration has:

• Weakened or repealed a host of important safeguards. Within months of taking office, the Bush administration moved to kill or weaken a host of Clinton-era health, safety, and environmental protections – including restrictions on hard rock mining, new energy efficiency standards, and ergonomics rules to protect workers, just to name a few. Over the last three years, this procession has not let up. From giveaways to the timber industry to the slashing of overtime pay to the repeal of food labeling requirements, the Bush administration has consistently put narrow corporate interests over the broader public good.

• Asserted White House powers to block agency efforts to protect the public and environment. The administration has sometimes been forced to act because of statutory or judicial requirements. In these cases, John Graham, administrator of the Office of Information and Regulatory Affairs (OIRA), an obscure but powerful office inside the White House Office of Management and Budget, has stepped in and provided a roadblock. In one highly dubious case that drew a stinging rebuke from a federal appeals court, Graham forced the National Highway Traffic Safety Administration to adopt a less protective standard – favored by automobile manufacturers – for warning drivers of under-inflated tires, which are linked to thousands of injuries and more than 100 deaths a year. OIRA has also substantially weakened a host of new EPA standards, including proposals to limit construction runoff (the largest source of pollution in U.S. coastal waters), cut diesel emissions from large ships and tankers, and protect the trillions of fish that are sucked up and killed each year by power plants, which use rivers, estuaries, and oceans to cool their systems. At the same time, Graham has pushed a host of policy changes that make it more difficult for agencies to promulgate new health, safety and environmental standards. This includes new emphasis on monetizing the benefits of prospective regulation, frequently an impossible task; guidelines that allow industry to challenge the information that supports regulation; and a plan that would allow OIRA to demand industry- dominated “peer review,” which could be used to grind regulatory agencies to a halt.

• Failed to address regulatory gaps. The administration has refused to update and strengthen existing standards, address regulatory gaps, or take on new emerging problems. For example, of the three “significant” standards completed by EPA over the administration’s first three years, two were required by court order and the other rolled back restrictions on power-plant emissions. By contrast, EPA completed 30 economically significant standards over the first three years of the Clinton administration and 21 over the first three years of the Bush I administration. In addition, a number of important new standards were still in development at the end of the Clinton administration. This included, for instance, standards to clamp down on air pollution in national parks, prevent workplace Tuberculosis, and limit head and neck injuries in automobile crashes – all of which have since been scuttled. In fact, the Bush EPA has completely abandoned 62 Clinton-era rulemakings, while OSHA has dropped work on 21 and the Food and Drug Administration 57.

• Relaxed corporate oversight. For standards that remain on the books, the administration is scaling back enforcement efforts – ignoring lessons from the recent wave of corporate accounting scandals, which were aided by an absentee SEC. For instance, the administration has cut EPA enforcement personnel by 12 percent; the average penalty for willful OSHA violations has fallen by 25 percent; FDA actions against misleading drug promotions have plummeted by almost 80 percent; and tests for mad cow disease were conducted at fewer than 100 of 700 cattle slaughterhouses between 2001 and 2003. With no cop on the beat, corporate abuses are bound to increase.

• Moved to restrict access to health and safety information. In the most high profile example, the administration refused to provide documents related to Vice President Cheney’s energy task force, which among other things, resulted in proposals to boost supplies of oil and coal rather than alternative energy sources. Unfortunately, this is just the tip of the iceberg. The administration’s commitment to secrecy runs wide and deep. In October 2001, Attorney General John Ashcroft issued guidance to federal agencies on implementing the Freedom of Information Act, which is frequently used by outside parties to obtain health and safety information. The memo, in essence, encouraged agencies to withhold information whenever possible – a fundamental reversal of past policy, which stressed disclosure where possible. This same principle has also been applied in dealings with Congress. For example, EPA withheld analysis showing that the administration’s plan to reduce power plant emissions – the “Clear Skies Initiative” – is far less effective than alternative bipartisan legislation. Meanwhile, the administration has punished federal employees who have stepped in to blow the whistle. In one case, the Federal Aviation Administration transferred Bogdan Dzakovic, who formerly led mock raids on airports, to bureaucratic Siberia after he publicly faulted the agency for suppressing warnings and rigging security tests. The administration has also moved to broadly restrict access to health and safety information – including data on chemical facilities – in the aftermath of the terrorist attacks of Sept. 11, 2001, without taking into account the benefits of disclosure. In the past, the public has used such information to hold corporate interests and government accountable to achieve significant safety improvements. By restricting access, the administration is inviting complacency and a false sense of security, without addressing the actual danger. Indeed, public disclosure can actually make us safer – by providing necessary incentives for change – while honoring our democratic values.

• Put politics over science. From clean air and water to worker safety to a healthy food supply, science is at odds with the Bush agenda. The administration has responded by suppressing and censoring government reports, misrepresenting scientific information, and stacking scientific advisory committees with its corporate and ideological allies. For instance, the administration blocked EPA from reporting scientific findings that linked global warming to human activity; doctored information to support increased drilling; and placed industry affiliates on an advisory committee on childhood lead poisoning.

• Awarded federal contracts and grants in secret, without accountability, and for apparently political purposes. The administration’s approach to federal contracting and grantmaking provides one of the best examples of its willingness to put special interests over the public interest. Of course, there’s the secret, no-bid contract awarded to Halliburton, the former employer of Vice President Cheney, for work in Iraq. However, the administration has undermined accountability for contracting in numerous other ways as well. Upon taking office, the administration immediately moved to repeal Clinton-era contractor responsibility standards, which sought to ensure that the government does not contract with chronic lawbreakers, including violators of protections for public health, safety, the environment, and civil rights. At the same time, the administration pressed forward with plans designed to steer money to its political and corporate allies. This includes new rules for privatizing the federal workforce, which threaten to create a modern-day spoils system, and administrative actions to award social- service grants to religious congregations – which are not subject to the same civil rights and financial disclosure requirements as other federal grantees. Meanwhile, grantees that disagree with the administration’s policies have faced continuous harassment, including retaliatory audits.

Needless to say, this special interest takeover puts the public at significant risk. More power-plant pollution – permitted by an administration rollback – means more birth defects and premature death. The administration’s refusal to act on reactive chemicals in the workplace – ignoring the advice of its own chemical safety board – means more workers killed and injured. The dramatic decline in enforcement actions against improper drug advertising makes it more likely that consumers will be misled about a drug’s effectiveness and cheated out of their money. The administration’s decision to withhold tire-safety information at the behest of the auto industry prevents consumers from making informed purchases to protect themselves and their loved ones. Downplaying the risk of Salmonella and Listeria, without scientific evidence, fosters a false sense of security over the nation’s food supply. And the administration’s privatization plan allows political appointees to award taxpayer dollars based on a subjective “best value” standard rather than cost, paving the way for corruption and waste. Unfortunately, these are just a few examples. The following pages detail a government of special interests, by special interests, and for special interests. The people are no longer in control. A Record of Rollbacks

The Clinton administration fi nished with a fl urryurry,, completingcompleting aa hosthost ofof signifisignifi cant cant health, safety,safety, and environmental standards in its fi nalnal months.months. ThisThis includedincluded newnew energyenergy effi ciencyciency standards,standards, restrictionsrestrictions onon logginglogging andand hardhard rockrock mining,mining, ergonomics rules to protect workers, and safeguards for medical privacy, among others. Industry lobbyists misleadingly denounced this last-minute output as “midnight regulation.” Undoubtedly, the Clinton administration was hurrying to wrap up work before the president’s term expired. Yet as required by law, all of these actions were subjected to extensive analysis, as well as public notice and comment, and took years to complete. For example, the ergonomics rulemaking actually began during the fi rst Bush administration under then-Labor Secretary Elizabeth Dole, and was fi nalized only after numerous studies demonstrated the seriousness of the problem. Nonetheless, corporate interests found a receptive ear in the new Bush administration. On President Bush’s fi rst day in offi ce, White House Chief of Staff Andrew Card issued a memorandum that forbade federal agencies from publishing new standards and ordered a 60-day stay of just-completed standards. Although likely illegal,1 this allowed the administration to repeal or weaken Clinton actions before they could take effect.2 At the same time, Vice President Cheney convened an industry- dominated energy task force, which, among other things, compelled the administration to nix action on global warming, gut restrictions on power-plant pollution, and open public lands to mining and drilling. This service to large-scale campaign contributors has extended to other areas as well, leading to a procession of rollbacks over the last three and a half years. From giveaways to the timber industry to the slashing of overtime pay to the repeal of food labeling requirements, the Bush administration has consistently put narrow corporate interests over the broader public interest. A Record of Rollbacks

Backing Off Power Plants & the Kyoto Protocol, agreed to by the Clinton Undoing Clean Air Standards administration in December of 1999. Immediately after taking office, President Under Kyoto, more than 160 countries Bush established a task force led by Vice committed to take steps to cut worldwide President Cheney to develop a national energy greenhouse gas emissions below 1990 plan. This task force – formally called the levels by 2012, with the United States and National Energy Policy Development Group – 38 other industrialized countries promising was composed of high-ranking administration a reduction of 7 percent below 1990 officials, including Energy Secretary Spencer levels. In reneging on the treaty, the Bush Abraham, and regularly met in secret with administration rested its case on a number of executives and lobbyists from the oil, gas, dubious claims:3 coal, and nuclear energy industries. According to documents turned over to the Natural • First, it wrongly claimed that the Senate Resources Defense Council as a result of unanimously rejected Kyoto in a test litigation, corporate representatives contacted vote. In fact, the vote in question was or met with the task force more than 700 times on a resolution that expressed broad, from January to September 2001. uncontroversial views over ongoing treaty This backdoor channel paid off generously negotiations, drawing the support of for the energy industry, which contributed avowed Kyoto supporters. more than $48.3 million (75 percent of its total contributions) to Republican candidates and • Second, it argued that Kyoto would impose party committees in 1999-2000, including $2.9 an unbearable financial burden on the U.S. million directly to the Bush-Cheney campaign. economy. In fact, a detailed 2000 study by The administration quickly backtracked the Department of Energy estimated costs on global warming, moved to undo clean at less than 1 percent of gross domestic air standards for the oldest, dirtiest power product – echoing a 1998 study by the plants, and then proposed its Orwellian “Clear White House Council of Economic Advisers Skies Initiative” on power-plant pollution, – and found that new energy efficiency which turned out to be just another rollback measures could actually increase economic in disguise. When Congress balked at this performance over the long run. The Bush industry-backed plan, the administration went administration made no effort to further forward anyway and issued new standards on analyze costs, relying instead on overblown mercury emissions, lifted from Clear Skies, estimates by industry. which roll back a determination that mercury is a “hazardous pollutant” requiring the • Third, it claimed that Kyoto should be strongest possible controls. invalidated for letting developing countries Meanwhile, the administration off the hook. In fact, Kyoto was developed significantly weakened energy efficiency in accordance with a 1992 United Nations standards that if implemented would negate treaty on climate change – signed by the the need to build new power plants and save president’s father and ratified by the Senate– consumers billions in utility bills. In the Bush that required all countries, including administration, unfortunately, saving money developing countries, to establish programs for the power industry is the priority. to reduce greenhouse gas emissions. In keeping with this earlier treaty, Kyoto Global Warming provides incentives for developing On March 14, 2001, President Bush reversed countries to reduce emissions while setting his campaign pledge to regulate carbon dioxide mandatory targets for developed countries, emissions by electric power plants, and two which account for more than 75 percent of weeks later, the United States withdrew from all greenhouse gas pollution and are far

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better financially positioned to tackle the Protocol, committing to move forward problem. In India, for instance, the average even without U.S. participation. This hurdle person uses less electricity in a year than was cleared after these countries reached the average American uses in two weeks, agreement Nov. 10, 2001, on legal and and nearly half the population lives on less technical implementation, which among than a dollar a day. other things refined a market-based system for international emissions trading In June 2002, the last of the European (ironically modeled on the successful Union nations and Japan ratified the Kyoto U.S. acid rain program).4 The Bush

Foxes In the Henhouse Donald Evans, secretary of Commerce polluters in Texas,10 and was cited in a 2002 As Commerce secretary, Evans has United Nations report for illegally exploiting worked to block action on carbon dioxide Congolese natural resources during the emissions – arguing that we first need to do country’s civil war11 (charges Cabot denies). In more research5 – and strip state authority October 2003, Bodman was nominated to be to veto offshore oil drilling.6 Previously, deputy secretary of the Treasury Department. Evans spent 25 years at Tom Brown Inc., a Denver-based independent oil and natural Carl Michael Smith, Department of Energy’s gas producer, eventually becoming chairman assistant secretary for fossil energy and CEO. He also sat on the board of TMBR/ Smith is the primary policy adviser to the Sharp Drilling, an affiliated oil and gas drilling secretary of Energy on federal coal, petroleum operation.7 Evans was campaign manager and and natural gas programs, including research chief fundraiser for President Bush’s last three and development efforts, and alternative campaigns, raising more money from the oil energy initiatives. Among other things, he and gas industry for the 2000 presidential race is assisting on a study – partly funded by than the ten-year total of any other federal Anadarko Petroleum, ConocoPhillips, and candidate in history.8 Total oil companies12 – to determine when it’s environmentally safe for oil companies Samuel Bodman, III, deputy secretary to transport heavy equipment over arctic of Commerce tundra.13 Bodman has led administration efforts Previously, Smith was a lawyer for to stall greenhouse gas controls from his oil and gas companies and served as position as chair of the federal Interagency Oklahoma’s secretary of energy from 1995 Working Group on Climate Change Science to 2001. Before that, he operated Red Rock and Technology, which took the lead in Exploration, Inc., an independent oil and gas devising the administration’s “Climate Change exploration company in Oklahoma, and was Strategic Plan.” The National Academy of a long-standing member of the Oklahoma Sciences has criticized this plan for lacking Independent Petroleum Association – serving tangible goals and agency responsibilities, on its board of directors from 1981 to 1995 and failing to build on prior science to assist and as president in 1994. policymakers.9 In a January 2002 speech to the Previously, from 1988-2001, Bodman was Independent Oil and Gas Association of West CEO/president of Cabot Corp., a major Boston- Virginia, Smith said his role as assistant based chemical producer. Cabot operates a energy secretary would be to figure out “how “grandfathered” facility (built before 1972 best to utilize taxpayer dollars to the benefit of and therefore allowed to evade major air industry.”14 He was sworn in Feb. 5, 2002. pollution controls) that is one of the top

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International Exemptions for Pesticide Use would be phased out – an assumption that The Bush administration has been unfortunately turned out to be wrong. Of trying to shirk responsibility under another fossil-fuel units operating in 2000, pre- international treaty, the Montreal Protocol, 1972 plants emitted 59 percent of the sulfur which seeks the elimination of the ozone- dioxide (6.34 million tons) and 47 percent of depleting pesticide methyl bromide by the nitrogen oxides (2.35 million tons), even 2005. In February 2003, EPA asked the though they generate only 42 percent of the United Nations for 54 exemptions from this total electricity, according to the General agreement to increase limits on methyl Accounting Office.17 bromide and extend the phase-out to 2007. When these facilities undergo major For instance, one of the more dubious upgrades, operators must install modern exemptions would allow golf courses to use anti-pollution equipment required of a “new 734,400 pounds of the toxic chemical from source” under EPA’s New Source Review 2005 to 2007 to resurface greens.15 program. However, in 1999, the Clinton This request ignores other safer administration uncovered evidence that this pesticides and crop management techniques requirement was being widely violated, and that are available to replace methyl bromide, responded by launching a host of lawsuits to and threatens to reverse significant progress compel compliance. over the last decade to curb its use. The This litigation was still ongoing when U.N.’s Ozone Secretariat failed to reach President Bush took office, but utilities had agreement in November 2003 on whether to high hopes that the new administration grant these exemptions to the United States would let them off the hook. In March 2001, a – the largest producer and consumer of the lobbyist for utility-giant Southern Co. – which pesticide, accounting for about 25 percent of was being sued by the Justice Department for worldwide use. illegally upgrading 10 of its plants – e-mailed a Department of Energy official suggesting changes to New Source Review (NSR) for Fox In the Henhouse inclusion in the administration’s energy plan.18 Jean-Marie Peltier, EPA’s counselor to the The Cheney task force responded by administrator on agriculture policy calling for a review of the program, along Peltier supported extending the methyl- with the Justice Department’s ongoing NSR bromide ban even before she became EPA’s enforcement actions, which included the point person for agricultural issues. Prior litigation against Southern Co., the leading to her nomination, she spent most of her polluter among utilities.19 At the time, the career representing various agricultural administration pointed to the California interests as president of the California Citrus energy crisis as the reason for the review. Quality Council, where she sought to hold off Yet this effort persisted even when it became regulation of pesticide use.16 clear that California’s power shortages were the result of market manipulation by energy companies, not environmental regulation. administration declined to participate in By March 2002, the administration had these talks and offered no alternative plan settled on changes to NSR that would limit to Kyoto. new government lawsuits and relax clean air requirements. The 1999 lawsuits were to A Free Pass for Coal-Fired Power Plants be carried forward, but Justice Department In writing the Clean Air Act, Congress officials “clearly indicated a lack of enthusiasm,” exempted older coal-fired power plants from according to the Washington Post.20 compliance with new clean air standards Not surprisingly, momentum on these because it was generally thought they cases slowed, and most remain unresolved. In

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the final weeks of the Clinton administration, it called “routine” – without adding the for instance, Cinergy Corp. of Cincinnati necessary scrubbers.22 agreed in principle to pay fines and install This widespread avoidance of NSR millions worth of new pollution-control requirements and resulting air pollution has equipment to reduce sulfur dioxide emissions caused “thousands of premature human at its affiliated plants by 35 percent by deaths, and many thousand additional cases of 2013.21 However, following President Bush’s acute illness and chronic disease,” according inauguration, the company backed away to a congressionally commissioned report by from this settlement in the hopes of striking a the National Academy of Public Administration sweeter deal, and more than three years later, (NAPA), which recommended that “the oldest the case is still in limbo. and dirtiest facilities be given a firm deadline to Meanwhile, the administration pressed install cleaner equipment or close down.”23 forward with regulatory changes to permit Yet instead of tightening the “routine the very abuses the Clinton lawsuits maintenance” loophole, the Bush were designed to reign in. In particular, administration expanded it – a move sharply NSR allows plants to carry out “routine criticized by NAPA. Specifically, this new maintenance” without triggering an standard, completed in September 2003, obligation to install new pollution controls; creates a yearly allowance for maintenance however, plants have frequently exploited costs, allowing plants to make upgrades that this exemption to perform more extensive increase emissions without triggering NSR. upgrades. For instance, in August 2003, Anti-pollution controls must be added only if a U.S. District Court judge found that upgrades exceed 20 percent of the value of FirstEnergy’s Ohio Edison Co. illegally made all equipment used to produce electricity, an $136.4 million worth of upgrades – which extremely high threshold.

Money Talks “This appears to be the biggest rollback sectors.”26 Kuhn, along with FirstEnergy of the Clean Air Act in history,” Sen. President Anthony Alexander and TXU James Jeffords (I-VT) said, speaking of the Chairman Erle Nye, earned Pioneer status for expansion of the “routine maintenance” their efforts, meaning they had each bundled loophole. “It is clear by [this] action that this more than $100,000 for the Bush campaign.27 administration is intent on undoing more All three – as well as representatives from than 25 years of progress on clean air. The Southern Co. and Dominion Energy – were question is why?”24 given spots on the Bush transition team for The answer appears to be rooted in the the Department of Energy. administration’s cozy relationship with electric Pioneer and industry lobbyist Haley utilities, which gave over $26 million to Barbour (now governor of Mississippi) Republicans during the 2000 and 2002 election also met with Vice President Cheney and cycles – more than double what they gave Department of Energy officials on behalf Democrats – and nearly $6 million to President of Southern Co. and the Electric Reliability Bush and the Republican National Committee Coordinating Council during development of for the 2000 and 2004 campaigns.25 the administration’s energy plan. Just weeks In May 1999, Thomas Kuhn, president before the Cheney task force issued its final of the Edison Electric Institute, sent a letter report, Barbour donated $250,000 to an event imploring industry colleagues to put his held by the Republican National Committee tracking number on their checks to “ensure that – $150,000 of which came from Southern our industry is credited and that your progress Co.,28 which at the time was being sued by the is listed among the other business/industry government for violating clean air standards.

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Needless to say, this change severely Indeed, a study published March 6, 2002, undercut the Clinton-initiated lawsuits, forcing in the Journal of the American Medical the Justice Department to backpedal in the Association suggested that long-term middle of a case against a Baldwin, Ill., plant exposure to air pollution from coal-fired owned by Dynegy Midwest Generation Inc. power plants increases the risk of lung cancer “In light of EPA’s change of position as to its by at least 12 percent.32 Unfortunately, such interpretation of the Clean Air Act,” the Justice evidence seems to hold little sway over the Department stated, “the United States does not Bush administration, which has demonstrated rely on any prior statements it has made to this more concern for costs to the power industry Court that a very narrow construction of the than protecting public health. ‘routine maintenance’ exemption is required by the Clean Air Act itself.”29 More Breaks for Power Plants This problem was foreseen back at the In addition to the definitional expansion beginning of the Bush administration by then- of “routine maintenance,” the administration, EPA Administrator Christine Todd Whitman. In on New Year’s Eve 2002, quietly granted a memo to Vice President Cheney (which was even more ways to avoid installing pollution leaked to the Environmental Integrity Project), controls.33 Specifically, this includes: she wrote, “As we discussed, the real issue for industry is the enforcement cases. We will pay • A 10-year free pass to pollute. Plants are a terrible political price if we undercut or walk now exempt from updating pollution away from the enforcement cases; it will be controls when they upgrade if those controls hard to refute the charge that we are deciding were considered sufficient up to 10 years not to enforce the Clean Air Act... We will be ago. In other words, plants can modify a subject to unnecessary political damage if piece of equipment, potentially generating we make specific commitments on things like hundreds of tons of new pollution, and ‘routine maintenance’... Settlements will likely avoid NSR’s clean air requirements, so long slow down or stop.” as their pollution controls were installed in Yet the White House ignored Whitman’s the last 10 years. advice and ordered the NSR changes ahead. Fortunately, a day before Christmas 2003, • Weak emissions targets. Facilities can now a federal appeals court stepped in and avoid pollution-control upgrades by meeting temporarily blocked implementation pending weak plant-wide emissions targets, which the outcome of litigation.30In doing so, the are based on the average pollution emitted court concluded that the plaintiffs – which over any 24-month period within the last 10 include 12 attorneys general from mostly years. This means that a plant can use any northeastern states, as well as a number decreases in pollution made over the last of cities and environmental groups – had decade as credit to offset increases made “demonstrated the irreparable harm [of today. For example, if a plant reduced its the action] and likelihood of success on the emissions by 700 tons nine years ago, it merits” of their case. can make upgrades that generate 700 tons “This is enormous,” New York Attorney in new pollution without having to install General Eliot Spitzer said. “The courts have any pollution controls. There is no built-in agreed with us that the Bush administration expectation that pollution should decrease cannot by administrative fiat eviscerate a over time. statute (the Clean Air Act) that is critically important to protecting the quality of the air • Smoke and mirrors compliance. NSR that we breathe… The regs were taking us requires cleanup action if changes at down a path of dirty air, more asthma and a facility result in significant pollution more death.”31 increases (e.g., 40 tons per year). This

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Foxes In the Henhouse threshold is determined by measuring Jeffrey Holmstead, EPA’s assistant administrator increases against the plant’s “pollution for air and radiation baseline.” Previously, chemical plants Holmstead was in charge of the rule and oil refineries calculated their pollution changes to relax power-plant emissions baselines by the amount of emissions standards. Previously, he worked as an just prior to the changes. Under the new attorney for the law firm Latham & Watkins, standards, however, such facilities where he represented numerous corporate (excluding electric utilities) can set their interests seeking to block regulation, baselines based on the highest amount including Cinergy, American Electric Power, of emissions released over a two-year and the Alliance for Constructive Air Policy, period within the last 10 years. A high an industry front group that seeks to weaken baseline – based not on actual pollution the Clean Air Act.34 EPA’s rule changes today, but potentially pollution 10 years governing power plant emissions (i.e., New ago – inevitably means fewer obligations Source Review and mercury) mirror memos to install new pollution-control equipment provided by Latham & Watkins, sometimes when plants are modified. using language verbatim.35 In addition, Holmstead’s former A Political Smokescreen chief of staff, John Pemberton, left the (The “Clear Skies Initiative”) administration in 2003 to work for Southern To cover its tracks, the administration Co. just a week after EPA finalized its New created a political smokescreen in the form Source Review rollback. of its “Clear Skies Initiative,” which is still being debated by Congress. Unveiled Feb. Vicky Bailey, Department of Energy’s assistant 14, 2002, Clear Skies proposed new targets secretary for international affairs and for power-plant emissions of mercury, sulfur domestic policy dioxide, and nitrogen oxides that actually Bailey helped craft the Bush energy offer fewer benefits than simply implementing plan, which suggested the weakening of and enforcing current law. In fact, despite power-plant emissions standards. Previously, its pleasant sounding name, Clear Skies she served as president of PSI Energy, a would allow three times more toxic mercury, subsidiary of Cinergy, which, once President 50 percent more sulfur, and hundreds of Bush took office, backed out of a legal thousands more tons of smog-forming settlement to install modern pollution nitrogen oxides.37 controls. As for carbon dioxide, the plan proposed “incentives” (instead of regulation) to Francis S Blake, former deputy secretary encourage power plants – which account for of Energy 40 percent of U.S. carbon dioxide emissions Blake, who previously was a senior – to “voluntarily reduce greenhouse executive at General Electric, played a key gases.” Unfortunately, these incentives role in crafting the administration’s “Clear actually retreated from previous efforts to Skies Initiative,” consulting with more than promote energy efficiency. For instance, the 60 people outside government on the policy, administration recommended $7.1 billion in all but one of which came from the energy tax incentives for alternative energy sources industry.36 Blake left the administration over 10 years, which is $2.2 billion less than in March 2002 to become executive vice President Clinton requested, and proposed president of Home Depot. to cut $52 million from federal research and development for energy efficiency.38 The question of regulation was put off until 2012 – conveniently long after the president will

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have left office – when global warming will be Fox In the Henhouse reexamined to see “if sound science justifies Michael Leavitt, EPA Administrator further policy action,” ignoring the already During his more than 10 years as governor overwhelming evidence. of Utah, Leavitt touted an environmental Not surprisingly, the power industry’s philosophy he called “Enlibra,” defined as a trade association, the Edison Electric Institute, move toward balance. In practice, however, has aggressively lobbied Congress to approve many of his decisions tilted decidedly against the Clear Skies Initiative.39 “The industry environmental protection. For example, Leavitt outreach effort will be a major undertaking sought to build a highway near Salt Lake City, and will have many components,” Thomas with part of it running through the wetlands Kuhn, EEI’s president, wrote to company of Great Salt Lake, and later worked out a officials40 in announcing a special web site41 backroom deal with Interior Secretary Gale designed to generate messages of support Norton that stripped away protections for to members of Congress. (Kuhn is a personal 2.5 million acres of pristine Utah public land friend of President Bush and one of his (see below for more discussion). “Governor leading Pioneer fundraisers.) Leavitt’s appointment to head the EPA puts Nonetheless, Clear Skies remains stalled an anti-environmental politician in charge of in the Senate where a competing bill by Sen. regulating industries that pollute the nation’s air Thomas Carper (D-DE) has drawn a number and water,” said Earthjustice’s Denver attorney of Republican co-sponsors, including Sens. Jim Angell. “We know from his history on Lamar Alexander (TN), Lincoln Chafee (RI), environmental issues in Utah that his preferred and Judd Gregg (NH). Unlike Clear Skies, method is to exclude the broader public from Carper’s bill would set limits for carbon the process when he wants to make decisions dioxide emissions and mandate faster and that could harm the environment.”42 steeper reductions in mercury, sulfur, and nitrogen oxides. An EPA analysis – which the administration attempted to hide – found that Human beings are exposed to mercury this approach would be more effective and primarily by eating fish. carry only marginally higher costs, but the The Centers for Disease Control has found president continues to stand by Clear Skies that 8 percent of women of childbearing age and resist any controls on carbon dioxide. have levels of mercury in their blood that Instead, the administration has promoted could endanger their offspring; mercury policies that actually exacerbate the problem, exposure is linked to a number of neurological following the industry-friendly blueprint diseases, including learning and attention issued by the Cheney task force on May 17, disabilities – which are on the rise – and 2001. Specifically, this has meant weaker mental retardation. In 2001, the Food and environmental standards, more mining and Drug Administration recommended that drilling on public lands, and virtually no effort pregnant women and women who may to promote energy efficiency. become pregnant avoid eating shark, swordfish, kin mackerel, and tilefish, and in Mercury Emissions 2004 the agency warned against eating tuna. U.S. power plants spew nearly 50 tons of On Dec. 17, 2003, EPA Administrator mercury each year, accounting for 40 percent Mike Leavitt traveled to St. Louis, Mo., a of all industrial mercury emissions. These key battleground state in the upcoming emissions, which currently are unregulated, presidential election, to sign a proposed contaminate lakes, rivers, coastlines and other regulation that mirrors the Clear Skies water bodies, and “bioaccumulate” in the Initiative’s plan for mercury emissions. food chain. Predator fish, such as swordfish The administration is touting this proposal and tuna, have the highest levels of mercury. as a demonstration of President Bush’s

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commitment to the environment, but “There is a politicization of the work of unfortunately it’s just another rollback in the agency that I have not seen before,” disguise.43 Indeed, major portions of the said Bruce Buckheit, who retired from EPA proposal were taken, sometimes verbatim, in December 2003 as director of EPA’s Air from documents prepared by utility-industry Enforcement Division after two decades lawyers at Latham & Watkins, the former of service, adding, “A political agenda is law firm of EPA Air Administrator Jeffrey driving the agency’s output, rather than Holmstead, who oversaw development analysis and science.”46 of the proposal, and West Associates, a As a result, EPA’s move toward a much lobbying group representing 20 power and stronger mercury standard has been derailed. transmission companies in California and In 1990, President George H.W. Bush signed other Western states.44 an amendment to the Clean Air Act requiring This decision bypassed EPA’s technical EPA to study emissions from power plants experts and ignored analytical requirements and identify “hazardous” pollution. In 2000, and a request by a 21-member federal after 10 years of study, EPA finally concluded advisory committee for evaluations comparing that mercury is a hazardous pollutant. Under different regulatory options. “We were cut the law, this determination required EPA to set off without any warning or explanation,” said limits for mercury (as with other hazardous John A. Paul, the committee’s Republican co- pollutants) based on the maximum amount of chair and Ohio environmental regulator, who reduction that is technologically feasible. voted for President Bush in 2000; instead, the EPA staff reached a preliminary administration chose a process “that would determination that requiring “maximum support the conclusion they wanted to reach.” achievable control technology” (MACT) for Indeed, Holmstead explained to EPA staff that mercury would cut emissions by 90 percent additional analysis was not being done partly within three years – from 50 tons to 5 tons because of “White House concern.”45 annually. Agency experts also concluded that

Mercury From Chlorine Plants of addressing this problem, the Bush EPA Chlorine plants release an estimated 100 has thrown up its hands and declined to put tons of mercury a year47 – double that from in place new controls. “The fate of all the coal-fired power plants. However, the Bush mercury consumed at mercury cell chlor-alkali administration has given them a free pass, plants remains somewhat of an enigma,” and lifted requirements to control these the agency concluded in a rule issued in emissions. December 2003. The problem, according to There are just nine chlorine plants in the EPA, is that evaporated mercury escapes United States that still use outdated mercury through open doors and ceiling vents, rather technology.48 These plants extract chlorine than smokestacks, which makes it impossible from salt by conducting electrical charges to measure. in 50-foot long vats filled with thousands This action lifted requirements from of pounds of mercury. During this process, a 1975 standard, which specified that the mercury evaporates into the air, and evaporated mercury could be routed through subsequently must be replaced. In 2002, the smokestacks, and required plants to keep nine plants purchased 130 tons of mercury for their emissions below 2,300 grams per their vats. day.49 Currently, plants are far exceeding Reported mercury releases, however, this amount, losing more than 17,000 grams are far smaller than the purchased amount; of mercury every day. Thanks to the Bush in 2000, for instance, plants could not administration, there are now no limits on account for 65 tons of mercury. Yet instead these releases.

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reductions of 80 percent would cost industry 46 percent by 2020, leaving annual emissions less than 1 percent of annual revenues. The between 26 and 30 tons.51The reason is Bush administration, however, refused to that many companies are expected to store allow further analysis to develop cleanup emission credits for later use, allowing for options – apparently in service to the utility emissions in excess of the 15-ton annual and coal industries, which want much smaller “cap” established for 2018. cuts stretched over a much longer period. Making matters worse, such emissions Instead, the administration’s plan would trading would create “hot spots” of mercury revoke the 2000 determination that mercury contamination in water bodies near power emissions from power plants are “hazardous” plants that buy credits instead of reducing (an action that appears to be illegal50). In doing pollution, as pointed out by EPA’s Children’s so, the administration would put in place a Health Advisory Committee, which concluded “cap and trade” program that would allow that the Bush proposal “does not sufficiently utilities to buy and sell emissions credits protect our nation’s children.” and “bank” unused allowances for later Sen. Olympia Snowe (R-ME) concurred, use. The administration contends this would saying, “These changes roll back critical achieve a 70 percent reduction in mercury standards for mercury and could impact emissions by 2018. However, contrary to the health and well-being of millions of public representations, EPA calculations Americans, particularly women and children… actually show reductions of only 38 percent to The revised plan fails to acknowledge the

Snowmobiles & Dirty Air in Yellowstone Teton – and a total ban for the 2004-05 season. As with the power industry, Vice President The Bush administration had sought to Cheney has close ties to the snowmobile allow nearly 1,000 snowmobiles per day in industry – stemming from his days as a Yellowstone. Wyoming congressman – and has used his The administration contended that new office to block standards that would reduce standards for cleaner and quieter engines air pollution. Specifically, Cheney’s office would negate the vehicles’ adverse health ordered EPA to water down a proposal to and environmental impacts. However, cut snowmobile emissions (detailed on page Sullivan cited scientific analysis by the Park 51), and later the administration rescinded a Service that concluded there would still Clinton-era plan to phase out snowmobile use be significant harm to the health of park in Yellowstone and Grand Teton National Parks. wildlife, visitors, and employees. Compared Fortunately, on Dec. 16, 2003, U.S. District to an outright snowmobile ban, the Bush Judge Emmet Sullivan reinstated the phase-out plan would have allowed twice as much and strongly rebuked the Bush administration, carbon monoxide pollution and five times the calling the rollback “completely politically driven nitrogen oxide emissions. and result oriented.”52 Sullivan pointed out that “Our duty is to take care of our national this action ran counter to scientific evidence, parks as fully as possible so that we pass noting one study that found Yellowstone at them in good health to our grandchildren,” times had carbon monoxide levels as high as said Denis Galvin, who served as deputy Los Angeles. director of the Park Service under Presidents The phase-out, which was supported Reagan and Clinton and during the first year by a 99-1 margin in public comments to the of the current Bush administration. “Had National Park Service,53 requires a 50 percent we let that principle slip in Yellowstone to reduction in snowmobiles in the 2003-04 the benefit of the snowmobile industry, it season – allowing for 490 snowmobiles per would have set a terrible precedent in all our day in Yellowstone and 50 per day in Grand national parks.”54

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dangers mercury emissions pose, as well as In comments delivered Oct. 19, 2001,61 the the fact that once in the environment, such Environmental Protection Agency criticized emissions can remain for centuries. Simply DOE for ignoring the “strong rationale” for put, we have the technology to sharply reduce sticking with the higher efficiency standard mercury emissions.”55 and argued that savings to consumers were “significantly underestimated.” Energy Efficiency “Changes in the electricity market due to On Aug. 14, 2003, on one of the hottest utility deregulation has resulted in increased days of the summer, a massive blackout electricity prices overall,” according to swept through New York, Cleveland, Detroit, EPA. “DOE did not consider this trend in its parts of New Jersey, and Ontario. With analysis,” which even so found $1 billion in air conditioners blaring, the power supply “net benefits” to consumers from a 30 percent overloaded and shut down. standard by 2020.62 Since this disaster, public discussion has In addition, manufacturers are well focused on problems with our electrical grid positioned to deliver on this higher standard. and the way our power is supplied. However, “DOE justifies a lower [standard] because demand is also a crucial part of the story. If the higher efficiency levels would put we can reduce our need for electricity, we can manufacturers out of business,” EPA stated. reduce the risk of blackouts. “However, according to the Air Conditioning The Clinton administration, in its and Refrigeration Institute (ARI) database of final weeks, moved in this direction by model combinations, many manufacturers requiring that most new air conditioners already produce models that meet the [30 and heat pumps be made 30 percent more percent standard].”63 This includes “over 7,000 energy efficient by 2006.56 At the urging of air source heat pump model combinations manufacturers, the Bush administration and over 14,000 center air conditioner model immediately lowered this requirement to 20 combinations.” Nonetheless, appliance percent, but a federal appeals court threw manufacturers lobbied for a 20 percent out this rollback, finding that it violated the standard, and the Bush administration National Appliance Energy Conservation Act, obliged. Fortunately, the law was not on the which prohibits such backsliding.57 administration’s side. “In rejecting the Bush administration’s attempt to turn back the clock on energy Bowing to efficiency, the court has boosted efforts to Mining Interests reduce consumers’ energy bills and protect California from future power shortages,” said With regulation of carbon dioxide California Attorney General Bill Lockyer.58 emissions and tougher standards for aging If the Bush plan had been allowed to move coal-fired power plants, there would be forward, it would have meant an additional incentives to shift to alternative energy 51 million metric tons of carbon emissions sources and away from coal – the most (equivalent to that of 34 million cars), $21 unhealthy and environmentally damaging billion extra spent by consumers on utility energy source of all. Yet not only did the bills,59 and the construction of additional Cheney task force resist such incentives, power plants. it recommended additional policies to According to officials at the Department cement coal’s dominance. Acting on these of Energy, which set the new standard, a 30 recommendations and at the urging of percent increase in efficiency would eliminate the coal industry, the Bush administration the need for 39 new electric power plants over proposed billions of dollars in corporate the next 30 years, whereas a 20 percent increase subsidies and, as described below, relaxed would offset the need for 27 new plants.60 environmental protections for mining.

20 21 A Record of Rollbacks

Following Bush’s decision to renege on his to approve such dumping when issuing campaign pledge to regulate carbon dioxide operating permits under the Clean Water Act. emissions, the director of the West Virginia In a letter to President Bush, eight Coal Association told industry executives, Republican members of the House took issue “You did everything you could to elect a with this decision, noting that it “appears to be Republican president. You are already seeing particularly designed to legalize the practice of in his actions the payback, if you will, his mountaintop mining, where coal companies gratitude for what we did.”64 Not surprisingly, blast the tops off of mountains and the huge the paybacks didn’t stop there. volumes of waste that are generated are dumped into nearby valleys, burying miles of Money Talks streams and killing all associated aquatic life.”71 Mining interests gave $10.14 million to More than 1,200 miles of Appalachian streams Republicans during the 2000 and 2002 election have been buried by these “valley fills,” cycles65 – including $6.5 million from the coal frequently leading to flooding in surrounding industry (accounting for nearly 90 percent communities. of the industry’s total donations) – and more Besides dirt and rock waste, the new rule than $3 million to President Bush and the RNC amazingly opens the door for the dumping in 2000 and 2004.66 of trash as well, stating that “there are very “We were looking for friends, and we specific circumstances where certain types of found one in George W. Bush,” said industry material that might otherwise be considered executive James H. “Buck” Harless,67 a Bush trash or garbage may be appropriate for use Pioneer in both 2000 and 2004.68 Harless is in a particular project to create a structure or chairman of International Industries, a holding infrastructure in waters of the U.S.” company with mining interests, and serves on Just days after this rollback was the board of Massey Energy, an Appalachian finalized, a federal district court judge ruled coal company that specializes in mountaintop that it is illegal for mountaintop mining mining and stands to reap substantial profits operations to dump into waterways,72 saying from the Bush rollbacks. the administration’s decision addresses Jack Gerard, president of the National “political, economical, and environmental Mining Association, has also earned 2004 concerns to effect fundamental changes Pioneer status;69 previously the NMA’s general in the Clean Water Act for the benefit of counsel and vice president were awarded one industry” – the mining industry. The spots on the Bush transition team for, administration appealed the ruling, and respectively, the departments of Interior and on Jan. 29, 2003, the Fourth Circuit Court Labor, where they worked to install industry in Richmond, Va. – known as the most insiders to key agency posts. conservative court in the country – reversed the lower court, allowing implementation to move forward and clearing the way for Mountaintop Mining mining companies to dump in the nation’s The administration adopted a rule in May rivers and streams.73 200270 that allows mining companies to dump dirt and rock waste into rivers and streams, More Breaks for Mountaintop Mining clearing the way for new “mountaintop The Bush administration unveiled a mining” to access lucrative low-sulfur proposal74 Jan. 7, 2004, that would gut a coal. This action changed the definition of prohibition against the dumping of mining allowable “fill material,” eliminating the waste within 100 feet of streams, further “waste exclusion” that barred dumping for easing the way for new mountaintop mining, the sole purpose of disposing waste. The which generates large amounts of dirt and Army Corps of Engineers now has authority rock waste.

22 23 A Record of Rollbacks

Fox In the Henhouse clear cutting trees ‘Healthy Forests,’ would Mike Parker, former assistant secretary of the call this decision to allow coal companies to Army for Civil Works (Army Corps of Engineers) destroy more streams a ‘clarification,’” said Parker, who resigned in March 2002, Joan Mulhern, senior legislative counsel for approved the definitional change of Earthjustice. “It is a lie and it is an insult to the “fill material” to make it easier to dump people of Appalachia and anyone who cares mining waste. Previously, he represented about the fate of America’s environment.”77 Mississippi’s fourth congressional district, earning 0 out of 100 on the League of More Dumping of Mining Waste Conservation Voters scorecard for three On Oct. 7, 2003, the Bush administration straight years during his tenure.75 Parker overturned a Clinton-era policy that once questioned the validity of the Corps’ restricted the amount of public land mining environmental mission (specifically in companies can use for dumping waste. reference to fish protection efforts in In 1997, John Leshy, then solicitor of the Washington and the Florida Everglades) Department of Interior, issued an opinion during a March 1998 hearing before the that limited each 20-acre mining claim House Subcommittee on Energy and Water to one five-acre “mill site” for dumping Development.76 and other support operations. The deputy solicitor of the Bush DOI issued a new opinion concluding there is no limit to Sold as a “clarification,” this proposal the number of five-acre mill sites,78 and would create new waivers for the so- the administration adopted a rule for called “buffer zone” rule, which was implementation. adopted during the Reagan administration. Specifically, companies could receive permits Fox In the Henhouse to conduct surface mining activities near William Myers, former solicitor of the streams provided that they, “to the extent Interior Department possible,” “prevent additional contributions Myers was forced to recuse himself from of suspended solids” and “minimize the “mill site” decision. Of course, his deputy disturbances and adverse impacts on fish, still resolved it in favor of mining companies. wildlife, and other related environmental Beginning in 1997, Myers represented values of the stream.” coal companies, cattle grazers, and timber Put another way, this means that mining companies at the Boise law firm of Holland companies could be permitted to dump & Hart. During his time at Interior, between directly into streams and cause environmental 2001 and 2003, he had at least 11 meetings damage, so long as they have made a with Holland & Hart lawyers and their satisfactory effort, as judged by government clients, drawing the attention of the Office permitting officials, to minimize that damage of Government Ethics, which cleared him of “to the extent possible.” violating criminal statutes.79 Prior to Holland The current standard allows for a waiver & Hart, Myers served as a lawyer and lobbyist of the buffer-zone rule only if mining activities for the National Cattlemen’s Beef Association “will not cause or contribute to the violation” of (NCBA); executive director of the Public Lands water quality standards, “and will not adversely Council, an arm of NCBA, which pushes affect the water quantity and quality or other to open public land to livestock grazing; environmental resources of the stream.” Unlike and corporate counsel to the Cattlemen the administration’s “clarification,” this is clear, Advocating Through Litigation Fund.80 In May simple, and objective. 2003, Myers was nominated to be a federal “Only the Bush administration, which judge on the Ninth Circuit Court of Appeals. calls more air pollution ‘Clear Skies’ and

22 23 A Record of Rollbacks

The administration’s reversal “puts clean Fox In the Henhouse water and community health at increased Rebecca W Watson, assistant Interior secretary risk, with an open invitation to dump for land and minerals management massive quantities of toxic mining waste Watson oversees mining on public land on unlimited amounts of our public lands,” and enforcement of mining laws. Previously, responded Steve D’Esposito of the Mineral she spent almost her entire legal career Policy Center.81 defending the mining and timber industries, and worked on behalf of a number of anti- Hard-Rock Mining environmental organizations, including the On Oct. 30, 2001, the Bush administration Mountain States Legal Foundation, the Rocky weakened82 environmental and land use Mountain Mineral Law Foundation, and protections for hard-rock mining (which Defenders of Property Rights. In the past, includes gold, silver, copper, and other she has represented Redstone Gas Partners minerals, but not coal) that were issued (coal bed methane), Seven-Up Pete Joint shortly before President Clinton left office. Ventures (open pit gold mining), Plum Creek This stripped the Interior Department of its Timber Company (the second largest private new authority to block proposed mines on timberland owner in the United States), and federal land that could result in “substantial the Western Environmental Trade Association, irreparable harm,” and locked in a sweetheart an industry trade group.84 arrangement for mining interests, which urged the rollback. The Congressional Budget Office President Ulysses S. Grant, provides for no estimates that there are $650 million in environmental protections and demands no annual sales of hard-rock minerals from federal royalties, leaving mining operations federal land, with net profits totaling $97.5 unaccountable for their pollution. million.83 Yet the little-changed General Mining Shortly after issuing the rule, in May Law of 1872, which was signed into law by 2002, EPA revealed that the hard-rock

Giveaways to Mining Interests the national forests in Alabama to drilling While relaxing environmental standards, the and mining without subjecting the plan to Bush administration has also moved to open normal environmental analysis and review.86 more public land to mining interests, including: • Oregon’s Siskiyou National Forest. In • Arizona’s Gila Mountains. The May 2002, the administration lifted a ban administration is close to allowing one of the on mining in and around Oregon’s Siskiyou nation’s largest open-pit mines at the foothills National Forest. The Clinton administration of the Gila Mountains. The Bureau of Land initiated this mining freeze – which was set Management completed analysis in December to expire eight months after the Bush repeal 2003 that found the proposed copper mine, – to study the area for consideration as a which would cover 3,360 acres, would have national monument. no ecological impact.85 This trusts the mining company’s pledge to use impermeable plastic • The Florida Everglades. In spring 2001, the to prevent the leaking of toxic materials into administration approved permits for mining the Gila River and ignores the possibility of companies across more than 5,000 acres other potential environmental damage. of land in the Florida Everglades despite objections from career staff at the EPA and • Alabama forest. Early in 2004, the Forest Department of Interior. Service opened more than 90 percent of

24 25 A Record of Rollbacks

mining industry was the largest toxic gas interests, but it completely ignores the polluter for the second straight year, enormity of the problem. producing 3.4 billion pounds of toxic The United States consumes about 19.6 pollutants in 2000.87 Such mining has million barrels of oil a day, accounting for a polluted 40 percent of Western watersheds, quarter of the world’s supply. Domestic supply according to EPA, leaving taxpayers to foot cannot come close to meeting this demand the bill for hundreds of millions of dollars in even if we dramatically increase drilling on cleanup costs. public lands, as the Bush administration is In November 2003, a federal judge doing. The only way to significantly reduce instructed the administration to rewrite part dependence on Middle Eastern oil is to of its rule, finding that taxpayers must receive reduce demand. For instance, the United fair market value for mining on public lands States could save 51 billion barrels of oil that lack valid mining claims, a widespread over the next 50 years just by increasing fuel practice in the western United States.88 The efficiency standards for new vehicles to 39 judge also criticized the Bush administration’s miles per gallon (which the administration has overall interpretation of federal law on hard- steadfastly resisted). rock mining, but stopped short of striking By contrast, drilling in Alaska’s Arctic down the rules, stating that he did not have National Wildlife Refuge – the centerpiece legal grounds to do so. of the administration’s plan – would likely produce only 3.2 billion barrels, according to the U.S. Geological Survey, not even Drilling on Public Lands enough to satisfy six months’ demand. This oil would not begin to reach the market for As with coal, the Cheney task force another 10 years, and it would take 50 years to focused on expanding the supply of oil and extract the full amount. For this pittance, the gas rather than reducing demand through administration is willing to disturb hundreds greater efficiency and alternative energy of acres of pristine wildlife habitat, which sources. This of course has benefited oil and would be interspersed with sprawling oil Money Talks The oil and gas industry donated nearly a draft proposal submitted by the American $18 million to the Bush campaign and the Petroleum Institute, borrowing words almost Republican National Committee during the verbatim for a key section.91 2000 and 2004 election cycles,89 earning Of course, the oil and gas industry had extensive contact with the Cheney energy a seat at the table even before Bush took task force. office. At least a dozen industry officials The American Gas Association had were named to the Bush transition teams contact with the task force at least eight at EPA and the departments of Energy and times, while the American Petroleum Interior,92 whose team included Bruce Benson Institute – which has seven Rangers and of Benson Mineral Group, a 2000 Pioneer and Pioneers (individuals who bundle more 2004 Ranger.93 than $200,000 and $100,000 respectively) In 2000, the oil and gas industry produced among its membership – met with the task 41 Pioneers, including Ken Lay, former CEO force at least six times.90 In May 2001, at of Enron, which still ranks as President the conclusion of the task force’s work, the Bush’s third largest donor in federal administration issued Executive Order 13211, elections. Lay’s former secretary, Nancy which requires federal agencies to give Kinder (whose husband Richard is a former special consideration to energy interests in Enron president), has already earned Ranger devising new regulation. This order mirrored status for 2004.

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facilities and pipelines. Fortunately, on March The Powder River Basin 19, 2003, the Senate voted 52-48 against The administration has targeted Wyoming the plan (which must receive congressional and Montana’s Powder River Basin for a blessing), though the administration continues massive coal-bed methane project – which to press its case. will require millions of gallons of high-saline The administration’s plan to allow groundwater to be pumped out, potentially new drilling off California’s coast was also contaminating rivers and streams, in order to blocked, this time by a federal appeals access natural gas trapped in coal deposits. court,94 but in most other cases, drilling has Besides endangering the basin’s diverse been able to move forward unimpeded. wildlife, high salt content also makes water In a memo to field personnel, Bureau of unsuitable for irrigation purposes, and local Land Management officials said their “No. farmers and ranchers have opposed the 1 priority” was to grant new leases for oil, project. In May 2002, EPA gave the project gas and coal mining on public lands.95 Not – the largest drilling operation ever on federal surprisingly, the number of such leases lands97 – its worst possible rating, declaring it increased 51 percent during the first year of “environmentally unsatisfactory.”98 the Bush administration96 – from 2.6 million Nonetheless, the administration was acres in 2000 to 4 million acres in 2001, undeterred, and in April 2003, the Bureau according to BLM data – and new projects of Land Management granted its approval. continue to be approved. As described below, Shortly thereafter, on May 1, 2003, a coalition of this endangers some of the nation’s most landowners, environmental groups and others precious public lands. filed suit in Montana federal court to block the proposal. This challenge is still pending. Fox In the Henhouse J Steven Griles, deputy secretary of Interior Office of Surface Mining. During this time, Griles previously worked as a lobbyist OSM’s budget was slashed, and enforcement for the coal and oil industry, representing of mining regulations fell drastically.101 Yates Petroleum, which pushed to open New Following Griles’ nomination to Interior, the Mexico’s Otera Mesa, as well as a number National Mining Association called him “an ally of firms seeking to drill in the Powder River of the industry,” adding, “This will hopefully be Basin. When EPA objected to the Powder a breath of fresh air.”102 River project, he shot back a memo saying Griles’ annual salary as deputy secretary is the agency’s criticism “will create, at best, about $154,700. However, he is also receiving misimpressions, and possibly impede the $284,000 a year (as part of a $1.1 million ability to move forward in a constructive payout for his “client base”) from his former manner.”99 On its face, this violated Griles’ employer, National Environmental Strategies August 2001 recusal agreement, in which (NES), a lobbying firm that represents the he committed to remove himself from any same companies Griles is in charge of decision within a year of his confirmation that regulating,103 including Chevron, Shell and affected former clients.100 However, Department Texaco. When Griles’ appointment calendar of Interior lawyers – led by Solicitor William – obtained under the Freedom of Information Myers, a former coal-industry lawyer (as Act – revealed scores of meetings with former discussed on page 23) – determined he did clients, several prominent environmental nothing wrong, but nonetheless made Griles organizations, including Defenders of sign a second recusal agreement disqualifying Wildlife and Friends of the Earth, called for a himself from coal-bed methane issues. criminal investigation and launched litigation Griles also served in the Reagan to compel information about his yearly administration as assistant secretary of the allowance from NES.104

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New Mexico’s Otero Mesa Fox In the Henhouse In January 2004, BLM announced that it Cameron Toohey, Interior’s special assistant would allow oil and gas development in New for Alaska Mexico’s Otero Mesa and Nutt grasslands, Toohey oversees the Interior Department’s which comprise more than three million acres operations in Alaska. He previously served of Chihuahuan Desert between Carlsbad, as executive director of Artic Power, an N.M., and El Paso, Tex. BLM’s plan, which is Anchorage-based lobbying group whose sole opposed by New Mexico Gov. Bill Richardson, focus was the opening of the Arctic National would open 90 percent of this fragile and Wildlife Refuge to drilling. Nonetheless, biologically rich desert ecosystem. Interior Secretary Gale Norton claimed that This action stands to benefit one company rather than being an industry lobbyist, Toohey in particular: the Harvey Yates Company is a “representative of the public, a voice of (and more specifically, as subsidiary Yates Alaska citizens.”109 Petroleum), owned by the powerful Yates family, which has close ties to President Bush.105 Over the last four years, Yates family members “What makes this even worse is that and employees contributed more than $250,000 BLM has failed to study the effects of oil to President Bush and the Republican Party. In activities on the environment as it promised October 2002, company president George Yates to do,” said Cindy Shogan, executive hosted a fundraiser with Vice President Cheney director of the Alaska Wilderness League. at the Yates family home in Roswell, N.M. “It even dismantled its Research and Monitoring Team.”110 Alaska’s North Slope In November 2003, Interior unveiled a Padre Island National Seashore plan to open up 8.8 million acres of public In November 2002, BLM issued a land on Alaska’s North Slope, including areas permit to allow drilling on Padre Island considered environmentally sensitive, to new oil National Seashore – the longest remaining and gas development.106 This land is part of the undeveloped barrier island in the world and 23.5-million-acre National Petroleum Reserve- the first national park opened to drilling by Alaska (NPR-A), the largest remaining block of the administration. Located off the coast of unprotected land in the nation, and includes Texas, Padre Island is a nesting area for the areas that are important for the protection of endangered Kemp’s Ridley sea turtle, the migratory birds, whales, and other wildlife.107 rarest of all sea turtles. In opening this area, the administration empowered BLM to modify or waive Utah Parks and Scenic Area environmental safeguards on a case-by-case In November 2003, the Bush basis for economic reasons, and weakened administration initiated a Utah fire sale, lease requirements by replacing strict announcing plans to sell oil and gas leases standards with vague guidelines to be set and that by June 2004 will cover 46,000 acres of monitored by industry.108 pristine public land. A 2003 study by the National Academy This land is practically being given away, of Sciences reported that 25 years of drilling with leases selling for an average of $20 on the North Slope had caused significant an acre for the first year, and a subsequent environmental damage (including reduced payment of $2 a year afterward (expected to bird and caribou populations, as well produce annual government revenues of just as polluted air and water), and warned $80 per acre). of possible dangers to human health. “This epitomizes how the administration Nonetheless, the Bush administration has favors the interests of the oil and gas industry refused to consider these problems. over every other public value of the land,”

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Fox In the Henhouse development; however, as discussed in detail Kathleen Burton Clarke, director of Interior’s below, the Department of Interior reached a Bureau of Land Management legal settlement with then Utah governor (and As director of BLM, Clarke has approved now EPA administrator) Mike Leavitt that lifted extensive new drilling in Utah (among other this protection. areas), where she previously headed the Over the Bush administration’s first two state’s Department of Natural Resources. In years, BLM also approved oil exploration at Utah, Clarke similarly “sided with energy Canyons of the Ancients National Monument; companies to allow drilling in areas that are the entryway to Deadhorse Point State Park, winter ranges for elk and made it easier for Utah’s most popular state park; and near the firms to petition to remove species from Arches National Park, despite objections from state protective listings,” according to the EPA, the U.S. Geological Survey, and the U.S. Sierra Club.111 Fish and Wildlife Service. Environmentalists launched a legal challenge to this last project and a district court preliminarily enjoined said Jan Houlihan, vice president of the it, finding that the administration – in what Environmental Working Group (EWG).112 has become a pattern – failed to adequately At risk are dozens of sensitive wildlife consider environmental impacts.114 populations, including the Mexican spotted owl, the golden eagle, and the peregrine No New Wilderness Area falcon, as well as land that partially rings As part of a sweeping legal settlement, Dinosaur National Monument, according to a Interior Secretary Gale Norton lifted protection report by EWG.113 from more than 200 million acres of public In 1999, BLM identified this land as having land, including the red rock canyons and wilderness characteristics and restricted new mesas of southern Utah, California’s Case Fox In the Henhouse Gale Norton, secretary of Interior includes Defenders of Property Rights (board Norton has worked her entire career member), the Washington Legal Foundation to open public land to private industry, (board member), and the National Council regardless of the environmental impact. As of Republicans for Environmental Advocacy Colorado’s attorney general, Norton argued (CREA), which she founded. All of these before the U.S. Supreme Court that the organizations push to roll back laws and Endangered Species Act is unconstitutional standards that protect health, wildlife, (a view the Court rejected). Likewise, as habitat, and public lands, usually with the lead attorney for the Mountain States Legal support of corporate donations. For instance, Foundation, she and her mentor, former CREA receives substantial funding from the Reagan Interior secretary James Watt, filed American Chemistry Council (formerly the a Supreme Court brief calling the Surface Chemical Manufacturers Association) and the Mining Act unconstitutional.115 Now as Interior National Mining Association. secretary, Norton is responsible for carrying Norton herself received significant out both of these laws. backing from energy interests in her Norton also worked as a lobbyist for the failed 1996 bid for Colorado’s Republican National Lead Company (now NL Industries) nomination for the U.S. Senate; more than – a defendant in lawsuits involving 75 a third of the $800,000 she raised came toxic waste sites and lead paint poisoning from energy interests, including $28,570 in children – and served an array of anti- from oil and gas companies, even though environmental organizations. Besides the the Republican Party establishment rallied Mountain States Legal Foundation, this around her opponent.116

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Mountain and its sequoia forests, New up through a variety of misguided policies, Mexico’s Otero Mesa, and caribou habitat including the practice of extinguishing in Alaska. This land was being set aside for low-intensity fires, while permitting timber study and possible designation as wilderness companies to harvest the largest, most area, but is now available for drilling, mining, fire-resistant trees. These small trees and logging or road-building. underbrush are what fuel catastrophic fires. Since passage of the Wilderness Yet instead of seriously dealing with this Act in 1964, 106 million acres have been problem, the administration instead exploited designated as wilderness area, which by it for the benefit of the timber industry, which law can be visited, but not developed. If the gave $3.4 million to the Bush-Cheney campaign administration gets its way, there will be no and the Republican National Committee during new designations. the 2000 and 2002 election cycles. On April 11, 2003, Norton reached For starters, the Bush plan set forth a agreement with then Utah governor Mike goods-for-services arrangement that allows Leavitt – now head of EPA – that said the the Forest Service and the Bureau of Land Bureau of Land Management could not review Management to permit timber companies new land for designation as wilderness area to cut large trees in exchange for removing (and put it off limits in the meantime) because commercially worthless small trees and such reviews were to have concluded in 1991, underbrush – a potentially devastating and at the close of a study period mandated by unnecessary tradeoff that could make the Congress; any land that was set aside after problem worse. According to a November 1991 had to be opened for development. 2000 report by the Forest Service, “timber This radical interpretation overturns years harvest can sometimes elevate fire hazard by of precedent and not surprisingly serves the increasing dead-ground fuel, removing larger interests of the oil and gas industry. fire-resistant trees, and leaving an understory Leavitt had sued Interior on behalf of the of ladder fuels.” Nonetheless, Congress state of Utah to open up 2.5 million acres, authorized this approach in February 2003. which the Clinton administration had set Even more problematic, the president’s aside. However, Norton used the case as an plan moved to block the public from opportunity to end reviews – and protection challenging timber projects in court – of all other potential wilderness areas, and exempt logging from the National leaving them vulnerable to development Environmental Policy Act (NEPA)117 – known as as well. the Magna Carta of environmental protection – which directs federal agencies to assess the environmental impacts of their decisions and Clearing the Way for Logging provide opportunity for public input. At the time, the administration argued The plundering of public land has that NEPA was interfering with fire also extended to timber. On Sept. 5, 2002, prevention by delaying necessary action. President Bush unveiled a proposal to allow However, a May 2003 report by the General increased commercial logging of large old- Accounting Office found no evidence to growth trees in national forests. Misleadingly back this up, concluding that more than 95 named the “Healthy Forests Initiative,” this percent of thinning projects move forward plan was sold as a solution to the runaway expeditiously. The House unfortunately forest fires that have plagued the West in ignored this finding and shortly thereafter recent years – even though old-growth trees embraced the president’s plan. are not the source of the problem. The Senate was more skeptical, but Over the years, the Forest Service has eventually followed suit with its own forest- allowed small trees and underbrush to build thinning legislation on Oct. 30, 2003, shortly

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after a new wave of devastating fires in Fox In the Henhouse southern California. This legislation was less Mark Rey, USDA’s undersecretary for natural extreme than the president’s original plan resources and environment and the version previously passed by the Rey oversees the Forest Service, where he House, but still put forests at significant risk. has pushed to open Alaska’s Tongass National It emerged from conference committee with Forest to logging, triple logging projects in the House largely intact, and President Bush the Sierra Nevada range, and restrict public signed it Dec. 3. participation in forest management. Rey Like the original House legislation, the spent nearly 20 years (1976-1994) working for new law contains measures to short-circuit various big-timber organizations, including environmental reviews and limit legal the National Forest Products Association, the challenges and administrative appeals of American Paper Institute, and the American timber projects. Moreover, it changes the Forest Resources Alliance.119 He also served way that federal courts are to consider legal as vice president of forest resources for the challenges to forest-thinning projects; judges American Forest & Paper Association, the must weigh the consequences of inaction country’s leading advocate for logging in our and risk of fire rather than placing priority on national forests.120 minimizing environmental damage. Again, none of this provides any assurance that the actual problem will be have to evaluate environmental impacts or addressed. Because of vague definitions in the solicit public input. statute, there is no guarantee that resources In proposing this action, the administration will be spent on proven methods to protect argued that NEPA reviews would still be at-risk residential communities. (The Senate conducted for individual forest projects. Yet rejected an amendment by Sen. Barbara subsequently, the administration has lifted Boxer (D-CA) to address this problem.) NEPA protections for individual projects as well. Meanwhile, President Bush has also pressed forward with the Healthy Forests Initiative Environmental Review & Public Input administratively. As discussed below, this has On June 4, 2003, in the name of meant restricting public involvement in forest preventing wildfires, the Forest Service ended management decisions, lifting protections for environmental review and public input for endangered species, and opening precious logging projects of up to 1,000 acres that the public land to logging. administration deems a fire threat.121 This action was taken even though the government Forest Management already has the necessary authority to Plans are prepared every 15 years to clear small trees and underbrush – the guide management and commercial use of fuel for wildfires – and forest area abutting each of the country’s 155 national forests. communities. Instead, the exemption seems A day before Thanksgiving 2002, the Forest aimed at easing access to medium-sized and Service proposed to lift NEPA protections large trees that are far away from people and for preparing these plans,118 elevating the pose no risk. As stated earlier, logging of this importance of commercial activity while sort can actually increase fire risk. lifting obligations for scientific monitoring and In promulgating this action, the maintaining wildlife populations. Under the administration exploited its authority to grant proposal (which still must be finalized), local “categorical exclusions” from NEPA, which are forest supervisors would have more leeway supposed to be invoked only for activities that to include new logging and other commercial do not damage the environment. activity (including drilling and mining) as part The Forest Service has also granted of their forest plans; they would no longer categorical exclusions from NEPA for the

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logging of up to 4,200 acres of burned have an adverse effect on endangered forest (previously these so-called post-fire species. BLM, the Forest Service, and other rehabilitation projects had to undergo NEPA agencies will continue to conduct formal review if they covered more than 10 acres), consultations with wildlife agencies in cases as well as smaller scale timber projects and where a forest project is found likely to have logging of insect-infested or diseased trees.122 an adverse impact. This latter exclusion specifically applies to “This change creates the classic example the harvesting of up to 50 acres of live trees of the ‘fox guarding the henhouse’ by having (if judged to benefit forest health) and the the agencies most focused on logging make removal of up to 250 acres of dead, diseased, these important decisions without any input or insect-infested trees. Given the track record, from the agencies responsible for wildlife this raises concern that a large timber project protection,” according to the Defenders of could be segmented into smaller projects to Wildlife, which released a report blasting the avoid NEPA requirements. administration’s efforts to undermine the Making matters worse, the administration Endangered Species Act.124 followed these NEPA exclusions with a rule on Jan. 9, 2004, that rolls back the public’s ability Roadless No More to challenge misguided logging projects While the administration has weakened through administrative appeals.123 “This is forest protections, it has also moved to open not about protecting homes or communities protected areas to commercial logging. For from forest fires,” said Amy Mall, senior forest timber companies, the number one target specialist with the Natural Resources Defense was the Clinton-era “roadless rule,” which Council. “This is about trying to cut the public protected 58.5 million acres of pristine Forest out from having a say in the management Service lands from virtually all logging and of their public lands. It will make it harder road building. for people to challenge projects that would Upon taking office, the Bush damage the environment and do nothing to administration immediately delayed the rule’s protect homes or communities.” effective date and then later refused to defend the rule against legal challenges despite Endangered Species Consultations public sentiment; the Forest Service has Just hours after President Bush signed the received two million comments supporting forest-thinning legislation, the administration the measure,125 a record amount of comments issued new standards that allow federal on a federal environmental action.126 agencies to conduct fewer consultations under On July 14, 2003, a federal district the Endangered Species Act when considering court judge in Wyoming struck down the timber sales and other forest-thinning projects. roadless rule, concluding that the Clinton Previously, when land management administration, in a rush to issue the rule agencies, such as the Bureau of Land before leaving office, failed to allow the Management or the U.S. Forest Service, were public a sufficient opportunity to comment planning a forest project that could affect a – even though the Forest Service held 187 listed species or designated critical habitat, public meetings on the issue, drawing about they were required to formally consult with 16,000 people. the federal wildlife agency responsible for “The roadless rule is probably the best protecting the species (such as the U.S. Fish conservation measure of this generation,” and Wildlife Service or the National Marine said Jim Angell, an attorney at Earthjustice, Fisheries Service). which is appealing the ruling along with other The new standards allow the land environmental organizations. “We believe management agencies to make their own the court of appeals will agree with us and determinations as to whether projects will reverse the lower court.”127 Unfortunately, the

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administration declined to join Earthjustice in On July 15, 2003, the Bush administration this appeal – even though just three months temporarily exempted the Tongass from the earlier it had promised to uphold the roadless rule – a move agreed to in a backdoor roadless rule.128 legal settlement between the Forest Service Previously, in May 2001, a federal judge and the state of Alaska. This allowed timber in Idaho struck down the rule, but it was sales to continue while the agency developed reinstated on appeal later that December. permanent standards for the area. Environmental organizations carried forward The administration subsequently released this appeal, again with the administration final plans just before Christmas that removed sitting on the sidelines. protection for all 9 million acres of roadless area, and specifically put as much as 2.5 million Alaska’s Tongass National Forest acres at risk of logging (the Forest Service Even if environmentalists ultimately prevail contends its plan covers 300,000 acres) despite in court to preserve the roadless rule, Alaska’s overwhelming public sentiment. Of more Tongass National Forest will still be on the than 250,000 public comments submitted on chopping block. the issue, fewer than 2,000 favored removing The Tongass is the largest national forest protection from the Tongass.130 in the United States and the world’s largest Besides making bad environmental policy, intact temperate rainforest, covering 16.8 this also could have a detrimental impact on million acres, of which 9 million are roadless.129 Alaska’s economy. Fishing accounts for 3,000

More Logging in Protected Areas administration decided in early 2004 to resume commercial logging in the area,131 The Sierra Nevada range. In January allowing loggers to take as much as 10 million 2004, the Forest Service unveiled a plan to board feet of lumber per year. This includes triple logging in California’s Sierra Nevada sequoias and other mature trees of up to 30 range and allow cutting of mature trees up inches in diameter and more than 100 years old. to 29 inches in diameter, undoing Clinton- era protections. The plan also eases grazing Northwest Forest. The Bush restrictions intended to protect wildlife, administration has changed the landmark including the spotted owl. This action replaces 1994 Northwest Forest Plan to allow increased the Sierra Nevada Framework, a plan adopted logging over 24 million acres of public in January 2001 after more than a decade land in Oregon, Washington, and northern of debate. That plan limited logging in 11 California. First, the Forest Service scrapped national forests – comprising 11.5 million a requirement that forest managers survey acres or 10 percent of California – to protect for rare plants and animals before allowing mature trees over 12 inches in diameter, logging, which will further imperil 57 species as well as the wildlife that depends on old- at risk of extinction, according to a federal growth forests. Under the Bush plan, logging analysis. Then, it lifted protections for could increase from 191 million board feet of endangered or threatened salmon, allowing timber to 450 million board feet. timber companies to avoid federal scrutiny for pollution in salmon-bearing streams. These Giant Sequoia National Monument. In actions followed a legal settlement with the 2000, President Clinton established Giant timber industry in which the administration Sequoia National Monument, protecting agreed to more than double logging in the some of the world’s oldest and largest northwest forest region, including in areas of trees over nearly 328,000 acres. However, old-growth forest, threatening endangered citing the threat of forest fire, the Bush species, such as the northern spotted owl.

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Rolling Back Standards for Grazing on Public Land Making matters worse, the agency would The Bush administration has also moved be unable to suspend a grazing permit to open public land to ranchers and their if a rancher violates federal law (such as livestock. On Dec. 8, 2003, BLM proposed132 harming endangered species or destroying to overturn a 1995 Clinton standard that archaeological resources), while ranchers aimed to stop overgrazing, which had caused would be granted clear ownership title to substantial environmental damage over permanent rangeland installations (such the previous decades – including erosion, as wells, fences and pipelines) and could degraded water quality, and reduced wildlife. potentially invoke private property rights to As with the president’s forest initiative, halt environmentally protective actions. this plan would cut out the public from land In April 2003, a federal district court judge management decisions (BLM would no longer rebuked the Forest Service for allowing be required to seek outside input before it overgrazing in New Mexico’s Lincoln issues, renews or modifies a grazing permit) National Forest, which ravages 90 percent while discouraging swift, decisive action to of the streams in the area, according to the protect the environment.133 agency’s own records.134 Later, in November Before taking protective action, BLM 2003, a federal judge revoked a 10-year would have to fulfill burdensome monitoring permit for grazing on 140,000 acres of and data collection requirements, which national forest in Arizona and New Mexico, could take years to complete. For remedies faulting the Forest Service for ignoring long- requiring at least a 10 percent reduction term impacts on endangered species. in grazing, BLM would have to phase in Such overgrazing has damaged more reductions over five years – no matter the than 80 percent of western streams, and environmental damage being done. BLM imperils more than 175 threatened and could also wait two years before addressing endangered plants and animals.135 With the damaging grazing – double the amount of administration’s rule change, the problem is time provided by the current standard. likely to get even worse.

jobs in southeast Alaska, while tourism and Rewarding recreation produce more than 4,000 jobs in Developers the region, six times as much as the timber industry, according to the Forest Service.136 Both Development destroys tens of thousands depend on a healthy environment. of wetlands each year, contributing to At the same time, Tongass logging is flooding, pollution runoff, and loss of heavily subsidized by taxpayers, costing tens of habitat for fish and wildlife.138 Yet instead of millions of dollars every year. In 2002, the Forest tightening environmental protections, the Service spent more than $36 million preparing Bush administration has sought to appease timber sales and road building in the Tongass the real estate industry, which forked over while receiving only $1.2 million in payments more than $32 million to President Bush and from the timber industry, according to agency the Republican National Committee in 2000 data.137 In September 2003, the Forest Service and 2004.139 In 2000, the real estate industry estimated that several new Tongass logging produced 47 Bush Pioneers, and already projects would cost taxpayers $2 million. accounts for 37 Rangers and Pioneers in 2004.140 On top of opening the Tongass, the administration previously announced in June Dredging and Filling 2003 that it would also grant roadless-rule On Jan. 14, 2002, the Army Corps exemptions on a case-by-case basis to the of Engineers weakened environmental lower 48 states, allowing even more logging in standards141 to make it easier for developers, protected areas. mining companies and others to dredge

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and fill wetlands. This action, among other Nonetheless, just after these reports, things, revoked a requirement for acre-for- in October 2001, the Bush administration acre replacement of destroyed wetlands, issued “clarifying” guidelines144 that further lifted protection from seasonal streams, and undermined the policy of acre-for-acre allowed permits to be issued for commercial replacement of wetlands. Specifically, this action development projects that destroy up to permits the Corps to approve projects based on three acres of wetlands – reversing a Clinton- “mitigation” efforts such as enhancement of era standard from March 2000 that reduced existing wetlands, buffer strips along streams, the maximum allowable damage to half ponds and other waters, or deepening of an acre. EPA objected that these changes wetlands for swimming or fishing.145 Needless lacked a scientific basis, and the Fish and to say, this is a much more subjective standard Wildlife Service drafted comments predicting than acre-for-acre replacement, and clears the “tremendous destruction of aquatic and way for numerical loss of wetlands, which is terrestrial habitat.” Unfortunately, Interior especially disturbing given the Corps’ track Secretary Gale Norton blocked these record and the administration’s cozy relationship comments from being delivered.142 with the real estate industry.

‘Offsetting’ Wetlands Destruction Isolated Wetlands In 1989, the president’s father set the goal On Dec. 16, 2003, the Bush administration of “no net loss” of wetlands. This means abandoned a proposal, sought by developers, that to receive a Corps development permit, to remove federal protection for as much as developers must agree to either restore the 20 million acres of wetlands after receiving affected wetlands or create replacement more than 133,000 comments in opposition wetlands. However, in 2001, two separate from environmentalists, sportsmen, state reports by the National Academy of Sciences143 officials, and others. However, questions still and the General Accounting Office revealed that remain about the administration’s sincerity. this policy has substantially failed, as wetlands In offering the proposal last January,146 continue to be destroyed at an alarming rate. EPA claimed to be responding to a

Florida Paybacks Everglades, and later resigned when EPA Florida is home to 12 Rangers and accepted a developer-financed study that Pioneers from the real estate industry, and the concluded wetlands discharge more pollution Bush administration has returned the favor by than they absorb.148 One of the developers opening environmentally fragile wetlands to who helped finance this study was Al development.147 Hoffman – a 2004 Ranger, 2000 Pioneer, and In 2000, President Clinton approved current finance chairman of the Republican an $8 billion program to restore the National Committee. Eastern Everglades, which had been Peter Rummell, a former Disney executive, decimated by years of development. The has similarly benefited from his Pioneer Bush administration is now allowing the status. As CEO of St. Joe Co., he plans to same sort of development in the Western turn the forests, wetlands and small towns Everglades, including by Pioneers Itchko of Northwest Florida into high-priced golfing Ezratti and Fred Pezeshkan. All senior EPA communities, and has lobbied for a giant new career officials in the area have either quit in regional airport. President Bush has declared protest or been relocated. this airport a “high priority” and earmarked In one case, EPA biologist Bruce Boler $2 million for its planning; the total cost is was continually overruled when he denied expected to be $200 million, with 80 percent development permits in the Western financed by taxpayers.

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Lifting Protections for Sewage Treatment diarrhea and vomiting to respiratory infections On November 3, 2003, EPA proposed new and hepatitis. Already sewage discharges guidance that would allow water treatment significantly contribute to an estimated 7.1 plants to dump partially treated sewage million mild-to-moderate cases of waterborne into the ocean and other waterways during disease, and 560,000 moderate-to-severe routine rainfall. This would significantly cases, not to mention numerous beach expand what’s known as the “bypass” closures and fish kills. regulation, which currently allows dumping Making matters worse, the Bush of untreated sewage only during extreme administration has also proposed to slash weather conditions, such as a hurricane, $500 million for sewage treatment while where there is no feasible alternative. The curtailing water enforcement and withdrawing proposed guidance would allow treatment a Clinton-era proposal to control sewage plants to bypass sewage standards without overflows (see page 64 for discussion). consideration of feasible alternatives, such as “The Bush administration’s proposed policy expanded storage tanks. change is upside down,” said Nancy Stoner, Standard sewage treatment involves director of the Natural Resources Defense a three-step process: solids removal, Council’s clean water project. “It should require biological treatment, and disinfection.149 treatment plants to upgrade their aging sewer Under the administration’s proposal, systems and help them out with more federal facilities could bypass the second step and funding. Instead, it cut funding and now is “blend” partially treated sewage with fully proposing to allow facilities to discharge viruses treated wastewater before discharging it and bacteria into our water.”150 into waterways. However, this second step In doing so, the administration also – biological treatment – is what removes most appears to have violated the Clean Water pathogens, which include bacteria (such as E. Act, which requires all wastewater to meet coli), viruses (such as hepatitis A), protozoa sewage treatment standards. Indeed, EPA has (such as Cryptosporidium and Giardia), and explicitly stated in several enforcement cases helminth worms. that “blending” violates the law. Nonetheless, Needless to say, this would put the public in what has become a pattern, the Bush at substantial risk of illness, ranging from administration went forward anyway.

contentious 5-4 decision by the Supreme “In order to fully enforce the Clean Court,151 which determined that the Clean Water Act and protect all waters, the Bush Water Act covers only “navigable waters,” administration must not only stop the proposed and cannot be applied to isolated intra- rulemaking, but must rescind the guidance state ponds and wetlands that have been policy,” said Joan Mulhern, senior legislative protected only because of the presence counsel for Earthjustice.152 Without federal of migratory birds. Notably, however, the protection, isolated wetlands – which make up court’s ruling was narrow and did not nearly one-fifth of the nation’s wetlands – are direct the wholesale policy changes initially highly vulnerable because most states do not pursued by EPA. The administration’s change have programs in place to defend them. of heart recognizes this. Nonetheless, the administration has not Exempting the Military from repealed internal guidance – issued at the Environmental Laws same time as the proposal – to staff at EPA and the Army Corps of Engineers that if fully In November 2003, President Bush signed a implemented would have the same effect as $400 billion defense spending bill that exempts the proposed rule change. the military and its contractors from compliance

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with the Marine Mammal Protection Act 2003 instructing the secretaries of the Army, (MMPA) and the Endangered Species Act (ESA). Navy, and Air Force to abandon their “past Under these exemptions, the Navy restraint” in seeking presidential waivers can test sonar systems that could injure from 10 of the nation’s major environmental whales, dolphins and other protected marine laws.155 Many environmental laws allow mammals, and federal wildlife officials exemptions for activities that the president cannot designate DOD-managed land as deems “necessary” for reasons “of national “critical habitat.” This land covers more than security.” However, these exemptions have 25 million acres, home to more than 300 never been used,156 and indeed there seems to endangered species.153 be little reason. The administration had initially asked A June 2002 investigation by the General Congress to create military exemptions from Accounting Office was unable to corroborate five major environmental laws,154 including administration claims that environmental the Clean Air Act, pointing to the threat of laws hinder military preparedness, and in terrorism and the war in Iraq. fact found training readiness to be high. Then In addition, Deputy Defense Secretary EPA Administrator Christie Todd Whitman Paul Wolfowitz issued a memo in March concurred, saying, “I don’t believe there is a Foxes In the Henhouse John Paul Woodley, assistant secretary of Donald Schregardus, the Navy’s deputy assistant the Army, Office of Civil Works secretary for the environment (Army Corps of Engineers) Schregardus was initially nominated On Aug. 22, 2003, President Bush signed to head EPA’s Office of Enforcement and the recess appointment of Woodley to Compliance Assistance, but was forced to head the Army Corps of Engineers. In this withdraw his nomination in the face of fierce position, Woodley is rewriting the Corps’ Senate opposition over his abysmal record “master manual,” which sets standards for as head of the Ohio EPA from 1991 to 1999. water levels and environmental quality in the Subsequently, the administration appointed nation’s rivers and seacoasts. him as the Navy’s deputy assistant secretary For almost two years prior, Woodley for the environment, where he is supposed to served as the Pentagon’s assistant deputy oversee environmental compliance and site undersecretary for the environment, cleanup. This is a new position – created when where he led the administration’s efforts another position was split in two, perhaps to to exempt military operations from find a place for Schregardus – and does not environmental laws. require Senate confirmation. Before joining the administration, During Schregardus’ tenure at Ohio EPA, Woodley served as Virginia’s secretary of the agency reduced enforcement actions, natural resources from 1998 to 2001, racking backed a state law exempting polluters from up a woeful environmental record.157 During litigation, and openly defied new federal air this time, for instance, Virginia experienced pollution standards.158 A federal judge also widespread fish loss attributed to Pfiesteria found that Schregardus had suppressed microbes; however, the Virginia DEQ information about school children exposed bowed to the poultry industry and, unlike to cancer-causing chemicals in Marion, Ohio, neighboring states, chose not to track sales and that he had fabricated charges against of chicken manure (on which the microbes the government’s lead investigator.159 thrive) to ensure that it does not enter the Based on Schergardus’ performance, Ohio state’s waters. environmental groups petitioned U.S. EPA to revoke the state’s authority to enforce federal laws.160

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training mission anywhere in the country that secretary under the president’s father. By is being held up or not taking place because of 2001, the evidence for action had become environmental protection regulation.”161 overwhelming. The administration’s efforts imply that “In 1999, nearly 1 million people took we must sacrifice public health and the time away from work to treat and recover environment for security. Yet ironically, Vice from work-related musculoskeletal pain or President Cheney rejected this sentiment impairment of function in the lower back or shortly after the Persian Gulf War when he upper extremities,” according to a January served as secretary of Defense: “Defense 2001 report from the National Academy of and the environment is not an either-or Sciences. “Conservative estimates of the proposition. To choose between them is economic burden imposed, as measured impossible in this real world of serious by compensation costs, lost wages and defense threats and genuine environmental lost productivity, are between $45 [billion] concerns. The real choice is whether we are and $54 billion annually.” (These injuries going to build a new environmental ethic disproportionately affect women, who make into the daily business of defense.”162 The up 44 percent of the workforce but suffer 64 administration has provided its answer. percent of the repetitive motion injuries that result in lost work time.164) To address this problem, the Clinton Undoing Protections for Workers standard required employers to establish programs – tailored to their particular As with the environment, special workplace – to address ergonomic hazards interests hold the trump card over the where employees have suffered work-related American worker. The first major piece musculoskeletal disorders (MSDs). This of legislation signed by President Bush programmatic approach included five basic repealed ergonomics standards to prevent elements – management leadership and repetitive motion injuries on the job. Later, employee participation, job hazard analysis the administration declined to even collect and control, training, medical management, information on the extent of ergonomic and program evaluation – modeled after injuries, not wanting facts to get in the way of ergonomics programs implemented by many the predetermined decision to do nothing. employers in a variety of industries, including Meanwhile, the administration has auto assembly, garment and textile, health weakened health protections for miners, care and communications. extended driving hours for truckers, slashed According to OSHA, this standard would overtime pay, and allowed wages of migrant have produced $9.1 billion in annual benefits workers to stagnate, contrary to the law. – a conservative estimate that does not include most productivity improvements, the benefits of Ergonomic Hazards early detection, or cost savings to workers – and In March 2001, at the urging of prevented more than 4.6 million injuries over 10 President Bush, Congress voted largely years, an average of 460,000 injuries a year. along party lines to repeal ergonomics Unfortunately, the Bush administration standards to prevent injuries caused ignored these findings and instead bowed to by repetitive motion on the job – the business interests, which made repeal of the most pressing health and safety issue ergonomics standards a top priority. Major confronting the workplace today. opponents of the standards, including UPS, These standards163 were issued at the FedEx, Anheuser Busch, the U.S. Chamber of end of the Clinton administration after more Commerce and others, contributed more than than a decade of study. In fact, Elizabeth $11 million to Republican lawmakers during Dole initiated the process in 1990 as labor the 2000 election cycle.165

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Foxes In the Henhouse Elaine Chao, secretary of Labor Clinton administration and was a longtime Chao has led the administration’s efforts to congressional aide before that. During his block ergonomic protections and slash overtime tenure at OSHRC, Visscher was known to be pay. Previously, she was a Bank of America the commission’s lone Republican and, in executive, a scholar at the Heritage Foundation October 2000, issued a dissenting opinion – a conservative think tank that has strongly in the landmark ergonomics case against opposed worker protections – and served on Beverly Enterprises, one of the nation’s numerous corporate boards,166 where she largest nursing home operators. In this case, amassed a small fortune in stocks and options. OSHRC concluded that Beverly violated the (She also served as director of the Peace “general duty” clause of the Occupational Corps.). During 2000, Chao reported earning Safety and Health Act by failing to address at least $480,000, of which $38,000 came from repetitive-motion injuries at five Pennsylvania serving on the board of Northwest Airlines.167 facilities. Visscher resigned his OSHRC post in As a result, she was forced to recuse herself November 2000 and was named vice president from President Bush’s decision in March 2001 to for employee relations at the American Iron stop a strike by Northwest airline mechanics.168 and Steel Institute, which fought to overturn Of course, Chao was not Bush’s first choice the Clinton-era ergonomics standards. for Labor secretary. That was Linda Chavez, a strong opponent of affirmative action, bilingual Eugene Scalia, former Labor Department Solicitor education, and minimum wage increases. In the face of intense Senate opposition to Chavez withdrew her nomination, which faced Scalia’s nomination, President Bush installed substantial opposition from Senate Democrats, him through a recess appointment, and when it was discovered that she had been Scalia eventually resigned in January 2003 housing an illegal Guatemalan immigrant after his appointment lapsed. At the law firm as a domestic. Chavez testified in December Gibson, Dunn & Crutcher, Scalia specialized in 1993 against Clinton nominee Zoe Baird for representing management in labor disputes employing an illegal alien and failing to pay her and consistently downplayed the importance Social Security. of worker safety. In particular Scalia was a leader in the John Henshaw, assistant Labor secretary for anti-ergonomics movement, referring to occupational, safety and health repetitive-stress injuries as “junk science,” As head of the Occupational Safety “quackery,” “strange,” and a “psychosocial and Health Administration, Henshaw has issue,” implying that those who suffer are declined to issue a single significant health faking the symptoms.170 He represented a or safety standard, and approved the rollback number of corporate interests seeking to hold of reporting requirements for ergonomic- off ergonomics protections – including the related injuries and hearing loss. Henshaw United Parcel Service, Anheuser-Busch, the previously worked for chemical manufacturing Rubber Manufacturers Association, and the giant Monsanto and one of its spin-offs, American Trucking Associations – and traveled Solutia. Over the last 20 years, Monsanto has to California, North Carolina, and Washington compiled a lengthy rap sheet of environmental state to help fend off state-level ergonomics contamination and worker neglect.169 initiatives. “The Bush administration could Gary Visscher, deputy assistant secretary for not possibly have found anyone who is occupational safety and health more vehemently against regulation and Visscher served as a commissioner enforcement of ergonomic hazards than on the Occupational Safety and Health Eugene Scalia,” said Peg Seminario, health Review Commission (OSHRC) during the and safety director at the AFL-CIO.

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Shortly after taking office, President for musculoskeletal disorders (ergonomic Bush met with Republican congressional injuries) and hearing loss. leaders and encouraged them to vote At first, the Bush OSHA responded by down the ergonomics standards171 through staying these provisions for one year. In July the little-used Congressional Review Act, 2002, it then weakened the requirements for which gives Congress 60 legislative days recording hearing loss.174 Under the Clinton to reject executive branch regulations. The standard, employers were obligated to note White House also issued a formal statement when a worker had lost 10 decibels of hearing; in support of congressional repeal just the Bush administration raised this threshold before the vote. This approach allowed the to 25 decibels.175 By OSHA’s own estimate, administration to forgo administrative action this means that 135,000 fewer cases will be and avoid likely legal challenges. recorded each year, depriving employers, In signing the repeal, President Bush workers, unions, and the government of a vowed that his administration would pursue valuable tool for identifying and preventing a “comprehensive approach” to address work-related hearing loss. ergonomics injuries, implying that the On Dec. 17, 2002, OSHA again delayed problem was with the particulars of the the recording requirements for both hearing Clinton standards, not standards per se. loss and ergonomic injuries by another year176 Yet more than a year later, on April 5, 2002, (until January 2004), and on June 30, 2003, the Department of Labor released its feeble OSHA issued its final determination that “replacement plan”172 – a voluntary initiative employers do not have to note when workers that was nothing more than a smokescreen report ergonomic injuries.177 to mask the administration’s unwillingness to address the problem. As part of this plan, Coal Dust DOL has subsequently unveiled unenforceable In March 2003, the Bush administration industry-specific guidelines for nursing proposed to weaken coal dust standards homes, grocery stores, and poultry plants, meant to protect miners from black lung with more promised. (Only the nursing home disease and other respiratory problems. guidelines have been finalized.) Specifically, this proposal would permit Shortly before releasing these guidelines, dust levels to increase fourfold, from 2 Labor Secretary Elaine Chao committed “to milligrams per cubic meter to 8 milligrams. help workers by reducing ergonomic injuries in The National Institute of Occupational Safety the shortest possible time frame.” Since then, and Health has found that miners are still however, millions of workers have suffered contracting black lung at the 2 milligram ergonomic injuries, with no relief in sight. standard. However, according to the Bush Special interests – which have fought tooth and Mine Safety and Health Administration, nail against any meaningful action for more protection could be ensured if miners are than a decade – are still running the show. required to wear cumbersome respirators – an apparent violation of the Coal Mine Recording of Ergonomic Injuries & Hearing Loss Health and Safety Act, which directs that In January 2001, the Clinton respirators should be available but “shall administration issued revised standards for not be substituted for environmental control recording workplace injuries and illnesses.173 measures in the active workings.”178 The National Association of Manufacturers Moreover, the proposal would do away immediately sued the Occupational Safety and with the requirement that mine operators Health Administration in an effort to invalidate sample dust during 30 shifts per year, and the standards – which were scheduled to go instead give exclusive responsibility for into effect in January 2002 – raising particular testing to MSHA. Done right, this could objections over recording requirements be a good thing given that operators have

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Foxes In the Henhouse frequently been caught cheating on dust David D Lauriski, head of the Mine Safety and compliance. However, the proposal does Health Administration not specify the frequency of testing, and the Why would MSHA propose to weaken United Mine Workers of America estimates standards for coal dust and particulate matter? that testing would fall 90 percent to as little as The answer appears to lie with Lauriski, who three times a year.184 spent more than 30 years in the coal mining A newly developed monitoring device industry. While manager of Energy West could provide much greater protection. It Mining Co., he wrote a paper in 1997 arguing would be attached to a miner’s cap light that dust standards should be loosened, and and take continuous readings that could signed a document asking MSHA to allow be downloaded at the end of each shift. respirators in lieu of dust control.179 Lauriski In September 2003, the Senate passed an also served as chairman of the Utah Board of appropriations amendment, introduced by Oil, Gas, and Mining, and as a board member Sen. Arlen Specter (R-PA), requiring the of the Utah Mining Association. administration to redo its proposal if final Lauriski has also been accused of testing of this technology proved successful.185 undermining an investigation into a spill by However, the administration prevailed in the Martin County Coal – a subsidiary of coal- House – which narrowly defeated a similar industry giant Massey Energy – that sent amendment (212-210) several months earlier – an estimated 306 million gallons of water and the new monitoring device appears likely and black coal slurry into Kentucky’s Big to stay on the shelf. Sandy River and its tributaries – 28 times the amount spilled in 1989 by the Exxon Diesel Matter & Miners Valdez.180 In protest, Jack Spadaro – the The administration has also taken steps former superintendent of the National Mine to weaken protections for miners exposed Health and Safety Academy in Berkley, W.V. – to diesel particulate matter (DPM), a long- resigned in 2001 from his position on the recognized cause of lung cancer. team investigating the incident.181 Spadaro At the end of the Clinton administration, also accused Lauriski of rewarding no-bid in January 2001, the Mine Safety and Health contracts to former business associates, Administration published a final standard prompting an ongoing investigation at the for metal and non-metal mines to reduce Department of Labor. exposure to DPM. Specifically, this standard directed mines to reduce the concentration of John Caylor, MSHA’s deputy assistant secretary carbon to 400 micrograms per cubic meter of Caylor, Lauriski’s deputy, previously air by July 2002, and then to 160 micrograms worked for Cyprus Minerals, Amax Mining, by January 2006.186 and Magma Copper. Spadaro also complained However, just as the interim limit was to the Labor Department’s inspector general to kick in, MSHA announced – without ever that Caylor steered a $300,000 sole-source, soliciting public input – that it would not issue no-bid contract to a company, Jerry Silver citations for noncompliance for one year, until and Associates, headed by a close friend.182 July 19, 2003.187 As this date approached, Sparado alleges that Caylor threatened to fire MSHA again chose to undercut the standard, him for making this charge. issuing a compliance guide that allowed mine operators to substitute the use of personal John Correll, Labor’s deputy assistant secretary protective equipment (PPE), such as masks, Correll previously worked for Amax Mining for compliance with the interim limit.188 and Peabody Coal. Spadaro also charges that The following month, on Aug. 14, MSHA Correll threatened to fire him for blowing the proposed a new standard that echoed this whistle on MSHA’s no-bid contracts.183 compliance guide and indicated that the final limit would be revisited “in the near future.”189

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Driving Hours for Truckers social, health care, and education programs.193 On April 28, 2003, the administration The administration moved to soften its original issued new standards that it says will proposal in response to this congressional “improve highway safety” but actually extend opposition, but the general thrust of the final the amount of time truckers can stay behind action remains the same. the wheel each day.190 The old standard, which remains in effect The new “hours of service” rules allow until late August 2004, excludes workers from truckers to drive for 11 straight hours instead overtime pay if they meet three conditions. of 10 (while requiring a 10-hour break period, First, the employee must make more than up from 8). Moreover, there is no requirement $155 a week (or $170 for professionals) for on-board electronic devices to verify how – a pay rate that has been unchanged since much time truckers actually spend on the 1975. Second, the employee must make road, rendering the hour limits unenforceable. a salary, not an hourly wage. And third, Trucking companies backed the change, the employee must perform work that is while safety advocates and the Teamsters primarily “administrative,” “professional,” or union, which represents truckers, opposed it. “executive” in nature. “Decades of research, both on commercial On the positive side, the Bush drivers and shift workers, has shown that administration’s plan raises the pay rate to increasing the length of time a worker $450 a week, equivalent to an annual salary must spend performing certain tasks of $23,660. However, this modest increase is correspondingly reduces alertness and not indexed for inflation and thus will protect performance,” according to Parents Against fewer workers over time. Tired Truckers (PATT), which points out that At the same time, the administration 5,082 people were killed in collisions involving is also dramatically increasing the number a large truck in 2001, accounting for one out of of workers who qualify as administrative, eight traffic fatalities.191 professional, or executive. For example, Ironically, the Department of Transportation the new rule would lower education levels was forced to update the standards – which required to be considered administrative or have been unchanged since 1939 – after losing professional – cooks and funeral embalmers, a lawsuit brought by Teamster members, among others, would be considered exempt Public Citizen, and PATT, which sought to learned professionals – while low-level reduce the amount of time behind the wheel. working supervisors would be considered “executives.” This includes, for instance, an Overtime Pay employee who supervises two employees, but On April 23, 2004, the Department of spends 90 percent of his time frying French Labor altered overtime rules in a way that fries and flipping burgers.194 could strip millions of their right to time-and- a-half pay for hours worked beyond 40 in a Wages for Migrant Workers single week.192 However, several weeks later, The administration delayed publication the Senate voted to block this plan, and the of minimum wage standards for temporary House seemed like it might do the same. foreign workers, allowing tens of thousands of The previous year, in the face of a farm workers – the vast majority of Mexican presidential veto threat, the House voted with descent – to be underpaid for several years. the Senate in support of an appropriations Workers in the H-2A guest worker amendment blocking the administration’s program, which permits employers to hire overtime rollback (then just a proposal). temporary foreign farm workers, are paid Unfortunately, in November 2003, congressional based on standards established annually by negotiators dropped this amendment after the Department of Labor. However, Labor GOP leaders threatened to cut $4.7 billion from Secretary Elaine Chao delayed publication of

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the standards for the administration’s first two During the 2000 campaign, President Bush years, allowing employers to pay the 2000 expressed support for strong medical privacy wage rate.195 protections and the principle that a “company In a case brought by the United cannot use my information without my Farmworkers of America and others, a court permission to do so.”200 In this case, however, subsequently found that this delay violated that principle has not been honored. the Department of Labor’s own rules196 – Making matters worse, the Bush forcing Chao to issue new wage rates, which revisions also permit drug companies to pay were published in February 2003. pharmacists to recommend that patients switch from one drug to another without divulging details of the financial arrangement. Stripping Patient Protections By contrast, the Clinton standards mandated full disclosure of financial support behind The Bush administration has stripped marketing activities, and allowed patients away protections for medical patients at to opt out of promotional mailings (though the urging of HMOs, hospitals, and nursing marketing based on medical records was still homes, which combined contributed permitted). Patients will now be left in the dark more than $5.5 million to President Bush’s and have no way to halt the flow of record- campaign efforts in 2000 and 2004.197 In one based marketing. of its most far-reaching actions in any area, In devising these changes, the Bush the administration significantly weakened administration convened advisory panels medical privacy protections – potentially stacked heavily in favor of industry for a three- allowing personal records to be used for drug day discussion in August 2001. “Almost 100 marketing – and later relaxed standards for percent of the invited speakers were from the nursing home and emergency room care. health care industry – people who wanted to see changes that made it easier for industry Medical Privacy Safeguards to get information,” according to Robin Kaigh, On Aug. 14, 2002, the Bush administration a New York lawyer and medical-privacy weakened medical privacy protections198 issued specialist, who was in attendance.201 at the end of the Clinton administration. As a Among others, this included result, personal records can be shared without representatives from the Health Insurance patient consent between doctors, pharmacies, Association of America, Kaiser Permanente pharmaceutical companies, employers, (the nation’s largest nonprofit HMO), the insurance companies, and the government – National Association of Chain Drug Stores, frequently for purposes other than health care, and the American Pharmaceutical Association. such as drug marketing. During the 2000 election, these interests gave The Clinton standards199 (which the Bush generously to President Bush’s campaign; administration immediately suspended upon insurance companies contributed $1.7 taking office) sought to put an end to this million, HMOs gave more than $260,000, by requiring health care providers to obtain and drug companies gave nearly $500,000 written patient consent before sharing medical – making Bush the top recipient from all three records. However, the Bush revisions revoked industries. this obligation and instead merely require The Department of Health and Human that patients be informed of privacy practices. Services received more than 50,000 public This shifts control of sensitive medical comments on the medical privacy standards, records from the patient to the provider and the overwhelming majority urging strong again allows such information to be sold to privacy protections. In the end, however, pharmaceutical companies for marketing the administration once again sided with its purposes regardless of the patient’s wishes. wealthy campaign contributors.

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Nursing Home Care actually exacerbate staffing problems by On Sept. 26, 2003, the Bush encouraging nursing homes to hire low-paid administration eased nursing home feeding assistants instead of nurses’ aides. standards to allow workers with just one Sen. Charles Grassley (R-IA) and Rep. day of training help residents eat and Henry Waxman (D-CA) sent a letter to drink.202 Previously, only licensed health care HHS Secretary Tommy Thompson urging professionals or certified nurse aides were him to reconsider the new standards. permitted to perform such duties. “Feeding an elderly resident who may be These “feeding assistants” will be uncommunicative and may have difficulty required to complete just eight hours of chewing or swallowing is a complicated task training – compared to 75 hours of training that should be performed only by skilled and required for nurse aides – and they do not properly trained and supervised personnel,” need to be trained by licensed professionals. the congressmen wrote.204 In fact, the rules merely state that feeding assistants must attend a state-approved Emergency Room Standards training course, over which the federal On Sept. 9, 2003, the Bush administration government will not have oversight. eased emergency room standards in ways Feeding assistants will not be required to that may make it more difficult to receive complete any kind of test or demonstration medical care.205 of competence and will be permitted to In particular, the new measures give feed residents in their rooms without any hospitals greater discretion in developing direct supervision. The proposed standards, “on-call” lists for staffing emergency rooms. issued in March 2002, would have required Doctors are now be permitted to be on-call feeding assistants to work under the direct simultaneously at more than one hospital and supervision of a nurse who was “immediately can perform elective surgeries while on-call. available to give help.” The final standards, The change also makes it easier to deny however, indicate that feeding assistants patients emergency room care. Previously, will be expected to call a supervisory nurse patients were entitled to emergency care at on the resident call system when there is an all hospital departments, including those not emergency or a need for help. at the main hospital. Now, an “off-campus” “These regulations will allow workers facility is only required to provide emergency who are virtually untrained to work virtually care to everyone if it is licensed as an unsupervised with people who are frail, emergency department; if it is “held out” as suffering from multiple medical conditions, a place for emergency care; or if emergency and unable to feed themselves,” said Donna treatment counted for one-third of its Lenoff of the National Citizens’ Coalition outpatient visits in the previous calendar year. for Nursing Home Reform. “Read these In making this change, the new standards regulations carefully. They would permit a 16- narrow the definition of “hospital property” year-old on a wing without a single licensed where individuals are entitled to care. The nurse to perform the Heimlich maneuver on new definition excludes areas or structures your 90-year-old grandmother if she choked. of the hospital’s main building that are not If she continued to choke or went into cardiac part of the hospital, such as physician offices, arrest? These regulations say this 16-year-old rural health clinics, and skilled nursing with eight hours of training in nursing care facilities. As one commenter pointed out, should ring the call bell for a nurse.”203 this is worrisome in that individuals seeking Nursing homes have lauded the rule medical care may be confused or agitated and changes, claiming they will help free up have trouble determining whether a particular nurses and nurse aides to perform more area is devoted to emergency care. In some complex tasks. But the new standards may cases individuals may actually be physically

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unable to proceed to the proper emergency FDA concludes that there is little scientific treatment area. evidence supporting this claim.”208 “This really speaks volumes about the “The FDA’s new plan is a dereliction of its administration’s priorities that it focused duty to enforce the law that Congress enacted,” on limiting emergency room care and has said Peter Lurie, deputy director of the Health dismally failed to make any progress in Research Group at Public Citizen, which along expanding coverage for the growing number with Center for Science in the Public Interest is of people who are uninsured,” said Ron challenging the change in court. “The FDA is Pollack, executive director of Families USA.206 essentially saying that unproven or misleading claims are okay, as long as the food label also says that the claims might not be true. The Undoing Food Labeling Protections agency’s scheme is another in a growing list of Bush administration actions that put business’s Food labeling requirements allow financial interests ahead of consumer health.”209 American consumers to make informed decisions about what they put into their Olestra Labeling Requirements bodies. However, food manufacturers in many In August 2003, the Food and Drug cases would prefer to keep the public in the Administration lifted requirements that dark. Not surprisingly, the Bush administration food containing olestra, a zero-calorie fat has responded, moving to weaken labeling substitute, bear a statement informing requirements for health claims, olestra, consumers that the additive might cause country of origin, and “dolphin-safe” tuna. gastrointestinal problems.210 FDA approved olestra for use in 1996 but Health Claims on Food Labels required foods containing the fat substitute In July 2003, the administration relaxed to be labeled with the following statement in restrictions for making claims about the a boxed format: “THIS PRODUCT CONTAINS health benefits of food products.207 This OLESTRA. Olestra may cause abdominal action allows food manufacturers to cramping and loose stools. Olestra inhibits petition FDA for approval of health claims the absorption of some vitamins and other based on preliminary scientific information nutrients. Vitamins A, D, E, and K have – in apparent violation of the Nutrition been added.” Labeling and Education Act of 1990, which The administration’s move benefits demands that health claims be supported Procter & Gamble, the main manufacturer of by “significant scientific agreement.” The the additive, which gave more than $153,00 FDA will even allow a manufacturer to claim to Republicans in the 2002 election cycle. health benefits when evidence suggests the Consumers, however, will be left in the dark, claim is likely false, so long as there is an which is particularly alarming considering that accompanying disclaimer. more than 20,000 people have filed adverse- For implementation, the agency offered reaction reports related to olestra – more than the possibility of using an A-through-D scale the FDA has received for all other additives to rate health claims, with “A” indicating combined.211 FDA will continue to require food significant scientific agreement backing the manufacturers to add vitamins A, D, E and K assertion. Those claims ranked at levels B- to products containing olestra to compensate through-D would be considered qualified for the additive’s effects on these nutrients. health claims and would be accompanied by disclaimer language. According to the agency, Country-of-Origin Labeling the lowest level claim, “D,” would be qualified At the urging of the Bush administration, by such statements as, “Very limited and Congress voted to block implementation preliminary scientific research suggests that... of standards that require meat and meat

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products to bear a label indicating their safe” if caught by using nets on dolphins. On country of origin. April 10, 2003, these groups won a preliminary These country-of-origin labeling (COOL) injunction against the Bush action that is still requirements, which were mandated by in place.214 the 2002 farm bill, were conceived to At the time of the administration’s help consumers identify American-made decision, Commerce Secretary Don Evans products, and gained further credence made the legal determination that dolphins after the discovery of mad cow disease had suffered “no significant adverse impacts” in Canada. from tuna fishing. However, documents Rep. Henry Bonilla (R-TX), motivated by turned over to Earth Island Institute during opposition from the meat industry,212 tacked litigation show that the administration knew on a provision to the FY 2004 agriculture this wasn’t true.215 “A determination of ‘no appropriations bill prohibiting the use of funds significant adverse impact’ is not supported until 2006 to implement country-of-origin by the science,” read one internal Commerce labeling for meat and meat products. (This Department document just weeks before the restriction does not affect COOL requirements decision. Indeed, Commerce Department for other foods such as seafood, produce and scientists found that depleted dolphin peanuts.) Rep. Dennis Rehberg (R-MT) offered populations, likely caused by tuna fishing, an amendment to strip Bonilla’s rider from the were not recovering, but the administration bill, but it failed by a vote of 193 to 208, and ignored these conclusions. President Bush signed it into law in January 2004. The meat industry now has two years to Relaxing Media try to permanently kill COOL. Ownership Rules Fox In the Henhouse On June 2, 2003, the Federal Chuck Lambert, USDA’s deputy undersecretary Communications Commission issued for marketing and regulatory programs controversial rules that permitted media Before arriving at USDA in December conglomerates to own television stations 2002, Lambert spent 15 years at the National reaching up to 45 percent of the national Cattlemen’s Beef Association, the lobbying audience – up from 35 percent – and acquire group for the cattle industry.213 He is now up to three TV stations, eight radio stations, responsible for regulating the meat packing and a daily newspaper in the same market. industry, which convinced the administration “These new rules, if implemented, would to oppose country-of-origin labeling. allow media corporations to consolidate control over more outlets than ever before, especially for lower income people who can’t Dolphin-Safe Tuna afford satellite cable and the Internet,” said At the end of 2002, the Commerce Pete Tridish of the Prometheus Radio Project, Department decided to allow countries, such a group suing to overturn the FCC’s changes as Mexico, to label their tuna “dolphin safe” – which were suspended by a federal appeals even if dolphins were chased and encircled court pending judicial review. in nets in order to catch fish swimming Congress also registered similar concerns, beneath them. and on Sept. 16, 2003, the Senate passed a More than seven million dolphins have “resolution of disapproval,” 55 to 40, to block been killed by this fishing technique since the rules. Michael Powell, President Bush’s the 1950s, according to Earth Island Institute, appointment to chair the FCC, responded by one of several environmental groups suing complaining about “a concerted grassroots to reinstate the old standard – under which effort to attack the commission from the imported tuna cannot be labeled “dolphin outside in.”216 Later, both the House and

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Senate approved an amendment to the 2004 and reached a compromise to raise the cap to ombnibus spending bill that would have kept 39 percent, conveniently allowing News Corp. in place the 35 percent standard for national (which owns Fox) and Viacom (which owns media ownership. CBS) to keep their existing stations. The White In the end, however, congressional House had previously threatened to veto any negotiators caved to White House pressure legislation blocking the FCC standards. Money Talks Media conglomerates have given $7.6 Broadcasting’s largest individual shareholder, million to Bush campaign efforts in 2000 McHenry Tichenor, lent his private jet to Bush so and 2004, and produced 17 Rangers and often that Democrats nicknamed it “Bush Air.”218 Pioneers.217 This investment has been Comcast, the country’s largest cable and especially rewarding for Univision Chairman broadband Internet provider, will also need and CEO Jerry Perenchio, a 2004 Pioneer. FCC approval if its $47.8 billion bid to acquire In September 2003, the FCC’s 3- Walt Disney Corp. is successful. Previously, in 2 Republican majority approved the $3 November 2002, the FCC approved Comcast’s billion merger of Univision and Hispanic $51 billion merger with AT&T Broadband. Broadcasting, giving Univision control over The bid for Disney was made possible 80 percent of the Spanish-language radio and when a federal court struck down a television market. regulation that prevented companies from Hispanic Broadcasting – whose largest owning TV stations and cable systems in shareholder, Clear Channel, has produced the same market, and the FCC declined $119,582 for President Bush – hired Bush to appeal the ruling. Should the deal go Pioneers Haley Barbour and Lanny Griffith to through, Comcast Cable President Stephen lobby on behalf of the deal. Previously, during Burke – a 2004 Bush Ranger – would be the 2000 presidential campaign, Hispanic Disney’s new CEO.

46 White House Roadblock

Although the Bush administration has been chiefl yy interestedinterested inin relaxingrelaxing regulatory requirements on its corporate allies, in a number of cases, because of statutory or judicial requirements, it has been forced to act. Not surprisingly, the White House has taken a special interest in these decisions, acting through its Offi ce of Information and Regulatory Affairs (OIRA),1 an obscure but powerful offi ce within the Offi ce of Management and Budget, which by presidential executive order has the authority to review and possibly reject or amend new agency regulations. Under the leadership of Administrator John Graham – whose nomination was widely opposed by health and safety advocates, and ultimately, 37 Senate Democrats – OIRA has consistently used its review authority to weaken agency health, safety and environmental proposals, putting costs to corporate interests ahead of all other considerations. Indeed, of the major decisions discussed below,2 the regulated industry prevailed over agency recommendations in every last one, owing its success directly to OIRA intervention. Meanwhile, Graham has pushed a host of policy changes that make it more diffi cult for agencies to promulgate new regulation, centralizing control over the rulemaking process at OIRA. This includes new emphasis on monetizing the benefi ts of prospective regulation, frequently an impossible task; guidelines that allow industry to challenge the information that supports regulation; and a plan that would allow OIRA to demand industry-dominated “peer review,” which could be used to grind regulatory agencies to a halt. To top it off, OIRA has solicited an industry hit list to begin the next generation of regulatory rollbacks. In the Bush administration, health, safety and environmental policy unfortunately begins – and ends – with John Graham. White House Roadblock

Standards Fox In the Henhouse Weakened John D. Graham, administrator of OMB’s Office The examples listed below are not of Information and Regulatory Affairs rollbacks, as identified in Chapter I, in that The record chronicled in this chapter is they were never on the books. Yet in terms hardly surprising given Graham’s background of transparency and accountability, they as founding director of the Harvard Center represent something more pernicious. If for Risk Analysis, which during his tenure the administration wants to weaken an received the majority of its funding from existing standard, it must act out in the corporate interests (including Dow Chemical, open, submitting changes to the public E.I. DuPont, Monsanto, Glaxo-Wellcome, for comment. In the case of OIRA review, Exxon, General Electric, and General Motors). however, Graham is free to exert influence In this position, Graham was a consistent and largely in secret, insulated from public reliable ally of almost any industry seeking accountability – which gives industry an ideal to hold off new regulation. For instance, backdoor to shape regulation. after receiving funding from AT&T Wireless OIRA changes are not published for Communications, Graham produced a study public comment, nor are they made available in July 2000 that argued strongly against a through the web. Rather, the only way to ban on the use of cell phones while driving, figure out OIRA’s role in shaping standards is which was being considered by many cities to comb through agency docket libraries and and states at the time.5 He also downplayed talk to those with direct knowledge (which is the health risks of diesel engines, as well as how the following examples were compiled). second-hand smoke, and argued against a ban What makes this all the more galling is on highly toxic pesticides (all after receiving that OIRA has no statutory authority to shape funds from affected industries). In a talk at the health, safety and environmental protection Heritage Foundation at the time, Graham said, (or any other regulation)3; Congress has “Environmental regulation should be depicted given that exclusive power to regulatory as an incredible intervention in the operation agencies, such as NHTSA, FDA and EPA, of society.”6 which as described below have been involved in some especially egregious cases of OIRA interference. a pressure sensor in each tire that can alert the driver of an under-inflated tire through a Tire Pressure Monitoring dashboard monitor. An indirect system works On June 5, 2002, the National Highway with anti-lock brakes to measure the rotational Traffic Safety Administration (NHTSA) issued difference between the tires, determining a watered down standard to guard against whether the speed is slower for one tire under-inflated tires – which are linked to compared to the others. numerous deaths each year – after OIRA, at Public Citizen, New York Public Interest the urging of the automobile industry, rejected Research Group, and the Center for Auto its first attempt. A federal appeals court later Safety challenged the standard in court rebuked OIRA and overturned the standard, – arguing that NHTSA, under pressure from calling it “contrary to the law and arbitrary the auto industry and OIRA, failed to comply and capricious.”4 with the Transportation Recall Enhancement, The rule – required by Congress as Accountability, and Documentation (TREAD) a response to the Firestone tire debacle Act in adopting the less safe standard. that resulted in 271 deaths – allowed The court agreed, noting that the manufacturers to choose between installing a indirect system would fail “to warn drivers “direct” system or a less reliable, yet cheaper, in approximately half of the instances in “indirect” system. A direct system relies on which tires are significantly under-inflated,”

48 while the direct system “would prevent more industry, which incidentally contributed injuries, save more lives, and be more cost- generously over the years to the Harvard effective.” The three-judge panel instructed Center for Risk Analysis, where Graham NHTSA to develop new standards. served as director prior to his confirmation as NHTSA originally wanted to require direct OIRA administrator. systems to be installed in all vehicles by 2007, which NHTSA estimated would avert 10,271 Bioterrorism injuries and 141 fatalities a year; according to Industry representatives met with OIRA OIRA’s estimates, indirect systems would avert officials on numerous occasions10 in what was 5,000 injuries and 70 fatalities. ultimately a successful effort to relax new FDA Yet in rejecting this approach,7 Graham standards11 – mandated by the Public Health incredibly argued that allowing indirect Security and Bioterrorism Preparedness systems would actually produce greater safety and Response Act of 2002 – that require benefits overall because it would serve as an food importers to provide advance notice of incentive for manufacturers to install anti- shipments bound for the United States. lock brakes, which are necessary for indirect The original proposal, issued in February systems to work. 2003 for public comment, required importers Pointing to a recent study8 by Charles to notify the FDA by noon the day before a Farmer of the Insurance Institute for Highway shipment was to arrive. The final standards, Safety, Graham concluded that the resulting however, require just eight hours notice for increase in anti-lock brakes would save 118 shipments arriving by sea, four hours for to 266 lives a year, on top of the 70 fatalities those transported by air or rail, and only two averted from indirect systems. According hours for shipments coming by land. to Graham, this “yields a total of 188 - 336 “These regulations are critically needed to fatalities averted or between 47 and 195 more protect the food supply, but we’re concerned than with direct systems.” that the agency is requiring less advance Yet Graham appears to have been overly notice for imported food shipments,” said enthusiastic in his appraisal of anti-lock Caroline Smith DeWaal of the Center for brakes based on the available evidence. Science in the Public Interest. “If trucks of After Graham’s return letter, Farmer met food can arrive at our borders with just two with NHTSA on March 23, 2002, to discuss hours notice, it might be easier for someone his study – which Graham called the “best to avoid inspection.”12 estimate” available – and according to the meeting log filed by NHTSA, “Mr. Farmer Construction Runoff thought that Dr. Graham of OMB was being OIRA tossed out an EPA proposal to limit optimistic in assuming that antilock brakes runoff from construction and development would produce fatality benefits.”9 That’s any sites, the largest source of pollution in coastal fatality benefits at all. waters and estuaries in the United States. In other words, the author of the study EPA’s original submission to OIRA that formed the foundation of OIRA’s decision sought to require an 80 percent reduction explicitly rejected Graham’s conclusions, in storm water discharges both during yet Graham chose to ignore this, insisting and after construction through commonly that NHTSA allow indirect systems anyway. used measures, such as various drains, This willful misinterpretation of the evidence barriers, and buffer zones. Yet citing costs, seems to indicate that the concern over anti- OIRA cut out any reference to permanent lock brakes was really just a diversion tactic, controls put in place after construction – the meant to distract from the bottom-line action: main source of the problem – and blocked Graham rejected the safest possible standard the performance standard for discharges as a result of cost objections from the auto during construction,13 a move strongly

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urged by developers, including the National well as fish and their eggs. Larger fish and Association of Home Builders. shellfish are often trapped on a plant’s intake Instead, according to agency sources, screen, and die there from lack of oxygen and OIRA forced EPA to present three weak movement, in what’s known as impingement. options for public comment,14 one of which Smaller fish or eggs that make it into the was to do nothing. Amazingly, this was the cooling structure are usually killed in the option EPA ultimately chose.15 cooling process, called entrainment, which During construction and development, the generally results in much higher losses than natural landscape is disturbed and soil is left impingement. exposed for a period of time. When rainwater In the Delaware Bay, for instance, EPA runs over these sites, massive amounts of estimates staggering annual losses of sediment are swept into streams, lakes, rivers, 359.4 million fish from the Salem Nuclear and oceans. Forest stripped for construction Generating Station (which withdraws more produces 500 to 1,000 times the amount of cooling water than any plant in the country), sediment of undeveloped land. 356.3 million of these from entrainment. At After construction, much of the previously the Big Bend facility in Tampa Bay, Fla., an natural area is paved over and covered with estimated 8.13 million fish are lost annually. impervious surfaces that prevent water from And in the San Francisco Bay Area, more than soaking into the ground. Runoff continues, 400,000 threatened or endangered fish are carrying pollution from human activity in thought to be lost annually from two plants, addition to sediment. This includes metals, Pittsburg and Contra Costa. pesticides, fertilizers, oil, grease, bacteria, As originally submitted to OIRA, EPA viruses, and trash. sought to require the 59 largest plants in the This storm water pollution, as it’s most ecologically sensitive areas to meet the commonly known, accounts for 55 percent of performance achievable by a closed-cycle the pollution in coastal waters and 46 percent cooling system, which reduces fish kills by up in estuaries, and is the leading cause of beach to 98 percent by recirculating or reusing water, closures and advisories. EPA estimates that withdrawing only 2 percent to 28 percent construction sites annually discharge 80 of the water used by older systems. This million tons of solids into U.S. waterways, would have acknowledged the Clean Water which is only increasing with the rapid pace of Act’s requirement to set the standard based development. EPA estimates that 2.2 million on the best technology available – clearly a acres of rural land are developed each year, closed-cycle system, which is currently used which has also led to increased flooding. by 69 facilities. (EPA sought less stringent Urbanized land increased 47 percent between requirements for the roughly 500 remaining 1982 and 1997 while population increased plants subject to the proposal.) only 17 percent. Yet citing costs, and ignoring the requirements of the law, OIRA stripped out the Fish Killed by Power Plants closed-cycle standard for the most harmful OIRA substantially weakened an EPA plants, according to EPA documentation rule to protect the trillions of fish and aquatic required by Executive Order 12866.16 Instead, organisms that are sucked up and killed each OIRA embraced alternative, less protective year by power plants that use rivers, estuaries, measures urged by energy companies and oceans to cool their systems. – including Cinergy, Edison Electric, and Public Each year, electric generating plants Service Electric & Gas (PSE&G), among others withdraw more than 70 trillion gallons of – which EPA published as a proposed rule water, killing trillions of aquatic organisms in for public comment on April 9, 2002.17 (This the process, including plankton, crustaceans, proposal was subsequently finalized to OIRA’s shellfish, sea turtles, marine mammals, as specifications in February 2004.)

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Specifically, OIRA substantially lowered that would have held corporate livestock the performance standard to require a 60 owners liable for damage caused by animal percent reduction in entrainment (from a waste pollution. These owners often evade baseline of no controls) and an 80 percent culpability by hiring contractors to raise their reduction in impingement. Moreover, under animals, a loophole that would have been further OIRA changes, facilities are allowed to closed by the Clinton proposal. The agency plead special circumstances with state permit also dropped a requirement that would have authorities, and avoid meeting even this forced facilities to monitor groundwater for watered-down standard. potential contamination by animal waste, “This weak mandate would allow existing which often seeps into the earth, leaving plants to kill 20 to 1000 times more fish per communities vulnerable to potentially megawatt than [plants with closed-cycle dangerous drinking water supplies. systems], and continue to decimate aquatic OIRA further weakened the standards life in U.S. waterways indefinitely,” according by broadening a provision that exempts to Riverkeeper Inc., which brought suit against “agricultural storm water discharge” from EPA resulting in a 2000 consent decree regulation – legalizing the discharge of raw requiring a standard. sewage, bacteria, and other elements from The reduction targets pushed by OIRA land where waste has been applied.18 The are based on the performance achievable by office also altered a provision to allow facilities lesser technologies, including better intake to avoid strict federal standards governing screens and fish return systems. In addition, the land application of animal waste – instead OIRA altered EPA’s original proposal to allow embracing industry’s preferred approach of plants to forgo even these minimal upgrades regulation by state-level authorities. by instead employing “restoration measures,” Records indicate that John Graham and such as fish restocking programs and the OIRA staff met with industry representatives19 restoration of wetlands and aquatic habitat interested in the factory farm rules in “that will result in increases in fish and November of 2001, nearly a year before shellfish in the watershed.” Yet such measures the formal review of the measures began – have proven highly unreliable, and don’t suggesting some type of upfront involvement actually replace the aquatic life killed – there is by the office. Unfortunately, the extent of no requirement to put back the same amount, this involvement is unclear because OIRA kind, age, etc., of fish killed, and indeed, this disclosure requirements20 apply only to would be impossible. the formal review period. (Indeed, OIRA was under no obligation to disclose its Factory Farm Runoff November 2001 meeting.) Whatever the OIRA watered down already weak EPA case, the changes made by EPA to the draft rules to address pollution from factory- original Clinton proposal mirror many of style animal farms – resulting in standards the recommendations made by the industry that are more protective of corporate polluters representatives who met with Graham. than of public health and the environment. Just before leaving office in 2001, Snowmobile Emissions the Clinton administration proposed new EPA weakened its original proposal to cut standards to regulate factory farms after emissions from snowmobiles and other off- reaching a legal settlement with the Natural road vehicles after meeting resistance from Resources Defense Council, which called the vice president’s office and John Graham, on EPA to update rules crafted in the 1970s. who sided with the snowmobile industry. Under the Bush administration, EPA reworked Despite their harmful effects, snowmobile the Clinton-era proposal, dropping a number emissions have never been regulated under the of important provisions – most notably one Clean Air Act. A typical 2-stroke snowmobile

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engine emits as much harmful pollution tons of nitrogen oxide (NOx) per year. This in seven hours as a car driven for 100,000 proposal was subsequently finalized to OIRA’s miles; snowmobiles annually discharge specifications in February 2004.26 about 530,000 tons of carbon monoxide and As originally prepared,27 EPA’s 200,000 tons of hydrocarbons.21 This pollution submission to OIRA contained two tiers. Tier is especially concentrated in national parks, 1 codified modest limits contained in a 1996 where tens of thousands snowmobile every international agreement known as Annex VI, year, endangering park employees, impairing which still needs to be ratified and remains visibility, and harming the natural habitat. unenforceable. Tier 2 required more stringent The new rule – signed by then EPA limits that would achieve an additional 30 Administrator Whitman on Sept. 13, 2002, as percent reduction in NOx emissions from new required under a court order – mandates at engines beginning in 2007. least a 50 percent reduction in hydrocarbon However, during its review (which began emissions by 2010 and a 30 percent reduction on April 15, 2002), OIRA stripped out this in carbon monoxide, as opposed to the 50 second phase, according to EPA sources and percent reduction called for in the agency’s documentation required by Executive Order original proposed rule,22 which Graham 12866, after the tanker industry weighed in questioned in a “post review letter.”23 heavily against it.28 With this change, the Even EPA’s original proposal would have proposed rule (published on May 29, 200229) been too weak. The four major snowmobile merely asked for comments on the possibility manufacturers already produce 4-stroke of the Tier 2 standards, which of course were engines that can achieve much higher ultimately rejected. emissions reductions, and a new 2-stroke The Tier 1 limits, which are supported engine developed by Colorado State University by industry,30 were left in tact, and apply to can reduce hydrocarbon emissions by 88 all new engines for 2004. Yet by EPA’s own percent and carbon monoxide by 99 percent.24 admission, this will not yield any new health or Nonetheless, the manufacturers staunchly environmental benefits because manufacturers opposed even a 50 percent reduction in have already achieved compliance with the carbon monoxide emissions, pressing their identical Annex VI limits, which apply to all case in a meeting on Sept. 6, 2001,25 with ship engines built after Jan. 1, 2000. Graham that was attended by a representative Meanwhile, ship and tanker emissions of Vice President Cheney – a snowmobile continue to increase with the rise in enthusiast who owns a home in Jackson, international trade, now accounting for 14 Wyo., just south of Yellowstone National percent of global NOx emissions and 16 Park, where controversy over the rule has percent of the world’s sulfur emissions.31 swirled. According to a feature story in the These emissions are associated with Washington Post’s Weekend section on Aug. premature death, lung damage, chest 18, 2002, briefing notes from an unnamed pain, asthma aggravation, acid rain, global official indicated, “VP’s office has an interest warming, smog and reduced visibility due in [the snowmobile] portion of the rule, and a to haze, along with many other detrimental few concerns.” Days later, Graham issued his environmental affects, according to EPA. post review letter. With commercial ships expected to double or triple in the next 20 years, this problem Marine Diesel Emissions will only get worse unless further action is OIRA gutted an EPA proposal to limit taken. Indeed, EPA estimates that even with diesel emissions from large ships and tankers, its proposed Tier 1 limits, U.S. emissions which are a growing – and still unregulated from large ships will increase 6 percent by – source of air pollution around coastal 2020 and 13 percent by 2030, with port cities cities and ports, emitting about 273,000 disproportionately hurt.

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Industrial Air Pollution is actually healthy and necessary for human At the insistence of OIRA, EPA life at low levels.) incorporated “risk-based” exemptions into Yet in response to intense pressure from two rules regulating industrial facilities the steel industry, OIRA stripped the listing of that emit hazardous air pollutants (HAPs).32 manganese during its review of the final rule, This action allows certain facilities to avoid which was eventually published on Nov. 20, installing modern pollution controls if EPA 200138; instead, EPA agreed to give the issue determines they do not present a serious further study – though well over three years health risk – an apparent violation of the later, this still hasn’t happened. Clean Air Act, which demands more objective and easier-to-enforce technology-based New standards (successfully employed for more Blockades than a decade). Industry representatives met with Graham is not just making changes one OIRA staff on numerous occasions33 in the standard at a time. He has initiated a series of summer of 2002 in a successful effort to push sweeping reforms that tilt the entire standard- this approach.34 In fact, EPA’s subsequent setting process to favor industry, making proposed rules contained language explicitly strong health, safety and environmental drawn from three white papers35 submitted protections nearly impossible. These reforms to OIRA by the American Forest & Paper are being carried out even though they have Association – white papers drafted by the never received congressional blessing and in Washington law firm Latham & Watkins, some cases run directly counter to the law. where EPA’s air administrator, Jeffrey Holmstead, previously worked. Pricing the Priceless OIRA also demanded that EPA consider At the heart of Graham’s approach is incorporating risk-based exemptions for cost-benefit analysis, which requires federal two other major rules,36 but EPA ultimately agencies to estimate regulatory benefits in determined that it could not because of legal monetary terms and show “net benefits” time constraints coupled with the complexity (benefits minus costs). This exercise of the issues raised. can produce some puzzling, seemingly unanswerable questions. How much is a life Hazardous Waste worth? What is the dollar value of avoided OIRA blocked an EPA effort to protect soil injury or disease? What is the economic and drinking water from excessive levels of benefit of a clear view over our national parks manganese – an industrial by-product linked or protecting endangered species? to numerous health problems, including These are not things bought and sold respiratory problems, sexual dysfunction, on the open market. They speak to our nervous system issues, mental and emotional values as people and a society. For example, disturbances, as well as manganism, a disease assigning a price tag to IQ points lost from with symptoms similar to Parkinson’s. childhood lead poisoning will strike many as EPA originally published a proposed morally repugnant. rule37 on Sept. 14, 2000, to list manganese, Yet in Graham’s world of devising federal among other elements, as a hazardous waste. regulation, this is par for the course. It turns This action, compelled by a 1998 consent out that human life – valued anywhere from decree with Environmental Defense, would $6.3 million to under $1 million, depending on have prohibited the “underground injection, whether the life is saved today or in the future – or land disposal” of any waste containing isn’t priceless after all. manganese, unless it was first treated to Graham began his tenure at OIRA with reduce manganese to safe levels. (Manganese an agency-wide memo39 indicating his intent

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to elevate monetized cost-benefit analysis in Where benefits are monetized, Graham’s regulatory decision-making, and later issued methodological preferences further skew new guidelines40 spelling out his preferred decision-making against action, with particular analytical methods. consequences for regulation aimed at cancer On the surface, the phrase “cost-benefit or other diseases of old age. For instance, analysis” may conjure the image of even- Graham’s cost-benefit guidelines promote the handed, dispassionate decision-making. use of “life years” in monetizing human life Yet because many benefits are difficult or (on top of valuations based on the number of even impossible to monetize, it naturally lives saved, the traditional measurement used skews in favor of inaction. For this reason, by agencies), which naturally cuts against most health and safety laws, such as the protections for the elderly, who have fewer life Clean Air Act and the Occupational Safety years remaining. and Health Act, prohibit decisions based This practice has the effect of rationing on cost-benefit analysis, and instead place regulatory protection based on age, placing health, safety, and the environment as it on shaky logical and moral ground. With the preeminent concerns, above costs. our more than $9 trillion economy, there is Unfortunately, Graham has largely ignored nothing stopping us from protecting both these congressional directives. young and old. Nor is there evidence that Consider EPA’s proposed rule to protect the elderly value their lives any less than the trillions of fish and aquatic organisms the young, or are any less willing to pay for that are sucked up and killed each year regulatory benefits. by power plants (discussed above). In The same can be said for society as a performing its cost-benefit analysis, EPA did whole, which generally recognizes a special not monetize losses of invertebrate species, obligation to our seniors. However, this is such as lobsters, crabs, and shrimp, as well not reflected in Graham’s approach to cost- as endangered or threatened species, nor benefit analysis. did it consider the interrelationships of the This bias against the elderly was on plain species affected. Rather, EPA’s estimate display in the development of EPA’s rule was based exclusively on the commercial to prevent air pollution from snowmobiles value of the fish that would have been (discussed above). After OIRA’s review of the caught had they not already been killed by agency’s original proposal, Graham issued a power plants. This accounts for less than post review letter41 demanding a more “refined” 20 percent of the total fish killed by power- cost-benefit analysis for the final rule. For EPA, plant cooling systems. EPA used the non- this meant, in part, valuing the lives of those monetized benefits to argue for a relatively over 70 at 37 percent less than those younger protective standard, but OIRA would – $2.3 million compared to $3.7 million. only recognize those benefits that were This conclusion – which was also applied monetized, and in apparent violation of the in analysis of the administration’s flagship Clean Water Act, significantly weakened the environmental proposal, the Clear Skies proposal as a result. Initiative – derived from a 1982 British study Likewise, OIRA gutted EPA’s proposal by Michael Jones-Lee, who subsequently to control runoff from construction and told the Miami Herald, “I certainly wouldn’t development (discussed above) because argue for my 1982 figure.”42 After seniors the agency was unable to monetize what it protested, then EPA Administrator Christie considered substantial benefits, including Whitman swore off the approach entirely. effects on natural habitat, benefits to human However, Graham left the door open for health, and impacts of many storm water future use, arguing that it was really a pollutants, such as lead, zinc, herbicides and problem of dated information, not a flaw in pesticides, as well as oils and grease. the underlying premise.43

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Stifling Regulatory Information As posed by Joe Rodricks, a toxicologist at the Corporate interests are now testing the ENVIRON International Corp. and consultant Graham’s new government-wide guidelines for hundreds of manufacturers, “Can all on “data quality,” which can be used to people look at all the information on dioxin challenge and potentially suppress health and and cancer and reach the same conclusion safety information that supports regulation. that EPA has reached (or at least tentatively According to William Kovacs of the U.S. reached) about dioxin and cancer?”45 Indeed, Chamber of Commerce, “This is the biggest it might be possible to look at the studies and sleeper there is in the regulatory arena and data used by the agency, and draw completely will have an impact so far beyond anything different conclusions. Does this mean the people can imagine.” risk assessment fails the “reproducible” test, These guidelines were directed by the that the agency’s information lacks sufficient Data Quality Act, a little noticed industry- quality for dissemination? backed appropriations rider pushed by Clearly, that’s what many corporate Sen. John Shelby (R-AL) and Rep. Jo Ann interests have in mind. For example, the Emerson (R-MO). However, Graham went Triazine Network – a consortium of companies far beyond the congressional mandate that manufacture herbicides and pesticides and asked agencies to set new demanding – launched a challenge against EPA’s recent standards for scientific risk assessment – determination that the herbicide atrazine is potentially creating an extremely high burden a likely endocrine disrupter;46 the Chemical of proof for dissemination and, ultimately, Products Corporation challenged the agency’s regulatory action. As required by the act, findings on barium, which were used in each agency then developed more specific, setting hazardous waste standards; and the detailed guidelines within the parameters set Competitive Enterprise Institute (CEI), which by Graham. receives substantial funding from corporate In virtually any risk assessment, which sources, contested recent conclusions on forms the foundation of much health and global climate change by EPA, the National safety regulation, there is a great deal of Oceanic and Atmospheric Administration, scientific uncertainty. Sometimes an agency and the White House Office of Science and may be confronted with conflicting studies, Technology Policy. and in almost all cases, it is extremely difficult Under the guidelines, EPA, like all other to pinpoint exactly how much risk flows from agencies, gets to decide on challenges (and a particular hazard (as with global warming, appeals) to its information, which might leave for instance). To deal with this inevitable the impression that this is relatively benign. uncertainty, agencies are forced to make Indeed, EPA rejected the challenges against certain default assumptions, which frequently atrazine, barium, and climate change. point the agency in the direction of caution Yet critically, the question of judicial – that is, a more protective standard. review and whether corporate interests can The data quality guidelines, however, successfully sue over data quality judgments could be interpreted as leaving little room remains unresolved – which could take for such uncertainty or assumptions.44 For ultimate decision-making authority out of instance, all “influential information” – and agency hands. (CEI brought suit against the by any measure, risk assessment would fall climate change information, but eventually under this category – must be “reproducible,” dropped the matter after the agencies agreed meaning the same result would be achieved to add a disclaimer to their findings.) At the following reanalysis. Yet a risk assessment can time the guidelines were being adopted, be extremely complex, drawing from a vast Graham said, “[T]here are as many legal range of studies and data sets (each subject theories about how these issues can be to their own separate data quality challenges). litigated as there are lawyers. My personal

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hope is that the courts will stay out of the exposure for nuclear industry workers, a picture, except in cases of egregious agency process that took several years and included mismanagement. Yet it will probably take a measures to ensure scientific accuracy. few critical court decisions before we know The administration’s peer review proposal how this law and the associated guidelines “would have added nothing to that,” he said. will be interpreted by judges.”47 If judicial “It would have only added more time and review becomes commonplace, scientifically expense, and as a result caused more disease illiterate judges, many of whom have been by delaying regulation.”50 appointed by President Bush, will be in the Graham’s revised proposal grants some position of telling federal agencies what concessions for agency flexibility, allowing scientific information can be disseminated agencies to choose, on a case-by-case basis, to the public. Moreover, regardless of court among a wider range of peer review models involvement, Graham warned, “If agencies do for “influential scientific information.” not develop an objective appeals process, I However, agencies still must do peer review predict that there will be efforts down the road – which is time consuming and burdensome to authorize appeals outside the agency.”48 no matter the model – even when it may be Given the troubling nature of the unnecessary. guidelines, and the interest of industry in Moreover, the revised proposal prescribes using them in nefarious ways, this could have more demanding peer review (including a profound consequences for dissemination public comment period) for “highly influential of health and safety information and the scientific assessments,” and empowers OIRA ability of regulatory agencies to act on that to designate what qualifies for this category. information – just as Kovacs predicted. This threatens to inject political considerations into the scientific process, and could be used Political ‘Peer Review’ to grind regulatory agencies to a halt. Building off the data quality guidelines, The original proposal went even further, Graham proposed a government-wide granting OIRA authority to demand peer review bulletin on peer review in September 200349 of any information deemed “relevant to an that asserted substantial political control Administration policy priority.” At the time, over “all significant regulatory information” Michael Taylor, former deputy commissioner and gave preference to the judgments of at FDA under the first Bush administration, industry-funded scientists. After a torrent of responded, “OMB’s proposal says it gets to criticism from scientists, Graham re-proposed weigh in on any agency statement that would this bulletin in April 2004, dropping some of have a significant impact on industry. Any FDA the most objectionable provisions, but still warning or recall would have that nationwide retaining political control for his office. impact. So should the FDA commissioner Peer review is already widely used have to go to John Graham for permission to by government agencies, and when done warn people about the possible danger from properly can be a useful tool. However, tainted onion greens?”51 The revised proposal Graham’s sweeping proposal – which still allows agencies to waive peer review without must be finalized – would force unnecessary OIRA permission for information that involves peer review, done in a one-size-fits-all way an imminent danger. However, for other that might not be appropriate for each agency information, OIRA would still be in position to or every issue. substantially influence the peer review process. For example, David Michaels, now a Making matters worse, there is concern professor of occupational and environmental that peer review panels would be stacked with health at George Washington University, scientists funded by industry. Peer review oversaw rule changes at the Department of requires a substantial investment of time, and Energy that required reductions in beryllium peer reviewers generally are not financially

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compensated for their service. A significant information.” The assumption is that expansion of peer review may make it difficult government scientists are automatically to find independent, qualified experts who tainted, even if they are not directly involved are able and willing to serve. Industry-funded with the issue under review. By contrast, scientists, on the other hand, have the industry scientists are considered sufficiently financial backing to make this commitment, independent to serve on peer review panels, as well as political muscle behind them. so long as they don’t have a direct financial Indeed, the administration has already stacked conflict of interest. numerous scientific advisory committees Graham cites the Data Quality Act at the suggestion of industry, as discussed (discussed above) as the legal authority for his in Chapter VII. This possibility is especially proposal,54 yet the act includes no mention of worrisome given that Graham’s proposed peer review. Far from reflecting congressional bulletin absolves peer review panels from intent, Graham is pushing his own long- the Federal Advisory Committee Act,52 which held hobbyhorse. Following Newt Gingrich’s requires government advisory bodies to be Contract with America, Graham emerged balanced and participants to publicly disclose as a key proponent of regulatory “reform” potential financial conflicts of interest. legislation that would have – like his new Graham’s original proposal was up front proposal – created uniform peer review across about the administration’s preference for government agencies. However, this approach industry-funded scientists. Specifically, it was consistently thwarted. Now Graham is sought to prohibit agency-funded scientists moving forward on his own, without ever (who government has judged to be the receiving congressional backing. Needless best in the country) from serving on peer to say, there is question over the legality of review panels while offering no comparable this action – especially given that it steps on prohibition for industry-funded scientists. numerous health, safety and environmental “To grasp the implications of this statutes that spell out their own decision- radical departure, one must recognize that making processes. in the United States there are effectively two Moreover, there seems to be no problem pots of money that support science: one to solve. Graham’s proposal cites no from government and one from industry,” examples where current agency practices responded Anthony Robbins, a professor for peer review and scientific analysis have of public health at Tufts University School broken down. Rather, OMB has directed of Medicine, in a Boston Glob op-ed. “…If reporters to comments of the American one excludes scientists supported by the Chemistry Council – the trade association of government, including most scientists chemical manufacturers – which criticized based at universities, the remaining pool EPA assessments of a number of chemicals, of reviewers will be largely from industry– including a plasticiser used in soft vinyl corporate political supporters of George children’s products.55 W. Bush.”53 Of course, on the other side, the The revised proposal allows recipients scientific community has overwhelmingly of government research grants to serve opposed Graham’s move. At a workshop as peer reviewers if they received their at the National Academy of Sciences funds “through an investigator-initiated, on Nov. 18, 2003, speaker after speaker peer reviewed competition.” However, it blasted the original proposal as misguided. discourages the use of scientists who have In comments to OMB, the Federation a consulting or contractual arrangement of American Scientists, the Association with the agency conducting the peer review, of American Medical Colleges, and the and bars federal employees from panels American Association for the Advancement evaluating “highly influential scientific of Science, among others, all registered

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strong objections. Unfortunately, under Because of the enormous response, OIRA the Bush administration, the concerns of a decided not to rank these submissions in terms self-interested industry trade association of priority – as it did the year before – and apparently carry more weight. instead, directed relevant agencies to conduct the evaluations themselves. On the surface, Regulatory Hit List this may seem relatively benign: OIRA merely As documented in Chapter I, the Bush passed along a few recommendations. Yet administration has moved to kill a slew of these recommendations are being used as a crucial health, safety, and environmental primary tool for ranking regulatory priorities, protections. What’s next on the chopping which for some agencies means a significant block? The answer may lie with Graham, redirection of focus. Together, the Department who has instructed federal agencies to of Transportation, EPA, and Department of re-evaluate scores of existing regulations, Labor received 155 recommendations, many with OIRA’s guidance, for possible revision deregulatory in nature. or repeal. For instance, Transportation proposed to In 2001, for the first time in its more extend the number of consecutive hours that than 20-year history, OIRA solicited public truckers are allowed to drive, from 10 to 11 recommendations for reform of specific hours (see Chapter I), after OIRA forwarded regulations. At the time, few paid attention complaints from the American Road and to this exercise, done as part of a routine Transportation Builders Association, as well annual report to Congress. Indeed, of the 71 as the industry-backed Mercatus Center. recommendations submitted to OIRA, 44 came Many of these protections were from George Mason University’s conservative adopted because of significant public Mercatus Center, which enjoys close ties to the pressure to solve a serious problem. Yet administration. From these suggestions, OIRA they could now be undone because of developed what amounted to a hit list of 23 one industry complaint to OIRA. At the “high priority” rules, which included, among very least, agencies must evaluate these other things, EPA’s now weakened New Source “recommendations,” even if they have Review program (see Chapter II). already identified other priorities. In the Not surprisingly, industry lobbyists process, scarce resources are diverted from spotted an opportunity in Graham’s report. serving the broad health and safety interests When OIRA again asked for regulatory of all Americans to addressing the narrow recommendations for the 2002 report, it concerns of special interests. received a whopping 267 – the majority In February 2004, this service to of which came from industry or trade special interests was made even more associations. Of these recommendations, explicit. Graham specifically solicited which heavily target health, safety and recommendations for regulatory revisions that environmental protections, 53 percent would reduce costs on the U.S. manufacturing advised changes to relax regulation, or in sector,56 which accounts for much of the OIRA’s words “increase flexibility,” and 8 country’s pollution as well as workplace percent recommend repealing regulation, deaths and injuries. The health and safety while roughly a quarter argued for stronger benefits delivered to the public were all but regulation (including many submitted by ignored; for Graham and the administration, members of Citizens for Sensible Safeguards). industry concerns come first.

58 The TollToll Of Neglect

The Bush administration has refused to addressaddress rregulatoryegulatory ggaps,aps, ttakeake oonn nnewew eemergingmerging problems,problems, oorr sstrengthentrengthen eexistingxisting hhealth,ealth, ssafetyafety andand eenvironmentalnvironmental sstandards.tandards. SSinceince PPresidentresident BBushush tooktook ooffiffi cce,e, tthehe DDepartmentepartment ooff IInterior,nterior, OOSHA,SHA, aandnd tthehe MMineine SSafetyafety aandnd Health Administration have not completed a single signifi cant protective standard. As discussed in the previous chapter, legal requirements have forced EPA to take signifi cant action on several occasions, but those standards were always watered down to industry’s liking. At the end of the Clinton administration, there were a number of important new standards still in development. This included, for instance, standards to clamp down on air pollution in national parks, prevent workplace Tuberculosis and exposure to crystalline silica, and limit head and neck injuries in automobile crashes. None of these standards have been moved forward to completion. In fact, through the Bush administration’s fi rst two years, EPA completely abandoned 62 Clinton-era rulemakings, while OSHA and FDA dropped work on 21 and 57 respectively.1 Such stagnation is unprecedented. As noted in the introduction, we have made substantial progress on public health, safety and the environment over the last 30 years. This has happened because we have been willing to build on past successes and resist complacency. The Bush administration has halted this progress and turned a blind eye to some of the nation’s most pressing problems. For example, nothing has been done to improve safety at chemical plants, which are considered potential terrorist targets. Fuel effi ciency standards for passenger cars remain unchanged, cementing our dependence on foreign oil. Workers continue to die from an array of preventable hazards, including the cancer-causing hexavalent chromium. There is no testing for E. coli 0157:H7 in beef carcasses even though tens of thousands have suffered life-threatening illness from the bacteria. And traffi c fatalities are soaring because of SUV rollovers, which have killed thousands over the last decade. Of course, corporate interests, chiefl y interested in the bottom line, oppose regulatory standards to address these problems. Yet consider where we would be if corporate interests had always gotten their way. Industry strongly opposed removing lead from gasoline, setting any fuel effi ciency standards, cracking down on vinyl chloride in the workplace, and acting to reduce CFCs, just to name a few examples. In these cases, the public interest won out over the special interests, and the country moved forward as a result. The Bush administration has fl ipped this formula, and now we’re headed in reverse. The following list details just a few problems that are being ignored. The Toll of Neglect

2

The Bush EPA has advanced few one rolled back restrictions on power-plant “economically significant” standards – defined emissions as discussed in Chapter I, and as those with an estimated total impact, the other seven were required by judicial including benefits, of at least $100 million order; as discussed in Chapter II, most of per year. These are the regulations that have these were watered down to industry’s broad application and usually draw industry liking, including rules on snowmobile opposition. Many of the Clinton-era rules that emissions, fish killed by power-plant the Bush administration rolled back were cooling systems, factory farm runoff, and economically significant, including OSHA’s several rules on industrial air pollution. By now-repealed ergonomics standard and HHS’s contrast, as the chart shows, EPA completed now-weakened medical privacy protections. 30 economically significant standards Of the eight economically significant over the first three years of the Clinton rules completed during the first three years administration and 21 over the first three and four months of the Bush administration, years of the Bush I administration.

Security Companies are not even required to assess and Chemical Plant Safety consider inherently safer methods of operation. Perhaps nothing better illustrates the Sen. John Corzine (D-NJ), in early 2002, Bush administration’s fealty to corporate introduced legislation that would take this interests than its refusal to address the basic, common sense step. However, the Bush possibility of a terrorist attack on a U.S. administration fiercely resisted and, as urged chemical plant. by the chemical industry, instead backed a One hundred twenty-five facilities have legislative smokescreen put forth by Sen. James a “vulnerability zone” encompassing more Inhofe (R-OK) – which most egregiously, would than one million people who could be killed exempt facilities that participate in voluntary or injured in the event of a chemical accident industry-sponsored security programs from the or terrorist attack; about 700 facilities put bill’s very mild requirements. more than 100,000 people at risk; and Such voluntary programs have been roughly 3,000 facilities put at least 10,000 woefully ineffective. Industry lobbyists tout people at risk.3 All told, one in six Americans the “Responsible Care Program,” launched lives in a vulnerable zone. in 1988 by the chemical manufacturers’ Yet disturbingly, no federal law regulates trade association4 in the aftermath of the these vulnerability zones in terms of size, catastrophic explosion at a Union Carbide chemical intensity, or population at risk. plant in Bhopal, India, which killed 2,000

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What’s Good for Washington, D.C… Unfortunately, Blue Plains For years, the Blue Plains is still the exception. Chemical Wastewater Treatment Plant in facilities have been very slow Washington, D.C., stored deadly to shift to safer substitute chlorine gas in 90-ton rail cars. chemicals, such as bleach, or A rupture of just one of these to store hazardous materials rail cars would have put 1.7 in safer, smaller volumes, and million people at risk, covering amazingly – yet perhaps not the White House, Congress, as surprisingly given the track well as Bolling Air Force Base. record – the 9/11 attacks have These risks had been not led to broad efforts to reduce known for almost two decades, chemical hazards. prompting repeated complaints Instead, chemical from the Dept. of Defense and manufacturers have focused the City of Washington – which almost exclusively on site commissioned a study in 1991 security, which nonetheless that recommended bleach as a safer substitute remains woefully inadequate. A fact sheet for the more dangerous chlorine. Yet the Blue from the Working Group on Community Plains facility refused to change, no government Right-to-Know provides excerpts from a action was taken, and the danger persisted. host of news stories about security lapses Then came 9/11. Suddenly, the threat of since 9/11.8 For instance, according to a terrorist attack on the plant, setting off a an investigation of facilities in western deadly release of chlorine, became very real. Pennsylvania conducted by the Pittsburgh Indeed, the Washington Post reported that Tribune-Review (published April 7, 2002), trade publications from the U.S. chemical “The security was so lax at 30 sites that in industry were found in a hideout of Osama bin broad daylight a reporter – wearing a press Laden.5 In short order, the Blue Plains facility pass and carrying a camera – could walk or removed its 90-ton rail cars, and began to drive right up to tanks, pipes and control use sodium hypochlorite bleach, which does rooms considered key targets for terrorists.” not have the potential to drift off-site, as a Previously, a 1999 report from the Agency substitute for chlorine (at an expected annual for Toxic Substances and Disease Registry cost of just 25 to 50 cents per customer6). noted that “security at chemical plants ranged The possibility of a catastrophic accident from fair to very poor” and that “security should have been frightening enough to around chemical transportation assets ranged prompt the switch. On average, there are over from poor to non-existent.”9 Yet it wasn’t until 60,000 chemical accidents a year, resulting Oct. 23, 2001, that chemical industry trade in more than 250 deaths and thousands of associations issued voluntary guidelines injuries.7 In the summer of 2001, for instance, for greater site security to prevent against a 25,000-gallon rail-car holding methyl terrorist attacks10 (years after they first raised mercaptan – which can cause paralysis, severe the possibility of terrorism as a reason to breathing problems, and death – caught restrict data on chemical hazards as discussed fire at Atofina Chemical Plant in Riverside, on page 98). These guidelines virtually ignore Mich., killing three workers and forcing the the issue of reducing the hazards themselves. evacuation of about 2,000 residents, many Indeed, with the Bush administration of whom complained of a burning sensation unwilling to force the issue, the danger in their throats, stinging eyes, itchy skin, presented by chemical facilities is virtually headaches and nausea. unchanged since the day after 9/11.

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and injured 300,000. However, this voluntary Commission. Even more amazing, these program provides for no measurable goals, plants knew the mock attacks were coming timelines or means of independent validation and still couldn’t stop them. “The power for reducing chemical hazards.11 plants quite literally get the snot kicked out In early 2003, Inhofe’s industry-backed bill of them,” according to Ron Timm, president was voted out of committee on a party-line of RETA Security Inc. and consultant to the vote, but fearful of potential embarrassment, Department of Energy.12 the Senate’s Republican leadership has not Unfortunately, the Bush administration has brought it up for a floor vote. That seems followed the advice of the nuclear industry, just fine for the Bush administration, which which has long fought tighter security already has necessary legal authority to standards, and neglected to take the necessary act though regulation. The administration steps to correct this problem – despite the unfortunately seems more concerned with potentially catastrophic consequences. protecting the chemical industry than the As Danielle Brian, executive director of the American public. Project on Government Oversight, described the threat to Congress, “A terrorist group does Fox In the Henhouse not have to steal nuclear material, create a Carolyn Merritt, chair of the Chemical Safety and nuclear device, transport it to the United States Hazard Investigation Board (CSB) and detonate it in a major city. They could In this role, Merritt is supposed to simply gain access to the material at a U.S. promote the prevention of chemical accidents nuclear facility – some of which are near large by conducting research and advising industry metropolitan areas – and tests have shown and key agencies, such as EPA. Previously, they could accomplish the same outcome.” Merritt worked for the Tennessee Chemical In May 2003, the NRC issued new security Company, and most recently (from 1994 standards for nuclear power plants – which to 2001) served as senior vice president of were developed in secret with the exclusive environment, health and safety at IMC Global consultation of the nuclear industry – that Inc., the world’s largest producer of fertilizer reportedly fall far short of what’s needed (they and animal feed ingredients and one of the have not been released to the public). country’s biggest toxic polluters. (In 2003, IMC The standards outline the most likely Global settled a $6.3 million lawsuit by the terrorist attacks against reactors, referred to residents of Arkwright, S.C., over pollution of as the “design basis threat,” specifying the the town’s air, soil, and water by a fertilizer number of attackers and the type of weapons plant that the company abandoned in 1986 nuclear plants are required to defend against. and failed to clean up.) Before 9/11, plants were required to prepare Despite her background, however, it for just three modestly armed attackers, should be noted that Merritt advised OSHA aided by an insider, who enter the plant to implement stronger standards for reactive together from a single location. Industry chemicals – which not surprisingly the agency sought to stop significant changes to this rosy ignored (as discussed on page 66). assumption, and in the end supported the Bush administration’s action. “They did it totally backwards,” said Nuclear Plant Safety Peter Stockton, a senior investigator with In recent security tests, mock terrorists the Project on Government Oversight and were successful an amazing 46 percent of the former Department of Energy consultant. time at penetrating areas of nuclear power “You figure out what a credible threat is to a plants where an act of sabotage could have nuclear power plant, and then you size your led “in many cases to a probable radioactive guard force to meet that threat.”13 Instead, the release,” according to the Nuclear Regulatory administration (which made the expansion

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of nuclear power a key feature of its energy Air Pollution in National Parks plan) tailored its standards to what the nuclear Power-plant pollution has covered our industry said it could afford. national parks and wilderness areas with “The new rules may be a reaction to 9/11, a thick, whitish haze. In the Great Smokey but the commission doesn’t seem to have Mountains and Shenandoah National Parks, learned the lesson of those attacks – not a for instance, summertime visibility is about thing will be done to reduce the vulnerability one-eighth what it would be without this of reactors to strikes from the air,” Bennett pollution, while in the West, visibility in Ramberg, a former analyst at the State protected areas has been reduced from up to Department and author of “Nuclear Power 140 miles to about 35-90 miles. Plants as Weapons for the Enemy,” wrote in a On July 1, 1999, the Clinton administration New York Times op-ed.14 adopted “regional haze” standards to address Meanwhile, NRC inspections of nuclear this problem, demanding pristine air quality plants have also been remarkably lax. Among in 156 national parks and wilderness areas by other things, “NRC inspectors often used 2064 – to be achieved through a 15 percent a process that minimized the significance reduction in haze every 10 years. Under this of security problems,” and mock terrorist standard, all power plants that contribute to exercises were made easier for plants and impaired visibility in these areas are required did not duplicate “the real-life threat,” to install “best available retrofit technology” according to a 2003 report by the General (BART) starting in 2012. Accounting Office.15 As part of this standard, EPA committed to set new BART guidelines that inform states, which are in charge of Clean Air implementation, how to determine which power plants should be retrofitted with Fuel Efficiency modern pollution controls. Without these After dragging its feet for two years, in guidelines, states cannot begin to implement April 2003, the administration issued a new – the regional haze standards. but unfortunately, weak – fuel efficiency In January 2001, EPA was set to standard for light trucks and SUVs that will propose new BART guidelines, but the Bush achieve only minimal pollution reductions administration blocked this action upon (and not surprisingly, was supported by the auto industry). Fox In the Henhouse The action increased fuel economy for Spencer Abraham, secretary of Energy such vehicles by a mere 1.5 miles per gallon In 2000, Michigan voters denied Abraham (mpg), from 20.7 mpg today to 22.2 mpg by re-election to the U.S. Senate. During that 2007 – well below what is technologically campaign, he raked in more than $700,000 feasible. (Congress had previously blocked from the automotive industry (including the Clinton administration from updating its General Motors, Ford, DaimlerChrysler, 1996 standards.) and Lear Corp.) – tops among all federal At the same time, the administration also candidates.16 At Energy, Abraham has strongly opposed a 2002 proposal offered by returned the favor, declining to impose strong Sens. John Kerry (D-MA) and John McCain fuel efficiency standards. (R-AZ) that would have raised fuel economy In fact, there is question whether Abraham for passenger cars from 27.5 mpg to 35 mpg believes Energy has any important purpose by 2015. In fact, the administration has made at all. As senator, Abraham co-sponsored no move to increase fuel efficiency standards legislation to abolish the department, a for passenger cars, which have not been position he recanted at his January 2001 raised in 18 years. Senate confirmation hearing.

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taking office and subsequently proposed impact on haze. According to EPA, the Clear weaker guidelines on July 20, 2001.17 Slightly Skies approach would improve visibility in less than a year later, this proposal was the East by only 2-4 miles19; current visibility called into question when the D.C. Circuit is impaired by as much as 80 miles on the Court of Appeals vacated part of EPA’s 1999 haziest days. regional haze rule – a decision strongly John Stanton, senior counsel at the disputed by environmentalists. National Environmental Trust, called the In response, EPA went back to the drawing administration’s BART proposal “a step in the board and on April 15, 2004, proposed revised right direction if it wasn’t stillborn.”20 BART guidelines and changes to the haze standards. (EPA was required to propose Clean BART guidelines by this date as part of a Water legal settlement with Environmental Defense; final guidelines are due by April 15, 2005.) Sewer Overflows However, this proposal may never actually be The Bush administration has delayed implemented. issuing new standards to prevent sewer On Jan. 30, 2004, EPA proposed a new overflows. In the meantime, more than a trillion rule on interstate transport of power-plant gallons of untreated sewage has poured into emissions modeled after President Bush’s U.S. waterways as a result of the problem, and feeble “Clear Skies Initiative.” In the preamble Americans are still denied even rudimentary of the BART proposal, EPA indicated that this public notice of such contamination in the rule may be used as a substitute for regional waters where they swim and fish. haze standards, even though EPA’s own In January 2001, at the end of the Clinton analysis demonstrates that it would have little administration, EPA proposed standards that would mandate improved sewer capacity, operation, and maintenance, and require that What About Diesel? sewage systems notify the public and public When confronted with the Bush health authorities when overflows occur. administration’s abysmal environmental These proposed regulations were based on the record, the president’s defenders invariably consensus recommendations, developed over point to EPA’s proposal18 to reduce harmful five years, by a federal advisory committee, emissions from non-road diesel engines used which included sewer operators. However, in construction, agricultural and industrial upon taking office, the Bush White House froze equipment, which account for almost one- the Clinton sewer proposal, and more than fourth of the country’s total emissions of three years later, no action has been taken. nitrogen oxides. During this time, EPA has conducted a This indeed would be a significant behind-closed-doors “internal review” on how step forward, preventing more than 9,600 and whether to draft a Bush version of the premature deaths annually by 2030, according standards. Unfortunately, the Association of to EPA. However, at this point it is just a Metropolitan Sewerage Agencies, the trade proposal. EPA solicited public comments association for sewage operators, appears in the spring and summer of 2003, and has to have the ear of the administration. Citing not moved to finalize the rule. The worry is costs, this group has argued against the Clean that this is more about election-year politics. Water Act’s requirement that all sewage be Should the president win re-election, EPA treated before it is discharged.21 could ultimately choose to back off or water Each year, the U.S. experiences about down the rule, as industry would like. In the 40,000 overflows of raw sewage and meantime, the president is claiming credit for garbage – such as syringes, toxic industrial something that hasn’t actually happened. waste, and contaminated storm water –

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into rivers, lakes, and coastal waters, and water systems at levels 12 times greater than about 400,000 sewage backups pollute the allowed by law. basements of American homes. The vast In January 2003, EPA completed an majority of these overflows, if not all of assessment of atrazine, the most heavily them, are preventable. used herbicide in the United States, and found that numerous communities have Atrazine dangerous levels in their water. Nonetheless, EPA will continue to allow widespread use the agency ignored calls for a ban on the of the weed killer atrazine despite evidence product – which studies have linked to cancer that it has contaminated certain drinking in both humans and animals – and instead entered into an agreement with Syngenta, Foxes In the Henhouse the largest manufacturer of atrazine, in which Adam J. Sharp, EPA’s associate assistant the company committed to perform increased administrator for the Office of Prevention, testing of raw water entering community Pesticides, and Toxics water systems where atrazine is used. Sharp’s office oversaw EPA’s decision to Syngenta already monitors water for allow continued use of atrazine. Previously, atrazine, yet nearly 200 community water Sharp worked as director of governmental systems, serving more than 3.6 million relations and regulatory affairs at the people, have shown levels of atrazine close to American Farm Bureau Federation,22 which or above the legal limit. opposed a phase out of Atrazine. There, he “We’re flabbergasted,” said Jennifer Sass, focused on environmental law and regulation, a senior scientist at the Natural Resources pesticides, air quality and biotechnology Defense Council. “We’ve reviewed the science issues, and testified before Congress in on atrazine, and it is clear that it is dangerous opposition to new air quality standards for the at levels the EPA says are harmless.” agriculture industry.23 EPA performed its assessment of atrazine, which is used mainly on corn, sugarcane and Linda J. Fisher, former deputy administrator residential lawns, as the result of a lawsuit of EPA filed by NRDC. From 1995-2000, Fisher was a top lobbyist for Monsanto, which manufactures atrazine, Worker Health representing the company’s agriculture, & Safety biotech, pharmaceutical, environment, finance, and trade interests.24 Fisher also Protections for Miners managed Monsanto’s PAC and political In September 2002, the Bush contribution funds,25 dolling out $133,000 to administration stopped work on a proposed air Republican candidates and committees from quality standard to protect underground coal 1995-2000.26 miners, drawing a strong rebuke from the U.S. Before Monsanto, Fisher worked at EPA Court of Appeals for the District of Columbia. during the Reagan and Bush I administrations Upon making this decision, the Mine (from 1983-1993), eventually heading EPA’s Safety and Health Administration explained Office of Prevention, Pesticides, and Toxic that it simply “was the result of changes in Substances, where, in 1992, she eliminated agency priorities.” However, the United Mine field tests to measure the impacts of Workers of America (UMWA) countered with pesticides on wildlife without providing any a lawsuit that argued the administration could opportunity for public comment.27 Fisher not just drop an ongoing rulemaking without a resigned unexpectedly in June 2003, shortly full and open justification. after the resignation of EPA Administrator The appeals court agreed, finding that the Christine Todd Whitman. administration’s action was “arbitrary and

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capricious” and that MSHA’s explanation was The CSB called on OSHA to “amend the “not informative in the least.” Judge Douglas Process Safety Management Standard (PSM) H. Ginsberg wrote, “Although MSHA’s to achieve more comprehensive control of publication of the proposed Air Quality rule reactive hazards that have caused numerous certainly did not obligate it to adopt that rule catastrophic incidents and killed scores of (or, for that matter, any rule), the agency was workers over the past two decades.”30 not free to terminate the rulemaking for no Unfortunately, the Bush administration reason whatsoever.” has refused to act. In 2002, OSHA stopped If adopted, the standard would require work on a reactive chemicals rule, and in new measures to control hazardous 2003 OSHA announced that it would address substances, setting exposure limits and the problem solely through outreach and testing requirements, and strengthen existing voluntary programs with the chemical respiratory protections, which have not been industry. In February 2004, the CSB called this updated since 1972. response “unacceptable.” “Recent science is showing us that the exposure limits to many of the hazardous Tuberculosis in the Workplace chemicals and airborne particulates that this The Bush administration has abandoned rule would have addressed are currently not standards to protect workers from tuberculosis sufficient to adequately protect a miner’s (TB) – a contagious and potentially lethal health,” said UMWA International Secretary- airborne disease that tends to affect those with Treasurer Carlo Tarley. “Miners have waited more vulnerable immune systems. more than three decades for new air quality OSHA first proposed tuberculosis standards, and we are tired of waiting. The standards in October 1997 during the Clinton UMWA is very pleased that the Court agreed administration, and has sought public comment with us that MSHA should not have stopped on the issue a number of times in subsequent this important new rule for the inadequate years. Meanwhile, the number of TB cases reason it did.”28 increased in 20 states between 2000 and 2001.31 Of course, this also calls into question The proposed standards would have Bush decisions to abandon a host of other required employers to protect workers from rulemakings. For most of these actions, the TB in hospitals, homeless shelters, nursing administration offered virtually no explanation, homes, and other high-risk facilities through which has now been found to be illegal. the use of specially ventilated isolation rooms and other control measures; this would also Reactive Chemicals protect against other airborne diseases, such The Bush administration has failed to as Severe Acute Respirator Syndrome (SARS). adequately protect workers and communities Upon issuing its proposal, OSHA estimated from the dangers of reactive chemicals. the standards would save more than 130 lives Spurred by a series of accidents, the U.S. per year, and protect an estimated 5.3 million Chemical Safety and Hazard Investigation workers in more than 100,000 work settings Board (CSB) recently undertook an extensive with a significant risk of TB infection. study of current regulations governing Despite these potential benefits, the Bush reactive chemicals. The results of this administration has closed the door on the examination (issued in an October 2002 issue, announcing in May 2003 that it does not report) found that reactive chemical incidents intend to move forward. occur over a wide range of worksites and are a “significant chemical safety problem,” which Exposure to Silica “can severely affect workers and the public, Silicosis, a disease resulting from the as well as cause major economic losses and inhalation of silica dust (the most common environmental damage.”29 mineral in the earth’s surface), caused or

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contributed to 13,744 deaths in the United not. Previously, this didn’t matter; OSHA States between 1968 and 1990, according to required employers to pay for mandatory the American Public Health Association. At Personal Protective Equipment (PPE) special risk are rock drill operators working whether explicitly called for by a rule or not. on surface mines or highways, construction However, the courts recently struck down this workers who use sand in abrasive blasting, interpretation. and foundry workers who make sand castings. Workers – particularly low-wage Silicosis is entirely preventable with immigrant workers who work in the most the implementation of conventional public dangerous jobs – are in great need of a rule health methods, including the use of less clarifying the PPE issue. When workers are hazardous materials, dust suppression left to supply their own equipment, they often techniques, improved ventilation, and purchase gear that is used or less protective, respirator use. However, these preventive compromising their own health and safety. measures are under-utilized, and the Employers rather than employees are in the problem remains. better position to properly select and maintain The National Institute for Occupational safety equipment. Safety and Health has recommended In March 1999, the Clinton administration exposure limits that are much lower issued a proposed rule requiring employers than current standards, but the Bush to pay for all PPE, but the Bush administration administration has failed to act. As a result, has refused to finalize the standard, leaving this preventable disease will continue to workers vulnerable to occupational injury, sicken and kill workers. illness and death.

Hexavalent Chromium Metalworking Fluids The Bush administration has failed to Metalworking fluids – used mainly for lower the permissible exposure limit for their cooling, lubricating, and corrosion hexavalent chromium, a dangerous lung resistant properties during machining carcinogen, despite the fact that hundreds of operations – include a complex mixture workers die prematurely of lung cancer due to of oils, detergents, lubricants, and other exposure. OSHA estimates that approximately potentially toxic ingredients. These fluids one million workers are exposed to hexavalent can cause substantially elevated risk of chromium, which is used in chrome plating, cancer of the pancreas, bladder, larynx, stainless steel welding, and the production scrotum and rectum, according to a number of chromate pigments and dyes. As many of epidemiological studies, as well as skin as 34 percent of workers could contract lung problems, such as contact dermatitis, and cancer if exposed at OSHA’s current limit for various respiratory diseases, including hexavalent chromium for eight hours a day bronchitis. over 45 years, according to a study conducted In 1999, by a vote of 11-4, the OSHA for OSHA in 1995.32 Metalworking Fluids Standards Advisory Recognizing the administration’s Committee recommended that OSHA negligence, a U.S. appeals court, in April 2003, issue a rule to protect workers that handle ordered OSHA to issue a new hexavalent- metalworking fluids.33 OSHA began chromium standard no later than Jan. 18, 2006 developing standards, but action was halted (a proposal must be issued by Oct. 4, 2004). by the Bush administration, and instead, on Nov. 14, 2001, OSHA issued unenforceable Payment for Personal Protective Equipment guidelines that merely list best practices Some OSHA rules explicitly require for working with metalworking fluids. The that employers pay for safety equipment administration has no plans to make these that employees must wear; others do guidelines mandatory.

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Food made companies take responsibility for their Safety actions and would concentrate testing where Listeria it is clear there is a potential problem.”38 On June 6, 2003, the USDA’s Food Making matters worse, USDA Safety and Inspection Service (FSIS) issued continues to allow labeling that can mislead inadequate standards to control Listeria consumers about the safety of “ready- Monocytogenes (commonly known as to-eat” meats. “The bottom line is that Listeria) – a dangerous food-borne bacterium consumers should not assume that meat often found in “ready-to-eat” foods – after stamped ‘USDA inspected and approved, several years of delay. cooked and ready-to-eat’ is safe,” Foreman In early 2001, the Bush administration stated. “It may harbor pathogens that allowed a Clinton-era proposal on Listeria cause serious illness and can kill 20 percent to be published for public comment after of people infected. Pregnant women initially delaying it. However, it had begun to and immune suppressed individuals are look like the administration had no intention especially vulnerable.” of finalizing the standard. In the interest of accuracy and public In the meantime, Listeria continued to safety, Consumer Federation of America kill. There are approximately 2,500 victims recommends that the USDA require these of Listeria-contaminated food each year, meats to carry a label that says, “If you are 500 of which are deadly, according to the pregnant or immune suppressed, reheat this Centers for Disease Control and Prevention.34 product thoroughly before eating.”39 Since 1998, there have been three major Listeria outbreaks, causing dozens of Salmonella deaths and hundreds of illnesses.35 Most The U.S. Department of Agriculture does recently, in 2002, contaminated turkey from a not have the authority to close ground beef Pennsylvania plant resulted in eight deaths, plants that fail to meet government standards 54 illnesses, and three miscarriages across for salmonella contamination, according to a nine states. December 2001 decision by the Fifth Circuit This well-publicized outbreak put Court of Appeals.40 This decision removed an pressure on the administration to act, but important enforcement tool for cracking down its final standard was notably weaker than on plants that repeatedly violate salmonella the Clinton proposal, providing no minimum limits, and stripped USDA officials of the requirements for testing. In its November ability to take prompt action when a plant is 2002 newsletter, the National Food found to be producing contaminated meat. Processors Association noted the success of The Bush administration has failed “industry efforts made at the White House to promote legislation that would restore level”36 and that “a number of key [USDA] USDA’s enforcement authority and provide personnel have bought into much of the clear authority to set pathogen-reduction industry proposal.”37 standards for other hazards in the meat In particular, the Bush standard does not supply. Indeed, Elsa Murano, USDA’s require plants to automatically test for the undersecretary for food safety, put forth disease-causing form of Listeria (Listeria a “vision” document in 2003 that omits Monocytogenes) if the nonpathogenic form previously announced USDA plans to seek of Listeria is found. “This provision, dropped additional powers from Congress to close at the behest of the meat industry weakens dirty meat-packing plants.41 Without such public health protection,” said Carol Tucker legislation, inspectors are forced to apply the Forman, director of the Food Policy Institute USDA seal of approval to meat even if it is of the Consumer Federation of America. produced in a plant that continually exceeds “The dropped requirement would have the salmonella standard.

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The One Good Thing for passenger cars, light multipurpose The administration has voluntarily vehicles, trucks, and buses. Head restraints, completed (without legal prompting) exactly the uppermost part of seats, protect the one significant health and safety standard that head and neck from injuries often suffered in represents a meaningful step forward – though vehicle crashes. According to NHTSA, 805,581 even this was somewhat weakened from the whiplash injuries occur annually, costing about earlier Clinton-era proposal. $5.2 billion each year. The proposal would Specifically, on July 11, 2003, FDA issued toughen standards issued in 1969 by adding standards requiring labels to list the amount new strength requirements, limiting the size of trans fatty acids in foods.42 Trans fatty acids of gaps and openings in head restraints, and (or “trans fat”), which have been linked with an applying to outward-facing back seats. increased risk of coronary heart disease, are fats The Bush administration has had more found in foods such as vegetable shortening, than three years to review public comments, snack foods, fried foods, and salad dressings. but has not moved forward with this proposal. The new standards require labels to list grams of trans fat, but do not include a SUV Rollovers provision, contained in FDA’s 1999 proposal, The Bush NHTSA has refused to take requiring trans fatty acids to be included in action to stop rollovers of light trucks, the amount and percent Daily Value (%DV) including SUVs and pickups, despite the declared for saturated fatty acids (another heart increasing severity of the problem. Occupant disease promoting fat). Canada requires food fatalities increased 2.6 percent between 2001 manufacturers to label trans fat in this way. and 2002 alone, and fatalities from SUV and “The new labels will let consumers pickup rollovers accounted for nearly half compare trans fat content from product to of this total increase, and for 79 percent of product, and that will be a great step forward,” the increase in passenger vehicle rollover said Margo Wootan, policy director at Center fatalities.44 Meanwhile, occupant fatalities in for Science in the Public Interest. “It will be passenger cars were “essentially unchanged,” hard, though, for people to tell if a given according to NHTSA.45 number of grams of trans fat is a lot or a little. SUVs are three times as likely as Five grams may not seem like a lot, but it is.”43 passenger cars to roll over, while pickup trucks are twice as likely to roll over.46 Sixty- one percent of SUV occupant fatalities are E. Coli Testing due to rollover crashes; next in line are pickup Since President Bush took office, tens trucks at 46 percent.47 In the past 15 years, of thousands have suffered life-threatening the number of SUV rollover fatalities has illnesses from E. coli O157:H7, and there quadrupled.48 Light truck rollovers, with one have been 60 recalls of ground beef due to exception, have increased every year between contamination. Testing beef carcasses in the 1991 and 2002, resulting in a 50 percent slaughter plant – on top of testing ground beef increase in fatalities – or 1,968 lives lost – from – can significantly reduce this risk, according to these accidents.49 industry data. Nonetheless, the administration has declined to make this a requirement. Health Care Auto Safety Minimum Staffing for Nursing Homes HHS reports that over 90 percent of Head and Neck Injuries nursing homes are understaffed, leading In January 2001, the Clinton administration to overworked employees and a lack proposed to upgrade head-restraint standards of adequate care for residents.50 In fact,

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residents in the nation’s lowest staffed CPSC should ban the sale of ATVs to nursing home are more likely to lose weight, children under the age of 16 and pursue other become dehydrated, develop bedsores, and safety measures as well. The commission held experience other problems.51 a public hearing on the matter in June of 2003, The National Academy of Sciences has but has thus far failed to act. called for the establishment of minimum staffing standards at nursing homes, yet the Product Recall Registration Cards Bush administration has failed to act, citing In March 2003, the commission voted cost concerns.52 2-1 to reject a request by Consumer The administration should adopt Federation of America to require that product standards such as those proposed by Rep. registration cards be included in children’s Henry Waxman in the Nursing Home Staffing products; these registration cards would Act of 2003, which would mandate staffing improve the effectiveness of recalls. levels recommended by HHS and would Stratton, the Bush-appointed chairman, require that all nursing home residents and Commissioner Mary Sheila Gall, appointed receive at least 4.1 hours of nursing care by former President George H.W. Bush, each day. both opposed the measure. (President Bush originally nominated Gall to serve as chair, but the Senate rejected the nomination for her Consumer Product Safety unwillingness to hold industry responsible for product safety as discussed in the box below.) Baby Bath Seats Commissioner Thomas Moore, a Clinton In May 30, 2001, the Consumer Product appointee, supported the petition. Safety Commission53 voted to begin a rulemaking to develop safety standards for Fox In the Henhouse baby bath seats. A short time later, President Mary Sheila Gall, rejected as chairman of the Bush appointed Hal Stratton as the new Consumer Product Safety Commission chairman of the commission to replace Gall was the first Bush nominee to be President Clinton’s appointee. Over the officially rejected by the Senate. She had following years, CPSC has failed to issue even served on the CPSC since 1991 (appointed a proposed rule on the matter, during which by the president’s father) with a hands-off time 10 babies have died. Ninety-six babies regulatory philosophy and a record of pro- have drowned while using these products industry actions. She voted against federal since 1983.54 efforts to regulate baby walkers, baby bath seats, bunk beds, and frequently blamed All Terrain Vehicles (ATVs) children’s injuries on parents rather than Between 1993 and 2001, the number of faulty products. Sen. John Edwards (D-NC) injuries caused by ATV-related accidents more noted that the chair of the commission gives than doubled, with 111,700 ATV accidents a voice to consumers “and under Mary Gall, occurring in 2001. Injuries suffered by children that voice would be silent.” Although Gall under 16 increased by 94 percent between was rejected for the position of chairman, she 1993 and 2001, climbing as high as 34,800. continues to serve as vice chairman of CPSC.

70 Cop Off the Beat

It’s now clear that a permissive regulatory environment aided the wave of corporate accounting scandals that came to light in the summer of 2002. There were insuffi cientcient protectionsprotections toto ensureensure independent,independent, objective accounting, and little in the way of government oversight, with the Securities and Exchange Commission woefully underfunded and understaffed. This invited widespread claims of phantom profi ts, cheating shareholders out of billions. Unfortunately, these same permissive conditions have crept into other areas of corporate governance – particularly protection of public health, safety, and the environment – and are now being exacerbated as the Bush administration has moved to cut resources for key agencies and curtail regulatory enforcement. For instance, the administration has cut EPA enforcement personnel by 12 percent; the average penalty for willful OSHA violations has fallen by 25 percent; FDA actions against misleading drug promotions have plummeted by almost 80 percent; and tests for mad cow disease were conducted at fewer than 100 of 700 cattle slaughterhouses between 2001 and 2003. With no cop on the beat, corporate abuses are bound to increase. Cop Off the Beat

Lessons from Global Crossing, Tyco, Adelphia, and Rite the SEC Aid. Only then did the administration profess During the 1990s, many in Congress a change of heart. With a banner reading openly scoffed at SEC oversight, and “Corporate Responsibility” as a backdrop, the agency’s budget was frozen. In 1995, the president unveiled a proposal on July 9, Congress overrode a veto by President 2002, that he claimed would restore integrity Clinton to restrict lawsuits against companies to corporate accounting, mostly by increasing for misleading their investors, and later penalties for executives found guilty of rebuffed a proposal from Clinton’s SEC chief, financial fraud. Arthur Levitt, to bar accounting firms from At the time, many dismissed this as both auditing and consulting for the same nothing more than window dressing, which company. In June 2000, the SEC proposed a failed to address systemic problems of draft rule to clamp down on such conflicts of oversight, enforcement, and conflicts of interest – which were later blamed for rosy interest. Yet as evidence of corporate fraud financial statements – but encountered fierce grew and political pressure mounted, the opposition from the accounting industry and president eventually came around, and Congress, and ultimately backed down. on July 30, 2002, signed comprehensive For the Bush administration, this situation legislation initiated by Sen. Paul Sarbanes (D- was just fine. In fact, President Bush’s choice MD). Among other things, the Sarbanes bill to head the SEC, Harvey Pitt, a product of directed new standards on conflicts of interest the accounting industry himself, took the for accounting firms and securities analysts; job promising an even “kinder and gentler” authorized a 77 percent increase in the SEC’s approach. And at first, that’s what he budget; and created an independent oversight delivered, actually proposing to cut the SEC’s board to oversee corporate audits, establish budget and then, according to a bipartisan auditing standards, and investigate and report by the Senate Governmental Affairs enforce compliance by accounting firms. Committee,1 ignoring clear warning signs of Underpinning these measures were widespread accounting fraud that culminated a series of lessons drawn from the Enron in the collapse of Enron. debacle. First, the federal government has Enron’s demise, of course, was followed an essential role in protecting the public by the discovery of numerous abuses at other from corporate misbehavior. This includes prominent companies, including WorldCom, setting appropriate standards for conduct and

Mutual Fund Mess the commission recognizes it or not, the first The SEC did not act on tips of wide- settlement in a complex investigation always ranging mutual fund abuses that came to light sets the tone for what follows,” Spitzer wrote in the fall of 2003, and indeed, none of the in a New York Times op-ed.3 “In this case, the cases against a dozen mutual fund firms were bar is set too low.”4 the result of SEC inspection.2 Rather, New York Having been forced into action by Attorney General Eliot Spitzer, relying on the Spitzer, the SEC now appears to be set same tips relayed to the SEC, has been at the on minimizing damage to corporate forefront of exposing these abuses, which offenders. William Galvin, who as secretary cheated investors out of billions. of the commonwealth of Massachusetts When the scandal became public, the investigated the Boston-based Putnam, SEC stepped in and, after barely 10 weeks remarked, “They’re not interested in of investigation, reached its first settlement exposing wrongdoing; they’re interested in with Putnam Investments – a deal Spitzer giving comfort to the industry.”5 blasted as hasty and inadequate. “Whether

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vigorously enforcing those standards. Industry separate funds for such purposes) and self-regulation – which previously governed declining to fill vacancies created by staff the accounting industry – is not enough. departures. (This hiring freeze began in 2001 Second, the government must be provided the and has continued even though in EPA’s necessary resources to do the job. When this FY 2003 appropriations, Congress ordered commitment is not made, oversight suffers, staffing levels restored.) deterrence is lost, and industry, motivated by These tactics have reduced EPA profits, will be tempted to ignore the rules. enforcement personnel by 12 percent, And third, corporate oversight must be free bringing staffing levels in the Office of of conflicts of interests, ensuring sound, Enforcement and Compliance Assurance to independent judgment that reflects the best their lowest point since establishment of the interests of the public. agency.10 Adding insult to injury, a number Of course, these lessons have broad of special agents within EPA’s Criminal applicability to all of government’s regulatory Investigation Division were also diverted to activity, from ensuring a healthy food supply former Administrator Whitman’s personal to protecting workplaces and the environment. security detail, where their tasks included Yet as documented below and throughout this personal errands, such as returning a rental report, the Bush administration has refused to car and holding a table at a restaurant.11 learn. Indeed, even the Bush SEC has resisted Needless to say, none of this has helped (see box previous page). the investigative backlog, and indeed, enforcement actions are in sharp decline. Backing Off Polluters Curtailing Enforcement Actions The Bush administration is pursuing and Environmental enforcement has faltered punishing far fewer polluters than the two as the Bush EPA has eliminated key positions, previous administrations, according to an reduced inspections and referrals to the Justice investigation by the Philadelphia Inquirer.12 Department, and curtailed fines for violations. The newspaper obtained 15 years of From power-plant emissions to industrial environmental records for 17 different discharges in the nation’s water to cleanup of categories and subcategories of hazardous waste sites, the Bush administration enforcement activity through Freedom of has backed off corporate polluters. Information Act requests. In 13 of these categories, the Bush administration had Axing Enforcement Personnel lower average numbers than the Clinton EPA has a backlog of more than 1,500 administration, according to the Inquirer, uncompleted investigations into suspected and in 11 categories, the 2003 average was violations of environmental laws.6 Yet each lower than the 2001 average, revealing a year since taking office, President Bush downward trend. has pushed to slash the agency’s already For instance, the monthly average inadequate enforcement budget. of violation notices, which are a key This has included requests to eliminate enforcement tool, has dropped 58 percent 270 inspection and civil enforcement since the Bush administration took office positions in FY 2002, 225 positions in FY compared to the monthly average under 2003,7 and 54 positions in FY 2004.8 The President Clinton, according to the Inquirer. Senate has resisted these requests, but The Bush administration has issued an the administration has gone forward with average of just 77 citations each month, well staffing reductions anyway by transferring below the Clinton and Bush I administrations, enforcement positions to counter-terrorism which averaged 183 and 195 citations a efforts9 (even though Congress provided month respectively.

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Foxes In the Henhouse John Peter Suarez, assistant administrator for government’s environmental programs EPA’s Office of Enforcement and Compliance and activities. After the administration Assurance weakened power-plant emissions standards, Suarez, who oversees EPA enforcement he assured Congress that the action would actions, spent seven years as assistant U.S. not effect ongoing litigation initiated by attorney for the New Jersey district and the Clinton administration.16 However, this prior to that served as assistant counsel to turned out not to be true. For example, then-Governor Christie Todd Whitman. Not in October 2003, the Justice Department only does Suarez lack environmental law backpedaled in the middle of a case against experience, there is nothing distinguishing in an Illinois plant owned by Dynegy Midwest his record. In fact, while serving as a federal Generation Inc. “In light of EPA’s change of prosecutor, Suarez filed fewer cases, won fewer position as to its interpretation of the Clean convictions, took more time and obtained Air Act,” the Justice Department stated, “the shorter sentences than the average prosecutor United States does not rely on any prior in both his district and the country.13 statements it has made to this Court that a very narrow construction of the ‘routine John Ashcroft, attorney general maintenance’ exemption is required by the As Missouri senator, John Ashcroft Clean Air Act itself.”17 repeatedly opposed funding for clean air and Previously Sansonetti worked for the law water as well as increased funding to cleanup firm Holland & Hart, where he specialized toxic waste sites.14 He earned a lifetime rating in environmental law and lobbied on behalf of 5 percent from the League of Conservation of corporate mining interests, including Voters for votes on key environmental Arch Coal, Peabody Coal, and the National legislation from 1995 to 2000.15 He must now be Mining Association.18 Before that, Sansonetti counted on to prosecute environmental crimes. worked with Gale Norton, the current Interior secretary, serving as Interior’s Thomas Sansonetti, assistant attorney general associate solicitor in the 1980s. He also has for environment and natural resources been a member of the Federalist Society, a Sansonetti is responsible for defending conservative legal network that staunchly the nation’s environmental laws and opposes federal environmental regulation. defending legal challenges to the

“It’s a sign that this administration is flat- • Civil investigations declined from 660 in FY out falling down on the job,” said Dan Esty, a 2000 to 344 in FY 2003.21 deputy assistant EPA administrator during the first Bush administration and now director of • In FY 2002, EPA recovered $51 million in civil the Yale University Center for Environmental penalties compared to $140 million in Law and Policy.19 FY 1999, $85 million in FY 2000, and $95 Other important indicators also show that million in FY 2001. Notably, two-thirds of the administration is neglecting enforcement. the civil penalties collected in FY 2001 – the Specifically: last eight months of which were presided over by President Bush – were the result • On-site inspections by EPA dropped from of complaints lodged during the Clinton an average of 21,807 per year over the last administration.22 three years of the Clinton administration to an average of 18,036 over the first three In 2003, Public Employees for years of the Bush administration.20 Environmental Responsibility surveyed 120

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EPA investigators and enforcement attorneys. considered dropping 13 other cases that were Nearly 70 percent disagreed or strongly referred to the Justice Department for action.26 disagreed with the statement, “The EPA criminal This followed the administration’s decision program is headed in the right direction.”23 to substantially weaken EPA’s New Source Review (NSR) program, which governs Covering Up Lax Enforcement power-plant emissions. Later, on Dec. 24, Disturbingly, the administration’s 2003, a federal appeals court intervened and enforcement record might be even worse temporarily blocked the administration’s than it appears. According to an investigation rollback pending the result of litigation. by the Sacramento Bee, the Bush EPA The administration then announced has misrepresented its record of criminal it would resume cases against violators enforcement and overstated its successes in of the old – and now current – standard. cracking down on polluters.24 Unfortunately, this decision appears to be Specifically, in its 2002 performance contingent on whether the NSR rollback is report to Congress, the agency included struck down permanently. If it is upheld, the 190 counterterrorism-related investigations administration seems likely to revert as well, in a count of criminal investigations. One- meaning that violations from years ago would time phone conversations between EPA be judged by the new, weaker NSR standards and FBI agents were considered criminal – even though these standards were not in investigations for reporting purposes as well. place at the time.27 As one EPA agent told the Bee, “I called the Before making the initial decision to FBI and said, ‘If you need us, give us a call.’ halt investigations, EPA had already notified That warranted a (criminal) case number. roughly two-dozen plants under investigation There was no investigation.” that it had uncovered environmental violations, On top of this, agents are also being according to an agency official. Those plants pressured to open cases that have little or no would have been let off the hook if not for the chance of prosecution instead of pursuing the federal appeals court. “I don’t know of anything most egregious violations, agency sources like this in 30 years,” one EPA enforcement told the Bee. lawyer remarked at the time.28 EPA has also exaggerated the length “First the administration weakens our of prison terms imposed on environmental clean-air law, and now it won’t enforce it,” criminals, boasting that offenders of responded Sen. James Jeffords (I-VT), the environmental crimes were sentenced to 471 ranking member on the Senate Environment prison years in 2001 and 2002. However, in and Public Works Committee. “Instead of an email to top EPA officials, Mike Fisher, an fighting pollution, this administration is at war attorney with the agency’s Mid-Atlantic office, with the Clean Air Act. Innocent bystanders called this number “seriously misleading,” such as children, the elderly and the infirm saying, “The press and public deserve the truth will be the principle casualties.” about the Criminal Investigation Division’s enforcement accomplishments.” Specifically, Ignoring Clean Water Violations the figure includes sentences stemming An internal EPA study, completed in from other agencies’ narcotics cases, where February 2003 and leaked to the Washington hazardous waste charges were brought against Post, found that 25 percent of major industrial methamphetamine lab operators. facilities are in significant noncompliance with permits issued under the Clean Water Act, and Dropping Action Against Power Plants the majority of these facilities receive little or In the fall of 2003, the Bush administration no disciplinary action.29 decided to stop investigating 70 power plants The study focused on major facilities, suspected of violating clean air standards,25 and defined as those that discharge at least one

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Going Soft on Polluters prosecution.”32 Yet some charge that this was In December 2002, the Bush administration actually a favor to Koch, which faced penalties allowed Kentucky-based Addington of up to $352 million if convicted.33 Enterprises, one of the largest coal operators Koch Industries’ PAC and company in the country, to continue mining despite its employees donated $800,000 to Republican lack of a federally mandated reclamation bond. candidates and organizations during the 2000 Such bonds are used to ensure that mining cycle, half of which came from David H. Koch, companies fix environmental damage caused the company’s executive vice president.34 by the removal of coal. The Department of Interior first granted the Fox In the Henhouse company a 90-day grace period, and followed Jeffrey D. Jarrett, director of Interior’s Office of up with an additional three-month extension Surface Mining Reclamation & Enforcement when the company failed to obtain the required Jarrett is responsible for ensuring that insurance. Notably, Addington’s CEO, Larry companies involved in surface mining, such as Addington, is a major Republican donor, having Addington, comply with environmental rules. contributed $500,000 to the National Republican Previously, Jarrett served as deputy secretary Senatorial Committee between 1998 and 2000.30 for mineral resources management at the The Justice Department has also been Pennsylvania Department of Environmental faulted for cutting a deal with Koch Industries, Protection. Before that, he worked for several the largest privately held oil company in the coal companies (including Cravat Coal Co. United States. and Drummond Coal), and from 1988 to 1994, In September 2000, a federal grand served as deputy assistant director of the Office jury in Corpus Christi, Texas, returned a 97- of Surface Mining, where former coal-industry count indictment against Koch Industries, lobbyist J. Steven Griles – now deputy secretary charging the company and four employees of Interior – was his boss for much of that time. with environmental crimes – namely, the According to the Citizens Coal Council, intentional release of large amounts of cancer- Jarrett and Griles weakened environmental causing benzene from Koch’s West Plant standards and citizens rights, harassed refinery near Corpus Christi, followed by an OSM staff who enforced the law and attempted cover up.31 forced some out through early retirement However, this case was short-circuited or reassignment.35 The Appalachian Focus when, on April 9, 2001, the Justice Department Mining News also reported that an internal announced a $20 million settlement with OSM memo explained that Jarrett is against the company, boasting that it was “a record enforcement or any state action that will amount imposed in an environmental increase requirements on operators.36

million gallons per day. Of the 6,652 facilities in significant noncompliance, 27 percent examined, EPA found 1,670 in significant in “repeat significant noncompliance,” noncompliance. In 2001, 50 percent of violators and 32 percent in “perpetual significant exceeded the limit for toxics by 100 percent, noncompliance.” Less than half of these and 13 percent were over by 1000 percent. For violators ended up paying fines, which conventional pollutants, 33 percent of violators averaged a paltry $6,000. exceeded their discharge permits by 100 U.S. PIRG similarly found widespread percent, and 5 percent by over 1000 percent. problems in a study that examined Given the large number of violators, compliance rates of major facilities from EPA’s enforcement has been severely lacking. January 2002 to June 2003.37 Specifically, 60 In 2001 and 2002, EPA took enforcement percent discharged pollution in excess of their action against only 24 percent of those permit limits at least once over the 18-month

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Facilitating Pesticide Use in Water just have fewer dollars to start new projects,” In guidance issued July 11, 2003, EPA said Marianne Horinko, an EPA assistant declared that applying pesticides directly administrator who oversees toxic cleanup.44 in or above U.S. waters for the purpose of The Superfund program, which was controlling insects does not require a pollutant established to locate, investigate and clean discharge permit under the Clean Water up the nation’s worst toxic waste sites, is Act.38 Rather, pesticide use must only meet funded primarily by an industry-financed the requirements of the Federal Insecticide, trust fund. This fund – after which the Fungicide and Rodenticide Act (FIFRA). program is named – was created through EPA issued the guidance after a couple a tax imposed mainly on chemical and sued the town of Amherst, N.Y., for not petroleum companies, the idea being that obtaining a permit for its application of they should have to cover the costs of pesticides to wetlands as part of a mosquito cleaning up their own pollution. control program.39 In response, the U.S. Since the tax expired in 1995, the Second Circuit Court of Appeals ruled that program’s funds have dwindled. Yet contrary EPA should articulate a clear interpretation of to its predecessors, the Bush administration permitting requirements. Previously, the Ninth has opposed reauthorization of the tax, leaving Circuit held that applying herbicide to canals Superfund strapped for cash. In fact, the without a permit was a violation of the Clean trust fund was projected to run out of money Water Act.40 in October 2003, according to the General Accounting Office.45 President Bush proposed a $150 million increase for the Superfund period; 436 exceeded their permit limits for at program in his FY 2004 budget request, but least 10 of the 18 reporting periods during this this falls well short of what is needed to rescue time; and 35 facilities exceeded their permit the program. Indeed, in January 2004, EPA’s limits every reporting period. inspector general concluded that there was a “We need strong action to address $175 million shortfall over the previous year for this illegal pollution, but the Bush Superfund cleanups. administration has instead proposed slashing “We teach our children that they are the Environmental Protection Agency’s responsible for cleaning up the messes enforcement budget and weakening critical that they make,” said Carl Pope, executive Clean Water Act programs,” said U.S. PIRG environmental advocate Richard Caplan. Fox In the Henhouse Marianne Horinko, Assistant Administrator Slowing Cleanup of Hazardous Waste Sites for the Office of Solid Waste and The number of toxic waste sites Emergency Response cleaned up under EPA’s Superfund program Horinko is in charge of the Superfund declined for three straight years under the program, and also served for a time as EPA’s Bush administration,41 leaving millions of acting administrator following the departure Americans at risk. of Christie Todd Whitman. Previously, she In fiscal year 2003, EPA completed work at was president of Don Clay Associates, just 40 toxic waste sites, falling from 42 in FY an environmental consulting firm whose 2002 and 47 in FY 2001. In the last four years clients included the Chemical Manufacturers of the Clinton administration, EPA completed Association, the Koch Petroleum Group and an average of 87 cleanups per year.42 several other interests who benefit from the Listings to the National Priorities List expiration of the Superfund tax.46 Before that, – which identifies the most dangerous sites Horinko was an attorney at Morgan, Lewis & for cleanup – have also dropped nearly 15 Bockius, where she represented industry in percent during the Bush administration.43 “We Superfund and clean air cases.

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Foxes In the Henhouse director of the Sierra Club. “The Bush Michael F. Duffy & Stanley Suboleski, Federal administration should demand no less of Mine Safety and Health Review Commission corporate polluters.”47 (FMSHRC) The commission is an independent agency set up to resolve legal disputes – mostly Jeopardizing Worker Health and Safety involving civil penalties – between MSHA and mining companies under the Mine Safety and The story is no different for worker health Health Act. and safety. The Bush administration has pushed President Bush appointed Michael Duffy to cut funding for enforcement, eliminated to the commission on Dec. 2, 2002, and enforcement personnel, spent less time on Duffy later became chairman on Feb. 12, inspections, and curtailed fines for violations. 2003. Previously, Duffy served as the former Workplace injuries and deaths have deputy general counsel to the National Mining been steadily declining since the creation Association, which represents the interests of the Occupational Safety and Health of the mining industry. Duffy also served Administration in 197048 even as the as senior counsel to the American Mining workforce has expanded. However, the Congress, a predecessor of the NMA, from numbers still remain unacceptably high. 1979 to early 1987. In 2001, there were nearly six million Suboleski was appointed to the workplace injuries and illnesses and 5,900 commission in June 2003. Previously, he deaths,49 not counting the estimated 50,000 served as executive vice president and interim to 60,000 workers who die each year chief operating officer for Massey Energy, a from occupational diseases. OSHA’s past company with an abysmal record on worker success and the seriousness of the problem safety, with at least 12 fatalities at Massey should encourage a greater commitment of operations since 1997.52 In October 2000, resources; unfortunately, the administration a coal sludge spill at a Massey subsidiary is moving in the other direction. (Martin County Coal in Kentucky) sent an estimated 306 million gallons of water and Insufficient Resources black coal slurry into the Big Sandy River and Less than 1 percent of all workplaces are its tributaries – 28 times the amount spilled inspected for safety and health violations in 1989 by the Exxon Valdez.53 In this case, each year. At current staffing and inspection higher ups at the Mine Safety and Health levels, it would take OSHA 115 years to Administration – including the head, former inspect each workplace (under federal mine-industry executive David Lauriski jurisdiction) once. Nonetheless, the Bush – allegedly cut off the agency’s investigation administration has continually pushed to cut and pressured investigators to produce an OSHA’s budget. Congress has fortunately inaccurate report about the cause of the spill.54 blocked this effort – and in fact, increased funding for FY 2002 and 2003 – but the administration still managed to eliminate 57 to industry.55 The president also sought cuts OSHA positions over its first two years.50 of nearly $8 million in worker safety and In his FY 2004 budget request, President health training programs, which Congress has Bush proposed to cut OSHA’s budget by previously rejected. These cuts were largely $3.2 million and eliminate an additional offset (and masked) by proposed increases in 77 positions51 – including 64 enforcement compliance assistance. positions, 10 for developing new safety and Likewise, the president proposed to cut health standards, and five for statistics; the MSHA’s coal enforcement activities by more president proposed to add two positions for than $6 million. This came at a time when providing regulatory compliance assistance mining-related deaths were on the rise.56

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In one case, in January 2003, an explosion • The average time spent on health rocked the McElroy mine in Cameron, W.Va., inspections declined from 40 hours in FY killing three and injuring another three. The 1999 and 35 hours in FY 2000 to 32.7 hours MSHA district manager for the area reportedly in FY 2002. requested additional inspectors and resources, but was granted less than half of his request • The number of citations issued for “willful” because of personnel shortages, highlighting violations plunged from 607 in FY 1999 and the dire need for staffing increases. 524 in FY 2000 to 392 in FY 2002. “Between December 2001 and January 2003, when the McElroy Mine should have The average penalty for willful violations had six surface inspections, it had been also fell by 25 percent, while total penalties inspected only once,” Sen. Robert Byrd (D- declined from $86.5 million in FY 2000 to WV) said. “No underground inspections $70.7 million in FY 2002.59 Of course, OSHA were performed.”57 Unfortunately, the Bush has always been soft on willful violators. administration has pushed cuts that would From 1982 to 2002, OSHA investigated make matters worse. 1,242 cases in which the agency concluded that willful violations resulted in workplace Inadequate Inspections and Penalties deaths; however, OSHA declined to seek Although lacking in staff, OSHA’s recorded prosecution in 93 percent of those cases, inspections under the Bush administration according to an investigation by the have been roughly on par with previous years New York Times.60 What’s more, at least – that is to say, still woefully inadequate.58 70 employers committed repeat willful However, inspections have become less violations resulting in scores of additional thorough, potentially allowing violations to go deaths, but were still seldom prosecuted. undetected. Specifically: The Bush administration is making a bad problem worse. • The average time spent on safety This trend is particularly disturbing inspections decreased from 22 hours in FY since low penalties reduce the incentive for 1999 and 2000 to 19.1 hours in FY 2002. companies to change their ways. Often, it

Tragedy in an Alabama Mine Prior to this catastrophe, MSHA inspectors In September 2001, a series of misleadingly cited serious violations as “non- explosions in a coal mine in Brookwood, significant and substantial” and failed to Ala., claimed the lives of 13 miners. An issue “unwarrantable failure” closure orders investigation into the tragedy revealed for repeated violations. The agency kept that MSHA’s failure to fully enforce penalties against the company to a minimum mining standards permitted the hazardous by claiming that most violations threatened conditions that led to the disaster.61 only one miner. MSHA also helped the MSHA approved mining plans that company, Jim Walter Resources, avoid costly were inadequate to control the mine’s roof fines by failing to follow up on past violations (which fell), ventilation system (which was to learn if they were corrected by MSHA- insufficient), and float coal dust (which fueled imposed deadlines.63 one of the explosions). Plans approved by MSHA found that eight safety violations the agency for emergency evacuation were contributed directly to the miners’ deaths and also found to be deficient.62 Twelve miners, fined the company $435,000, the maximum fine lacking proper direction and information, allowable. However, in June 2003, the agency were killed when they attempted to rescue discovered 18 new safety violations by the trapped co-workers. company, but issued a mere $8,335 in fines.64

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may be cheaper for a company to pay a fine and unsanitary conditions at food production than implement the changes necessary to facilities, while FDA faces budget shortfalls achieve compliance. – which the administration threatens to Consider, for example, McWane Inc., a exacerbate – that prevent it from carrying out company based in Birmingham, Ala., that is needed inspections. As a result, contaminated one of the world’s largest manufacturers of food continues to pose a significant risk to cast-iron sewer and water pipe. Nine workers American consumers, causing an estimated have been killed in McWane plants since 76 million illnesses each year, including 1995, and OSHA investigators have concluded 325,000 hospitalizations and 5,000 deaths, that three of those deaths resulted directly according to the Centers for Disease Control from deliberate violations of federal safety and Prevention. standards.65 According to current and former managers at McWane, company executives Inaction on Mad Cow view penalty costs as far less burdensome For two and a half years, the Bush USDA than the cost of fully complying with health virtually ignored the threat of mad cow and safety standards.66 Shortly after the disease (see box on next page) – which has death of a McWane employee, company killed 137 people, mostly in Great Britain – and budget documents revealed that McWane then declined to significantly increase testing had calculated down to the penny the cost of when, in December 2003, it was discovered OSHA fines.67 in Washington state. Instead, Secretary Enforcement by the Bush Mine Safety Ann Veneman misled the public about the and Health Administration has also been Washington case and the likely effectiveness lax. In particular, MSHA’s practice of of USDA’s testing program in an apparent “conferencing” – whereby MSHA officials effort to prop up the meat industry, which has informally meet with mine operators to close ties to the administration. review citations and frequently to reach At issue is whether the infected cow was settlements – has “neutered” enforcement, a “downer,” meaning that it was unable to according to the United Mine Workers of walk. Contrary to Veneman’s contention, three America, leaving both miners and inspectors eyewitnesses say that the cow was able to walk frustrated. In many cases inspectors are not and did not appear to be sick at all,70 which is even allowed to defend their citations during bolstered by the fact that the USDA veterinarian these meetings.68 on the scene did not perform tests required for Not surprisingly, there has been a decline downer cattle, according to agency documents in tough enforcement actions (such as obtained by United Press International.71 “significant” and “substantial” violations and This is of critical importance because “unwarrantable failure” citations69) under the USDA has based its testing and surveillance Bush administration – a hands-off approach program for mad cow by sampling only that can have deadly consequences for downer and other sick animals, which account workers (see box on previous page). for a small fraction of the 36 million U.S. cattle slaughtered each year; in 2003, USDA tested just 20,000 downers for mad cow. At Neglecting Food Safety first, Veneman argued that the discovery of the infected cow was proof of the system’s Both the U.S. Department of Agriculture effectiveness, and that more expansive testing and the Food and Drug Administration, the of healthy cattle was unnecessary. Instead, main entities that oversee food safety, have she chose to expand testing of downer failed to properly enforce federal standards cattle to farms and feedlots (in addition to during the Bush administration. USDA has those taken to slaughter), which would have looked the other way on mad cow disease doubled testing.

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A Woeful Inspection Record find one, then once you go to widespread In May 2003, a case of mad cow was testing, you find more and more.”73 discovered in Alberta, Canada, close to Donald Berry, chairman of the biostatistics the Washington border. However, USDA department at the University of Texas Cancer failed to respond through increased testing, Research Center in Houston, has estimated performing no tests on commercial cattle in that two positives for mad cow out of 40,000 Washington from May through July, according tests would suggest a total of about 1,750 to agency data turned over to the United Press infected animals in the United States.74 International in response to a Freedom of In response to such claims, Veneman Information Act request.72 has assured the public that U.S. meat is In fact, USDA did not test any commercial safe regardless because there are necessary cattle in Washington state for mad cow precautions in place to make sure that brain during the first seven months of 2003. “This and spinal chord tissue – where the disease is includes Washington’s biggest slaughterhouse, found – do not enter the food supply. Washington Beef in Toppenish – the 17th However, many meatpacking plants now largest in the country, which slaughters 290,000 use “advanced meat recovery” systems head per year – and two that cut close to the bone facilities in Pasco that There are insufficient inspections to and spinal chord, which belong to Tyson, the catch mad cow, inadequate protections increases the chances that largest beef slaughtering to stop it from spreading among cows, tissue from an infected company in the United and central nervous tissue is making it animal’s central nervous States,” according to UPI. into the food supply. This spells danger system could end up in Nationwide, tests for the American consumer. hamburgers and other were conducted at processed meat. In 2002, fewer than 100 of 700 cattle slaughterhouses USDA tested meat from plants that use such between 2001 and 2003, and some of the systems, and 35 percent of it contained biggest slaughterhouses were not tested at all. central nervous tissue.75 “Are they interested Of cows tested, only 11 percent came from the in making people sick? Certainly not,” top four beef producing states, which account said Trent Berhow, a USDA inspector from for nearly 70 percent of cattle slaughtered Denison, Iowa. “But their main motivation is each year. money. They are interested in getting every Making matters worse, there are ounce of flesh off an animal.”76 Veneman has limited protections to stop the disease from said the USDA would pursue a new standard spreading. In 1997, FDA banned cow bits for “verification testing” to ensure that nerve from being fed back to other cows, which tissue doesn’t get into processed meat, but was commonplace at the time. However, so far there are only protections in place for enforcement of this standard has been lax, animals under 30 months. and it contains a number of loopholes in any In the meantime, there are insufficient case. For instance, cow bits can be fed to inspections to catch mad cow; there are other livestock, which can then be fed to cows. inadequate protections to stop it from spreading As a result, USDA’s advisory committee among cows; and there is meat making it of foreign experts concluded that cattle in the into the food supply that has central nervous United States have likely been “indigenously tissue. This combination spells danger for the infected” (the Washington cow was American consumer, especially given the Bush imported from Canada), despite the Bush administration’s cozy relationship with the meat administration’s assurances to the contrary. packing industry, which gave the president “That was the pattern in Europe,” said Dr. $76,000 for the 2000 campaign, and $1.2 million Michael Hansen, who studies food safety for to Republican candidates and committees (89 Consumers Union. “Blanket denials, then you percent of its total contributions).77

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Fox In the Henhouse that did not support their predetermined Jim Moseley, deputy secretary of Agriculture policy. On Jan. 6, 2004, the co-manager of Prior to joining USDA in 2001, Moseley the Washington slaughterhouse where the was half owner of a hog farm, AgRidge infected cow was discovered wrote to USDA Farms and Infinity Pork.78 At USDA, he was to warn that the cow was not a downer; in a position to influence the agency’s testing however, USDA continued to publicly insist policy over mad cow. that it was. As a result, wrote Davis and Waxman, “public confidence in USDA may suffer. However, infected cattle frequently do Confidence in the food supply requires that not show any symptoms of mad cow. Indeed, the public be able to rely on statements of European inspectors have found hundreds of USDA officials.” infected cows without any symptoms.79 This appears to have been the case in Washington Meat Inspection Breakdown as well. The Bush administration claims it is A bipartisan investigation by the House seeking “record level support” for USDA’s Government Reform Committee found that food safety programs in the FY 2005 budget.83 USDA made its discovery only because of In fact, the president’s budget would rely on an agreement with the plant where the cow $124 million in industry “user fees” to support was slaughtered to accept samples from a major portion of the meat inspection nondowner cattle. budget.84 The year before, the president “If the information we have received is true, likewise proposed to cut direct federal funding a key premise of the USDA [mad cow] testing by $90 million in favor of industry “user fees.” program is subverted,” wrote Reps. Tom Davis Congress has repeatedly rejected such (R-VA), chairman of the Government Reform user fees – in which companies pay for Committee, and Henry Waxman (D-CA), the inspections – out of fear that inspectors would ranking Democrat, in a letter to Veneman.80 become beholden to meat-plant owners as This bolstered the case of importers of the source of their paychecks.85 Indeed, USDA American beef, including Japan and South already has a too-cozy relationship with the Korea, which have argued that USDA’s testing meat industry, and is notorious for going soft program is insufficient, and should also on violators. This problem did not begin with sample seemingly healthy cows (something President Bush, but the administration has strongly opposed by the beef industry). done nothing to remedy the situation. Likewise, a USDA advisory body, In 2001, USDA routinely allowed comprised of foreign experts who have dealt negligent companies to sell meat and poultry with mad cow, concluded in February 2004 to American consumers, according to the that USDA’s surveillance program “must be General Accounting Office, undermining significantly extended in order to measure the new food safety regime – the Hazard the magnitude of the problem,” and that the Analysis and Critical Point (HACCP) system agency should strongly consider randomly – established in 1998.86 sampling healthy cattle,81 as other countries HAACP replaced the decades-old practice are currently doing. For example, France tests of “poke and sniff” inspections (which could about half of the six million cattle it slaughters only catch rotten or clearly damaged meat) each year, and Japan tests all of its 1.3 million.82 with science-based standards and testing After substantial pressure, Veneman – requiring meat and poultry plants to develop reluctantly announced in late February 2004 comprehensive safety plans, and check for that USDA would begin testing some non- Salmonella and other dangerous bacteria. downer cattle. To that point, Veneman and On its face, this should ensure a significantly other USDA officials had ignored information safer food supply, but the Bush administration

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has fallen far short in implementation. Among those relating to ‘zero tolerance’ for visible other things, GAO found: feces.” Plants are required to take corrective action each time a violation is cited. However, • USDA did not suspend a plant’s operations “the number of repetitive violations in when violations were detected (even various plants – 109 in one plant alone – though Secretary Ann Veneman has shows that [the department] has not ensured pledged that the department would that recurring violations were eliminated.” do so87). Instead, suspensions were almost always put on hold, or “placed in • USDA did not require plants to take timely abeyance,” allowing the offending plant to action to control Salmonella contamination. continue production. This was the case for “At the plants that failed two consecutive 57 of 60 administrative enforcement cases sets of tests for Salmonella, an average examined by GAO. of 20 months elapsed from the date of the failure of the first set until the plants • USDA did not take necessary steps to completed and passed a third set,” eliminate repeat violations, “particularly according to GAO. Foxes In the Henhouse Ann Veneman, secretary of USDA In March 2001, USDA announced plans to Veneman previously sat on the board irradiate school lunches and stop salmonella of directors for Calgene (merged into testing instituted by the outgoing Clinton Monsanto in 1997, now Pharmacia), the first administration (which meat packers had company to bring genetically engineered opposed as too expensive).93 However, after food to supermarket shelves.88 As secretary, a public uproar, the plans were dropped; she has actively promoted Calgene/ White House spokesman Ari Fleischer Monsanto’s position on international blamed the decision on “the lower level of trade of genetically modified food89 while the Department of Agriculture.” Later, in opposing consumer labeling.90 May 2003, USDA published specifications for While campaigning for President Bush irradiating ground beef in school lunches, before the 2000 election, Veneman assured but made it voluntary and said testing would California farmers that they would no continue.94 USDA’s School Food Program longer be subjected to “unnecessary and (now run by Peter Murano, the secretary’s burdensome” environmental regulations.91 husband) formerly banned irradiated foods She was also forced to recuse herself from the from the nation’s schools. decision to triple logging in the Sierra Nevada USDA has also moved to apply the range (see page 32) because of her prior HAACP model of industry self-testing representation of loggers. to slaughterhouses, where the agency currently inspects carcasses. However, in Elsa Murano, USDA undersecretary for December 2001, GAO reported that a USDA food safety pilot program to test this system was too Murano has consistently downplayed scientifically flawed and unreliable to justify the potential dangers of food irradiation replacing federal meat inspectors with plant since her days as director of the Center employees. Murano disagreed and asked for Food Safety at Texas A&M University. GAO to change the report’s title from “Food The Center had a multi-million dollar Safety: Weaknesses in Meat and Poultry research and development deal with the Inspection Pilot Should be Addressed Before Titan Corporation, a military contractor Implementation” to “Meat and Poultry seeking new uses for its “Star Wars” E-beam Inspection Needs Enhancement Prior to technology to irradiate food.92 Implementation.”95 GAO declined.

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• Inspectors did not document any HACCP unannounced, allowing the plant time to violations in 55 percent of all plants during perform special cleanups.98 2001. Department officials told GAO “they Vincent Erthal, a USDA inspector who were surprised at the large numbers and worked the night shift at Wampler, requested said the absence of violations was unusual.” enforcement action in August 2002 and provided two years of documentation of • In about 91 percent of the plants GAO widespread sanitary problems at the facility.99 sampled, “inspectors had failed Unfortunately, agency higher-ups looked the to document deficiencies in basic other way. requirements,” including whether plants had “adequate documentation to support Shielding ConAgra the analysis of hazards in their HACCP In the summer of 2002, the meatpacking plans.” USDA “is not ensuring that all giant ConAgra Corporation100 recalled 19 plants’ HACCP plans meet regulatory million pounds of ground beef – the third requirements and, as a result, consumers largest recall in U.S. history – after lab tests may be unnecessarily exposed to unsafe found E. coli O157:H7 contamination.101 foods that can cause foodborne illnesses,” USDA quickly announced that no GAO concluded. contaminated meat had made its way to market, but the Centers for Disease Control • Only about 1 percent of plants have been and Prevention later contradicted this subjected to in-depth reviews to verify that assertion, linking the ConAgra beef to at least HACCP plans are based on sound science. one death and 35 illnesses during the first month after the recall. • USDA has only about 6 percent of the From the beginning, USDA seemed more consumer safety officers it needs; concerned with protecting ConAgra than the “managers in two large districts expressed public. In January 2002, six months before concern that it may take years to assess the the recall, John Munsell, owner of the family plans for all plants in their districts.” business Montana Quality Foods, Inc., alerted USDA that ConAgra had shipped him meat As discussed below, this lax approach to contaminated with E. coli. Yet instead of taking food safety has permitted a number of serious action against ConAgra, USDA blamed Munsell outbreaks during the Bush administration. and ordered him to rewrite his HAACP plan 14 times while suspending his privileges to grind Listeria Overlooked his own beef, according to an investigation USDA ignored repeated food safety by the Government Accountability Project violations at a Wampler Foods plant in Fraconia, (GAP).102 This placed Montana Quality Foods Penn.,96 and in 2002, listeria-contaminated under tighter surveillance than any other turkey meat from the plant killed eight, sickened plant in the beef industry, and Munsell was more than 50, and caused several miscarriages ultimately forced to sell his business. and stillbirths, prompting the recall of 27.4 As for ConAgra, USDA looked the other million pounds of ready-to-eat poultry products, way. While Munsell was ordered to recall 270 the largest recall in U.S. history. pounds of ground beef, the agency declined The lead USDA inspector for the plant to interfere with ConAgra even after February knew about listeria contamination and other 2002 lab tests confirmed E. coli contamination filthy conditions prior to the outbreak, but in beef produced on Aug. 30, 2001, at the agency declined to take action, according ConAgra’s plant in Greeley, Colo. to individuals who worked inside the plant.97 At the time, USDA inspectors argued On the contrary, USDA gave advance notice that the agency was ignoring the real public of listeria testing, which is supposed to be health threat; one expert in the agency’s

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Food Safety and Inspection Service wrote million cut from FDA’s food safety efforts104 to agency officials, “It would be a shame if even though the agency already lacks an unsuspecting consumer got sick, or even resources to adequately protect the public. worse, because we failed to take appropriate FDA receives just 28 percent of food safety measures to prevent it… The chances are resources, but is responsible for 78 percent of pretty good that ConAgra is the source the food supply,105 which accounts for two-thirds and there’s probably more of this ‘suspect’ of recorded outbreaks of food-related illness.106 product out in distribution like a ticking time Currently, the agency has 770 food bomb.” Nonetheless, agency higher-ups in inspectors for 57,000 plants, meaning a Washington, D.C., and at the district office single inspector has responsibility for with jurisdiction over the matter overruled an average of 74 plants. As a result, FDA action against ConAgra and came down on inspects food establishments under its Munsell instead. jurisdiction just once every five years,107 and tests only 2 percent of the estimated Contaminated School Lunches five million shipments of imported food In 2002, USDA failed to notify state and each year, with a mere 150 inspectors local officials about food contaminated by devoted to the task.108 By contrast, USDA has ammonia, and allowed dangerous beef approximately 7,600 inspection personnel for patties, chicken tenders and potato wedges to about 6,500 meat and poultry plants,109 which be shipped to school lunch programs across are inspected daily. the state of Illinois.103 Forty-two children and teachers at an Backing Off elementary school in Joliet, Ill., were sickened Drug Companies and rushed to the hospital in November 2002 after eating contaminated chicken tenders FDA enforcement actions against – which were found to contain 133 times the improper drug advertising have dropped accepted level for ammonia, caused by an dramatically during the Bush administration, ammonia leak a year earlier at a Gateway Cold coinciding with a policy issued at the end Storage in St. Louis. of 2001 that positioned the agency’s Office A USDA inspector was stationed at the of Chief Counsel as a clearinghouse for all food storage facility at the time of the leak notices of violations.110 but did not inform schools or health officials From December 2001 to September 2002, of the incident. USDA officials maintained FDA issued just 19 “notice of violation” or that it was Gateway’s responsibility to notify “warning” letters (an average of just two per affected entities. month).111 In the three previous years, FDA State and local officials quarantined sent 253 of these letters to manufacturers, or food shipments from the facility after almost 85 per year. cafeteria workers complained of This decline came at the same time conspicuous odors. However, these officials drug advertising skyrocketed. Ads aimed claimed their efforts were undermined at doctors increased by nearly 20 percent because USDA allowed Gateway to continue in 2002, yet FDA actions directed at such shipping the ammonia-soaked products (an promotions decreased by almost 80 allegation the agency denied). percent.112 Likewise, direct-to-consumer advertisements submitted for FDA review Cuts for the Food & Drug Administration increased by 75 percent in 2002, yet FDA While USDA handles meat safety, FDA enforcement actions in this area decreased handles everything else, including seafood, by nearly 50 percent. eggs, and vegetables. In his FY 2004 budget Daniel Troy, FDA’s chief counsel, request, President Bush called for a $14 explained this discrepancy by claiming the

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Fox In the Henhouse have little to do with greater compliance with Daniel Troy, FDA’s chief counsel the law. Enforcement actions against improper Indeed, in September 2002, four drug advertising plummeted after Troy made independent experts115 convened by the his office the clearinghouse for violation Democratic staff of the House Government notices. Previously Troy worked as an attorney Reform Committee found significant problems representing industry in cases against FDA. in their review of more than 100 direct-to- For example, in 1998, he won a fight with FDA consumer television advertisements from the that permitted drug companies to provide preceding year.116 doctors with information about “off-label” “The advertisements I reviewed contained uses of their drugs.113 Troy also successfully numerous problems (errors, omission or defended the tobacco industry against FDA’s misleading statements/images) and … as a efforts to regulate tobacco advertising. group they are often intended to mislead a consumer about the drug’s effectiveness or the seriousness of their medical condition agency’s oversight is focused on fewer, more (creating fear and concern over conditions complicated cases; however, when pressed by that are ordinary and have no impact on a Boston Globe reporter, he could not offer a quality or quantity of life),” wrote Dr. Michael specific example.114 Wilkes of the University of California, Davis. Meanwhile, complaints submitted to “I am also bothered by drugs that insinuate or FDA regarding false and/or misleading actually claim they are better than other drugs advertisements have remained relatively or classes of dugs where there is no data to constant; the lack of enforcement seems to support such a claim.”117

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“Knowledge will forever govern ignorance, and a people who mean to be their own governors,governors, must arm themselves with the power knowledge gives.”gives.” --James Madison, 1822

The Bush administration has moved to broadly restrict information that might interfere with its political agenda and point to stronger health, safety and environmental protections. Perhaps most signifi cant for its scope, Attorney General John Ashcroft has reversed past policy under the Freedom of Information Act, and in essence instructed federal agencies to withhold information whenever possible. Meanwhile, the administration has cracked down on government whistleblowers and continually thumbed its nose at Congress – for example, refusing to turn over documents related to the corporate-dominated Cheney energy task force. Sept. 11 has also regularly been invoked to advance the cause of secrecy. In particular, the administration has withheld information on “critical infrastructure” and power companies, and removed tens of thousands of documents from the web, including information on chemical facilities. While the specifi c reasons for these restrictions are murky at best, the one clear effect has been to shield the administration and its corporate allies from public scrutiny. Sworn to Secrecy

Turning FOIA ‘discretionary disclosure’ of information on its Head to the need to safeguard institutional, On Oct. 12, 2001, Ashcroft issued a commercial, and personal privacy memorandum1 that urges federal agencies interests.”3 In other words, we are moving to exercise greater caution in disclosing from disclosure where possible to secrecy information requested under the Freedom of where possible. Information Act, which is a primary tool for As viewed by EPA’s general counsel office, obtaining health, safety and environmental “[I]n order to justify withholding a record, information, and much more. the agency no longer needs to be able to The memo affirms the Justice articulate a foreseeable harm that will befall Department’s commitment to “full us if the record is released.”4 This means that compliance with the Freedom of Information not only is the agency less likely to disclose, it Act,” but then immediately states it is won’t even provide an explanation for why it “equally committed to protecting other is withholding. fundamental values that are held by our society. Among them are safeguarding Auto Safety our national security, enhancing the In one of the most egregious examples, effectiveness of our law enforcement the Department of Transportation is agencies, protecting sensitive business withholding “early warning” data about information and, not least, preserving auto safety defects, including warranty personal privacy.” claim information, auto dealer reports, This new policy supersedes a 1993 consumer complaints, and data on child memorandum from then-Attorney General restraint systems and tires. Congress Janet Reno that promoted disclosure of required reporting of this information in government information under FOIA unless it response to the 2000 Firestone Tire debacle was “reasonably foreseeable that disclosure (in which faulty tires resulted in 271 deaths), would be harmful.” This standard of potentially creating a powerful tool for “foreseeable harm” is dropped in the Ashcroft the public to hold manufacturers and the memo. Instead, Ashcroft advises, “When you government accountable. carefully consider FOIA requests and decide Unfortunately, in July 2003, DOT to withhold records, in whole or in part, you issued a rule that claimed disclosure could can be assured that the Department of Justice “cause substantial competitive harm” – an will defend your decisions unless they lack a allowable exemption under FOIA – even sound legal basis...” though similar defect information has been In a number of cases, agencies have routinely made public before. expanded on the Ashcroft memo, affirming that the benefit of doubt no longer goes to Fox In the Henhouse disclosure, according to an audit covering Jacqueline Glassman, NHTSA’s chief counsel 33 federal departments and agencies by Glassman spearheaded the decision the National Security Archive,2 which files to withhold early-warning auto safety thousands of FOIA requests annually. information from the public. Prior to her The Department of Interior, for instance, appointment in 2002, Glassman was senior circulated the Ashcroft memo in an email counsel for the DaimlerChrysler Corporation, entitled, “News Flash – Foreseeable Harm where she spent seven years. The Alliance for is Abolished.” Interior later developed Automobile Manufacturers, which represents implementing guidance that stated, “We DaimlerChrysler, as well as eight other wish to emphasize that the shift related manufacturers, strongly opposed disclosure of to release of information under the the early-warning information. FOIA has moved from a presumption of

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“The DOT is trying to slip a vast The Bush administration appealed the exemption to the Freedom of Information circuit court’s decision to the Supreme Act in the back door,” said Amanda Frost, an Court, which accepted the case. Yet just days attorney with Public Citizen, which filed suit before oral arguments were set to begin, in March 2004 to force the administration to Congress approved an appropriations rider make the information available. “The agency that prohibits the ATF from using any funds has failed to show how disclosure would harm to comply with FOIA requests for the records manufacturers, but this exemption would in question. In response, the Supreme Court surely harm consumers.” vacated the decision and remanded the case, instructing the Seventh Circuit to reconsider in Gun Safety light of Congress’ action. The Bush administration has also fought a legal challenge by the city of Chicago to Stonewalling obtain records on gun purchases under Congress FOIA. Chicago requested these records from the Bureau of Alcohol, Tobacco, The Bush administration clearly does not and Firearms (ATF) to support a civil suit want to answer to Congress. Vice President against several manufacturers, wholesalers Cheney’s showdown with GAO was just the and dealers for allegedly promoting and most high profile case in what’s emerged facilitating the unlawful possession of as a pattern of stonewalling. From “Clear firearms. However, the Justice Department, Skies” to drinking water contamination to backed by the National Rifle Association, Medicare reform, the administration has been argued that such disclosure is exempt unwilling to deal with Congress honestly, and from FOIA because it would interfere with instead has sought to advance its agenda law enforcement proceedings and violate by withholding information that might personal privacy interests. spark open debate. Such secrecy subverts Early in 2003, the Seventh Circuit Court democratic decision-making and undermines of Appeals, based in Chicago, ruled in favor public accountability. of the city and ordered ATF to turn over its gun trace and sales databases, rejecting the The Cheney Energy Task Force administration’s arguments as overly broad. During the early months of the Bush According to the court, ATF can withhold administration, Vice President Cheney particular records that might interfere convened an energy task force whose ultimate with a specific investigation, but cannot recommendations, issued May 18, 2001, claim a blanket disclosure exemption for conspicuously reflected the interests of oil, the entire databases. Likewise, the public gas and coal companies. interest outweighs ATF’s sweeping claim of At the time, President Bush said, “I can personal privacy in concealing the names assure the American people that mine is and addresses of gun purchasers. In fact, an administration that’s not interested in privacy advocates such as the Electronic gathering dust. We’re interested in acting.” Privacy Information Center strongly backed As discussed earlier, this has meant weaker disclosure, arguing for more tailored environmental standards and more extensive privacy protections. drilling and mining on public lands. This information will help identify patterns Given this profound effect on to determine whether firearms used in crimes administration policy, members of Congress are sold by particular retailers or sold to and other interested parties began to raise particular purchasers, while allowing for an questions about the nature and composition evaluation of ATF’s effectiveness in monitoring of the Cheney task force, which took on unlawful sales and tracing crime guns.5 increased urgency following the collapse

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of energy-giant Enron. Unfortunately, the The Sierra Club and Judicial Watch (best administration refused to provide even known for its numerous lawsuits against the most elementary answers, triggering a Clinton administration officials) were joined number of hard-fought lawsuits. in another lawsuit against the task force Most troubling was the administration’s – officially called the National Energy Policy unwillingness to cooperate with the Development Group – to gain access to White General Accounting Office, the research and House documents, just as GAO was trying investigative arm of Congress. GAO tried for to do. In August of 2002, U.S. District Judge months to obtain access to the names of task Emmet G. Sullivan ordered these documents force participants, including anyone consulted turned over, but the White House failed outside government, as well as basic meeting to comply, drawing a strong rebuke from records, including dates and topics.6 However, Sullivan, who reaffirmed his order persistent stonewalling by Vice President Cheney that October. forced GAO to launch its first-ever lawsuit Not surprisingly, the White House against a federal official on Feb. 22, 2002. continued to resist disclosure as it appealed In announcing the decision to sue, David the case. On Dec. 6, 2002, a federal appeals M. Walker, GAO’s comptroller general, wrote, court issued a two-page order indefinitely “Failure to provide the information we are delaying the Dec. 9 disclosure deadline set seeking serves to undercut the important by Sullivan. principles of transparency and accountability Three days later, a Bush-appointed in government. These principles are important district court judge threw out GAO’s case, elements of a democracy. They represent finding that GAO lacked standing to sue, basic principles of ‘good government’ that regardless of whether Congress was entitled transcend administrations, partisan politics, to the documents. At the time, GAO seemed and the issues of the moment.”7 certain to appeal. But then congressional Meanwhile, a number of other interested Republicans started to put the squeeze on, parties had already initiated legal action of threatening to slash GAO’s budget if it didn’t their own. On Feb. 21, 2002, just as GAO was drop the lawsuit.10 In a statement on Feb. preparing its suit against Cheney, a federal 7, 2003, GAO announced that it would not district court ordered the Department of appeal, even though it strongly disagreed Energy to hand over task-force documents with the judge’s ruling.11 to the Natural Resources Defense Council. “[I]n the world’s greatest democracy, “Despite being heavily censored, the we should lead by example and base public documents show how the administration disclosure on what is the right thing to do allowed energy companies and their lobbyists rather than on what one believes one is to help write our nation’s national energy compelled to do,” Walker said at the time. plan,” NRDC reported. “For example, the Unfortunately, the administration has records reveal that Energy Secretary Spencer been more interested in preserving its “right” Abraham met privately more than 100 times to secrecy. The appeals court ultimately with industry executives and lobbyists – many affirmed Sullivan’s decision on July 8, 2003, of whom were major financial supporters but just over five months later, on Dec. of President Bush’s campaign. Yet Secretary 15, 2003, the Supreme Court granted the Abraham refused to meet with environmental administration’s request to review the ruling, organizations.”8 These documents also further delaying release of the task force revealed that Enron had contact with the task documents. Unfortunately, whatever the force four times, in addition to the six times outcome of this case (which is expected to company officials, including former chairman be decided by July 2004), there is now little Kenneth Lay, reportedly met with Vice stopping the administration from withholding President Cheney.9 information from GAO virtually as it pleases,

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striking a severe blow against transparency agency withheld information, later leaked, and accountability. that these cuts could be achieved relatively cheaply – increasing electricity prices by No Answers for the Minority Party two-tenths of a cent per kilowatt hour more In one of its more brazen moves, the than the Clear Skies Initiative. “All we’re administration announced that it would not interested in is having a full and honest answer any questions from the minority party debate so we can make a well-informed (which happens to be the Democrats in both decision,” Carper said. “I don’t believe that’s the House and Senate). In an email sent Nov. too much to ask.”15 5, 2003, to majority and minority staff on the House and Senate appropriations committees, Drinking Water and Lettuce Contamination Timothy A. Campen, director of the White EPA has prevented regional offices House Office of Administration, explained, from speaking to congressional staff about “Given the increase in the number and types perchlorate contamination. Perchlorate is of requests we are beginning to receive from found in rocket fuel and has contaminated the House and Senate, and in deference to the drinking water near Department of Defense various committee chairmen and our desire to sites in at least 22 states. On Jan. 15, 2004, better coordinate these requests, I am asking Reps. John Dingell (D-MI) and Hilda Solis that all requests for information and materials (D-CA) released a GAO report that found be coordinated through the committee the Pentagon had made little progress in chairmen and be put in writing from the cleaning up these sites.16 Democratic staff committee.”12 of the House Commerce Committee, where This would effectively give the Dingell is the ranking Democrat, followed Republican majority, which controls up with further investigation, but discovered congressional committees, veto authority that regional officials “had been instructed over inquiries from the Democratic minority. by an EPA headquarters official not to speak “I have not heard anything like that with committee staff.”17 Dingell and Solis happening before,” said Norman Ornstein, responded in a letter to EPA Administrator a congressional specialist at the American Mike Leavitt, stating, “There is no need Enterprise Institute. “As far as I know, this is to interject another level of Headquarters without modern precedent.”13 bureaucracy into the process unless there is a decision on your part to delay and hamper The Clear Skies Initiative EPA employees from providing information EPA withheld analysis showing that about the contamination of actual and the administration’s plan to reduce power potential drinking water supplies and the plant emissions – the “Clear Skies Initiative” health impacts for the public.” – is far less effective than alternative Previously, the administration imposed bipartisan legislation and only marginally a gag order on EPA scientists and regulators less expensive.14 Clear Skies does not from publicly discussing perchlorate after two address carbon dioxide emissions – a major independent studies from the spring of 2003 contributor to global warming – unlike strongly suggested that it is contaminating the the competing bill, which was introduced nation’s lettuce supply.18 An internal agency by Sen. Thomas Carper (D-DE) and is co- study – completed but bottled up – suggests sponsored by Republican Sens. Judd Gregg that perchlorate concentration in much of (NH) and Lincoln Chafee (RI). EPA gave the nation’s lettuce could range as high as 90 Carper an analysis that found his bill would parts per billion, more than four times EPA’s also more quickly and dramatically reduce current recommended daily dose.19 In 2002, power-plant emissions of sulfur dioxide, EPA found that perchlorate in drinking water nitrogen oxide and mercury. However, the poses a threat to human health, particularly

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infant development, at concentrations above into Medicare.22 As provided by legislative one part per billion. Defense contractors and language approved in 1997, Democrats the Pentagon, which potentially face hefty requested updated calculations based on compliance costs should EPA adopt a new changes in an administration-backed Medicare perchlorate standard, challenged the agency’s reform bill. Yet Scully refused to hand over findings, and have apparently won out with Foster’s analysis, saying he would release it the White House. “if I feel like it.”23 In response, the Natural Resources Testifying before the House Ways and Defense Council launched a legal challenge to Means Committee in March 2004, Foster force the administration to reveal documents said he had estimated at the time that the regarding industry and White House influence president’s plan – which was signed into law over EPA’s approach to perchlorate. (The in November 2003 – would cost $500 to $600 administration had previously denied NRDC’s billion over the next decade, substantially request for these documents under the higher than the $395 billion forecast by the Freedom of Information Act.) Congressional Budget Office and the $400 “It appears that the White House and billion the president said he would spend. Pentagon have joined forces with a handful of “We know you would not have had the votes defense contractors to stop EPA from doing to pass this bill if the true cost of the bill its job,” said Erik Olson, a senior attorney with was known,” Rep. Charlie Rangel (D-NY), NRDC. “They want EPA out of the business the committee’s ranking Democrat, said to of protecting the public from this dangerous Republican members, adding he was amazed tap water toxin because it would cost the “how far the majority party was willing to go Pentagon and industry polluters millions of to keep the Congress in the dark.”24 dollars to clean it up.”20 Justice Department Secrecy Medicare Reform On March 27, 2003, the Justice In June of 2003, Bush Medicare chief Department issued a directive that seeks to Tom Scully threatened to fire his top actuary, tighten control over communication between Rick Foster, if Foster released calculations to department employees and Congress. House Democrats that called into question Specifically, employees are to inform the the administration’s prescription-drug department’s Office of Legislative Affairs plan to introduce private managed care “ahead of time and as soon as possible – of all potential briefings on Capitol Hill and Fox In the Henhouse significant, substantive conversations with Tom Scully, former administrator of Centers for staff and members on Capitol Hill,” including Medicare and Medicaid phone calls. Legislative Affairs, in turn, must Prior to his appointment as CMS clear the contacts and accompany employees administrator, Scully served as president and to briefings. CEO of the Federation of American Hospitals, Sen. Charles Grassley (R-IA), co-sponsor the trade association representing for-profit of legislation to enhance whistleblower hospitals. He also served on the board of protections, called the directive “an attempt Oxford Health Plans and DaVita Corporation, to muzzle whistleblowers” and “a very two of the nation’s largest health care service inappropriate interference,” adding that he providers. Months before Scully resigned in has already observed a chilling effect.25 December 2003, he obtained a waiver from Rep. James Sensenbrenner (R-WI), HHS officials permitting him to work on for one, has contended that the Justice Medicare legislation while negotiating with Department has failed to share enough potential employers whose work would be information on the implementation of the affected by it.21 USA Patriot Act, which greatly expanded the government’s ability to conduct domestic

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surveillance. The act is set to sunset in technical deficiencies in the project.28 A 2005, and Congress must be able to give Labor Department investigator deemed this a fair evaluation in deciding whether to termination “extraordinarily egregious.”29 reauthorize. Cleanup of Nuclear Waste EPA ombudsman Robert J. Martin Cracking Down on Whistleblowers alleges that former EPA Administrator Christie Todd Whitman punished him for Government whistleblowers perform opposing a number of nuclear-waste cleanup an essential societal function. They settlements that appeared to be industry alert the public to problems that would giveaways. This included a settlement with otherwise be allowed to fester in secret, Citigroup – a principal investor in the venture and in doing so, create pressure to solve those problems. Frequently, lives are at Fox In the Henhouse stake. During the Bush administration, for Robert Card, DOE’s undersecretary for energy, example, a USDA meat inspector warned science and environment of listeria contamination; two Department Card is the lead federal official in charge of Energy employees testified on rampant of developing the multi-billion dollar Yucca mismanagement at Yucca Mountain, which Mountain nuclear waste dump, where the is set to become the country’s nuclear administration plans to ship 77,000 tons of waste dump; and an FAA employee spent nuclear fuel from the nation’s nuclear publicly complained about the rigging electricity plants and bury it for tens of of mock terrorist raids, which left a false thousands of years. impression of readiness. Unfortunately, Previously, beginning in 1995, Card was instead of acting on this information, the director and senior vice president of CH2M- administration sought to punish each one of Hill, a large science, engineering, construction, these whistleblowers for speaking out. and operations firm, which is under DOE contract to clean up the Hanford (Washington) Yucca Mountain Nuclear-Waste Dump nuclear weapons site. Card also served as In May of 2003, the Department of president and CEO of Kaiser-Hill – founded Energy intimidated and silenced two by CH2M-Hill – which has a 10-year $7 billion potential whistleblowers from testifying DOE contract to clean up and close the before Congress on politicized scientific Rocky Flats (Colorado) nuclear weapons site. reports and rampant mismanagement at Both contracts fall under Card’s purview as Yucca Mountain, which Energy is pushing undersecretary. to make the nation’s nuclear-waste dump.26 At Rocky Flats, DOE has fined Remarked Sen. John Ensign (R-NV), “It is and reprimanded Kaiser-Hill for poor disturbing that responsible workers who management and “serious deficiency” in uncover problems with Yucca Mountain safety performance, and the company had procedures are being retaliated against by to pay restitution after revelations that the Department of Energy and its contractors. $200,000 in federal contract money had been Their attempts to silence critics of the project diverted to fight a whistleblower.30 Parent have amplified our concerns about their company CH2M-Hill has also been fined or commitment to quality assurances at Yucca penalized more than $725,000 since 1996 Mountain.”27 Previously, in fall of 2002, for numerous worker safety, procurement, DOE transferred the project’s director of and other contract violations, and a House quality assurance and ordered the firing of subcommittee found it overcharged the another quality assurance manager because EPA Superfund millions of dollars for of their aggressiveness in identifying environmental cleanups.31

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capital firm of Whitman’s husband – that with hunters. The Park Service initially put limited the financial giant’s liability for a a “gag order” on Jackson, prohibiting him Superfund site in Denver to $7.2 million, from talking to the press, and then retaliated leaving taxpayers with a potential $93 by refusing to rehire him for the summer of million tab for the remaining cleanup costs, 2002.38 Fortunately, as a result of a whistle- according to Martin.32 Whitman decided to blower complaint, Jackson was able to move Martin to EPA’s Office of Inspector negotiate his reinstatement for the summer General after this dispute. However, Martin of 2003.39 “He’s been through the wringer refused the transfer and resigned on April 22, for no apparent reason other than speaking 2002, because “I will not continue to serve as the truth,” Sen. Grassley said. “I’m glad the an independent ombudsman but will merely National Park Service finally came to answer a telephone.”33 its senses.”

Listeria-Contaminated Food Airport Security Vincent Erthal, a USDA inspector who The Federal Aviation Administration worked the night shift at a Wampler Foods transferred Bogdan Dzakovic, who formerly plant in Franconia, Penn., repeatedly led mock raids on airports, to bureaucratic reported food safety violations at the facility Siberia after he publicly faulted the agency – including Listeria contamination – and for suppressing warnings and rigging requested enforcement action in the fall of security tests.40 “The more serious problems 2001.34 Yet USDA ignored these warnings in aviation security we identified, the more and 10 months later the plant was linked to the FAA tied our hands behind our backs and a listeria outbreak that killed eight people restricted our activities,” Dzakovic told the and sickened more than 50, resulting in National Commission on Terrorist Attacks the recall of 27 million pounds of ready-to- Upon the United States, in testimony May eat poultry products. When the Wampler 23, 2003. “All we were doing in their eyes story received media attention, USDA was identifying and ‘causing’ problems Undersecretary for Food Safety Elsa Murano that they preferred not to know about.” attempted to discredit Erthal, claiming “he Dzakovic further described his reassignment has not produced any proof, any evidence”35 to the new Transportation Security Agency: of USDA negligence (leaving aside the “During most of 2002, my primary job fact that inspectors are prohibited from was punching holes in paper and putting removing government documents from orientation binders together (and other inspected establishments36), and seemed menial work) for the hundreds of newly to imply that he was responsible for the hired TSA employees. My current job is outbreak because he didn’t push “harder to even further removed from keeping bombs, blow the whistle.”37 weapons, and terrorists off planes.” Dzakovic also warned that his fate could Hunting Around Yellowstone have been worse under the new law pushed At the beginning of the Bush by the Bush administration that restricts administration, Bob “Action” Jackson, a critical infrastructure information (discussed long-time seasonal ranger at Yellowstone below): “If an employee blows the whistle National Park, raised concerns over with this unclassified CII evidence, it is a lax enforcement of wilderness rules. In criminal act subject to immediate termination particular, he turned the spotlight on from the government, and up to a year in hunters who use salt to lure elk out of the jail… If it had been law when I blew the park and then leave behind carcasses that whistle, I could have been fired and be attract endangered grizzly bears, which are sitting in jail instead of being vindicated and frequently shot when they come into contact testifying today.”

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Far from being a threat, such whistleblowing voluntarily handing it over to Homeland is essential to protecting the public. As Dzakovic Security. This information cannot be put it, “Lack of personal accountability for disclosed to the public, and crucially, it ALL levels of government service; repression cannot be used in any civil action, private or of government professionals exercising the governmental, even if the action concerns a freedom to warn of security breakdowns caused violation of legal standards. Any government by mismanagement; and abuses of secrecy official who “leaks” such information is as an excuse to cover up the government’s own further subject to criminal prosecution and misconduct are three strikes against up to a year in prison.41 public safety.” Purportedly, this is supposed to give an incentive to companies to report information on possible security vulnerabilities. Yet in Hiding Information in the Name of 9/11 the process, it creates an enormous loophole to dodge public accountability for corporate In the aftermath of 9/11, the administration wrongdoing. Indeed, companies themselves has moved to broadly restrict access to are allowed the chief responsibility for information, including, for example, data on determining what constitutes “critical power plants and chemical facilities. In the infrastructure information,” with virtually no past, the public has used such information criteria for government validation. to hold corporate interests and government As a result, potential abuses are not hard accountable to achieve significant safety to imagine – especially if interpreted broadly improvements. However, the administration by the increasingly corporate-friendly courts. has declined to even consider the idea that For instance, suppose a manufacturer begins disclosure can actually make us safer, while using a new unregulated chemical in its upholding our democratic values. Instead, production process that is highly flammable secrecy has taken root through a host of and can cause acute respiratory distress, misguided policies, whose clearest effect has endangering workers and the surrounding been to shield the administration’s corporate community. Under the new law, the allies from public scrutiny. manufacturer could head off inquiries from federal regulators – and stop workers and A Black Hole for Corporate Secrets the public from being alerted – by disclosing To protect our nation’s communities we potential vulnerabilities associated with need to ask ourselves some tough questions. the chemical to Homeland Security. In the Are bank computer systems safe from hackers? process, it would block the information from What threat is posed by hazardous chemicals being used in a civil action should something stored near population centers? How secure are ever go wrong, resulting in injuries or deaths. state water supplies or electrical power facilities? Needless to say, this removes important Are local health systems adequately prepared to incentives for fixing the problem, making us respond to a community emergency? less safe as a result. Homeland Security may Unfortunately, the answers to these be alerted to the danger, but its hands would questions are now more elusive thanks to a be tied to do anything about it. Meanwhile, new exemption to the Freedom of Information everyone else is left permanently in the Act, which was pushed by the Bush dark, removing the threat of public pressure administration as part of the law that created and embarrassment – which has always the Department of Homeland Security. been a crucial factor in changing corporate Under this expansive exemption, behavior – as well as civil action against which also preempts state disclosure laws, company negligence. companies can permanently inoculate such In the lead-up to passage, Sen. Robert “critical infrastructure information” by Bennett (R-UT), a key co-sponsor of the

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legislation, originally reached a compromise shortages caused by soaring demand. As with Sens. Carl Levin (D-MI) and Patrick Leahy details emerged, however, it became clear (D-VT) that stripped out the most troubling that these companies had purposely caused provisions – preempting state disclosure the shortages to drive up prices and pad their laws, granting civil immunity, and subjecting bottom line – taking advantage of the state’s government officials to criminal penalties for deregulation of electricity two years earlier. leaks. The Governmental Affairs Committee In a plea agreement, the head of Enron’s approved this version on May 22, 2002, but western trading desk, Timothy Belden, during the lame-duck session following the acknowledged that between 1998 and 2001, 2002 elections, the Bush administration he and “other individuals at Enron agreed to insisted that these provisions be restored. devise and implement a series of fraudulent Not surprisingly, a number of powerful schemes” in the California market designed corporate interests urged this decision. Born to “obtain increased revenue for Enron from in the aftermath of the “Y2K” problem, the wholesale electricity customers and other idea originated with the computer industry market participants…”45 over concerns about cyber security, but This market manipulation should have quickly drew interest from the traditional been obvious to the Federal Energy Regulatory manufacturing sector, such as the Edison Commission, which repeatedly refused to Electric Institute, a trade association for take action to protect consumers. As stated in electric utilities.42 a report by the Senate Governmental Affairs In fact, as Maryland Law Professor Rena Committee on Nov. 12, 2002, “On a number of Steinzor conveyed, “EEI’s advocacy was so occasions, FERC was provided with sufficient pronounced that, during a fall 2001 visit to information to raise suspicions of improper [Bennett’s office], I was startled to discover activities – or had itself identified potential that an EEI lobbyist named Larry Brown had problems – in areas where it had regulatory been invited to the meeting to explain how responsibilities over Enron, but failed to the prospective law was intended to operate. understand the significance of the information Although Mr. Brown assured me that my or its implications. Over and over again, FERC comments about the legislation’s overly broad displayed a striking lack of thoroughness and language were ‘paranoid,’ it rapidly became determination with respect to key aspects of clear that none of the bill’s industry supporters Enron’s activities – an approach seemingly had any interest in making revisions to embedded in its regulatory philosophy, address such concerns.”43 regulations, and practices.”46 Likewise, Homeland Security’s Now FERC is insisting that it be trusted, implementing rule44 provides no clarity absent public disclosure, to appropriately for validating claims and no process to monitor and deal with information on the “declassify” critical infrastructure information, country’s power companies. On March 3, 2003, setting up the Bush administration as a black FERC completed a rule that exempts “critical hole for corporate secrets. energy infrastructure information” from the Freedom of Information Act. This exemption, Cloaking the Power Industry which is legally questionable under FOIA, FERC, lead by Bush appointees, has made includes anything deemed potentially useful it more difficult for the public to evaluate to a person planning an attack on “production, problems with our electrical supply, which is generation, transportation, transmission or especially troubling given the commission’s distribution of energy.” recent lackluster performance. Between Needless to say, this is incredibly broad. November 2000 and May 2001, California For example, FERC no longer discloses endured rolling blackouts to compensate for “historical transmission planning reports,”47 what power companies said were electricity in which utilities describe their power flow,

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transmission plans and reliability, and present FERC actually removed such information a detailed evaluation of system performance.48 from its web site before completing the rule This sort of information could be especially and just after the terrorist attacks of Sept. 11, important as the country moves to address 2001. In the process, the commission assumed deficiencies in the electrical grid following the that “all oversized documents” contained massive power outage that swept through information that should not be disclosed. No New York, parts of New Jersey, Ohio and review was undertaken to confirm the truth of Michigan in August 2003. this assumption. In an amazing provision of the rule urged FERC, in its words, “next identified and by the power industry, utilities also no longer disabled or denied access to other types of have to publicly disclose plans for building a documents dealing with licensed or exempt new plant – leaving no opportunity for public hydropower projects, certified natural gas questioning at any point. Likewise, FERC is pipelines, and electric transmission lines withholding maps on proposed pipelines, which that appeared likely to include critical carry high-pressure explosive gas, including one energy infrastructure information” – again, that would run through 12 New York counties.49 automatically yanking them from public view with no systematic review. According Foxes In the Henhouse to FERC, this affected “tens of thousands of Nora Mead Brownell, Patrick Henry Wood documents,” which the commission laughably III, and Joseph T. Kelliher, Federal Energy asserts was “undertaken as cautiously and Regulatory Commission methodically as possible.”51 With the new Enron CEO Kenneth Lay successfully rule – which was strongly backed by power lobbied President Bush to appoint Brownell companies, including their trade association, and Wood, both of whom are strong the Edison Electric Institute – these once proponents of energy deregulation.50 widely disseminated documents may be off Brownell, chair of the commission, limits even through a FOIA request. previously served as a utility regulator with the Pennsylvania Public Utility Commission Information on Government Web Sites (PPUC). In this capacity, she helped Enron Following the terrorist attacks on Sept. move into Pennsylvania, earning herself the 11, 2001, federal agencies began summarily nickname “Nora Mead Brownout.” Before removing tens of thousands of documents her appointment to the PPUC, Brownell was from their web sites, purportedly because they senior vice president for corporate affairs at might be useful in preparing another attack. Meridian Bancorp, a Philadelphia financial Yet in yanking this information, the Bush institution, and had no experience in public administration failed to consider the substantial utility management. benefits of disclosure, depriving communities Wood is former chairman of the Public of critical information to protect themselves Utility Commission in Texas and previously (see examples on next page). worked at Baker & Botts, a big Texas oil This information can be scary, to be sure, law firm. but its removal doesn’t solve the problem. Kelliher previously worked at Public In fact, it removes important incentives Service Electric and Gas Company as for change – namely public pressure manager of federal affairs, and before that and embarrassment – and may invite worked for the American Nuclear Energy complacency and a false sense of security, Council in the late 1980s. Just prior to his which is exactly what we don’t need. In this nomination, Kelliher served as a senior policy way, disclosure can be a potential tool to advisor to Energy Secretary Spencer Abraham fight terrorism (along with everyday health and sat on the Bush-Cheney presidential and safety concerns) while upholding our transition team. democratic values.

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Of course, in some cases, it may make implement procedures” for suppressing sense to withhold information for security such information, which is truly an ominous reasons. For instance, there is no compelling development given the administration’s reason to provide detailed floor plans of penchant for secrecy. chemical or nuclear facilities. Yet where health and safety are concerned, the presumption Information on Chemical Hazards should lie with disclosure. The Bush In 1984, a Union Carbide plant in Bhopal, administration has unfortunately gone the India, released 40 tons of the toxic chemical other way, keeping the public in the dark and methyl isocyanate into the surrounding potentially making us less safe as a result. community, killing more than 2,000 and On March 19, 2002, White House Chief injuring over 300,000, many of whom of Staff Andrew Card affirmed the practice still suffer long-term effects.54After this of withholding information from web sites catastrophe, Americans began wondering in a memo to all federal agencies ordering whether such an accident could happen here them to “safeguard” information that is – and the answer demanded action. “sensitive but unclassified.”52 This new A study commissioned by EPA in 1990 category broadly includes, in the agency’s found that since 1980 there were at least 15 judgment, “information that could be misused accidents in the United States that exceeded to harm the security of our nation and the Bhopal in volume and toxicity of chemicals safety of our people” – a virtual catchall since released.55 Only circumstances such as most information (even the phone book, for wind conditions, containment measures, instance) at least carries the potential to be and rapid evacuations prevented disastrous used for harm. consequences from taking place. Shortly after Card’s memo, a provision Congress responded to this danger codifying the “sensitive but unclassified” through a series of actions designed to make category – labeled “Sensitive Homeland chemical facilities more accountable to Security Information” – was slipped into the the public. In particular, as part of the 1990 Homeland Security Act (which created the amendments to the Clean Air Act, Congress Department of Homeland Security), drawing directed each facility to develop a “Risk no attention or debate.53 The president now Management Plan,” which EPA is to make has the legal authority to “prescribe and available for public scrutiny.

Information Yanked from Government Web Sites • Report by the Department of Energy on the • Chemical-facility Risk Management Plans. dangers of liquefied gas fuel.

• Report on chemical site security that • Maps from the International Nuclear Safety concluded “security around chemical Center allowing users to click on the location transportation assets ranged from poor to of a nuclear plant to learn more about it. non-existent.”56 • For a time, the entire Nuclear Regulatory • Data on enforcement actions by the Federal Commission web site. “Select content” was Aviation Administration.57 later restored.

• Maps from the Office of Pipeline Safety • Reports on water resources by the U.S. that show the location of pipelines and Geological Survey, which also instructed the whether and when they have Federal Depository Libraries to “destroy” all been inspected. copies of a CD-ROM on “characteristics of large public surface water supplies.”

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These plans include, among other things, and safety advocates have already used this five-year accident histories, measures to information to highlight problems at specific prevent an accidental release, response facilities. For example, exposure of this data plans to mitigate damage should one occur, led to hazard-reduction measures at the Blue and assessments of potential dangers to Plains Wastewater Treatment Plant, whose surrounding communities, including worst- vulnerability zone included the White House, case scenarios. Congress, and Bolling Air Force Base (see More than two years before the 9/11 page 61 for discussion). In short order, the terrorist attacks, Congress decided to Blue Plains facility substituted chlorine with restrict access to these worst-case scenario sodium hypochlorite bleach, which does not assessments for security reasons, making have the potential to drift off-site. them available only in 50 “reading rooms” The Washington Post also relied on RMP around the country. This happened after the data – including the worst-case scenarios chemical industry – a longtime opponent of restricted by Congress – to describe a number such disclosure – convinced the FBI that this of frightening possibilities in an extensive data created an increased risk of terrorism. front-page story on Dec. 16, 2001.58 For At the time, the FBI determined there instance, “a suburban California chemical was no increased risk associated with the plant routinely loads chlorine into 90-ton rest of the information contained in Risk rail cars that, if ruptured, could poison more Management Plans. Nonetheless, even after than 4 million people in Orange and Los this scrubbing, the RMPs were immediately Angeles counties”; “a Philadelphia refinery yanked from EPA’s web site following 9/11. To keeps 400,000 pounds of hydrogen fluoride date, all RMP information remains down, and that could asphyxiate nearly 4 million no explanation for its removal has been given nearby residents”; and “a South Kearny, (other than in the most general sense). N.J., chemical company’s 180,000 pounds of While the usefulness of this information chlorine or sulfur dioxide could form a cloud to terrorists is murky or perhaps nonexistent, that could threaten 12 million people.” the broader usefulness is crystal clear, Some continue to argue that the mere enabling citizens to hold facilities reporting of such information is gravely accountable to make upgrades and improve dangerous. Yet ignoring it, as the Bush safety in their communities. administration has done thus far, is far Although new – EPA did not begin worse. The information may be gone, but posting RMPs until June of 1999 – health the danger remains.

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“Tinkering with scientifi c information, eithereither sstrikingtriking iitt ffromrom rreportseports oorr aalteringltering iit,t, iiss becomingbecoming a ppatternattern ofof bbehavior.ehavior. ItIt representsrepresents thethe ppoliticizingoliticizing ooff a sscientificientifi cc pprocess,rocess, wwhichhich aatt ooncence manifestsmanifests a ddisdainisdain fforor pprofessionalrofessional sscientistscientists wworkingorking fforor oourur ggovernmentovernment and a willingness to be less than candid with the American people.”1 --Roger G. Kennedy, former director of the National Park Service, responding to the doctoring of fi ndings on Yellowstone National Park

From clean air and water to worker safety to a healthy food supply, science is at odds with the Bush agenda. In response, the administration has suppressed and censored government reports, misrepresented scientifi c information, and stacked scientifi c advisory committees with its corporate and ideological allies. Needless to say, this has not sat well with scientists. In February 2004, more than 60 distinguished scientists, including 20 Nobel laureates, released a statement blasting this political takeover of science. “Although scientifi c input to the government is rarely the only factor in public policy decisions, this input should always be weighed from an objective and impartial perspective to avoid perilous consequences,” the statement reads. “Indeed, this principle has long been adhered to by presidents and administrations of both parties in forming and implementing policies. The administration of George W. Bush has, however, disregarded this principle.”2 In doing so, the administration has subverted democratic decision- making and undermined government accountability. When science fi nds a serious health or environmental problem, for instance, there is frequently public pressure to respond through regulatory action, which the administration is loath to pursue. The White House has sought to protect itself politically by keeping the public in the dark or even manufacturing “evidence” for its case. In other words, the agenda drives the information, not the other way around.

101 Suppressing Scientific Nations that faulted human activity for Information global warming, juxtaposing the seriousness As detailed below, the administration has of the problem with the administration’s consistently doctored scientific information unwillingness to do anything about it. “I read to justify misguided policies. For instance, on the report put out by the bureaucracy,” the global warming, it has pretended there is no president responded dismissively.7 scientific consensus; on drilling, it has buried Describing the president’s thinking, Politics evidence of environmental damage; and on Christopher C. Horner, a lawyer at the teen pregnancy, it refuses to acknowledge corporate-funded Competitive Enterprise Over Science studies that demonstrate the effectiveness of Institute, which enjoys close ties to the comprehensive sex education. This reveals an administration, said, “It was obvious to administration guided by political muscle and him that it’s not tenable to say yes, we’re right-wing ideology rather than facts. aggressively killing the planet and then not do something aggressive about it. Our fear was Global Warming that he would have to take severe action.”8 In spring 2003, the White House forced Instead, the president simply denied EPA to drop findings on global climate scientific consensus. Since this episode, the change from a draft report on the state of the White House has taken a more active interest environment.3 in shaping EPA findings that might prove The initial EPA draft, obtained by the New politically damaging. York Times, contained a two-page section on climate change, which was completely Fox In the Henhouse deleted from the version released for public James Connaughton, chair of the White House comment.4 This section referenced a number Council on Environmental Quality of studies that blamed human activity (such as Previously, Connaughton was a partner in rising concentrations of smokestack and tail the Sidley & Austin law firm’s Environmental pipe emissions) for global warming, including Practice Group, where he worked on behalf a 2001 National Research Council report of numerous corporate and trade association commissioned by the White House. clients, specializing in Superfund cases. The White House Council on Among others, he represented the Aluminum Environmental Quality, along with the Office Company of American, ASARCO, Atlantic of Management and Budget, edited the Richfield, the Chemical Manufacturers initial draft, cutting out mention of these Association, and General Electric, which studies and instead referencing a study is potentially responsible for more toxic partially funded by the American Petroleum Superfund sites than any other corporation in Institute that questioned climate change. the nation.9 EPA staff ultimately decided to delete the entire section; an internal memo stated that the agency objected to filtering science and Air Quality Around Ground Zero misrepresenting scientific consensus. Following the collapse of the World Trade This was the second time in a year Center towers, the surrounding area was the White House and Bush appointees blanketed by debris containing asbestos, downplayed global warming in an official lead, glass fibers, and concrete dust, among document. In September 2002, for the first other dangerous ingredients, potentially time in six years, the administration removed putting clean-up workers and area residents at a climate change section from EPA’s annual significant health risk. report on air pollution. 5 Nonetheless, White House officials Shortly before that, in May 2002, President pressured EPA to declare the air around Bush disavowed an EPA report6 to the United Ground Zero “safe” even though it “did not

101 Politics Over Science

have sufficient data and analyses to make White House manipulation. It is unknown such a blanket statement,” according to EPA’s whether the report would have been released inspector general.10 At the time, EPA had not had it not been leaked to the Wall Street tested for a number of pollutants – including Journal by frustrated EPA staff. particulate matter, dioxin, and polychlorinated biphenyls (PCBs) – and had no adequate Clean Water benchmarks to evaluate the health effects In 2003 and 2004, senior Bush officials of airborne asbestos and the “cumulative repeatedly made misleading claims about or synergistic impacts of being exposed to improvements in the nation’s drinking water, several pollutants at once.” according to a report by EPA’s inspector The White House Council on general. For instance, several EPA documents Environmental Quality, which was appointed falsely reported that 94 percent of community to oversee public communications about WTC water systems were in compliance with environmental conditions, forced EPA to add federal health standards – a figure that was reassuring statements to its press releases cited in a New York Times editorial, among and delete cautionary notes. Among other other news sources. In fact, the inspector things, this meant withholding guidance general found that EPA is fully aware that for cleaning indoor spaces, as well as this number is a gross exaggeration. Internal information about the potential health effects agency audits show that about 77 percent of from WTC debris. EPA’s inspector general known monitoring and reporting violations compared two EPA releases with their original and 35 percent of known health violations are drafts, concluding, “Every change that was not included in EPA’s compliance database. suggested by the CEQ contact was made.” Asbestos Contamination Mercury and Children’s Health OMB stepped in and killed EPA plans in After nine months of delay by the White April 2002 to warn the public that as many House, EPA released a long-awaited report as 35 million homes might use asbestos- on children’s health and the environment11 contaminated insulation.14 Feb. 24, 2003, just days after the Wall Street Specifically, EPA discovered that asbestos- Journal obtained a draft and reported the key contaminated ore from a mine in Libby, Mont., findings.12 Most notably, the report concluded is contained in insulation called Zonolite, that 8 percent of women ages 16 to 49 have which has been used in millions of homes, mercury levels in the blood that could lead to businesses, and schools across the country. reduced IQ and motor-skills for their offspring. When inhaled, asbestos can cause lung cancer This acknowledgement gives ammunition and mesothelioma (a rare cancer of the thin to those who question the administration’s membranes lining the abdominal cavity and lax treatment of coal-fired power plants, surrounding internal organs).15 Fibers in the which are largely responsible for mercury Libby ore have been found to be 10 times emissions. Apparently this is what caused as carcinogenic as other, more prevalent the White House to launch an extensive – and asbestos fibers. unprecedented – interagency review of the EPA was also set to declare a public report as EPA neared completion in May 2002.13 health emergency in Libby, where the Ultimately, the White House forced EPA mine’s asbestos contamination has killed to make contextual changes to downplay the hundreds and sickened thousands, before effects of mercury, according to sources. The John Graham, administrator of OMB’s data presented by EPA was not the result of Office of Information and Regulatory Affairs, new original research; rather, it represented a blocked it.16 Documents obtained through compilation of a number of previous studies, the Freedom of Information Act indicate the which made the data mostly immune from administration’s concern over “potential

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national backlash” from the proposed Libby Subsequently, in spring of 2002, the U.S. declaration.17 This would have been the first Geological Survey released a 12-year study public health emergency ever issued by an that confirmed the damaging effects of drilling agency, authorizing the removal of asbestos- on ANWR’s wildlife. However, a week later, the contaminated insulation from Libby homes and agency turned around and issued a two-page providing long-term medical care for the sick.18 follow-up report at the request of high-level Interior Department officials that advanced the Oil and Gas Development case for drilling.23 The Bush administration altered scientific “They didn’t like the results of a 12-year information to advance an oil and gas study, so they ordered a seven-day rush development practice known as “hydraulic job to get the results they really wanted,” fracturing,” which involves the injection of said Chuck Clusen, director of the Natural fracturing fluids into geologic formations. Resources Defense Council’s Alaska project. Notably, Halliburton, the energy company “The administration’s refusal to accept previously led by Vice President Cheney, is the that drilling in the refuge is a bad idea says leading provider of hydraulic fracturing.19 something about its commitment to basing EPA officials briefed congressional staff on environmental decisions on sound science. the practice in August 2002 and presented a That is, if it ‘sounds’ good to industry, forget study showing that hydraulic fracturing could about the environment.”24 lead to levels of benzene in underground Norton also renounced reports issued sources of drinking water in excess of by the Fish and Wildlife Service in 1995 and federal drinking water standards. After 1997, which found that drilling in ANWR congressional staff raised concerns about might violate U.S. treaty obligations to these environmental impacts, EPA produced protect polar bears;25 in December 2001, a revised analysis showing that the practice an Interior Department memo noted that would not result in levels of benzene above the reports “[do] not reflect the Interior federal standards.20 The agency provided no Department’s position,” and directed staff scientific explanation for the change, citing “to correct these inconsistencies and submit only feedback from an industry source. promptly a revised report for review and The White House also removed discussion clearance by the department.”26 of potential negative environmental effects of hydraulic fracturing, including water Wetlands Protections contamination, from the energy plan Norton also suppressed an unfavorable produced by the Cheney task force.21 A draft analysis of a U.S. Army Corps of Engineers had included such concerns. proposal to weaken wetlands protections. The analysis, prepared by scientists at the Drilling in the Arctic National Wildlife Refuge U.S. Fish and Wildlife Service, found that the As noted earlier (see page 25), the Bush proposal would “encourage the destruction administration has pressed Congress to allow of stream channels and lead to increased drilling in the Artic National Wildlife Refuge aquatic functions.” Norton failed to submit the (ANWR). In response to questions from a analysis, and the Corps subsequently went Senate committee, Interior Secretary Gale forward with its rollback (see pg 33). Norton withheld agency scientific information suggesting that ANWR’s caribou could be Threatened Salmon adversely affected by drilling. Instead, she The Bush administration dismissed erroneously reported that caribou calving scientific recommendations to increase has been concentrated outside the proposed water in Oregon’s Klamath River Basin and drilling area in 11 of the last 18 years. In fact, instead approved lower river flows favored the opposite is true.22 by agribusiness interests, killing more

102 103 Politics Over Science

than 33,000 salmon, including hundreds of not exert improper influence. Nonetheless, threatened coho salmon. Scientists at the politics almost certainly played a role. National Marine Fisheries Service warned of In lowering water levels, the this catastrophic fish kill, but Bush higher- administration ignored requirements of the ups overruled them, and the plan was Endangered Species Act, which requires implemented in September 2002. biological consultations when a federal This happened shortly after President agency – in this case Interior’s Bureau of Bush and his top political adviser, Karl Rove, Reclamation (BOR) – proposes an action visited Oregon and met with prominent that may adversely affect threatened or Klamath irrigators; Rove then raised the endangered species. However, NMFS was Klamath project at a meeting with senior denied the opportunity to examine the full Interior Department officials. The Department implications of BOR’s proposal, and ordered of Interior’s inspector general investigated the to issue a final biological opinion that matter at the request of Sen. John Kerry (D- supported the action, according to Michael MA), and ultimately concluded that Rove did Kelly, a former NMFS biologist.27 Foxes In the Henhouse Bennet William Raley, assistant secretary of been a key negotiator over long-term water Interior for water and science contracts with California farmers that will Raley is responsible for development, commit the federal government to billions in management and conservation of the subsidies.29 Previously, he spent more than nation’s water supply, including the Klamath a decade working on behalf of these same River Basin. Over the years, he has been farmers at the Central Valley Project Water a determined opponent of environmental Users Association. After President George protection. He once testified in favor of H.W. Bush signed a law to limit subsidies for legislation that would have weakened California farmers and free water to mitigate enforcement provisions of the Endangered massive damage to the environment and Species Act, and lobbied against a 1994 Clean fisheries, Peltier said, “We’ll do anything and Water Act reauthorization bill that would have everything to keep from being harmed. If that required EPA to set new state guidelines for means obstructing implementation, so be it.” controlling pollution runoff.28 Raley also served on the board of the H. Craig Manson, assistant secretary of Interior Mountain States Legal Foundation, which has for fish, wildlife & parks worked to open public lands for private use, Manson oversees both the National Park and has been a member of the Defenders Service and the Fish and Wildlife Service. of Property Rights Attorney Network, a Previously, he served six years as chief Washington-based legal foundation whose counsel to the California Department of Fish primary goal has been to promote “takings” and Game (DFG). In this position, Manson legislation, which would require the was accused of aiding politically connected government to compensate polluters and developers and frustrating strict enforcement others who cause environmental damage for of resource protection laws, while working the cost of complying with environmental behind the scenes to weaken interpretations laws and regulations. of key statutes and policies.30 In one case, DFG and top agency officials, including Manson, Jason Peltier, Interior’s deputy assistant were sued by a whistleblower who lost his secretary for water and science job for disclosing an order from DFG higher Peltier participated in the decision to ups to sign an illegal development permit.31 lower water levels in the Klamath River Basin The state of California settled the suit for an to the benefit of agribusiness. He also has undisclosed sum.

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This came after NMFS prepared two The edited report sent to you by Mr. Hoffman, draft biological opinions suggesting downplays ongoing threats and is yet another potential problems. “Comparing the defiance of the role of good science in land two draft biological opinions to the final management by the Administration.”37 biological opinion demonstrates that the After lengthy debate, the committee agencies intentionally or negligently reached ultimately voted to remove Yellowstone a result that was contrary to the law,” from its list of endangered parks, but set a Kelly stated, adding that the final opinion precedent by requiring the United States “contains very little that is supportable from to report back next year on progress in a biological perspective.” addressing a number of environmental In addition, the administration has problems within the park.38 The committee refused to release a report – which has been also requested that the Bush administration in final draft form since November 2001 involve independent scientists and non- – that scientifically demonstrates the need governmental organizations in its review. for higher flow levels for salmon and other fish in the Klamath.32 The administration Power Plant Pollution at Mammoth Cave has also withheld a report that concludes National Park increased river flows would generate 30 times The Department of Interior rejected a more economic benefit through recreational study that predicted adverse environmental activities than the current practice of diverting effects if Peabody Energy went ahead with it to farmers in the Klamath Basin.33 plans to construct a large coal-fired power plant 50 miles upwind of Mammoth Cave Yellowstone National Park National Park in Kentucky, a designated The Bush administration disseminated UNESCO world heritage site and international misleading information on ecological biosphere reserve.39 problems in Yellowstone National Park in an The National Park Service found that effort to have the park removed from a list of the proposed plant would impair visibility endangered world heritage sites.34 in the park, which is already more polluted “Yellowstone is no longer in danger,” than nearly every other park in the country.40 wrote Paul Hoffman, an Interior Department Nonetheless, Interior cut a deal with Peabody official, in a letter to the World Heritage to allow the plant to operate, for at least the Committee of the United Nations Educational, next two years, at damaging levels.41 Scientific and Cultural Organization Peabody, the world’s largest coal (UNESCO).35 Hoffman supplied a supporting company, and its subsidiaries contributed a report, but it had been significantly altered.36 total of $450,000 to the Republican National A draft of this report, which was prepared Committee as the project was at critical stages by professional staff, cited continuing threats in the approval process.42 to the park’s streams, bison herd and trout. These sections, however, were removed or Agricultural Pollution toned down in the final report, as described In February 2002, USDA officials by Roger G. Kennedy, former director of the instructed staff scientists to seek prior National Park Service (1993-1997), in a letter approval on all manuscripts pertaining to to UNESCO: “Through its letter to you, that “sensitive issues,”43 including: Department is seeking to mislead you and other concerned citizens into thinking that “Agricultural practices with negative health Yellowstone is no longer in danger…[T]he and environmental consequences, e.g. global Bush Administration aggressively edited this climate change; contamination of water by professional assessment of ongoing threats, hazardous materials (nutrients, pesticides, dramatically changing the document’s thrust. and pathogens); animal feeding operations

104 105 Politics Over Science

or crop production practices that negatively year to year, confounding rigorous trend impact soil, water, or air quality.”44 analyses.”49 Likewise, the agency also warns against this for testing ready-to-eat meats, For instance, in response to industry which includes Listeria: “The data presented complaints, USDA higher-ups barred a staff here are from regulatory testing programs scientist, microbiologist James Zahn, from that change from year to year and even publishing the results of a study that found within years and thus comparisons should antibiotic-resistant bacteria in the air near hog be made with caution… These regulatory confinements in Iowa and Missouri.45 Zahn was programs have not been designed to test for also prohibited from accepting a number of statistically significant change from one year speaking engagements to share his findings.46 to the next.”50 USDA officials told Zahn he was being silenced because the study dealt with • Second, the data do not cover a full year. human health, an issue outside his unit’s The press releases were issued in the fall mission.47 Yet the web site for the Swine Odor when only eight or nine months of testing and Manure Management Research Unit, had been reported. where Zahn worked, states that its mission “is to solve critical problems in the swine • Third, the data is not weighted to account production industry that impact production for differences in beef and poultry. efficiency, environmental quality, and human Salmonella is found at higher rates in health.”48 (emphasis added) poultry than beef. However, in 2002, of the roughly 58,000 samples taken, 31,000 Food Safety were ground beef, which had a 2.6 percent In late 2003, the USDA boasted about incidence of Salmonella, and just 429 were steep declines in the food-borne pathogens ground chicken, which had a 29.1 percent Listeria and Salmonella. “These data validate incidence.51 Without accounting for this our scientific approach to protecting public difference, USDA was virtually guaranteed health through safer food,” said Elsa Murano, to find lower rates of Salmonella. the agency’s undersecretary for food safety, in a press release just before Thanksgiving, These problems were uncovered by which claimed a 12 percent reduction in Barbara Kowalcyk, a statistician in the Salmonella from the previous year and a 66 Department of Biostatistics at the University of percent reduction over the previous six years. Wisconsin and board member of Safe Tables A separate press release touted a one-year 25 Our Priority (STOP). “[USDA is] going around percent decline in Listeria and a 70 percent using sound science as their selling point, yet reduction over the previous six years. they’re really not using it,” said Kowalcyk, Unfortunately, on closer inspection, whose son died from E. coli 0157:H7. “The fact these numbers turned out to be highly is that they misled the American public and misleading: Congress by issuing these press releases, and it’s irresponsible.”52 • First, the data derives from random sampling as part of USDA’s verification Prescription Drug Advertising testing program, which is meant to gauge The FDA released a report in January 2003 regulatory compliance, not nationwide that distorts scientific evidence on the value prevalence of pathogens. Indeed, USDA’s of prescription drug advertising in a way that own Salmonella progress report states, supports the pharmaceutical industry.53 “Because the [verification testing] program In its report, FDA claimed that a is not statistically designed, different survey of 500 doctors showed that direct- establishments may be sampled from to-consumer (DTC) advertising “when

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done correctly, can serve public health wrote, “We are seriously concerned that functions.”54 The agency claimed that most extra-scientific criteria are being introduced physicians “agreed that, because their into the NIH grant making process that until patient saw a DTC ad, he or she asked more now has been based solely on the scientific thoughtful questions during the visit.” In merit and public health importance of fact, 59 percent of respondents said the fact proposed research.” that a patient had seen an advertisement “This atmosphere of intimidation is had no beneficial effects and just 4 percent unacceptable,” Waxman responded in a said the advertisement informed or educated letter to HHS Secretary Tommy Thompson, the patient.55 who oversees NIH. “These researchers, who are tackling serious and intractable health Stem Cell Research problems, have done nothing wrong… After banning federal funding for Contacting and alarming the researchers sets research on new stem cell lines, President a terrible precedent.”61 Bush misleadingly assured the public that the The Traditional Values Coalition, a move would not hamper medical progress, conservative advocacy organization, has claiming research on “more than 60” existing claimed responsibility for authoring the lines “could lead to breakthrough therapies list. However, HHS officials appear to have and cures.”56 at least provided assistance, according to In September 2001, however, HHS Waxman; some of the information included Secretary Tommy Thompson told Congress (such as funding levels) is not publicly that only 24 or 25 cell lines were actually accessible but easily retrieved through suitable for experimentation.57 The director the internal HHS computer system, and a of the National Institutes of Health, Elias number of researchers are listed without any Zerhouni, painted an even bleaker picture in corresponding grants but with the notation May 2003. Just 11 stem cell lines are “widely “nothing found on HHS search,” implying a available to researchers,” he testified,58 and search conducted at the agency. If HHS did even these lines might not be fit for human indeed help produce the list, it represents use because they are derived from mouse a deeply troubling sign. As Waxman put feeder cells and might be infectious. it, “Imposing ideological shackles on this Scientists have found a way to develop research would be a serious public health uninfected stem cell lines using human bone mistake.” Thompson claims his staff was not marrow cells but cannot use this method due involved in creation of the list.62 to President Bush’s ban.59 The list reportedly emerged after NIH asked congressional staffers to identify Research on HIV and Sexual Behavior 10 grants questioned at a congressional In early October 2003, congressional hearing.63 However, NIH was instead sent the Republicans sent an apparent hit list to the list of 150, prompting the agency to contact National Institutes of Health identifying the researchers. more than 150 scientists with agency grants to conduct research on HIV and sexual Sex Education behavior. NIH responded by contacting these The Bush administration has suppressed researchers, apparently to put the agency in and distorted scientific evidence about better position to defend the grants. effective sex education programs in an effort Soon after this began, some of these to promote an abstinence-only agenda. researchers alerted Rep. Henry Waxman (D- The Centers for Disease Control and CA) – who had created a web site on political Prevention recently discontinued a project influence over science60 – and expressed called “Programs that Work,” which identified fear of losing their funding. One researcher sex education programs that scientific

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studies found to be effective.64 All five of not support this claim. However, the the programs identified in 2002 involved administration removed this page, and comprehensive sex education for teenagers replaced it with a fact sheet that incorrectly and none were abstinence-only programs. In indicated a great deal of uncertainty. The fact ending the project, CDC removed information sheet stated: about these programs. The Bush administration also altered “Some studies have reported statistically performance measures for abstinence-only significant evidence of an increased risk programs – trading measures of participants’ of breast cancer in women who have actual sexual behavior for measures of had abortions, while others have merely their program attendance and attitude.65 suggested an increased risk. Other studies Such measures cannot truly gauge the have found no increase in risk among effectiveness of sex education programs and women who had an interrupted pregnancy. are likely to paint an overly rosy picture of the NCI is currently supporting mechanistic programs’ success. and population studies to gain a better understanding of the hormonal changes Condoms that occur during pregnancy and interrupted The Centers for Disease Control and pregnancies and how they relate to breast Prevention removed a fact sheet from its cancer risk.”70 web site that included information on proper condom use, the effectiveness of different NCI subsequently convened a conference types of condoms, and studies showing that to review scientific data on reproductive condom education does not promote sexual events that may impact a woman’s risk of activity.66 This was replaced with a document getting breast cancer. The participants, who that emphasizes condom failure rates and the represented a diversity of breast cancer effectiveness of abstinence.67 expertise, including epidemiologists, Likewise, the U.S. Agency for clinicians, basic scientists and breast International Development (USAID) also cancer activists, concluded “abortion is not yanked information from its web site on the associated with an increase in breast cancer effectiveness of condoms. Specifically, the risk.”71 (In March 2004, a comprehensive agency removed a document entitled, “The review of 53 studies involving 83,000 women Effectiveness of Condoms in Preventing in 16 countries also found no link.72) Shortly Sexually Transmitted Infections,” which thereafter, NCI revised its web site to reflect stated that condoms are “highly effective” this conclusion. in preventing HIV/AIDS, adding, “Public and government support for latex condoms 68 Stacking Scientific is essential for disease prevention.” A Advisory Committees document entitled “USAID: HIV/AIDS and Condoms” remains on the site, but it merely Federal agencies convene scientific states that “condom use can reduce the risk of advisory committees to provide unbiased, HIV infection.”69 expert advice, ideas, and opinions on a wide range of topics. Their findings, for instance, Breast Cancer and Abortion frequently form the basis of health, safety and The Bush administration has wrongly environmental regulation. Thus, it is crucial suggested that abortions increase a woman’s that these committees be, as the law requires, risk of getting breast cancer. Previously, “fairly balanced in terms of the points of view the National Cancer Institute (NCI) web represented and … not be inappropriately site referenced several respected studies influenced by the appointing authority or by concluding that scientific evidence does any special interest.”73

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Unfortunately, the Bush administration • Sergio Piomelli, a professor at Columbia has screened nominees for advisory Presbyterian Medical Center, who has committees based on their political views argued against lowering the acceptable rather than their scientific qualifications, limit of lead in the blood, saying “there is tilting committees in favor of corporate no epidemic of lead poisoning in the United interests and right-wing ideologues, as States today, but some people are trying to detailed below. This effort goes hand in hand create an epidemic by decree”;79 with the administration’s proposed agency- wide “peer review” guidelines (discussed • Joyce Tsuji, principle scientist at Exponent, on page 56), which allow industry-funded whose corporate clients include Dow scientists to serve while treating those Chemical, Dupont, and ASARCO, which is funded by government with skepticism. The now involved in a lead dispute with EPA administration clearly wants “advice” that will (Tsuji withdrew her nomination due to fit its predetermined agenda regardless of the scheduling conflicts);80 and weight of the scientific evidence. • Kimberly Thompson, an assistant professor Childhood Lead Poisoning of risk analysis and decision science at In the summer of 2002, a CDC advisory Harvard, who is affiliated with the Harvard committee was set to reexamine federal Center for Risk Analysis (HCRA), which has standards for lead and the health risks 22 corporate funders with a financial interest posed to children. Knowledgeable observers in the deliberations of the lead advisory believed that the committee would advise committee.81 This includes Ciba-Geigy Corp., more stringent controls based on new FMC Corp., and Monsanto, which have scientific evidence of lead’s damaging Superfund sites with lead contamination.82 effects even at low levels.74 However, HHS John Graham, the administration’s Secretary Tommy Thompson, who oversees regulatory czar, previously served as CDC, stepped in and stacked the committee director of HCRA. with those friendly to the lead industry and predisposed against new regulation. Banner, Piomelli and Thompson have At the same time, Thompson rejected since become members of the committee.83 the reappointment of Michael Weitzman, It was later learned that the lead industry pediatrician in chief at Rochester General had a hand in the appointments. At the Hospital and author of numerous publications committee’s October 2002 meeting, Piomelli on lead poisoning (who CDC staff had planned stated, “Before some reporter detects it, I to nominate as the committee’s new chair75), would like you to know that I was called a as well as staff nominations of two other few months ago from somebody in the accomplished doctors with expertise in lead lead industry … and asked if I don’t mind poisoning.76 This was the first time the HHS if they nominated me for this committee. I secretary had ever rejected nominations by said, ‘Yes.’”84 the committee or CDC staff, according to The committee, in place for more than Susan Cummins, chair of the committee from a decade, examines the science of lead 1995 to 2000.77 In response, CDC substituted poisoning and advises CDC on appropriate four nominees, who are closely allied with the policy measures, including the limit on lead industry, including: acceptable lead levels in the blood. According to CDC, more than 400,000 children in the • William Banner, professor of pediatrics at United States between the ages of 1 and 5 the University of Oklahoma, who has served have elevated levels of lead in their blood,85 as an expert witness for the lead industry, which can result in damage to the central downplaying the effects of lead on children;78 nervous system, kidneys, reproductive

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system, as well as decreased intelligence, to elect the head of the panel. India also among other harmful effects. opposed Watson, arguing that a scientist from a developing country deserved a turn Environmental Health as chair, and in the end, Indian scientist The administration overhauled a Rajendra Pachuari was elected. It marked committee that advises the CDC’s National the first time the chair had not been selected Center for Environmental Health on a wide by consensus. range of public health issues, including the A year earlier, under Watson’s leadership, effects of low-level chemical exposures. the 2,500-member panel produced its third Fifteen new members were added to the comprehensive global warming assessment, 18-person panel, including a number with concluding, “There is new and stronger close ties to corporate interests. In particular, evidence that most of the warming observed this includes: over the last 50 years is attributable to human activities.” This assessment further predicted • Dennis Paustenbach, who conducts paid that temperatures would rise between three risk assessment for industry and testified and 10 degrees by the end of the century. on behalf of Pacific Gas & Electric, which Needless to say, this is not what industry and was ultimately found guilty of poisoning the Bush administration want to hear – even if drinking water, in the trial that made Erin it is true. Brockovich famous; Chemicals and Allied Products • Roger McClellan, the former director of the A legal settlement requires the inclusion Chemical Industry Institute of Toxicology; and of an environmental representative on the Industry Sector Advisory Committee for • Becky Norton Dunlop, a vice president at Chemicals and Allied Products. However, the the Heritage Foundation and former head Bush administration rejected the application of Virginia’s natural resources department, of Greenpeace’s Rick Hind, and instead where she aggressively fought against selected Brian Mannix, a vocal opponent environmental protection.86 of regulation and a researcher at the conservative Mercatus Center. Global Warming Mannix has strong ties to industry Acting at the behest of industry lobbyists, and the conservative policy community in the Bush administration succeeded in ousting Washington. Previously, he served as director renowned scientist Robert Watson as chair of science and technology studies for the of the U.N.’s Intergovernmental Panel on Manufacturers Alliance for Productivity and Climate Change.87 Innovation, an industry-sponsored consulting Within the Bush administration’s first and lobbying group.89 weeks, ExxonMobil delivered a confidential memo (obtained by the Natural Resources Ergonomic Hazards Defense Council) to the White House urging After repealing Clinton-era ergonomics that Watson be replaced with someone standards, the Bush administration issued a skeptical of the scientific consensus that feeble “replacement” plan to adopt voluntary global warming is a serious problem.88 Later, industry-specific guidelines (see page 37). This ExxonMobil was joined in this campaign by plan created the National Advisory Committee the coal industry and electric utilities. on Ergonomics (NACE) to examine relevant Not surprisingly, the Bush research and provide advice on the guidelines. administration, along with OPEC countries, This appears to be an effort to supplant opposed Watson’s reappointment in April the CDC’s National Institute of Occupational 2002 when more than 100 governments met Safety and Health, which is legally charged

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with evaluating worker safety and health. her nomination by asking politically charged In July 1997, after reviewing more than 600 questions – in particular whether she would studies, NIOSH concluded that injuries caused be an advocate on ergonomics issues. “I was by ergonomic hazards are a serious and intrigued and offended at the same time,” widespread problem. recalled Pamela Kidd, associate dean of the NACE, however, is more likely to spout College of Nursing at Arizona State University. the administration’s line regardless of the “I purposely answered in a way that would scientific evidence. With seven management not put me on either side.”93 representatives and just two union safety and health experts, it is the first advisory Food Safety Hazards committee in OSHA’s 32-year history that does In March 2003, Agriculture Secretary not include an equal number of management Ann Veneman named nine food-industry and union representatives. representatives and no consumer representatives to a committee on food safety Occupational Safety and Health hazards, such as E. Coli and Salmonella.94 HHS Secretary Tommy Thompson This included Virginia Scott of the National overruled the recommendations of NIH science Food Processors Association, which calls itself administrators and removed three ergonomics “the voice of the $500 billion food processing experts from a study section that evaluates industry,” and Robert Seward of the American research grants on workplace injuries for the Meat Institute. The committee is supposed National Institute of Occupational Safety and to be “impartial,” but that seems impossible Health.90 Specifically, Thompson rejected: given its built-in slant in favor of food manufacturers. • Laura Punnett, a professor at the University of Massachusetts, Lowell, who expressed Dietary Guidelines public support for workplace ergonomics In August 2003, HHS and USDA appointed standards; 13 members to an advisory committee on dietary guidelines, seven of which • Catherine Heaney, an associate professor of have significant ties to food, drug, dietary public health at Ohio State University, supplement and other related industries.95 whose recent research has focused on For example, this includes Fergus ergonomics; and M. Clydesdale, who has held stock in and consulted for several food-related • Manuel Gomez, director of scientific affairs at companies.96 Clydesdale runs a pilot food the American Industrial Hygiene Association. plant at the University of Massachusetts at Amherst that receives corporate support, and A study section does not make policy has worked closely with the industry-backed recommendations (unlike an advisory American Council on Science and Health, committee); rather, it makes determinations which downplays food safety concerns.97 He is on the scientific merits of proposed research also chairman of the board of directors at the projects. For this reason, Thompson’s industry-funded International Life Sciences attention surprised insiders,91 as well as Institute (ILSI) and previously served as those affected. “I was shocked,” Punnett said director of the industry-funded International of being rejected. “I think it conveys very Food Information Council (IFIC).98 powerfully that part of the goal is to intimidate In announcing the new committee researchers and limit what research questions roster, HHS and USDA failed to disclose are asked.”92 ties to corporate interests. This is especially Another prospective member said significant because the committee (the someone from Thompson’s staff screened Dietary Guidelines Advisory Committee)

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reviews and revises the Dietary Guidelines for Dr. Miller.” The FDA guidance on conflicts Americans report, a “broad-based nutrition of interest for advisory committee members guide.”99 Changes in the guidelines can affect states that a disclosure should be made government policy as well as consumers’ into the record that would “adequately eating habits – helping or harming food enable a reasonable person to understand manufacturers’ profits. the nature of the conflict and the degree to which it could be expected to influence Fox In the Henhouse the recommendations the SGE [special Eric Hentges, director of USDA’s Center for government employee, in this case committee Nutrition Policy and Promotion member] will make.”105 Hentges is in charge of redesigning the Not surprisingly, Miller was a part of the nation’s Food Pyramid and Dietary Advisory 9-to-6 majority that recommended returning Guidelines, and deciding what foods go into the implants to the market. USDA’s Thrifty Food Plan, which governs Food Stamp recipients. He previously served Genetic Testing as vice president of applied technology The Food and Drug Administration declined and education services at the National Pork to renew the charter of a committee that Board (formerly the National Pork Producers recommended regulation of genetic testing, Council), and was director of human nutrition which reads a person’s DNA to suggest risk of research for the National Livestock and Meat disease.106 Currently, companies are marketing Board.100 In the past, Hentges has defended tests for genes, frequently through the Internet, higher-sodium pork and fatty sausages, even where there is no established link to supported the consumption of hot dogs by disease, needlessly worrying consumers children, and opposed nutrition labeling on and conning them out of their money. As a steaks and pork chops.101 result of the committee’s recommendations, FDA initiated a rulemaking during the Clinton administration to oversee the marketing of such Silicone Breast Implants testing. However, this rulemaking has now been A plastic surgeon was permitted to sit on abandoned, along with the committee. an FDA advisory committee reviewing the Members of the committee learned HHS safety of implants manufactured by Inamed had not renewed the committee’s charter in Aesthetics even though he had previously September 2002, a month after it lapsed.107 received a grant from the company. Shortly thereafter, the Bush administration Dr. Michael Miller, of the Anderson Cancer established a new committee – the Secretary’s Center at the University of Texas, received a Advisory Committee on Genetics, Health, and $25,000 grant from Inamed to develop a CD- Society – which, as the name implies, has a ROM on breast reconstruction.102 The CD-ROM broader scope than its predecessor, focusing includes a video of Miller making statements on the implications of genetic technologies. that breast implants are indeed “safe.”103 FDA determined that Miller could Human Research Protections participate in the committee’s deliberations HHS scrapped a committee that, over the because, “He reported his institution’s objections of the pharmaceutical industry, past and current involvement with firms recommended new protections for human at issue.”104 The agency then failed to research subjects. Specifically, the committee appropriately disclose the conflict of interest urged a tightening of conflict-of-interest rules at the beginning of the committee’s meeting and new restrictions on research involving the and instead cryptically alluded to it; an FDA mentally ill. official merely stated that the agency “took The committee also angered religious into consideration certain matters regarding conservatives when it declined to support

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the administration’s effort to include fetuses • Diana Schaub, a political scientist at Loyola under a regulation involving research on College who has opposed embryonic stem newborns. This appears to have been the cell research, referring to it as “the evil of death knell. The committee (Secretary’s the willful destruction of human life;”112 Advisory Committee on Human Research Protections) has since been reincarnated and • Benjamin Carson, director of pediatric the new charter108 makes clear that fetuses neurosurgery at Johns Hopkins University, and embryos are to be treated as human who has called for more religion in public research subjects. life; and Jonathan Moreno, director of the University of Virginia Center for Biomedical • Peter Lawler, a professor of government Ethics and member of the Clinton-appointed at Berry College in Georgia, who has committee, was asked to join the new 11- written against abortion and the “threats of member committee, but declined over biotechnology.” concerns about the absence of a patient advocate. “You can say all heads of research The council – formed by Bush shortly are patient advocates, but institutional roles after taking office – has produced reports do mean something and when it comes time on human cloning, stem cell research and to take a position on research protections the use of biotechnology to enhance human the institution or business that you represent beings. However, it frequently encountered makes a difference,” Moreno said.109 After problems reaching consensus as scientific Moreno declined to join the committee, facts took a backseat. the administration appointed Susan Describing her experience in a Weiner, president and founder of Children’s Washington Post op-ed, Blackburn wrote, “I Cause,110 which advocates for more effective consistently sensed resistance to presenting treatments of childhood cancer. human embryonic stem cell research in a Other appointees include Cindi Berry, way that would acknowledge the scientific, a former speechwriter for Senate Majority experimentally verified realities. The Leader Bill Frist, and C. Christopher Hook, capabilities of embryonic versus adult stem who is active in Christian medical groups cells, and their relative promise for medicine, and has testified before Congress that were obfuscated.”113 embryonic stem cell research amounts to a Of course, consensus will now be easier “license to kill.”111 to achieve, but debate is stifled in the process. “I am convinced that enlightened societies Bioethics can only make good policy when that policy On Feb. 27, 2004, President Bush is based on the broadest possible information dismissed two handpicked members of and on reasoned, open discussion,” Blackburn his Council on Bioethics who had publicly continued. “Narrowness of views on a federal supported human embryonic stem cell commission is not conducive to the nation research – which the president opposes – and getting the best possible advice. My experience replaced them with three members who can with the debate on embryonic stem cell research, be counted on to fall in line. however, suggests to me that a hardening and The two dismissed members include narrowing of views is exactly what is happening Elizabeth Blackburn, a renowned biologist at on the President’s Council on Bioethics.” the University of California at San Francisco, and William May, a highly respected Prevention of Injury and Disease emeritus professor of ethics at Southern The administration appointed staunch Methodist University. In their place, the opponents of sex education and a number president appointed: of corporate executives to a CDC committee

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that gives advice on “policy issues and broad Shortly after his nomination, someone strategies for promoting health and quality from HHS Secretary Tommy Thompson’s office of life by preventing and controlling disease, called and asked Miller about his views on injury and disability.”114 the president’s faith-based initiative, needle Specifically, this includes Joe S. exchange programs, the death penalty for McIlhaney, Jr., the founder and president drug kingpins, and abortion, keeping a tally of the Medical Institute for Sexual Health of whether he agreed with the views of the in Austin, Texas, which is against sex-ed White House.120 The caller also asked whether programs, needle exchange, condoms, Miller had voted for Bush. When Miller said he and legal abortion;115 Shepherd Smith, had not, the caller asked him to explain. Miller the president and founder of Institute for believed he did not give enough right answers, Youth Development, a group that sponsors and he was not appointed to the panel. abstinence education forums, in Sterling, Likewise, a Thompson representative Va.;116 and executives from General Motors vetted a staff nominee for NIH’s Muscular and General Electric Medical System. Dystrophy Research Coordinating Committee, asking for views on various Bush HIV/AIDS administration policies, none of them related Christian conservative Jerry Thacker, who to the work of the committee. This included has called AIDS the “gay plague” and referred the president’s embryonic stem cell policy.121 to homosexuality as a “deathstyle,” was tapped to serve on the Presidential Advisory Council Army Science on HIV/AIDS.117 This choice caused much The secretary of defense’s White House controversy and Thacker eventually withdrew. Liaison Office disapproved about a dozen nominees to the Army Science Board (ASB) Reproductive Health Drugs after uncovering their campaign contributions David Hager, an obstetrician/gynecologist through the web site Opensecrets.org (which who strongly opposes abortion, was lists individual donors), according to one of appointed to serve on the FDA panel that the rejected nominees.122 reviews reproductive health drugs. Hager In a letter to Science Magazine, William E. recommends specific scripture readings and Howard III reported that a member of the ASB prayers for such ailments as headaches and staff told him that his nomination was rejected premenstrual syndrome.118 because he had contributed to the presidential Meanwhile, at least two nominees campaign of Sen. John McCain (R-AZ).123 In proposed by FDA staff were rejected by fact, Howard never made such a contribution, political higher ups: Donald R. Mattison, but someone with the same name, different former dean of the University of Pittsburgh middle initial (William S. Howard) had School of Public Health, and Michael F. contributed $1,000. Howard tried to clear Greene, director of maternal-fetal medicine at things up, but ASB would not reconsider Massachusetts General Hospital.119 because “they did not want to upset the OSD White House Liaison Office.” Drug Abuse Prior to his nomination, Howard had The administration rejected the served as a consultant to the board, as did nomination of William R. Miller, a professor of other rejected nominees. “The country is not psychology and psychiatry at the University being well served by any administration’s of New Mexico in Albuquerque, to serve on policy of seeking advice only from a group the National Advisory Council on Drug Abuse, of scientists and engineers who have passed which guides funding and policy decisions at the administration’s political litmus test,” a unit of the National Institutes of Health. Howard wrote.

114 Irresponsible Contracting

Under the Bush administration, federal contractingcontracting aandnd ggrantmakingrantmaking hhasas ffrequentlyrequently beenbeen ddoneone iinn ssecret,ecret, wwithoutithout aaccountability,ccountability, andand fforor aapparentlypparently ppoliticalolitical ppurposes.urposes. TheThe mmostost hhighigh pprofirofi llee eexamplexample hhasas bbeeneen tthehe nno-bido-bid ccontractsontracts for Iraq reconstruction, the largest of which went to Halliburton, where Vice President Cheney previously served as CEO. However, the administration has undermined sound contracting in other ways as well. From the start, the administration moved to repeal Clinton-era contractor responsibility standards while simultaneously pushing for federal funding of religious congregations, which are exempt from civil rights laws. Meanwhile, federal grantees that disagree with the president’s policies – including, for instance, those that favor comprehensive sex education – have been singled out for intimidation and subjected to retaliatory audits. Later, in May 2003, the administration issued new rules for privatizing the federal workforce that threaten to create a modern- day spoils system and a government run by special interests for special interests. Irresponsible Contracting

Turning Away from As for due process, the rule required Contractor Responsibility contracting officers to coordinate adverse Say you are the government. You are determinations with agency legal counsel, considering two contractors, equal in every way notify bidders if they were found non- except that one has repeatedly violated labor responsible, and provide justification for and environmental laws. Common sense says such a determination – which could then you contract with the law-abiding company. But be challenged through an appeals process.4 then, you wouldn’t be the Bush administration. Contracting officers were further instructed to Two days after Christmas 2001, with no give the greatest weight to convictions or civil one around to object, the administration judgments against the prospective contractor quietly revoked1 a rule issued at the end of in the preceding three years. the Clinton administration2 that instructed In justifying repeal, the Bush government contracting officers to consider administration largely ignored industry’s a bidding company’s record of compliance cries of blacklisting, and instead argued in with the law – including tax laws, labor laws, vague terms that it would be impossible to employment laws, environmental laws, implement and too burdensome on industry. antitrust laws and consumer protection laws Again, these were not serious arguments – before awarding taxpayer dollars. – particularly when considered next to the Too frequently, federal contractors do benefits of ensuring that the government does not take these laws seriously, as a number not contract with chronic lawbreakers. of recent reports have documented.3 To facilitate implementation, the rule Between 1990 and 2002, the nation’s top required bidding companies to disclose 43 contractors paid about $3.4 billion in whether they had been found liable of violating penalties, restitution, settlements, and the law within the preceding three years. This Superfund cleanup costs, according to the minimal disclosure requirement – which was Project on Government Oversight. Sixteen the only “burden” placed on industry – would of these contractors were convicted of a have made it easy for contracting officers to total of 28 criminal violations, yet only make the necessary determinations. one was suspended from doing business In the end, there is just one core question with the government, and that suspension (which the objections of industry and the lasted just five days. The Clinton contractor administration sought to mask): Should we responsibility rule would have provided a consider a company’s compliance with the law powerful new incentive for these contractors in awarding taxpayer dollars? Common sense to clean up their act. says yes. Industry lobbyists and their allies Not surprisingly, industry groups, such in the Bush administration clearly believe the as the U.S. Chamber of Commerce, strongly answer is no. urged the Bush administration to repeal the rule, dishonestly arguing that it amounted Fair Labor Standards to “blacklisting” – that companies could be On Feb. 17, 2001, President Bush signed barred from receiving federal contracts with an executive order5 abolishing a requirement no due process. In fact, each determination that construction contractors engage in project under the rule was to be made on a case-by- labor agreements (PLAs) with their workers. case basis for the contract in question and PLAs help to ensure fair treatment of workers would not have constituted “debarment” for all and have been shown to save the government federal contracts; in other words, a company money by resolving potentially contentious denied one contract on the basis of its legal labor issues in advance. Elimination of the track record would still have been eligible for requirement was a top priority for builders another contract. The blacklist existed only in seeking to avoid fair labor practices and hold the imagination of industry lobbyists. down wages and benefits.

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The Equal Opportunity Survey opposed) that sought to prohibit religious The Bush administration has failed groups from discriminating on the basis of to implement a tool known as the Equal religion when hiring for federally funded Opportunity Survey, which is designed to help positions. The Senate debated similar the Office of Federal Contract Compliance legislation throughout 2001 and 2002, but Programs (OFCCP) better target reviews of never reached agreement, with many, like the federal contractors and identify potential House Democrats, concerned over the issue of violations. employment discrimination. The survey gathers employment On Dec. 12, 2002, the president took information from federal contractors and matters into his own hands and issued subcontractors – including information Executive Order 13279, which instructed on affirmative action plans as well as federal agencies to alter preexisting policies compensation practices broken down by to allow religious congregations to receive sex and race – to help uncover illegal pay federal funds for non-religious social services. disparities.6 On Sept. 22, 2003, HHS responded by issuing The OFCCP completed surveys of 50,000 three implementing regulations10 – covering contractors in 2001, but has so far failed to use the Community Service Block Grant (CSBG) them to target reviews. The office also waited program, Temporary Assistance for Needy more than a year before sending out a scaled- Families (TANF), and a number of substance down second round of surveys to just 10,000 abuse programs – and HUD issued another contractors7 in late 2002. regulation covering eight different programs.11 Authorization for the Equal Opportunity Later, in March 2004, the Department of Survey expired in March 2003, and the OFCCP Agriculture also proposed implementing is seeking a limited extension for just 10,000 regulations,12 and HUD proposed to extend surveys a year for two years.8 coverage to state Community Development Block Grant (CDBG) programs.13 The administration has publicly Federal Funding for argued that these actions simply “level the Religious Organizations playing field” for religious organizations. President Bush has moved to provide However, administration officials told the federal funding to religious institutions for Associated Press that the executive order social services – in what’s widely known as the was “aimed at giving those groups a leg “faith-based initiative” – even though he has up in the competition for federal money”14 failed to win Senate backing. – and indeed, this is consistent with other Groups such as Catholic Charities, United administration actions, as detailed below. At Jewish Communities, and Lutheran Social one point, for instance, the administration Services have long been involved in federal actually moved overtly to set aside grant service delivery. However, these groups are funds for faith-based organizations, backing distinct from any house of worship, and down only under threat of litigation. subject to the same standards as all other Disturbingly, the administration’s federal grantees. The Bush administration preference seems rooted in the religious has pushed to remove this wall between character of these organizations rather than church and state and allow federal dollars to their performance, which has never been go directly to religious congregations, which proven superior to that of secular groups. operate by their own distinct rules. On the contrary, in October 2003, academic In July 2001, the House voted largely researchers found (in the first ever such along party lines to approve the president’s comparative study) that secular groups in plan9 after Democrats failed to add an two Indiana counties were more effective amendment (which the administration at job training, placing 53 percent of their

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clients in full-time employment compared • Subsidizing religious construction projects. to 31 percent for faith-based groups.15 Soon The HUD rule permits federal dollars to after, researchers at Pepperdine University be used for constructing and renovating also released a study showing that secular buildings that are used for both worship welfare-to-work programs in Los Angeles had and federally funded programs so long as outperformed faith-based ones in terms of funds are not spent on the principal room moving clients off welfare.16 used for prayer.

Regulatory Implementation • No assurance of non-religious alternatives. Just days after taking office, President Two of the HHS rules – those applicable Bush issued executive orders creating the to TANF and substance abuse programs White House Office of Faith-Based and – require that faith-based organizations Community Initiatives as well as faith-based notify beneficiaries of their right to receive offices in the departments of Education, alternative services if they object to the HHS, HUD, Justice, and Labor. Offices within religious provider. In such an event, the Department of Agriculture and the U.S. beneficiaries must receive a prompt referral Agency for International Development have to a provider of equivalent services – of also since been established. course, assuming one actually exists. With faith-based legislation stalled in The other rules, however, do not contain the Senate, these offices have looked for such a guarantee. Rather, they merely ways to implement the president’s plan require that “inherently religious activities” administratively. “We really want the conducted by the service provider be held at legislation badly,” said Jim Towey, director either a different place or time than federally of the White House’s faith-based office, “but funded programs. Because of confusion this office isn’t just about federal legislation. over the definition of “inherently religious This office is going to move forward with the activities,” beneficiaries could be offered president’s agenda.”17 This effort culminated services with significant religious content, with the December 2002 executive order but would not have the right to demand an and subsequent implementing regulations alternative program. described above, circumventing Congress and raising a host of significant concerns: • Sanctioning employment discrimination. Under Title VII of the Civil Rights Act, • Federal funding of religious activity. Under religious congregations can discriminate the executive order, a faith-based based on religious affiliation when hiring organization can accept federal funding for positions that involve worship-related without altering its structure or giving up skills; for example, a synagogue can hire its religious mission, provided that such only Jewish rabbis. While this makes sense, funds are not used for “inherently religious it only applies to privately funded religious activities, such as worship, religious positions. The administration’s new rules instruction or proselytization.” Nonetheless, now permit religious organizations to partially religious activities could still discriminate on the basis of religion when conceivably be funded or supported. For hiring for federally funded positions that example, a soup kitchen that says grace are not supposed to involve religious before each meal or a shelter that says activities. “In any employment decision, goodnight prayers could claim the overall there’s discrimination,” Towey explained. service is not inherently religious. The order “Universities hire smart people.”18 also explicitly allows such organizations to provide services in areas that display • No requirement to disclose financial religious icons and art. information. Unlike other charitable

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organizations, religious groups do not an organization a leg up in funding, and have to publicly disclose their financial that the playing field is tilted against information.19 This will make it almost secular groups. impossible for the public to determine In one suspicious case, John F. Downing whether federal funds are being used in an received a significant influx of funds after appropriate manner, and not to promote he registered his organization (a homeless religious activity. shelter and substance abuse program for veterans) as a faith-based entity. Downing A Preference for Religious Grantees made this move in 2003 after the Department The administration claims its efforts are of Veterans Affairs (VA) declined to renew about leveling the playing field. However, in a $415,000 grant. He also contacted his January 2002, HHS moved to give explicit congressional representatives, whose preference to faith-based organizations. staff helped with the preparation of grant For instance, HHS’s Administration for applications, and testified before Congress Children and Families issued a program about his organization’s loss of funds. The announcement setting aside $210,000 to next year, he was showered with almost promote partnerships between community $2 million from the VA and HUD. Both agencies and faith-based organizations. agencies deny that the organization’s faith- HHS eventually backed off after based status played no role. However, the Americans United for Separation of Church administration’s general preference for and State threatened to sue, objecting that religious grantees seems clear. the government is barred from favoring religious groups over secular ones. However, Misusing the Compassion Capital Fund the administration appears to be playing The administration also appears to have favorites informally. inappropriately steered money to religious Many recent grant announcements groups through the Compassion Capital have contained the disclaimer, “Faith-based Fund,21 which was created in 2001 at the organizations are encouraged to apply.” In urging of President Bush to help provide March 2004, Towey boasted, “The results will advice and develop “best practices” on the show that there’s been a dramatic increase most successful methods of operation for in funds going to faith-based organizations,” social service charities. touting a $144 million increase from FY 2002 Of the $30 million appropriated to the in faith-based grants by HHS and HUD, the Compassion Capital Fund in 200222 (its “two agencies where there is comparison data first year of existence), the administration available.” Likewise, a White House fact sheet awarded $24.8 million to 21 intermediary claims that funding of faith-based organizations organizations, which were instructed to increased 41 percent at HHS and 16 percent redistribute the money to faith-based and at HUD from FY 2002 to FY 2003.20 “You’ll see community organizations for a multitude at HUD now that over half of the money that of capacity-building purposes23 – an goes to Section 202, elderly housing, which approach that has been extended in is a program of about $750 million, with subsequent years. about half of that money going to faith-based These intermediary grantees have organizations,” Towey said. been given almost no guidance to ensure An organization can register as a faith- separation of church and state. On the based entity with the White House, entitling contrary, in June 2003, the administration it to technical assistance and information issued a grant announcement that instructs about grant opportunities (secular groups intermediary organizations to disregard the do not have this service). Towey’s comments religious nature of programs in selecting raise concern that such registration can give sub-grantees.24

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This instruction clearly undermines the geared toward African-American pastors as president’s executive order prohibiting federal part of the GOP’s “outreach” program.30 funds from supporting inherently religious Similarly, during a Minnesota seminar activities.25 If intermediary organizations hosted by HHS, also in the summer of 2002, disregard the religious nature of programs, “The Rev. Floyd Blair, an African American this prohibition cannot be enforced. minister and a Bush HHS official, was seen … It also ignores the wishes of Congress, literally directing African American religious which specifically sought to avoid direct leaders to special sessions for exclusive federal funding of religious groups. During information. Blair also spoke extensively about a Senate colloquy over the matter, Sen. Tom the Compassion Capital Fund to attendees, Harkin (D-IA), then chairman of the Labor- calling the available tax dollars ‘faith money,’” HHS Appropriations Subcommittee, assured according to Church and State.31 that “this fund is only for the development of model best practices” for “social programs and Muzzling and community initiatives.” Likewise, Sen. Arlen Intimidating Grantees Specter (R-PA) said, “It is important to note that this appropriations bill is not changing any of While the Bush administration has the rules or standards for government funding relaxed oversight of faith-based grantees, of religious organizations…”26 it has sought to muzzle and intimidate Moreover, there are inherent problems other grantees with which it has policy with the practice of funneling funds through disagreements. The following are some of the intermediaries. Federal grant rules – such known examples. as cost principles that identify unallowable expenses – are supposed to follow the Sex Education federal dollar wherever it goes.27 However, In the summer of 2003, HHS launched sub-grantees are seldom monitored for an audit of a federal grantee, Advocates for compliance with these rules and it is “nearly Youth, apparently for the group’s opposition impossible” to track sub-grants to ensure that to the administration’s abstinence-only money is properly spent, according to a report strategy. The audit was the third such review by the Roundtable on Religion and Social in a year – even though the previous two Welfare Policy.28 audits found no problems32 – and followed This leaves the door wide open for abuse, a letter from Rep. Joseph Pitts (R-PA) and and the administration has given plenty of 23 other members of Congress complaining reason to worry. For example, during the about a web site sponsored by Advocates summer of 2002, the Republican Party in South of Youth, NoNewMoney.org, which urges Carolina sponsored a “seminar on faith-based opposition to funding for abstinence-only and community initiatives” attended by about programs. Federal grantees are permitted to 100 ministers and charity leaders. Jeremy engage in such advocacy provided it is done White of the White House’s faith-based office with private funds. was the keynote speaker, and according to The “Advocates is concerned that it appears that State newspaper in Columbia, S.C., focused on the selective and political use of these audits how pastors can “get their part of $30 million is to intimidate organizations such as ours that in federal money,” referring to the Compassion support comprehensive sex education,” said Capital Fund.29 Bill Barker of Advocates for Youth. “They want A follow-up mailing from Ron Thomas, to impose a kind of censorship.”33 political director of the South Carolina GOP, Indeed, this appears to be part of a larger provided more details on how to apply for effort to silence criticism of the administration. federal funds. Church and State (published by In 2001, an internal HHS memo identified Americans United) noted that the event was “critics of the Bush administration,”34

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which included Advocates of Youth. Audits Julie Louise Gerberding, warned Stop AIDS apparently were then targeted at these critics. and the city of San Francisco’s public health In response to a letter from Rep. Henry department that continued use of certain Waxman (D-CA), HHS indicated on Nov. 27, promotional materials – which Gerberding 2002, that its Office of Inspector General had claimed encouraged sexual activity – could only performed audits of programs that use result in “disallowance or discontinuation comprehensive approaches to sex education, of federal funding.” This threat was made and no audits of abstinence-only programs even though these materials were used were being conducted. for a workshop funded by the city of San Likewise, the Department of Education Francisco, without any federal dollars. CDC chose not to audit a grantee that promotes informally told Stop AIDS that the same rules charter schools and vouchers, the Black for federally funded activity apply to programs Alliance for Educational Options, after a board funded with non-federal dollars, but provided member, state Rep. Dwight Evans (D-Phila.), no legal justification for this claim. told the Philadelphia Inquirer that some Gerberding’s threat was especially federal funds would be used to lobby for a outrageous because Stop AIDS had followed bill he was sponsoring on the subject – which federal rules even though it was not required would be a violation of federal law.35 to do so; the group sought and received approval for the materials in question from Head Start a local review board, as called for by CDC On May 8, 2003, HHS threatened Head guidelines40 for federally funded activity. Start grantees with sanctions for lobbying, even with private funds, after the president’s International Family Planning proposed restructuring of Head Start met Soon after taking office, President Bush stiff resistance.36 The National Head Start reinstated what’s know as the “global gag Association responded by suing the agency, rule,”41 which forbids any international family and less than two months later, a federal planning organization that receives federal district court forced HHS to back off, at least funds from talking about abortion, counseling temporarily.37 women on abortion, providing abortions, or On Nov. 13, 2003, HHS indicated its advocating for changes in abortion law, even intention to survey all 2,700 Head Start with private funds. (President Reagan first grantees in the country on salaries and imposed this gag rule in 1984, and President benefits to identify the top 25 earners among Clinton repealed it in 1993.) Head Start executives.38 HHS estimated Bush also backed two amendments during that it would take each grantee nine hours FY 2004 appropriations that carve out special to complete the survey for a total of 24,300 privileges from the $15 billion awarded for burden hours nationwide.39 international family planning and reproductive HHS asked OMB to approve this survey health. One requires one-third of the money within 30 days using emergency powers. to be used to promote abstinence. The other However, no explanation was given as to permits religious grantees to reject successful why this qualified as an emergency. The real AIDS prevention strategies that conflict with “emergency” appears to be the continued their beliefs, such as instruction in condom use. resistance of the Head Start community to the president’s proposed restructuring of Privatizing the the program. Federal Workforce AIDS Awareness Early in his term, President Bush On June 13, 2003, the director of the made privatization of government jobs Centers for Disease Control and Prevention, and services a top priority, identifying

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“competitive sourcing” as one of five areas projections. Over time, the government of management weakness.42 loses the ability to perform the work and Competitive sourcing (whereby private becomes dependent on the contractor, bidders compete with public employees which then has the power to run up costs for government work) has been employed and pad its bottom line. on a limited basis for years, but the Bush administration has taken a radically • Strongly tilts in favor of privatization. aggressive approach, demanding that First, the new A-76 significantly narrows agencies study at least 425,000 federal jobs for the definition of “inherently governmental” potential privatization. This covers half of all positions, which are exempt from government jobs considered “commercial,” privatization, and allows OMB officials to from prison guards to border patrol officers to easily overrule agency decisions that certain park and forest service employees (see box on work is too important to be handed over to next page). private contractors. Second, it allows jobs In May 2003, the administration issued the to be automatically privatized if government first major revisions in two decades to OMB managers miss deadlines for reviewing Circular A-76,43 which governs public-private jobs for potential privatization. And third, it competition for federal jobs, raising significant requires federal workers that win competitions concerns over accountability and possible to re-compete every five years, with no such abuse. Specifically, this change: requirement for private contractors. Indeed, after work has been turned over • Opens the door for corruption and to private companies, it will almost certainly politically motivated contracting. The stay there. Under the administration’s revisions allow political appointees and plan, public-private competition is not a managers to decide the winners of public- two-way street. Rather, the administration private competitions based on a subjective has insisted that agencies set arbitrary “best value” standard rather than cost. This competitive-sourcing targets for government change invites corruption, such as bribes work, while ignoring the concept for new and kickbacks, and threatens to create a work or work already privatized. modern-day spoils system, whereby the The assumption is that the private presiding administration can steer contracts sector can perform these jobs better than to cronies and political supporters44 – even the public sector at less cost; OMB claims when federal employees can perform the that public-private competitions consistently work for less money. generate cost savings of 10 to 40 percent. However, the supporting evidence that • Does not insist that taxpayers receive OMB cites consists of just three studies, all a superior deal. Besides removing cost as conducted by contractors. These studies the determining factor, the revisions also rely largely on those with a vested interest eliminate a previous requirement that a in the results and report savings without contractor must bid at least 10 percent regard to performance.45 or $10 million less than the in-house This last point is especially important. team to win work involving more than Many federal workers whose jobs are now up 10 jobs. Privatization presents significant for privatization have held their positions for accountability issues, and without a superior years. Replacing this expertise and experience deal, there is little reason to do it. with contractors could lead to deterioration in Moreover, taxpayers could actually the quality of work performed. end up paying more. Private contractors might produce short-term savings, but • Ignores the hidden costs of privatization. they frequently lowball long-term cost The administration is forcing agencies to

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conduct studies to determine whether jobs agency while maintaining the same ultimate should be privatized. These studies cost goal: entertaining private bids for all of about $3,000 per full time job, according to the 850,000 government jobs identified as the director of the National Park Service, and “commercial” (labeled as such because they agencies have been forced to cut back other do not necessarily need to be performed by services to pay for them.46 government employees). “All commercial Of course, there may be instances activities performed by government when potential savings justify such costs. personnel should be subject to the forces of However, the Bush administration has competition,” the revised circular states. moved forward as if privatization were This relentless drive to privatization an end in itself, rather than carefully could force agencies to hold competitions considering agency needs and missions. At when they’re not called for or needed, first, the administration arbitrarily directed wasting hundreds of thousands of dollars federal agencies to open 15 percent of while diverting government personnel all jobs identified as “commercial” to – which among other things must competitive sourcing by 2003. However, the determine the parameters of the work to be administration backed off this plan under performed and comb through prospective pressure from Congress, and instead is bids. Potentially making matters worse, developing “customized” targets for each the revised circular puts in place new

Privatizing the National Park Service testified Bill Wade, former superintendent of The National Park Service (NPS) might Shenandoah National Park, before the Senate be forced to cut back visitor services, National Parks Subcommittee.49 dismiss dedicated staff scientists and The Reagan, Bush I, and Clinton technical experts, and reduce the diversity administrations all conducted studies of its workforce as a result of the Bush concluding that the National Park Service administration’s aggressive push for was already turning over the appropriate jobs privatization of government services. to private contractors, including operation In December 2002, the Office of of hotels, gift shops, restaurants, and gas Management and Budget directed NPS to stations.50 Nonetheless, NPS is being forced to examine 1,708 full-time positions by the end pay for this new round of privatization studies of FY 2004. Some months later, NPS Director – which run about $3,000 per position studied Fran Mainella announced that 900 jobs were – out of its already cash-strapped budget; in already lined up for immediate privatization a memo to officials at the Department of the with another 1,323 jobs slated for study.47 Interior, Mainella suggested that cutbacks Most of these 2,000-plus jobs, which affecting “visitor services and seasonal represent 13 percent of the Park Service’s operations” would be necessary as a result.51 total workforce, are maintenance and (NPS already operates with only two-thirds administrative positions, but the list also of the funding required to properly maintain includes hundreds of archeologists, scientists, parks, according to the National Parks historians and environmental experts.48 This Conservation Association, which believes is especially alarming because for-profit that an additional $600 million is needed companies will inevitably be more interested annually.52) in making a profit than protecting the parks. Mainella also expressed concern that “What is at risk is reducing a once proud, privatization could negatively impact diversity highly productive workforce in an agency with among the NPS workforce, since women and immense public respect and admiration, into minorities hold a large number of the jobs a run-of-the-mill government bureaucracy,” being studied.

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deadlines for competitions, requiring those billions of dollars in grants to state and involving 65 or fewer jobs to be completed local governments.53 in 90 days, while larger competitions must be completed in a year (previously Secret Contracts competitions were required to be completed for Iraq in a “reasonable” time). As the numbers of competitions skyrocket, this could present Before bombs even began falling on an overwhelming burden in the absence Baghdad, the Bush administration awarded a of significant new resources. Moreover, secret, no-bid contract to repair and operate once contracts are awarded, they must be Iraq’s oil infrastructure – worth up to $7 billion monitored for performance and compliance. – to Kellog Brown & Root (KBR), a subsidiary of Halliburton, the world’s largest oil services • Reduces accountability for government and construction company. work. Congress carefully monitors federal Typically, when the government awards employees and their work through the such a contract, particularly one of this size, budget and appropriations process. Private it releases a project description on which companies, however, are subject to far anyone can bid. Prospective contractors less scrutiny. are then evaluated based on their quality, When the government contracts out reliability, and price. services, it loses the capacity to directly The fact that this process was not adhered obtain information about the work being to – that KBR was handpicked by a special performed. If a private company is administration task force – has led to concerns performing services for the government, that favoritism played a role. Vice President problems with service delivery are more Cheney, after all, led Halliburton prior to the difficult to address than when work is 2000 election and collected more than $33 performed in-house. million in stock following his departure.54 In In late 2003, Congress moved on fact, Cheney continues to receive deferred a bipartisan basis to block part of the compensation from the company worth administration’s plan and bring some balance more than $160,000 a year,55 and retains to the process through language added stock options of more than $18 million.56 The to the FY 2004 spending bill covering the White House quickly denied charges that the Transportation and Treasury departments. vice president was involved, yet suspicion Specifically, this language sought to restore grew as the administration refused to release the requirement that private bids show even basic information about the deal with savings of at least 10 percent or $10 million, KBR, and later defended the company – and and provide government workers the right awarded more taxpayer dollars – after to appeal to the General Accounting Office massive overcharging was uncovered. if they lose their jobs to private contractors. However, President Bush responded with a Details Withheld veto threat, blocking the bill from moving The contract, issued by the U.S. Army forward, and eventually House and Senate Corps of Engineers, was shrouded in secrecy negotiators removed the offending language. from the beginning – it was signed March Likewise, the president used a veto 8, 2003, but wasn’t publicly announced until threat to block a provision on the Senate weeks later, on March 24.57 Even then, the version of the Commerce-Justice-State Corps released only a vague description of appropriations bill that would have the work to be performed. The Corps did prohibited competitive sourcing at DOJ’s not reveal the potential value of the contract Office of Justice Programs, a 700-person until April 8, a disclosure that came only office that distributes and monitors in response to questions from Rep. Henry

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Waxman (D-CA). (As of November 2003, the repairing and continuing operations of Corps had awarded KBR task orders worth the Iraqi oil infrastructure. This contract, $1.59 billion under the contract.58) the Logistics Civil Augmentation Program As interest in the contract grew, the (LOGCAP), which was awarded competitively administration continued to stonewall and in December 2001, allows the company to in certain instances provided misleading provide a wide range of logistical services to information. This was possible because the the Army. KBR contract and the documents justifying The Corps claims it did not learn until and approving the Corps’ decision to forego February 2003 – less than two months competitive bidding are classified and before the start of the war – that it was unavailable for public review. responsible for executing the plan to repair Initial reports from the Bush and operate Iraq’s oil infrastructure. “When administration, as well as Halliburton, the Corps considered ways to accomplish indicated that the deal involved only short- this mission,” Lieutenant Army General term emergency work – putting out oil well Robert Flowers explained, “there was only fires and repairing damage. In May, however, one practical alternative: use KBR who was the Corps acknowledged that the deal carried already mobilized in the region and was fully a two-year term, and included “operation knowledgeable of the mission.”64 of facilities” and “distribution of products,” As war rapidly approached, a task such allowing KBR to profit from producing and as putting out oil-well fires may have been distributing Iraqi oil.59 urgent enough to justify the circumvention of Shortly thereafter, the administration standard procedures. It is not clear, however, declared that the KBR deal would be cut why long-range tasks, such as the distribution short and replaced with a contract awarded of Iraqi oil, were included in the KBR contract through competitive bidding, likely at the end and not opened for competition. of August, according to an administration official.60 In June, however, Gary Loew, An Open-Ended Contract planning director of the Corps’ project, cast On top of the March contract, KBR has doubt on this assurance, stating, “There also earned billions under the earlier LOGCAP may not be time to actually award a second contract for Iraq “task orders” that are not contract.”61 Sure enough, in late October, subject to competitive bidding. For instance, the administration announced that KBR this LOGCAP work has included the repair of a would retain its no-bid contract longer than presidential palace being used by Americans,65 expected,62 citing sabotage of oil facilities and as well as assistance to the Pentagon’s a need to rethink the scope of the work. Office of Reconstruction and Humanitarian Without competitive bidding, U.S. taxpayers Assistance (ORHA).66 When asked specifically cannot be assured that they are getting the what is covered by KBR’s assignment to assist best plan at the best price. In this case, the ORHA, an official with the reconstruction administration claimed that it had little choice agency replied, “I guess the real question is, – that quick action was required and that KBR what doesn’t it cover?”67 was in the best position to deliver. At least three of the task orders given to During the Gulf War, acts of sabotage KBR were each worth $60 million or more, by Iraqi troops damaged more than 700 oil yet they were treated merely as small duties wells. In November 2002, as war with Iraq to be carried out under the LOGCAP. “One of loomed, the Pentagon began planning for the unique features of the LOGCAP contract is a similar scenario.63 Under a preexisting that it apparently allowed Halliburton to profit contract, the U.S. Army Material Command from virtually every phase of the war with directed Brown & Root Services, a division Iraq,” noted Waxman in a letter to the acting of KBR, to develop contingency plans for secretary of the Army.68 All told, KBR has

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received about $4 billion in task orders under The Halliburton/KBR Record the LOGCAP for Iraq work. • In a 1997 report, the General Accounting Accountability Issues Office revealed that Brown & Root Services The LOGCAP contract was awarded – performing work under an earlier LOGCAP to KBR on a “cost-plus” basis, meaning contract in the Balkans – charged the Army that the contractor receives payment for $85.98 per sheet of plywood. The actual its expenditures as well as an additional price tag was $14 per sheet.74 percentage of those costs. Such awards are susceptible to abuse because they • In performing work in Kosovo, Brown & give companies an incentive to pad their Root Services overcharged taxpayers profits by increasing costs. The fact that the by overstaffing projects and providing administration decided to award work to KBR more goods and services than necessary, in this way was particularly alarming given the according to a 2000 GAO report. For company’s track record (see box). example, it provided nearly twice the Not surprisingly, there is mounting electricity necessary for the Army’s facilities evidence that KBR is exploiting its cost-plus and cleaned offices four times a day.75 arrangement. In October 2003, Waxman and Rep. John Dingell (D-MI) discovered • A former employee charges that Brown that KBR was “inflating gas prices at a great & Root defrauded the government out of cost to American taxpayers,” charging the millions by inflating prices for repairs and government $2.65 a gallon for over 60 million maintenance at the former Fort Ord, Calif., gallons of gasoline imported from Kuwait military installation.76 The Justice Department into Iraq. and the Department of Defense reportedly Experts report that the cost of buying and initiated an investigation of the matter. transporting gas into Iraq should cost less than $1.00 per gallon.69 The Iraqi oil company, the State Oil Marketing Organization (SOMO), received a brand new $1.2 billion contract to for example, pays only 97 cents per gallon rebuild southern Iraq’s oil industry.77 Then, to import gas from Kuwait,70 and gasoline the following month, the Wall Street Journal imported from Kuwait is sold inside Iraq for as revealed that the company had overcharged little as four to 15 cents a gallon.71 the government for feeding troops at a Kuwaiti Amazingly, the Corps has continued military base by $16 million in one month alone. to publicly defend KBR from charges of This problem is not an isolated incident overbilling; one spokesman said the company for Halliburton, but rather “it is systemic,” is getting “the best price possible” for the according to the Defense Contract Audit fuel.72 Nonetheless, the Corps subsequently Agency. Halliburton whistleblowers told announced that it would transfer the job to the Waxman that the company’s motto was, Pentagon’s Defense Energy Support Center, “Don’t worry. It’s cost-plus.”78 which has said it can import gasoline into Iraq for less than half the price.73 More Secret Deals In the months since, two new Halliburton The Bush administration followed scandals have emerged. In January 2004, the a familiar pattern in awarding contracts company acknowledged that two employees to repair Iraq’s crumbling infrastructure had taken kickbacks involving a Kuwaiti (including water systems, power plants, roads subcontractor, leading to overcharges of $6.3 and bridges, and schools and hospitals). In million. (The employees were dismissed and particular, this included a $680 million contract the money returned, according to Halliburton.) won by the engineering-construction firm Nonetheless, a day later, the company Bechtel Corp. – a company that shelled out

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more than $770,000 to Republicans between even though it has limited experience doing 1999 and 2002.79 this sort of work. This contract, the largest of the post- Telecom competitors cried foul when they Iraq awards, was the product of a closed learned of the contract, objecting not only to process in which the administration the secretive nature of the deal, but also to secretly invited a number of politically well- the government’s indifference to WorldCom’s connected companies to submit bids. These disgraceful record. In 2003, WorldCom agreed lucky invitees – Bechtel, Fluor Corp., KBR, to pay a $500 million fine to the Securities Louis Berger Group Inc., Parsons Corp., and Exchange Commission for overstating and Washington Group International Inc. its cash flow by nearly $4 billion between – contributed a combined $3.6 million in 2000 and 2002. This accounting scandal sent individual, PAC, and soft money donations the company’s stock plummeting and led between 1999 and 2002, 66 percent of which WorldCom to file for bankruptcy in 2002.81 went to Republicans.80 Of these companies, In July 2003, the General Services Bechtel – the ultimate winner – contributed Administration temporarily banned MCI/ the largest amount of money to Republicans. WorldCom from receiving new and renewed Bechtel also claims George Schultz, former contracts after determining that the company secretary of State under the first Bush “lacks the necessary controls and business administration, as a board member. ethics.”82 Nonetheless, the administration Scandal-ridden telecommunications firm has continued to show preference to MCI/ MCI, formerly known as WorldCom, has also WorldCom, which contributed nearly $2.5 profited from the administration’s backroom million to Republicans from 1997 to 2002.83 deals – receiving a $45 million no-bid contract During the first three months of this contracting to construct a small wireless network in Iraq, ban, federal agencies awarded the company

Questions Over Port Security Grant “That was a part of the application, In June 2003, the Department of that the information we provided in that Homeland Security awarded a giant $13.5 application would remain confidential, so million port-security grant to Citgo Petroleum we’re abiding by that,” said Kent Young, Corp. for its refinery at Lake Charles, La.,84 a spokesman at Citgo’s Tulsa, Okla., outweighing nine grants for Los Angeles, the headquarters. “It’s a part of the application busiest container port in the country, as well process and it’s stated in the application”88 as the 17 grants won by other businesses and Young also noted that the information has port authorities in Louisiana. 85 been declared off-limits under the Freedom of “I could contract a private security Information Act.89 company to provide round-the-clock Citgo, a subsidiary of the national oil surveillance for the entire waterway for company of Venezuela, was also given smaller two years on that size of a grant,” said Jim grants for work at plants in Georgia and Texas, Robinson, director of navigation and security receiving a total of $15.7 million, far more for the state-run Port of Lake Charles. “But I than any other company.90 Sunoco Inc. was doubt that’s what they’re going to spend it on.” second, with $5.1 million in grants for facilities Out of 1,112 applicants for $245 million in Philadelphia and the Houston area.91 in port security funds, only one in five landed Without additional information, there can grants, and most of these awards were worth be little assurance that port-security funds less than $1 million.86 Homeland Security would are being well spent. The administration and not disclose its reasons for awarding Citgo such its awardees are operating in the absence of a disproportionate amount,87 nor would Citgo public accountability. say what it intended to do with the money.

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more than $100 million using a little-known Unanswered Questions waiver process to extend existing contracts.92 The public cannot be assured that KBR, “I’m angry about this,” responded Bechtel, and MCI/WorldCom represent Rep. John Sweeney (R-NY). “There is a the best options in the absence of open codependence there. WorldCom is very adept competitive bidding. As a result, questions at playing the old inside-the-Beltway game. linger over whether favoritism played a role. They’ve got friends in high places.”93 In the case of KBR, why did the Of course, other Iraq contractors also administration decide to forgo competitive play this inside game. The Hatch Act forbids bidding even for long-term work? Why has so most government employees from giving to much work been routed through KBR’s open- political campaigns. However, government ended LOGCAP contract, which includes contractors are under no such constraints. The incentives to run up costs? Why was the roughly 70 contractors working in Iraq gave contract for infrastructure repairs closed to more money to President Bush than any other just five handpicked companies (all generous candidate in the last 12 years, with Halliburton contributors to the Republican Party)? Why donating $17,677 to the 2000 campaign.94 In was MCI/WorldCom awarded a no-bid the three months after Saddam Hussein’s contract given its suspect qualifications and ouster, Halliburton, Bechtel, and DynCorp even more suspect ethical transgressions? International (which received a $50 million These questions can only be answered contract for civilian law enforcement) together if the administration lifts the veil of gave $82,600 in contributions to congressional secrecy and fully explains the contracts. candidates, nearly four times the amount of Unfortunately, this seems unlikely the previous three months. considering the track record.

Sweetheart Deal for Boeing lease deal for 100 planes. Druyun agreed In 2003, Boeing Co. landed a deal worth to promote the leasing idea on Capitol Hill, about $17 billion to lease planes to the U.S. and free up money by curtailing a program Air Force despite studies that showed the used to modernize existing tankers – an planes weren’t needed and that the contract arrangement Boeing and the Air Force was highly overpriced.95 OMB had initially acknowledged would “retire flightworthy opposed the deal, but relented after White tankers early to procure new ones.”97 House Chief of Staff Andrew Card intervened Boeing subsequently hired Druyun as its on the president’s behalf. Later it was deputy general manager for missile defense revealed that Boeing might have improperly systems, which ultimately raised questions influenced the contract through a job offer of impropriety. to an Air Force acquisitions official, and the The Air Force pursued the leasing plan administration, following a congressional even though there appeared to be no need outcry, decided to delay execution pending for it. In fact, in 2001, the Air Force itself an investigation. determined that existing tankers would The deal emerged in February 2001 be usable through 2040 and that no new when Boeing submitted an unsolicited bid purchases would be needed until after 2010. that proposed converting 36 Boeing 767s to (The Air Force also did not include tankers on aerial refueling tankers at $124.5 million per its FY 2002 “unfunded priorities” list, which plane.96 However, the Air Force could not details weapons that the Air Force needs afford to buy the tankers, so in September but cannot afford,98 and made no mention 2001, Boeing executives met with a senior of a need for tankers in hearings held by Air Force acquisitions official, Darleen Senate authorization and appropriations Druyun, and instead worked out a 10-year committees.99) Likewise, the General

128 129 Irresponsible Contracting

Sweetheart Deal for Boeing continued reducing the original $21 billion price tag by Accounting Office concluded in May 2002 $4 billion.109 This deal was included in the FY that with relatively inexpensive upgrades, the 2004 Defense spending bill, which was signed Air Force would not need to begin replacing by President Bush on Nov. 24, 2003. the current fleet of 545 KC-135 tankers The very same day, Boeing announced until 2040.100 Under the lease arrangement, that it had fired Executive Vice President however, tankers would be made available Mike Sears and former Air Force employee beginning in FY 2005.101 Druyun for violating company ethics The Air Force never conducted a formal policies. Apparently, the two had discussed study of alternatives to this deal, as is normally potential employment opportunities for done, nor did it hold a formal competition Druyun while she was still employed by the before handing the contract to Boeing,102 which Pentagon and was in a position to influence was overcharging by at least $21 million per the Boeing contract.110 The company also plane, according to the Institute for Defense found that the two attempted to conceal Analyses, an independent think tank.103 The their communications.111 Shortly thereafter, Congressional Budget Office also found that Boeing’s chairman and chief executive officer, the leasing plan would cost $5.7 billion more Philip Condit, resigned. than an outright purchase of the tankers.104 In response to the scandal, Sens. John At first, Mitch Daniels, then director of McCain (R-AZ) and Peter Fitzgerald (R-IL) the Office of Management and the Budget, sent a letter urging the Pentagon to reassess called the deal “irresponsible,” and in a the multi-billion dollar deal. Subsequently, series of letters to members of Congress, Deputy Secretary of Defense Paul Wolfowitz pointed out that it violated federal leasing announced that the Pentagon would standards,105 OMB rejected the plan in indefinitely delay execution while Pentagon October 2002, telling the Air Force that it Inspector General Joseph Schmitz assesses “was not urgent and would squander billions “any negative impact that improper conduct of dollars.”106 by Mr. Sears and Ms. Druyun may have had Shortly thereafter, however, Card on the negotiation of the contracts that the Air intervened at the direction of President Bush Force proposes to execute.”112 and asked OMB and the Air Force to “resolve Sen. McCain, however, remained uneasy their differences.”107 OMB subsequently and followed up with a letter to Wolfowitz muted its objections, possibly because the expressing his worry that the administration White House saw the deal as a way to bail out was still moving forward.113 an ailing Boeing, which donated $100,000 to “I was concerned about the fact that, as the president’s inaugural fund.108 Boeing had recently as Wednesday, November 26, 2003, seen orders for 767s plummet following the Air Force Acquisitions Chief Dr. Marv Sambur 9/11 terrorist attacks. was prepared to have the contract signed In the fall of 2003, the plan stalled in the immediately – without any further review,” Senate Armed Services Committee, where McCain wrote.114 members raised concerns about the costly McCain also repeated a longstanding arrangement. Eventually, the committee put request for DOD documents related to forth a compromise under which the Air Force the leasing deal.115 Not surprisingly, the would lease 20 tankers and purchase 80, administration was stonewalling.

128 129 Whose Government Is This?

Special interests have taken over our government.government. TTheyhey aarere tthrowinghrowing ooutut ppublicublic safeguardssafeguards aandnd wwritingriting ttheirheir oownwn rrules.ules. TTheyhey aarere lockinglocking downdown informationinformation aandnd scientifiscientifi cc cconclusionsonclusions thatthat mmightight ssuggestuggest ggovernmentovernment ooversight.versight. AAndnd ttheyhey aarere securing backroom contracts devoid of normal accountability protections. This takeover began during the 2000 presidential campaign with a substantial investment in the election of George W. Bush. Energy interests gave $20.7 million; the health care industry kicked in $15.1 million; agribusiness forked over $14.6 million; and auto manufacturers and other transportation interests gave $13.9 million.1 All told, special interests contributed more than $200 million to then Gov. Bush and the Republican National Committee. Following the election, these large-scale donors were rewarded for their generosity with spots on the president’s transition team, and charged with setting the agenda across government agencies. Many of the people representing these industries in the transition were themselves large-scale donors who had bundled more than $100,000 in individual contributions, earning “Pioneer” status. The Department of Energy’s transition team, for instance, included Pioneers Thomas Kuhn, president of the Edison Electric Institute, Anthony Alexander, president of FirstEnergy, and Ken Lay, former CEO of Enron. From this privileged perch, special interests were able to push their friends for key agency positions. Jeffrey Holmstead, a lawyer for electric utilities, became EPA’s air administrator; Steven Griles, a lobbyist for the oil industry, became the deputy secretary of Interior; Mark Rey, a timber industry lobbyist, became head of the Forest Service; and David Lauriski, a mine industry executive, became head of the Mine Safety and Health Administration. Once in place, these special-interest allies literally opened the doors of government for business. In rolling back clean air standards, EPA adopted legal language provided by industry lawyers at Latham & Watkins, Holmstead’s previous employer. Griles pushed to open public land to drilling that chiefl y benefi ted his former clients. Rey did the same in lifting forest protections to allow new clear cutting. And Lauriski moved to roll back black lung and respiratory protections for miners.

130 131 Of course, these are just a few examples. Special interests have taken over our government from top to bottom, turning back years of progress on health, safety and the environment. That this puts the public and our natural resources at significant risk seems to be of little concern to the Bush administration. Rather, the administration appears to view government as an instrument to enrich its political allies. This can be seen most directly in federal contracting and grantmaking. For Iraq reconstruction, the administration set aside secret no-bid contracts for politically well-connected companies, most notoriously Vice President Cheney’s former employer, Halliburton. At the same time, it has thrown out contractor responsibility standards and adopted new rules to steer social-service grants to religious institutions and privatize the federal workforce, threatening to create a modern-day spoils system. Naturally, the administration understands this service to special interests has potential political drawbacks, and has sought to mask its intentions and avoid public scrutiny. This has frequently manifested itself through rhetorical diversions. For instance, the rollback of power-plant emissions standards is called the “Clear Skies Initiative,” while the plan to open public land to clear cutting is called the “Healthy Forests Initiative.” However, far more serious has been the administration’s willingness to withhold information from the public and doctor scientific conclusions. A functioning democracy depends on the free flow of information, allowing the public to participate in government decisions and hold elected officials accountable. A government for special interests, on the other hand, requires the utmost secrecy, lest the public assert its interests. Following this model, the administration has broadly restricted public access to information that might expose irresponsible behavior by special interests, and suppressed scientific findings – on drinking-water contamination, the dangers of global warming, and the environmental consequences of drilling, just to name a few examples – that suggest a need for government intervention. Not surprisingly, special interests intend to keep the government working for them, and are again dolling out tens of millions in campaign cash. Oil, mining and timber interests want even greater access to our public lands. Auto manufacturers want to avoid new fuel efficiency measures and auto safety standards. Meat producers want to hold off stronger testing requirements. And corporate interests across the board want to remove the threat of government oversight and enforcement. We are unlikely to know the full consequences of this special interest takeover for years to come. The SEC was neglected and underfunded through the 1990s before the recent eruption of corporate financial scandals (which have cheated investors out of billions). Corporations came to understand that they could get away with almost anything, and motivated by profits, progressively pushed fraudulent practices to the breaking point.

130 131 The same could happen with the environment, worker health and safety, and protection of our food supply, among other areas of concern. By removing corporate oversight, the Bush administration is inviting irresponsible behavior that could lead to catastrophic consequences. What will happen to the nation’s rivers and streams from no-holds- barred dumping of mining waste? What lies ahead if we continue to turn a blind eye to global warming? How many workers will suffer debilitating injuries from preventable ergonomic hazards? How many people will die from outbreaks of foodborne disease as a result of inadequate meat inspection? If we continue on our present course, we will eventually see these questions answered. A government that acts on behalf of the public, on the other hand, would set standards to head off these dangers and exercise oversight to ensure compliance. This report is part of an effort to reclaim our government from the special interests. The first step is to understand the sweeping, all- encompassing nature of what is happening. The next step is to come together to make our voices heard. Citizens for Sensible Safeguards is a broad coalition of public interest organizations representing a diversity of concerns, including the environment, food safety, consumer protection and American workers. This coalition formed in 1995 in response to Newt Gingrich’s Contract with America, and against all odds, repeatedly stopped regulatory “reform” legislation that sought to block new public and environmental safeguards. We beat back the special interests then, and together we can do it again.

For information on how you can get involved, see the Citizens for Sensible Safeguards web site at www.sensiblesafeguards.org.

132 Endnotes A Record 23 National Academy of Public Administration, A Breath of Rollbacks of Fresh Air: Reviving the New Source Review Program (April 2003) (online at http://www.napawash.org/Pubs/Fresh Air Full Report.pdf). 1 See testimony of Thomas O. McGarity, Professor of 24 Sen. Jim Jeffords, Reaction to Administration’s New Law, University of Texas School of Law, before the House Source Review Proposal (June 13, 2002) (online at http:// Subcommittee on Energy, Policy, Natural Resources and www.senate.gov/~jeffords/press/02/06/06132002nsr.html). Regulatory Affairs of the Committee on Government Reform 25 Center for Responsive Politics and www.whitehouseforsale.org, (March 27, 2001). a project of Public Citizen and Texans for Public Justi ce. 2 At the time, media attention focused heavily on the 26 Memo from Thomas Kuhn, June 22 Reception with Gov. administration’s review of new restrictions on arsenic in drinking George W. Bush (May 27, 1999). water. Yet ironically, or perhaps consequently, this was one of 27 Public Citizen, Bush’s Campaign Ads… Brought to You By the few major Clinton-era standards the administration chose Special Interests (March 2004). to retain. Despite its original inclination to weaken the arsenic 28 See Public Citizen, EPA’s Smoke Screen: How Congress restrictions, the administration could not ignore the resulting Was Given False Information While Campaign Contributions political firestorm. This included a rebuke by Congress and was and Political Connections Gutted a Key Clean Air Rule (October further fueled by a National Academy of Sciences study – done 2003); Michael Weisskopf and Adam Zagorin, Getting the Ear of at the administration’s request – that found even greater health Dick Cheney, Time (Feb. 3, 2002); Pete Yost, Almost All Energy benefits than previously expected. Policy Meetings Participants Were from Industry, Associated Press 3 Natural Resources Defense Council, Bush Administration (March 2, 2002). Errs on Kyoto Global Warming Agreement (online at http:// 29 Eric Pianin, EPA Rule Revisions Roil U.S. Case Against www.nrdc.org/globalwarming/akyotoqa.asp). Power Plants, Washington Post (Oct. 6, 2003). 4 Natural Resources Defense Council, Marrakech Agreement 30 The court is expected to give its final ruling toward the Clears Last Hurdle for Global Warming Treaty (Nov. 10, 2001) end of 2004. (online at http://www.nrdc.org/media/pressreleases/011110.asp). 31 Christopher Lee, Court Blocks Clean Air Change, 5 Donald Evans, Rx For Global Climate Change (Dec. 3, 2002) Washington Post (Dec. 25, 2003). (online at http://www.useu.be/Categories/ClimateChange/Dec0302 32 C. Arden Pope III, et al., Lung Cancer, Cardiopulmonary EvansClimateChange.html) Morality, and Long-Term Exposure to Fine Particulate Air 6 68 Fed. Reg. 34851 (June 11, 2003) Pollution, The Journal of the American Medical Association, Vol. 7 Center for Responsive Politics, The Bush Administration: 287 No. 9 (March 6, 2002). Corporate Connections (online at http://www.opensecrets.org/ 33 67 Fed. Reg. 80185 (Dec. 31, 2002) bush/cabinet/cabinet.evans.asp) 34 Sierra Club, Power Ties (online at http:// 8 Center for Responsive Politics, A Money in Politics www.sierraclub.org/sierra/200111/lol8.asp ) Backgrounder on the Energy Industry (5/16/01) (online at http: 35 Bruce Barcott, Changing All the Rules, New York Times //www.opensecrets.org/pressreleases/energybriefing.htm). Magazine (April 4, 2004). 9 National Academy of Sciences, Planning Climate and 36 Democratic Policy Committee, A Sweetheart Deal: How Global Change Research: A Review of the Draft US Climate the Republicans Have Turned the GOVERNMENT Over to Special Change Science Program Strategic Plan (2003). Interests (Feb. 14, 2003). 10 Texas Environmental Profiles, “Major Stationary Sources 37 Natural Resources Defense Council, The Bush of Air Pollution” (1999). Online at http://www.texasep.org/html/air/ Administration’s Air Pollution Plan (Sept. 5, 2003) (online at http: air_6maj.html //www.nrdc.org/air/pollution/qbushplan.asp). 11 Chemical Week, OMG, Bayer, and Cabot Cited for 38 Natural Resources Defense Council, Untangling Exploitation in Africa (Oct. 30, 2002). the Accounting Gimmicks in White House Global Warming, 12 Mother Jones, Mike Smith, Assistant Secretary for Fossil Pollution Plans (February 2002) (online at http://www.nrdc.org/ Energy (Sept. 1, 2003) (online at http://www.motherjones.com/ globalWarming/agwcon.asp). news/featurex/2003/09/smith.html). 39 Jeff Nesmith and Mike Boyer, Utilities Push Clear Skies 13 Smith is an outspoken proponent for drilling in the Arctic Act, Cincinnati Enquirer (July 5, 2003). National Wildlife Refuge. 40 Email message obtained by Clean Air Trust available at 14 Robert S. McIntyre, One for Oil, American Prospect (March http://www.cleanairtrust.org/eei.email.html. 11, 2002). 41 See web site at http://www.cleanerair4u.org/eei/. 15 Jake Tapper, Poisoned Fairways, Salon.com (Jan. 31, 42 Earthjustice, Three Cases Speak Volumes About New EPA 2003). Choice (Aug. 13, 2003) (online at http://www.earthjustice.org/news/ 16 Earthjustice, White House Watch Administration Profiles: display.html?ID=661). Jean-Marie Peltier (2002). 43 Much of what follows draws from an analysis by the 17 General Accounting Office, Air Pollution: Emissions from Natural Resources Defense Council, EPA’s Mercury Proposal: More Older Electricity Generating Units (June 2002) (online at http: Toxic Pollution for a Longer Time (Dec. 5, 2003) (online at http: //www.gao.gov/new.items/d02709.pdf). //www.nrdc.org/media/pressreleases/031205.asp). 18 Natural Resources Defense Council, Southern’s 44 Tom Hamburger and Alan C. Miller, Mercury Emissions Fingerprints Seen on Energy Policy (March 28, 2002) (online at Rule Geared to Benefit Industry, Staffers Say, Los Angeles Times http://www.nrdc.org/news/newsDetails.asp?nID=584). (March 16, 2004); see also Eric Pianin, Proposed Mercury Rules 19 U.S. PIRG, Southern Company: A Giant Among Polluters Bear Industry Mark, Washington Post (Jan. 31, 2004). (April 3, 2001) (online at http://www.pirg.org/reports/enviro/ 45 Id. southern/giantpolluters.html). 46 Id. 20 Eric Pianin and Dan Morgan, EPA Will Ease Coal Plant 47 Estimates from the Natural Resources Defense Council Rules, Washington Post (March 18, 2002). based on data from the Chlorine Institute, Sixth Annual Report to 21 Id. EPA (May 12, 2003), and EPA’s Toxics Release Inventory (online at 22 Eric Pianin, Clean-Air Ruling Puts Blame on Ohio Utility, http://www.epa.gov/tri/). Washington Post (Aug. 8, 2003). 48 One of these plants is owned by Occidental Chemical,

133 whose former CEO and president, J. Roger Hirl, was a 2000 75 Earthjustice, White House Watch Administration Profiles: Pioneer. Mike Parker (2002). 49 Natural Resources Defense Council, EPA Fialing to Protect 76 Id. Americans from Chlorine Plant Mercury Pollution, According 77 Earthjustice, Bush Administration Proposes Rewriting of to NRDC-Sierra Club Lawsuit (Feb. 17, 2004) (online at http: Stream Protection Rule In Favor of Mountaintop Removal Coal //www.nrdc.org/media/pressreleases/040217.asp). Mining (Jan. 7, 2004) (online at http://www.earthjustice.org/news/ 50 The Clean Air Act allows EPA to “delist” a hazardous display.html?ID=756). pollutant only if the agency finds that no emissions from any 78 Department of the Interior, Memo: Mill Site Location and one source will “exceed a level which is adequate to protect Patenting Under the 1872 Mining Law (Oct. 7, 2003) (online at public health with an ample margin of safety and no adverse http://www.doi.gov/patenting.pdf). environmental effect will result from emissions from any source.” 79 Democratic Policy Committee, supra note 36. Indeed, the administration must know it’s disobeying the law; after 80 Earthjustice, White House Watch Administration Profiles: all, why propose the Clear Skies Initiative to Congress if it already William Geary Myers, III (2002). possessed the necessary legal authority to move forward? 81 Mineral Policy Center, Unlimited Toxic Waste Dumps 51 Letter to EPA Administrator Micheal Leavitt from Eric Allowed on Public Lands (Oct. 10, 2003). Schaeffer, director of the Environmental Integrity Project (Jan. 82 66 Fed. Reg. 54833 (Oct. 30, 2001) 21, 2004) (online at http://www.environmentalintegrity.org/pubs/ 83 John Heilprin, Interior Secretary Urges Congress to leavitt_mercury_letter.pdf); also see EPA chart at http://www.enviro Reform Mining Rules, Associated Press (Dec. 11, 2001). nmentalintegrity.org/pubs/Mercury_Chart_1-21-04.pdf. 84 Earthjustice, White House Watch Administration Profiles: 52 Fund for Animals v. Norton, 294 F. Supp. 2d 92 (D.D.C. Rebecca W. Watson (2002). 2003) (online at http://www.dcd.uscourts.gov/02-2367.pdf). 85 Natural Resources Defense Council, Rewriting the Rules, 53 Julie Cart, Expanded Snowmobile Use in Yellowstone 3rd Annual Edition (April 2004). Halted, Los Angeles Times (Dec. 17, 2003) 86 Id. 54 Rene Sanchez, Judge Rejects Bush’s Park Plan, 87 EPA Toxics Release Inventory. Washington Post (Dec. 18, 2003). 88 Mineral Policy Ctr. v. Norton, 292 F. Supp. 2d 30 (D.D.C. 55 Statement by Sen. Olympia Snowe (Dec. 15, 2003) (online 2003). at http://snowe.senate.gov/prt_environment.htm). 89 Earthjustice & Public Campaign, PAYBACKS (September 56 66 Fed. Reg. 3335-3356 (Jan. 12, 2001) 2002); Public Citizen, supra note 27. 57 Natural Resources Def. Council, Inc. v. Abraham, 355 F.3d 90 Natural Resources Defense Council, Data Show Industry 179 (2d. Cir. 2004). had Extensive Access to Cheney’s Energy Task Force (May 58 See statement online at http://caag.state.ca.us/newsalerts/ 21, 2002) (online at http://www.nrdc.org/media/pressreleases/ 2004/04-005.htm. 020521.asp). 59 Natural Resources Defense Council, Press Backgrounder: 91 Natural Resources Defense Council, Heavily Censored The Benefits of Reinstating the Clinton Air Conditioner Standard Energy Department Papers Show Industry is the Real Author (Jan. 16, 2004) (online at http://www.nrdc.org/media/pressreleases/ of Administration’s Energy Task Force Report (March 27, 2002) 040116.asp). (online at http://www.nrdc.org/media/pressreleases/020327.asp). 60 Peter Behr, Air Conditioner Energy Standard to be 92 OMB Watch, Transition Advisory Teams (online at http: Relaxed, Washington Post (April 14, 2001). //www.ombwatch.org/ombwatcher/Transition.pdf). 61 Letter from Linda Fisher, former EPA Deputy 93 www.whitehouseforsale.org Administrator, to Ms. Brenda Edwards-Jones, Department of 94 California v. Norton, 311 F.3d 1162 (9th Cir. 2002). The Energy (online at http://www.ombwatch.org/regs/2001/epa- administration declined to appeal the case, brought by the state of doe.html). California and environmental groups, to the Supreme Court. 62 Floor Statement of Sen. Jeff Bingaman (Oct. 95 Natural Resources Defense Council, The Bush Energy 31, 2001)(online at http://energy.senate.gov/news/dem_ Plan & America’s Public Lands (Dec. 23, 2003) (online at http: release.cfm?id=179386). //www.nrdc.org/land/use/qwest.asp). 63 Id. 96 Don Van Natta, Jr., and Neela Banerjee, Bush Policies 64 Tom Hamburger, Political Energy: A Coal-Fired Crusade Have Been Good to Energy Industry, New York Times (April 21, Helped Bring Bush A Crucial Victory, Wall Street Journal (June 13, 2002). 2001). 97 Natural Resources Defense Council, BLM Approved 65 Center for Responsive Politics, Mining: Long-term Powder River Basin Development (April 30, 2003). Contribution Trends (online at http://www.opensecrets.org/ 98 Michael Grunwald, Interior Official’s Memo Raises Conflict industries/indus.asp?ind=E04). Issue, Washington Post (May 25, 2002). 66 Center for Responsive Politics and 99 id. www.whitehouseforsale.org, supra note 25. 100 See Griles recusal agreement online at http:// 67 Tom Hamburger, Political Energy: A Coal-Fired Crusade www.firegriles.com/pdf/griles-recusal.pdf. Helped Bring Bush A Crucial Victory, Wall Street Journal (June 13, 101 Earthjustice, White House Watch Administration Profiles: 2001). J. Steven Griles (2002). 68 Public Citizen, supra note 27. 102 Id. 69 Id. 103 Eric Pianin, Administration Official’s Lobbying Ties 70 67 Fed. Reg. 31129 (May 9, 2002) Decried, Washington Post (Sept. 25, 2002); Jeffrey St. Clair, Meet 71 Letter from Reps. Christopher Shays, Jim Ramstad, James Steven Griles: Big Oil’s Inside Man, Counterpunch (June 28, 2003) A. Leach, Nancy L. Johnson, Benjamin A. Gilman, Stephen Horn, (online at http://www.counterpunch.org/stclair06282003.html). Constance Morella, Wayne T. Gilchrest, Sherwood L. Boehlert, 104 Environmental Media Services, Environmental, Ethics Marge Roukema, Sue W. Kelly, and Mark Foley to President Bush Groups Call for Special Counsel to Conduct Criminal Investigation (March 25, 2002) (online at http://www.ombwatch.org/regs/2002/ of Deputy Interior Secretary’s Conduct (June 3, 2003) (online at 032502miningltr1.pdf and http://www.ombwatch.org/regs/2002/ http://www.ems.org/interior/griles_release.html). 032502miningltr2.pdf). 105 Campaign to Protect America’s Lands, BLM Plan Changed 72 Kentuckians for the Commonwealth v. Rivenburgh, 204 F. to Suit Donor (March 4, 2004) (online at http://www.protectamerica Supp. 2d 927 (S.D.W.Va. 2002). slands.org/special_blmotero.asp). 73 Kentuckians for the Commonwealth v. Rivenburgh, 317 106 68 Fed. Reg. 67467 (Dec. 2, 2003) F.3d 425, 439 (4th Cir. 2003). 107 John Heilprin, New Plan to Drill for Oil, Gas In Alaska, 74 69 Fed. Reg. 1036 (Jan. 7, 2004). Seattle Post-Intelligencer (Nov. 21, 2003).

134 135 108 Earthjustice, Bush Administration Makes Fresh Grab for 145 Natural Resources Defense Council, Corps of Engineers Alaska Oil (Jan. 22, 2004) (online at http://www.earthjustice.org/ Ignores “No Net Loss” Wetlands Policy (Nov. 2, 2001) (online at news/display.html?ID=765). http://www.nrdc.org/bushrecord/articles/br_482.asp), 109 Maureen Clark, Norton Defends Choice for Special 146 68 Federal Register 1991-1998 (Jan. 15, 2003). Assistant to Alaska, Juneau Empire Online (June 21, 2001). 147The following examples are borrowed with permission 110 Earthjustice, Bush Administration Makes Fresh Grab for from Public Citizen, supra note 27. Alaska Oil (Jan. 22, 2004) (online at http://www.earthjustice.org/ 148 Resignation statement of Bruce Boler (online at http: news/display.html?ID=765). //www.peer.org/EPA/Boler_Statement.html). 111 Sierra Magazine, Power Ties, (Nov./Dec. 2001) (online at 149 This analysis is drawn from the Natural Resources http://www.sierraclub.org/sierra/200111/lol8.asp). Defense Council, EPA Proposal Allowing Water Treatment Plants 112 Juliet Eilperin, Utah Oil and Gas Leases Stir Criticism, to Discharge Partially Treated Sewage Threatens Health, says Washington Post (March 1, 2004). NRDC (Nov. 3, 2003) (online at http://www.nrdc.org/media/ 113 Environmental Working Group, Website Reveals Size, pressreleases/031103.asp) Scope and Locations of Utah Public Land Giveaways To Oil and 150 Id. Gas Companies (Feb. 18, 2004) (online at http://www.ewg.org/ 151Solid Waste Agency v. United States Army Corps of reports/UT_oil&gas/). Eng’rs, 531 U.S. 159 (2001). 114 Cummings v. Norton, No. 2:99-CV-0321PGC, 2003 U.S. 152 Eric Pianin, EPA Scraps Changes to Clean Water Act, Dist. LEXIS 19433 (D. Utah Oct. 20, 2003). Washington Post (Dec. 17, 2003). 115 Natural Resources Defense Council, An Environmental 153 Daniel B. Wood, US Military Eyes More Environmental Profile: Gale Ann Norton (Jan. 12, 2001). Leeway, Christian Science Monitor (June 3, 2002). 116 Center for Responsive Politics, Contributors to Gale 154 These laws include the Endangered Species Act; Norton’s ‘96 Senate Run (Jan. 11, 2001) (online at http:// the Marine Mammal Protection Act; the Clean Air Act; the www.opensecrets.org/alerts/v6/alertv6_05.asp). Comprehensive Environmental Restoration, Compensation, and 117 President Nixon signed NEPA into law in 1970. Liability Act; and the Resource Conservation and Recovery Act. 118 67 Fed. Reg. 72769 (Dec. 6, 2002) 155 Paul Wolfowitz, Deputy Secretary of Defense, 119 Earthjustice, White House Watch Administration Profiles: Consideration of Requests for Use of Existing Exemptions Mark Rey, (2002). Under Federal Environmental Laws (Mar. 7, 2003) (online at http: 120 Id. //www.peer.org/Military/Wolfowitz_memo.pdf ). 121 68 Fed. Reg. 33581 (June 4, 2003) 156 Public Employees for Environmental Responsibility, 122 68 Fed. Reg. 44597 (July 29, 2003) Pentagon to Invoke “National Security” Exemptions in 123 69 Fed. Reg. 1529 (Jan. 9, 2004) Environmental Laws (Mar. 20, 2003) (online at http://www.peer.org/ 124 Defenders of Wildlife, Sabotaging the Endangered press/324.html). Species Act: How the Bush Administration Uses the Judicial 157 Earthjustice, White House Watch Administration Profiles: System to Undermine Wildlife Protections (December 2003) John Paul Woodley (2002). (online at http://www.defenders.org/wildlife/esa/report/). 158 Earthjustice, White House Watch Administration Profiles: 125 This includes two separate public comment periods. Donald Schregardus. 126 Natural Resources Defense Council, supra note 86. 159 William Sanjour, Bush Environmental Enforcement 127 Earthjustice, Earthjustice Defends Against Major Appointee Is Bad News, TomPaine.com (July 26, 2001). Assaults on Roadless Rule (July 15, 2003) (online at http:// 160 Id. www.earthjustice.org/news/display.html?ID=640). 161 Eric Pianin, Environmental Exemptions Sought, 128 Dan Berman, Feds Will Not Appeal Ruling Striking Down Washington Post (Mar. 6, 2003). Roadless Rule, Greenwire (Sept. 15, 2003). 162 Pentagon Takes First Steps Toward Tackling Pollution, 129 Natural Resources Defense Council, supra note 85. Boston Globe (Sept. 9, 1990). 130 Id. 163 65 Fed. Reg. 68261 (Nov. 14, 2000) 131 69 Fed. Reg. 2593 (June 5, 2003) 164 AFL-CIO, Women Workers Need An Ergo Standard 132 68 Fed. Reg. 68451 (Dec. 8, 2003) (online at http://www.aflcio.org/yourjobeconomy/safety/ergo/ 133 This analysis is drawn from Earthjustice, Bush ergowomen.cfm). Administration Proposes Weakening Grazing Rules (Feb. 5, 2004) 165 AFL-CIO, Big Business Influence on Congressional (online at http://www.earthjustice.org/news/display.html?ID=774). Ergonomics Opponents (online at http://www.aflcio.org/ 134 Natural Resources Defense Council, supra note 86. yourjobeconomy/safety/ergo/upload/ergo_campaign.pdf). 135 Earthjustice, Quick Facts About Grazing (online at http: 166 This included Dole Food CO; NASD (the parent company //www.earthjustice.org/backgrounder/display.html?ID=81). of NASDQ); Protective Life; Vencor Inc.; Millipore; Raymond 136 Natural Resources Defense Council, supra note 86. James Financial Corp.; North American Electric Reliability Council; 137 Southeast Alaska Conservation Council, Taxpayer Losses C.R. Bard, Inc.; Clorox; Columbia/HCA Healthcare; Parsons Co.; and Missed Opportunities: How Logging and Road Building in the and Kindmark, Inc. Tongass National Forest Costs Taxpayers Millions (2003) (online at 167 Derrick Wetherell, The Bush 100, Center for http://www.seacc.org/Publications/Subsidy.pdf). Public Integrity (January 16, 2002) (online at http:// 138 Natural Resources Defense Council, Bush Administration www.publicintegrity.org/cgi-bin/WhosWhoSearch.asp?Display=De Backtracking on Policy of “No Net Loss of Wetlands” (Dec. tails&Person_ID=1024). 26, 2002) (online at http://www.nrdc.org/bushrecord/water_ 168 From 1999-2004, the airline industry gave $12.5 million to wetlands.asp). GOP candidates – 61 percent of its total contributions – of which 139 Center for Responsive Politics and www.whitehouseforsa $269,000 went to Bush campaign efforts. Airlines and employees le.org, supra note 25. also gave $169,750 to Bush’s Inaugural Committee, of which 140 Public Citizen, supra note 27. $69,750 was from Northwest. See Center for Responsive Politics 141 67 Federal Register 2019 (Jan. 15, 2002) at http://www.opensecrets.org/industries/indus.asp?Ind=T1100 and 142 Michael Grunwald, White House Relaxes Rules on http://www.opensecrets.org/2000elect/other/bush/inaugural.asp. Protection of Wetlands, Washington Post (Jan. 15, 2002). 169 Greenpeace, Monsanto’s Criminal Record for 143 Board on Environmental Studies and Toxicology, Environmental Contamination (April 1997) (online at http:// Compensating For Wetlands Losses Under the Clean Water Act archive.greenpeace.org/~usa/reports/biodiversity/corpcrim.html). (2001). 170 Joshua Green, Ergonomic Enemy, The American 144 U.S. Army Corps of Engineers, Regulatory Guidance Prospect (Sept. 10, 2001). Letter No.01-1 (Oct. 31, 2002). 171 The Center for Responsive Politics, President Bush’s

134 135 First 100 Days: A Look At How the Special Interests Have Fared Nursing Home Residents (Sept. 26, 2003). – Ergonomics (2001). 204 Letter from Rep. Henry Waxman and Sen. Charles 172 OSHA, OSHA Announces Comprehensive Plan to Reduce Grassley to HHS Secretary Tommy Thompson (Sept. 26, 2003) Ergonomics Injuries (April 5, 2002) (online at http://www.osha.gov/ (online at http://www.house.gov/reform/min/pdfs_108/pdf_inves/ pls/oshaweb/owadisp.show_document?p_table=NEWS_ pdf_nursing_hhs_feeding_sept_26_let.pdf). RELEASES&p_id=1230). 205 68 Fed. Reg. 53221 (Sept. 9, 2003) 173 66 Fed. Reg. 5916 (Jan. 19, 2001) 206 Ceci Connolly, Hospital Rule Change Faulted, Washington 174 67 Fed. Reg. 44037 (July 1, 2002) Post (Sept. 4, 2003). 175 International Association of Machinists and Aerospace 207 68 Fed. Reg. 41387 (July 11, 2003) Workers, OSHA Rolls Back Requirements to Record Hearing Loss 208 Food and Drug Administration, FDA Implements (July 31, 2002) (online at http://www.goiam.org/visit.asp?c=3323). Enhanced Regulatory Process to Encourage Science-Based 176 67 Fed. Reg. 77165 (Dec. 17, 2002) Labeling and Competition for Healthier Dietary Choices (July 10, 177 68 Fed. Reg. 38601 (June 30, 2003) 2003) (online at http://www.cfsan.fda.gov/~dms/nuttfbg.html). 178 Cecil E. Roberts, International President, United Mine 209 Public Citizen, Groups Sue FDA Over Weakening Workers of America, New MSHA Dust Rules Attempt to Turn of Health Claims Rule (Sept. 23, 2003) (online at http:// Back the Clock, Charleston Gazette (May 3, 2003) (online at http: www.citizen.org/pressroom/release.cfm?ID=1545). //www.umwa.org/pressreleases/may03/050303.shtml). 210 68 Fed. Reg. 46363 (Aug. 5, 2003) 179 Cecil E. Roberts, International President, United Mine 211 Center for Science in the Public Interest, Olestra Linked Workers of America, MSHA Should Pull the Plug on Proposed to Gastrointestinal Disease (July 15, 2003) (online at http:// Dust Rules, Charleston Gazette (June 1, 2003) (online at http: www.cspinet.org/new/200307151.html). //www.umwa.org/pressreleases/jun03/060203.shtml). 212 One staunch opponent to the COOL requirements is 180 Ken Ward Jr., Massey Avoids Major Financial Hit for Spill, Cargill, whose chairman and CEO, Warren R. Staley, is a 2004 Sunday Gazette-Mail, (Oct. 12, 2003). Bush Pioneer. Cargill met with OMB’s Office of Information 181 Democratic Policy Committee, supra note 36. and Regulatory Affairs about COOL on Oct. 17, 2003 (see http: 182 Id. //www.whitehouse.gov/omb/oira/2040/meetings/172.html). 183 Id. 213 Democratic Policy Committee, supra note 41. 184 Cecil E. Roberts, International President, United Mine 214 Earth Island Inst. v. Evans, 256 F. Supp. 2d 1064 (N.D. Cal. Workers of America, New MSHA Dust Rules Attempt to Turn 2003). Back the Clock, Charleston Gazette (May 3, 2003) (online at http: 215 Earth Island Institute: International Marine Mammal //www.umwa.org/pressreleases/may03/050303.shtml). Project, Pacific Dolphins Make Waves for US Policy on Mexican 185 United Mine Workers of America, UMWA Hails Senate Tuna (Feb. 3, 2004) (online at http://www.earthisland.org/news/ Passage of Legislation Requiring MSHA to Re-Craft Proposed new_news.cfm?newsID=545). Respirable Coal Dust Rule If Final Testing of the Continuous 216 Frank Ahrens, ‘Soldier’s Ethic’ Guides Powell at the FCC, Personal Dust Monitor Proves Successful (Sept. 11, 2003) (online Washington Post (Oct. 15, 2003). at http://www.umwa.org/pressreleases/sep03/091103.shtml). 217 Public Citizen, supra note 27. 186 66 Fed. Reg. 5706 (Jan. 19, 2001) 218 Id. 187 67 Fed. Reg. 47296 (July 19, 2002) 188 MSHA, Metal and NonmetalInterim Diesel Particulate Matter (DPM) Standard: Compliance Q&As (Aug. 5, 2003). 189 White House 68 Fed. Reg. 48668 (Aug. 14, 2003) Roadblock 190 68 Fed. Reg. 22455 (April 28, 2003) 191 Parents Against Tired Truckers, New Rule Will Not 1 Adequately Address Truck Driver Fatigue (April 25, 2003) (online at See OIRA web site at http://www.whitehouse.gov/omb/ http://www.patt.org/news.asp?contentID=351). inforeg. 2 192 Ross Eisenbrey and Jared Bernstein, Eliminating the This is not a comprehensive list of OIRA actions, but just Right to Overtime Pay, Economic Policy Institute (June 2003) a few of the known examples. Unfortunately, many OIRA actions (online at http://www.epinet.org/briefingpapers/flsa_jun03.pdf). are hidden from public scrutiny. For extensive discussion of these 193 Id. examples, see OMB Watch at http://www.ombwatch.org/article/ 194 Eric Pianin, Congress Drops Fight for Overtime, archive/132/. 3 Washington Post (Nov. 22, 2003). OIRA’s review authority flows from presidential executive 195 Leadership Conference on Civil Rights, The Bush order that dates to the first year of the Reagan administration. In Administration Takes Aim: Civil Rights Under Attack, 9 (Apr. 2003) 1993, President Clinton revised and replaced the previous Reagan (online at http://www.civilrights.org/publications/reports/taking_ executive order. Among other things, this limited OIRA reviews to aim/bush_takes_aim.pdf). “major” rules. This executive order (E.O. 12866) remains in place 196 United Farmworkers of Am. v. Chao, 227 F. Supp. 2d 102 today. 4 (D.D.C. 2002). Public Citizen, Inc. v. Mineta, 340 F.3d 39 (U.S. App. , 2003) 197 Center for Responsive Politics and www.whitehouseforsa (Ruling online at http://www.autosafety.org/TPMSRuling.pdf). 5 le.org, supra note 29. Public Citizen, Safeguards at Risk: John Graham and 198 67 Fed. Reg. 53181 (Aug. 14, 2002) Corporate America’s Back Door to the Bush White House 199 65 Fed. Reg. 82461 (Dec. 28, 2000) (March 12, 2001) (online at http://www.citizen.org/documents/ 200 Testimony of Janlori Goldman before the Senate Special grahamrpt.pdf). 6 Committee on Aging (Sept. 23, 2003). Id. 7 201 Jon Dougherty, Medical Privacy Under See letter to Transportation General Counsel Kirk K. Van Assault: Bush Administration Ignoring Pleas To Tighten Tine (Feb. 12, 2002) (online at http://www.whitehouse.gov/omb/ Confidentiality, WorldNetDaily (April 15, 2002) (online at http: inforeg/dot_revised_tire_rtnltr.pdf). 8 //www.worldnetdaily.com/news/article.asp?ARTICLE_ID=27194). Charles M. Farmer, New evidence concerning Fatal crashes The advisory panels were convened by the National Committee of passenger vehicles before and after adding antilock braking on Vital Health Statistics Subcommittee on Privacy and systems, Accident Analysis and Prevention, 33 (2001), 361-369. 9 Confidentiality. OMB Watch, In Rejecting NHTSA Rule, Graham Shows True 202 68 Fed. Reg. 55528 (Sept. 26, 2003) Colors (May 15, 2002) (online at http://www.ombwatch.org/article/ 203 National Citizens’ Coalition for Nursing Home Reform, articleview/739/). 10 NCCNHR Warns HHS Feeding Assistant Regulations Endanger See OIRA meeting records online at http://

136 137 www.whitehouse.gov/omb/oira/0910/meetings.html. epa_sep2001.html). 11 68 Fed. Reg. 58974 (Oct. 10, 2003) 42 Seth Borenstein, Elderly Less Valuable in Cost-Benefit 12 Statement online at http://www.cspinet.org/new/ Analysis, Miami Herald (Dec. 18, 2002). 200310091.html. 43 See, for example, Katharine Q. Seelye and John Tierney 13 OMB Watch, OMB Guts EPA Standards to Limit , E.P.A. Drops Age-Based Cost Studies, New York Times (May 8, Construction Runoff (Sept. 4, 2002) (online at http:// 2003). www.ombwatch.org/article/articleview/1071/1/132/). 44 Rodricks comments at National Academy of Sciences 14 67 Fed. Reg. 42644 (June 24, 2002) workshop (March 22, 2002) (online at http://www7.nationalacadem 15 This decision, which was announced April 1, 2004, is ies.org/stl/4-22-02_Transcript.doc). online at http://www.epa.gov/guide/construction/final-action- 45 Id. fs.htm. 46 Triazine was joined in its challenge by the Kansas Corn 16 OMB Watch, OMB Weakens EPA Proposal to Limit Growers Assn. Fish Kills from Power Plants (Sept. 4, 2002) (online at http:// 47 Graham comments at National Academy of Sciences www.ombwatch.org/article/articleview/1074/1/132/). workshop (March 21, 2002) (online at http://www7.nationalacadem 17 67 Fed. Reg. 17122 (April 9, 2002) ies.org/stl/4-21-02_Transcript.doc). 18 OMB Watch, OMB Waters Down Standards on Factory 48 Id. Farm Runoff (May 28, 2003) (online at http://www.ombwatch.org/ 49 68 Fed. Reg. 54023 (Sept. 15, 2003) article/articleview/1540/1/132/). 50 David Kohn, Foes Say Bush Plan Would Create Debating 19 See OMB web site at http://www.whitehouse.gov/ Society Over Science, Baltimore Sun (Dec. 18, 2003). omb/oira/2040/meetings/81.html. This meeting included a 51 Andrew Schneider, White House Seeks Control on Health, representative from Pilgrim’s Pride, whose board chairman and Safety, St. Louis Post-Dispatch (Jan. 11, 2004). majority owner, Lonnie “Bo” Pilgrim, is a 2004 Bush Pioneer. 52 The original proposal explicitly exempted peer review 20 See Executive Order 12866, issued by President Clinton on from the Federal Advisory Committee Act (FACA). This exemption Sept. 30, 1993. is implicit in the revised proposal; the revised proposal does not 21 Environmental Defense, Snowmobiles: Weak EPA Rules specifically mention FACA, but it lays out criteria for peer review Will Derail Attempts to Curb Pollution (Sept. 13, 2002). that presumably supercede FACA. 22 66 Fed. Reg. 51098 (Oct. 5, 2001) 53 Anthony Robbins, Science for Special Interests, The 23 See letter to Jeffrey R. Holmstead, EPA assistant Boston Globe (Dec. 7, 2003). administrator for air, at http://www.whitehouse.gov/omb/inforeg/ 54 He also cites the Paperwork Reduction Act and Executive spark_engines_epa_sep2001.html. Order 12866 which likewise contain no mention of OIRA-guided 24 Environmental Defense, supra note 21. peer review. 25 See meeting log at http://www.ombwatch.org/regs/2002/ 55 Andrew Schneider, White House Seeks Control on Health, eomtgs2001090601s.gif. Safety, St. Louis Post-Dispatch (Jan. 11, 2004). 26 69 Fed. Reg. 9215 (Feb. 27, 2004) 56 Office of Management and Budget, Informing Regulatory 27 See original submission at http://www.ombwatch.org/ Decisions: 2004 Draft Report to Congress on the Costs and execreport/marinedieselpreamble3.14.pdf. Benefits of Federal Regulations and Unfunded Mandates on 28 OMB Watch, OMB Guts Marine Diesel Rule (Nov. 6, 2002) State, Local, and Tribal Entities (February 2004) (online at http: (online at http://www.ombwatch.org/article/articleview/1172/1/132/). //www.whitehouse.gov/omb/inforeg/draft_2004_cbreport.pdf). 29 65 Fed. Reg. 55684 (May 29, 2002) 30 INTERTANKO press release, INTERTANKO Applauds U.S. Progress Toward Ratification of International Pollution Accords The Toll (May 8, 2002). of Neglect 31 Bluewater Network, A Stacked Deck: Air Pollution from Large Ships (July 17, 2000) (online at http: 1 OMB Watch, Agencies Revise Regulatory Agendas (May 28, //www.bluewaternetwork.org/reports/rep_ss_ships_ 2003) (online at http://www.ombwatch.org/article/articleview/1538/ stackeddeck.pdf). 1/110/). 32 The two industrial categories covered by the rules are 2 See OMB Watch online at http://www.ombwatch.org/ plywood manufacturing and industrial boilers. execreport/docs/Regoutput.pdf. 33 See OIRA meeting logs on air and radiation at http: 3 U.S. PIRG, Protecting Our Hometowns: Preventing //www.whitehouse.gov/omb/oira/2060/meetings.html. Chemical Terrorism in America (March 7, 2002) (online at http: 34 OMB Watch, Industry, OMB Press EPA to Offer Exemptions //uspirg.org/reports/ProtectingourHometowns3_02.pdf). to Clean Air Standards (March 19,2003) (online at http:// 4 Then called the Chemical Manufacturers Association, now www.ombwatch.org/article/articleview/1382/) called the American Chemistry Council. 35 For AF&PA white papers, see concentration- 5 James V. Grimaldi and Guy Gugliotta, Chemical Plants Are based approach at http://www.ombwatch.org/regs/ Feared as Targets, Washington Post (Dec. 16, 2001). 2002/afpa.deminimus.pdf; delisting approach at http: 6 Working Group on Community Right-to-Know, Safer //www.ombwatch.org/regs/2002/afpa.enforceable.pdf; and risk- Chemicals and Processes Remove Terrorist Threats (April 1, 2003) based applicability exemptions at http://www.ombwatch.org/regs/ (online at http://www.crtk.org/library_files/ChemicalSafetyAct.pdf). 2002/afpa.riskbased.pdf. 7 U.S. Chemical Safety and Hazard Investigation Board, 36 Covering auto surface coating and stationary reciprocating The 600K Report: Commercial Chemical Accidents in the United internal combustion engines. States 1987-1996 (February 1999) (online at http://mapcruzin.com/ 37 65 Fed. Reg. 55684 (Sept. 14, 2000) download/600k_sum.pdf). 38 66 Fed. Reg. 58258 (Nov. 20, 2001) 8 Working Group on Community Right-to-Know, Chemical 39 See OMB web site at http://www.whitehouse.gov/omb/ Plant Security Leaves Communities Vulnerable (online at http: inforeg/oira_review-process.html. //www.crtk.org/library_files/SecurityBreaches.pdf). 40 Office of Management and Budget, Draft 2003 Report 9 Agency for Toxic Substances and Disease Registry, to Congress on the Costs and Benefits of Federal Regulations Industrial Chemicals and Terrorism: Human Health Threat (online at http://www.whitehouse.gov/omb/fedreg/2003draft_cost- Analysis, Mitigation and Prevention (April 1999) (online at http: benefit_rpt.pdf). //mapcruzin.com/scruztri/docs/cep1118992.htm). 41 Letter from OIRA Administrator John D. Graham to EPA 10 American Chemistry Council (formerly the Chemical Assistant Administrator Jeffrey R. Holmstead (Sept. 24, 2001) Manufacturers Association), the Chlorine Institute and the (online at http://www.whitehouse.gov/omb/inforeg/spark_engines_ Synthetic Organic Chemical Manufacturers Association, Site

136 137 Security Guidelines for the U.S. Chemical Industry (October 2001) Cir. 2001) (online at http://www.c3.org/acc_security_guide.pdf). 41 USDA, Enhancing Public Health: Strategies for the Future 11 Working Group on Community Right-to-Know, (July 2003) (online at http://www.fsis.usda.gov/OA/programs/ The “Responsible Care” Program: Trust Us, Don’t Track Us vision071003.pdf). (July 16, 2003) (online at http://www.crtk.org/library_files/ 42 68 Fed. Reg. 41433 (July 11, 2003) ResponsibleCare.pdf). 43 CSPI, Trans Fat Coming to Food Labels (July 9, 2003) 12 Jim Morris, Nuke Plants Avoid Costly New Edicts, Dallas (online at http://cspinet.org/new/200307091.html). Morning News (May 4, 2003). 44 NHTSA, 2002 Annual Assessment of Motor Vehicle 13 Testimony of Peter Stockton before the House Crashes (July 2003). Government Reform Subcommittee on National Security (June 45 Id. 24, 2003). 46 NHTSA, Initiatives to Address Vehicle Compatibility 14 Bennett Ramberg, Safety or Secrecy, New York Times (NHTSA-2003-14623) (2003). (May 20, 2003). 47 Judith Hilton and Umesh Shankar, Motor Vehicle Traffic 15 GAO-03-752, Oversight of Security at Commercial Nuclear Crash Injury and Fatality Estimates (DOT HS 809 586) (2003). Power Plants Needs to be Strengthened (September 2003) (online 48 Id. at http://www.gao.gov/cgi-bin/getrpt?GAO-03-752). 49 National Center for Statistics and Analysis (August 2003). 16 Center for Responsive Politics. The Bush Administration: 50 HHS, Appropriateness of Minimum Nurse Staffing Ratios Corporate Connections (online at in Nursing Homes, Phase II, Final Report (Winter 2001). http://www.opensecrets.org/bush/cabinet/ 51 Id. cabinet.abraham.asp). 52 Institute of Medicine of the National Academies, Keeping 17 66 Fed. Reg. 38108 (July 20, 2001) Patients Safe: Transforming the Work Environment of Nurses 18 68 Fed. Reg. 58974 (May 23, 2003) (2003). 19 EPA, Initial Results of Updated Clear Skies Analysis, page 53 The Consumer Product Safety Commission, chaired by a 20 (July 2, 2003) (online at http://www.epa.gov/air/clearskies/pdfs/ Bush appointee, is an independent federal regulatory agency with webpresentation.pdf). jurisdiction over more than 15,000 kinds of consumer products. 20 BNA Daily Report for Executives, EPA Proposes Rule to 54 Testimony of R. David Pittle, Ph.D., Consumers Union, Reduce Emissions Contributing to Haze in 156 National Parks before the Subcommittee on Consumer Affairs and Product Safety (April 19, 2004). (June 17, 2003). 21 Natural Resources Defense Council, Clean Water At Risk (October 2002). 22 Earthjustice, White House Watch Administration Profiles: Cop Off Adam J. Sharp (2002). the Beat 23 Id. 24 Earthjustice, White House Watch Administration Profiles: 1 Linda J. Fisher (2002). Staff to the Senate Committee on Governmental Affairs, 25 Id. Financial Oversight of Enron: The SEC and Private Watchdogs 26 Center for Responsive Politics (Oct. 8, 2002) (online at http://www.senate.gov/~govt-aff/_files/ 27 100702watchdogsreport.pdf). National Environmental Trust, Past EPA Administrator 2 Contenders (online at http://environet.policy.net/leavitt/ Stephen Labaton, S.E.C. Offers Plan for Tightening Grip on Mutual Funds, New York Times (Nov. 19, 2003). contfisher.html). 3 28 United Mine Workers of America, United Mine Workers Eliot Spitzer, Regulation Begins at Home, New York Times (Nov. 17, 2003). of America Pleased With U.S. Court of Appeals Decision that the 4 Federal Mine Safety and Health Administration Should Not Have The settlement discusses but puts off fines and restitution, Stopped the Rulemaking Process on Newly Proposed Air Quality and most important, according to Spitzer, “does not address the Rule (Feb. 23, 2004) (online at http://www.umwa.org/pressreleases/ manner in which the fees charged to investors are calculated. Nor feb04/022304.shtml). does it require the fund to inform investors exactly how much 29 Report No. 2001-01-H, Hazard Investigation: Improving they are being charged – or even provide a structure that will Reactive Hazard Management, U.S. Chemical Safety and Hazard create market pressure to reduce those fees. Finally, there is no Investigation Board Report (October 2002). discussion of civil or criminal sanctions for the managers who 30 CSB Recommendation No. 2001-01-H-R1 acted improperly by engaging in or permitting market timing and 31 late trading” (which was responsible for cheating investors). AFSCME, AFSCME Outraged by Department of Labor 5 Decision to Drop OSHA Tuberculosis Standard (May 28, 2003). Paul Krugman, Funds and Games, New York Times (Nov. 32 18, 2003). Public Citizen Health Research Group v. Chao, 314 F.3d 143 6 (3d. Cir. 2002). John Stanton, EPA Neglects Lagging Criminal Enforcement 33 Division, Congress Daily (July 7, 2003). Final Report of the OSHA Metalworking Fluids Standards 7 Advisory Committee (July 15, 1999). Environmental Integrity Project, The Withering Away of 34 See CDC fact sheet on listeria at http://www.cdc.gov/ Environmental Enforcement: The Bush Administration’s Shell ncidod/dbmd/diseaseinfo/listeriosis_t.htm. Game (June 13, 2002) (online at http://www.rffund.org/eip/docs/ 35 attachmentA.pdf). Center for Science in the Public Interest, Statement Of 8 CSPI Food Safety Director Caroline Smith DeWaal (June 4, 2003) Sen. James Jeffords, Jeffords Disturbed by EPA (online at http://cspinet.org/new/200306042.html). Enforcement Cuts, New Data Shows Elimination of More Than 100 36 Enforcement Positions Since 2001 (July 8, 2003). The American Meat Institute, for one, met with OMB’s 9 Office of Information and Regulatory Affairs about the listeria Environmental Integrity Project, Paying Less To Pollute: rule in May 2003 (see http://www.whitehouse.gov/omb/oira/0584/ The Decline of Environmental Enforcement at EPA Under the Bush meetings/221.html). Administration (January 2003) (online at http://www.rffund.org/ 37 eip/docs/PayingLesstoPollute.final.pdf). Michael Weisskopf, Can Cold Cuts Kill, Time (March 3, 10 2003). Center for Progressive Regulation, CPR’s Steinzor Raps 38 EPA for Enforcement Failures (Sept. 16, 2003). See statement online at http://www.consumerfed.org/ 11 101703_USDA.html. John Heilprin, Criminal Agents Diverted to Drive EPA 39 See statement of Carol Tucker Foreman online at http: Boss, Washington Post (April 27, 2003); Public Employees for //www.consumerfed.org/102103_lysteria.html. Environmental Responsibility, Whitman’s Outsized Security Escort 40 Supreme Beef Processors, Inc. v. USDA, 275 F.3d 432 (5th Drains Pollution Enforcement (April 28, 2003).

138 139 12 Seth Borenstein, Pollution Citations Plummet Under Bush, 43 U.S. PIRG, Cleanup Slowdown: How Underfunding the Philadelphia Inquirer (Dec. 9, 2003). Superfund Program Hurts Communities Across America (August 13 Public Employees for Environmental Responsibility, John 2003). Peter Suarez Unqualified for EPA Job, (March 24, 2002) (online at 44 Jennifer 8. Lee, Superfund Job, Not Quite Finished, http://www.prweb.com/releases/2002/3/prweb35746.php). Frustrates Town, New York Times (Nov. 10, 2003). 14 Earthjustice, White House Watch Administration Profiles: 45 General Accounting Office, Superfund Program: Current John Ashcroft (2002). Status and Future Fiscal Challenges (July 2003) (online at http: 15 League of Conservation Voters, Bush’s Choices for Energy, //www.gao.gov/new.items/d03850.pdf). Interior Secretaries Condemned by Conservation Group as 46 Democratic Policy Committee, supra note 16. Environmental Regress, Not Progress, (Jan. 2, 2001). 47 Sierra Club, EPA Releases So-Called Superfund 16 Democratic Policy Committee, A Sweetheart Deal: How “Accomplishments” (Nov. 4, 2003) (online at http:// the Republicans have Turned the GOVERNMENT Over to Special www.sierraclub.org/pressroom/releases/pr2003-11-04.asp). Interests (Feb. 14, 2003). 48 There were 13,800 workplace fatalities in 1970 and nearly 17 Eric Pianin, EPA Rule Revisions Roil U.S. Case Against 11 million injuries and illnesses in 1972 (the first year for which Power Plants, Washington Post (Oct. 6, 2003). such data is available). 18 Heritage Forests Campaign, Thomas Sansonetti, Assistant 49 This does not include the workers killed in the Sept. 11 Attorney General for Environment and Natural Resources. terrorist attacks. 19 Seth Borenstein, Pollution Citations Plummet Under Bush, 50 AFL-CIO, Death on the Job: The Toll of Neglect (2003). Philadelphia Inquirer (Dec. 9, 2003). 51 Id. 20 EPA, FY 2003 Enforcement and Compliance Trends (online 52 Environment News Service, USA: Mine Workers Chief at http://www.epa.gov/compliance/resources/reports/endofyear/ Arrested at Massey Energy Protest, (March 15, 2002). eoy2003/fy2003enforcementandcompliancefiveyeartrends.pdf). 53 Ken Ward Jr., Massey Avoids Major Financial Hit for Spill, 21 Id. Sunday Gazette-Mail, (Oct. 12, 2003). 22 Environmental Integrity Project, supra note 9. 54 Democratic Policy Committee, supra note 16. 23 Public Employees for Environmental Responsibility, 55 AFL-CIO, The Bush Administration’s FY 2004 Budget: 2003 Survey of EPA Office of Criminal Enforcement, Forensics Missed Opportunities, Misguided Plans and Misplaced Priorities and Training Employees (April 28, 2003) (online at http:// (2003) (online at http://www.aflcio.org/issuespolitics/bushwatch/ www.peer.org/EPA/EPA-OCEFT_Survey_Results.pdf). 2004budget.cfm). 24 Chris Bowman, EPA Pumps Up its Record, Sacramento 56 There were 170 fatalities in 2001 (the most recent year Bee (July 6, 2003). for which data is available), according to the Bureau of Labor 25 As discussed in “A Record of Rollbacks,” the Clinton Statistics. administration discovered in 1999 that power plants were widely 57 Sen. Robert Byrd, Byrd Presses Labor Secretary on Mine violating clean air standards, and moved to compel compliance by Safety (April 9, 2003). launching a host of lawsuits, most of which are still pending. The 58 The U.S. labor force has grown to more than 100 million Bush administration half-heartedly committed to move forward workers, but OSHA performed just 37,565 inspections in FY 2002, with these cases, but decided not to initiate new litigation. not counting the 26 states to which OSHA has ceded federal 26 Eric Pianin, White House to End Power Plant Probes, inspection authority. Washington Post (Nov. 6, 2003). 59 AFL-CIO, supra note 55. 27 Richard A. Oppel Jr. and Christopher Drew, States 60 David Barstow, U.S. Rarely Seeks Charges for Deaths in Planning Their Own Suits on Power Plants, New York Times (Nov. Workplace, New York Times (Dec. 22, 2003). 9, 2003). 61 UMWA, UMWA Investigation Report Details Conditions 28 Christopher Drew and Richard A. Oppel Jr., Lawyers at Leading to the September 2001 Brookwood (Ala.) Mine Disaster EPA Say it Will Drop Pollution Cases, New York Times (Nov. 6, (Jan. 22, 2003). 2003). 62 Id. 29 Guy Gugliotta and Eric Pianin, EPA: Few Fined for 63 Id. Polluting Water, Washington Post (June 6, 2003). 64 UMWA, United Mine Workers of America International 30 Frank E. Lockwood, Political Gifts of Coal Magnate Exceed President Cecil Roberts Says Union is Outraged by Second-Tier $800,000, Lexington Herald-Leader (Feb. 28, 2001). Fine Totals Levied Against Jim Walter Resources by Federal Mine 31 Department of Justice, Koch Industries Indicted for Safety and Health Administration (June 30, 2003) (online at http: Environmental Crimes at Refinery (Sept. 28, 2000). //www.umwa.org/pressreleases/pressmain.shtml). 32 Department of Justice, Koch Pleads Guilty to Covering Up 65 David Barstow and Lowell Bergman, Deaths on the Job, Environmental Violations at Texas Oil Refinery (April 9, 2001). Slaps on the Wrist, New York Times (Jan. 10, 2003). 33 Mother Jones David H. Koch, (March 5, 2001). 66 Id. 34 Dan Eggen, Oil Company Agrees to Pay $20 Million in 67 Id. Fines, Koch Allegedly Hid Releases of Benzene, Washington Post 68 United Mine Workers of America, UMWA Calls on MSHA (Apr. 10, 2001). To End Coal Mine Fatalities (March/April 2002) (online at http: 35 Ben Neary, Official May Have Conflict of Interest in Mine //www.umwa.org/journal/VOL113NO2/ourhealthandsafety.shtml). Decision, The New Mexican (Sept. 10, 2001) (online at http://www. 69 Id. citizenscoalcouncil.org/news/official.htm). 70 These eyewitnesses include a co-manager of the 36 Ken Ward, OSM Nomineee’s Hearing Postponed, slaughterhouse, the hauler who took the cow to slaughter, and the Appalachian Focus Mining News (Oct. 8, 2001). plant employee who killed the cow. They are being represented 37 U.S. PIRG, Troubled Waters: An Analysis of Clean Water by the Government Accountability Project, a whistleblower Act compliance, January 2002-June 2003 (March 2004). organization. 38 EPA has stated that the guidance could be changed, and 71 Steve Mitchell, New Evidence Hints Mad Cow Not A that it plans to solicit public comment on the matter before issuing Downer, United Press International (Feb. 23, 2004). final standards. 72 Steve Mitchell, UPI Exclusive: No Mad Cow Tests in Wash., 39 Altman v. Town of Amherst, 190 F. Supp. 2d 467 (2nd Cir. 2001) United Press International (Jan. 15, 2004). 40 Headwaters, Inc. v. Talent Irrigation Dist., 243 F. 3d 526 (9th 73 Donald G. McNeil Jr., Doubling Tests for Mad Cow Doesn’t Cir. 2001) Quiet Program Critics, New York Times (Feb. 9, 2004). 41 Environmental Protection Agency, Superfund National 74 Sylvia Carter, Inspectors: Testing of U.S. Beef Is Accomplishments Summary, Fiscal Year 2003 (2003). Inadequate, Newsday (Jan. 16, 2004). 42 Id. 75 Christopher Drew, Elizabeth Becker and Sandra Blakeslee,

138 139 Industry Resisted Warnings Over Beef, New York Times (Dec. 28, 2003). 20the%20Giant%20Final%20PDF.pdf). 76 Carter, supra note 74. 102 Id. 77 Center for Responsive Politics, Meat Processing and 103 Stephanie Banchero, Lawmakers Seek Answers on Products: Long-Term Contribution Trends (Feb. 23, 2004) (online at Tainted School Food, Chicago Tribune (April 30, 2003). http://www.opensecrets.org/industries/indus.asp?Ind=G2300). 104 Office of Sen. Dick Durbin, Food Safety Advocates 78 Democratic Policy Committee, supra note 16. Say Bush Must Do More to Ensure Safety of Nation’s Food 79 Steve Mitchell, UPI Exclusive: No Mad Cow Tests in Wash., Supply - With Americans Still at Risk from an Unclean Food United Press International (Jan. 15, 2004). Supply, Senator Says President’s Proposed Cuts to Domestic 80 Letter from Reps. Tom Davis and Henry Waxman to Food Safety Funds Put Nation at Risk (2003) (online at http:// USDA Secretary Ann Veneman (Feb. 17, 2004) (online at http: www.statepulse.com/Minnesota/2003/02.11.03.durbin.pr.asp). //www.house.gov/reform/min/pdfs_108_2/pdfs_inves/pdf_health_ 105 General Accounting Office, Food Safety: Overview of usda_mad_cow_feb_12_let.pdf). Federal and State Expenditures, 3 (2001). 81 The Secretary’s Foreign Animal and Poultry Disease 106 Center for Science In the Public Interest, Outbreak Alert! Advisory Committee’s Subcommittee on the United States’ (Sept. 2002). Response to the Detection of a Case of Bovine Spongiform 107 Office of Sen. Dick Durbin, supra note 104. Encephalopathy, Report on Measures Relating to Bovine 108 General Accounting Office, Food Safety: Overview of Spongiform Encephalopathy (BSE) in the United States (February Federal and State Expenditures (2001). 2004) (online at http://foia.aphis.usda.gov/lpa/issues/bse/US_BSE_ 109 Testimony of Michael Jacobson, Center for Science in the Report.pdf). Public Interest, before the Senate Committee on Governmental 82 McNeil, supra note 73. Affairs Subcommittee on Oversight of Government Management 83 U.S. Department of Agriculture, Agriculture Budget (Oct. 10, 2001). Proposes Record Spending for Conservation, Food Safety, 110 FDA Should Be Able to Act More Quickly On Misleading Nutrition and Food Assistance Programs (Feb. 3, 2003) (online at Drug Advertising, GAO Says, BNA Daily Report for Executives http://www.usda.gov/news/releases/2003/02/0040.htm). (Dec. 5, 2002). 84 U.S. Department of Agriculture, Transcript of Agriculture 111 Letter from Rep. Henry Waxman to HHS Secretary Secretary Ann M. Veneman’s Remarks Regarding President Tommy Thompson, (Oct. 1, 2002) (online at http: Bush’s FY 2005 Agriculture Budget (Feb. 2, 2004) (online at http: //www.house.gov/reform/min/drug_ads/pdfs/pdf_drug_ads_ //www.usda.gov/Newsroom/0058.04.html). thompson_let.pdf). 85 The Consumer Federation of America, CFA’s Carol 112 Id. Tucker Foreman on FY 2004 USDA Budget: Administration 113 Democratic Policy Committee, supra note 16. Cuts Appropriations for Food Safety (2003) (online at http:// 114 Alice Dembner, Bush’s FDA Action on Drug Ads www.consumerfed.org/020303tucker.html). Declining, Boston Globe (Oct. 19, 2002). 86 General Accounting Office, Better USDA Oversight and 115 Richard Kravitz, M.D., University of California, Davis; Enforcement of Safety Rules Needed to Reduce Risk of Foodborne Barbara Mintzes, University of British Columbia; Larry Sasich, Illness (2002). Pharm. D., Public Citizen Health Research Group; and Michael 87USDA, USDA to Continue testing for Salmonella in Meat Wilkes, M.D., Ph.D., University of California, Davis. Plants (Dec. 18, 2001) (online at http://www.usda.gov/news/ 116 House Committee on Government Reform, Minority releases/2001/12/0267.htm). Office, Expert Evaluation of Direct-to-Consumer Prescription Drug 88 Center for Responsive Politics, The Bush Administration: Advertisements (2002) (online at http://www.house.gov/reform/ Corporate Connections (2002). min/inves_prescrip/prescrip_drug_ads.htm). 89 USDA, 21st Century Agriculture: A Critical Role for Science 117 Letter from Dr. Michael Wilkes to Rep. Henry Waxman and Technology (2003) (online at http://www.fas.usda.gov/icd/ (Sept. 30, 2002) (online at http://www.house.gov/reform/min/drug_ stconf/pubs/scitech2003/index.htm). ads/pdfs/pdf_drug_ads_uc_davis_let.pdf). 90 Associated Press, Bush Administration to Challenge EU biotech ban, (May 2003). 91 Earthjustice, White House Watch Administration Profiles: Sworn Ann Veneman (2002). to Secrecy 92 Public Citizen, Letter to Senator Tom Harkin Concerning the Nomination of Elsa Murano (July 16, 2001) 1 Ashcroft FOIA memo online at http://www.usdoj.gov/oip/ (online at http://www.citizen.org/cmep/foodsafety/food_irrad/ foiapost/2001foiapost19.htm. articles.cfm?ID=4905). 2 The National Security Archive, The Ashcroft Memo: 93 Marc Kaufman, USDA Proposes to Reverse School ‘Drastic’ Change or ‘More Thunder than Lightning’ (March Ground Beef Rules, Washington Post (April 5, 2001). 14, 2003) (online at http://www.gwu.edu/~nsarchiv/NSAEBB/ 94 USDA, USDA Releases Specifications For The Purchase NSAEBB84/index.html). of Irradiated Ground Beef in the National School Lunch Program 3 Id. (May 29, 2003) (online at http://www.usda.gov/news/releases/2003/ 4 Id. 05/0172.htm). 5 Brief before the U.S. Supreme Court on behalf of Camden 95 GAO-02-59 (December 2001) (online at http:// County, N.J., Wayne County, Mich., the city and county of San www.gao.gov/new.items/d0259.pdf). Francisco, and the cities of Berkeley, Cincinnati, Cleveland, Jersey 96 Letter from Rep. Henry Waxman to Secretary of City, Philadelphia, St. Louis, West Hollywood and Wilmington, Agriculture Ann Veneman (Dec. 11, 2002) (online at http: United States Department of Justice v. City of Chicago, 123 U.S. //www.house.gov/reform/min/pdf s/pdf_inves/pdf_admin_usda_ 1352 (2003). listeria_dec_11_let.pdf). 6 GAO did not seek meeting minutes, contrary to claims 97 Id. made by Cheney at the time. 98 Id. 7 Statement of David M. Walker, Comptroller General of the 99 Id. United States, (Jan. 30, 2002) (online at http://www.house.gov/ 100 Swift Foods Company purchased ConAgra on Sept. 19, reform/min/pdfs/pdf_inves/pdf_energy_cheney_jan_30_gao_ 2002. state.pdf). 101 This case example is drawn from an investigative report 8 Natural Resources Defense Council, The Bush Energy Plan by the Government Accountability Project, Shielding the Giant: and America’s Public Lands (online at http://www.nrdc.org/land/ USDA’s “Don’t Look, Don’t Know” Policy for Beef Inspection (July use/qwest.asp). 2003) (online at http://www.whistleblower.org/uploads/Shielding%

140 141 9 Natural Resources Defense Council, Data Shows Industry 37 Id. Had Extensive Access to Cheney’s Energy Task Force (May 38 Public Employees for Environmental Responsibility, 21, 2002) (online at http://www.nrdc.org//media/pressreleases/ “Action” Jackson to Return to Yellowstone Park (July 7, 2003) 020521.asp). (online at http://www.peer.org/press/365.html). 10 Peter Brand and Alexander Bolton, GOP Threats Halted 39 Brian Faler, Park Service Settles Whistle-Blower Case, GAO Cheney Suit, The Hill (Feb. 19, 2003) (online at http:// Rehires Ranger, Washington Post (July 9, 2003). www.thehill.com/news/021903/cheney.aspx). 40 Martin Edwin Adersen, Government Accountability Project, 11 GAO, GAO Press Statement on Walker v. Cheney (Feb. 7, Do Homeland Security Whistleblowers Now Face Jail Time? (May 2003) (online at http://www.gao.gov/press/w020703.pdf). 27, 2003). 12 Dana Milbank, White House Puts Limits on Queries From 41 Under the administration’s implementing rule, these Democrats, Washington Post (Nov. 7, 2003). penalties would not apply to those who qualify as whistleblowers 13 Id. under the Whistleblowers Protection Act. This is helpful, but 14 Guy Gugliotta and Eric Pianin, EPA Withholds Air Pollution there is still likely to be a chilling effect – which is compounded Analysis, Washington Post (July 1, 2003). by the general hostility to whistleblowers that permeates the 15 Id. administration as discussed below. 16 GAO-04-147, MILITARY MUNITIONS: DOD Needs 42 Rena Steinzor, Professor, University of Maryland School of to Develop a Comprehensive Approach to Cleaning Up Law, Democracy Dies Behind Closed Doors (March 12, 2003). Contaminated Sites (December 2003). 43 Id. 17 Letter from Reps. John Dingell and Hilda Solis to EPA 44 Interim Final Rule, 69 Fed. Reg. 8073-8089 (Feb. 20, 2004) Administrator Michael Leavitt (Feb. 5, 2004) (online at http:// 45 Plea Agreement, United States v. Belden, No. CR 02-0313 www.house.gov/commerce_democrats/press/108ltr78.htm). MJJ (N.D. Cal. Oct. 17, 2002); Information, United States v. Belden, 18 Peter Waldman, EPA Bans Staff from Discussing Issue of No. CR 02-0313 (N.D. Cal. Oct. 9, 2002) Perchlorate Pollution, The Wall Street Journal (April, 28, 2003). 46 Committee Staff Investigation of the Federal Energy 19 Id. Regulatory Commission’s Oversight of Enron Corp. (Nov. 20 Natural Resources Defense Council, Bush Administration 12, 2002) (online at http://www.senate.gov/~gov_affairs/ Withholding Evidence that White House and Industry Are Blocking 111202fercmemo.pdf). Rocket Fuel Pollution Cleanup, NRDC Lawsuit Charges (March 24, 47 For notice on non-disclosure, see FERC web site at http: 2004). //www.ferc.gov/electric/f715/data/F715report.htm. 21 Robert Pear, Health Industry Bidding to Hire Medicare 48 Form No. 715 Overview (online at http://www.ferc.gov/ Chief, New York Times, (Dec. 3, 2003). electric/f715/f715overview.htm). 22 Laura Meckler, White House Won’t Release Medicare 49 Ken Valenti, Gas Pipeline Maps Pulled Off Internet, The Memo, Associated Press (June 25, 2003). Journal News (Jan. 12, 2004). 23 Id. 50 Marcy Gordon, Enron Chairman Recommended FERC 24 Amy Goldstein, Medicare Official Cites Cost Warning, Appointments, North County Times (Feb.1, 2002) (online at http: Washington Post (March 25, 2004). //www.nctimes.net/news/2002/20020201/52605.html). 25 Adam Clymer, Justice Department Tracking Staff’s Contact 51 FERC Notice of Proposed Rulemaking and Revised With Congress, New York Times (April 25, 2003). Statement of Policy, 18 CFR Parts 375 and 388, pages 4 & 5 (Sept. 26 Sen. Harry Reid, Reid/Ensign Hearing Unveils Serious 5, 2002). Defects Within Yucca Mountain Project (May 29, 2003) (online at 52 The Card memo is available at http://www.usdoj.gov/oip/ http://reid.senate.gov/record2.cfm?id=204326); Tom Devine and foiapost/2002foiapost10.htm. Martin Edwin Andersen, Let’s Hear it All, Insight on the News 53 See discussion by OMB Watch at http:// (June 9, 2003). www.ombwatch.org/homeland/OMBW-SBU.pdf. 27 Id. 54 Agency for Toxic Substances and Disease Registry, 28 Keith Rogers, Papers: Workers Found Defects in Yucca Industrial Chemicals and Terrorism: Human Health Threat Process, Las Vegas Review Journal (Nov. 24, 2002). Analysis, Mitigation and Prevention (April 1999) (online 29 Id. through private site at http://www.mapcruzin.com/scruztri/docs/ 30 Josey Ballenger, Nominee for Energy’s No. 3 Headed cep1118992.htm). Company Faulted on Worker Safety, The Public I, (April 25, 2001); 55 See FAA web site at http://av-info.faa.gov/dd_sublevel.asp Department of Energy, Department of Energy Fines Kaiser-Hill for ?Folder=%5Ceis. Safety Violations (July 19, 2001) (online at http://www.energy.gov/ 56 U.S. PIRG, Accidents Waiting to Happen: Hazardous engine/content.do?PUBLIC_ID=13250&BT_CODE=PR_ Chemicals in the U.S. Fifteen Years After Bhopal (Dec. 2, 1999) PRESSRELEASES&TT_CODE=PRESSRELEASE); Department (online at http://uspirg.org/uspirg.asp?id2=5037&id3=USPIRG&). of Energy, DOE Cites Kaiser-Hill Company for Nuclear Safety 57 U.S. PIRG, Too Close to Home (July 22, 1998) (online at Rule Violations at the Rocky Flats Environmental Technology http://www.pirg.org/reports/enviro/home98/index.htm). Site (February 5, 2004) (online at http://www.energy.gov/ 58 James V. Grimaldi and Guy Gugliotta, Chemical Plants are engine/content.do?PUBLIC_ID=14871&BT_CODE=PR_ Viewed as Targets, Washington Post (Dec. 16, 2001). PRESSRELEASES&TT_CODE=PRESSRELEASE). 31Id. 32 Mark Hertsgaard, Conflict of Interest for Christie Todd Politics Whitman?, Salon.com (Jan. 14, 2002). Over Science 33 Edward Walsh, EPA Ombudsman Resigns in Protest Over Transfer, Washington Post (April 23, 2002). 1 34 Letter from Rep. Henry Waxman to Secretary of Agriculture Elizabeth Shogren, Administration, Yellowstone Staff at Odds On Park Threats, Los Angeles Times (June 26, 2003). Ann Veneman (Dec. 11, 2002) (online at http://www.house.gov/ 2 reform/min/pdfs/pdf_inves/pdf_admin_usda_listeria_dec_11_ See statement online at http://www.ucsusa.org/global_ let.pdf). environment/rsi/signon.html. 3 Environmental Protection Agency, Draft Report on the 35 USDA Failed to Act Against Plant’s Listeria, Inspector Says, Environment (June 23, 2003) (online at http://www.epa.gov/ indicators/roe/index.htm). Washington Post (Dec. 12, 2002). 4 36 Letter from Government Accountability Project to Andrew C. Revkin and Katharine Q. Seelye, Report by E.P.A. Secretary of Agriculture Ann Veneman (Jan. 24, 2003) (online at Leaves Out Data on Climate Change, New York Times (June 19, http://www.whistleblower.org/article.php?did=295&scid=95). 2003).

140 141 5 See http://www.epa.gov/airtrends/. Under Fire, Washington Post (Sept. 9, 2003). 40 6 U.S. Department of State, U.S. Climate Action Report (May Natural Resources Defense Council, Interior Department 2002). Allows More Air Pollution at National Park (Aug. 22, 2002). 41 7 Katherine Q. Seelye, President Distances Himself from Id. 42 Global Warming Report, New York Times (June 5, 2002). Sierra Club, Stopping King Coal (August 2003). 43 8 Id. Democratic Staff, House Committee on Government 9 Earthjustice, White House Watch Administration Profiles: Reform, Politics and Science in the Bush Administration James Connaughton (2002). (August 2003) (online at http://www.house.gov/reform/min/ 10 Office of the Inspector General, Environmental Protection politicsandscience/pdfs/pdf_politics_and_science_rep.pdf ). 44 Agency, EPA’s Response to the World Trade Center Collapse: U.S. Department of Agriculture, Lists of Sensitive Issues Challenges, Successes, and Areas for Improvement (Aug. 21, for ARS Manuscript Review and Approval by National Program 2003) (online at http://www.epa.gov/oigearth/ereading_room/ Staff – February 2002 (revised) (February 2002). 45 WTC_report_20030821.pdf). Perry Beeman, Ag Scientists Feel the Heat, Des Moines 11 Environmental Protection Agency, America’s Children Register (Dec. 1, 2002). 46 and the Environment: Measures of Contaminants, Body Burdens, Id. 47 and Illnesses, Second Edition (February 2003) (online at http: Id. 48 //www.epa.gov/envirohealth/children/ace_2003.pdf). USDA Agricultural Research Service, Swine Odor 12 John J. Fialka, Mercury Threat to Kids Rising, Unreleased and Manure Management Research Unit (online at http:// EPA Report Warns, Wall Street Journal (Feb. 20, 2003). www.nsric.ars.usda.gov/). 49 13 According to agency sources, OMB officials made the USDA, Progress Report on Salmonella Testing of initial request for review, but the White House Office of Science Raw Meat and Poultry Products, 1998-2002 (online at http:// and Technology Policy subsequently took over the lead role. www.fsis.usda.gov/OPHS/haccp/salm5year.pdf). 50 14 Andrew Schneider, White House Budget Office Thwarts USDA, Microbiological Testing Programs for Ready- EPA Warning on Asbestos-Laced Insulation, St. Louis Post- to-Eat (RTE) Meat and Poultry Products (online at http:// Dispatch (Dec. 27, 2002). www.fsis.usda.gov/ophs/rtetest/). 51 15 Id. Carole Sugarman, Food Chemical News (March 15, 2004). 52 16 Id. Id. 53 17 Id. Democratic Staff, House Committee on Government 18 Id. Reform, supra note 43. 54 19 Mike Soraghan, Bill Aims to Protect Gas-Drilling FDA, FDA Talk Paper: FDA Releases Preliminary Results of Technique, Denver Post (Sept. 6, 2003). Physician Survey on Direct-to-Consumer Rx Drug Advertisements 20 Democratic Staff, House Committee on Resources, Weird (Jan. 13, 2003) (online at http://www.fda.gov/bbs/topics/ Science: The Interior Department’s Manipulation of Science for ANSWERS/2003/ANS01189.html). 55 Political Purposes (Dec. 17, 2002) (online at http://resourcescommit FDA, Direct-to-Consumer Advertising of Prescription tee.house.gov/resources/democrats/hot2002/weirdscience.pdf). Drugs: Physician Survey Preliminary Results, Slides 10-11 21 Judy Paternak, Bush’s Energy Plan Bares Industry Clout, (Jan. 13, 2003) (online at http://www.fda.gov/cder/ddmac/ Los Angeles Times (Aug. 26, 2001). globalsummit2003/sld010.htm and http://www.fda.gov/cder/ 22 Michael Grunwald, Departmental Differences Show Over ddmac/globalsummit2003/sld011.htm). 56 ANWR Drilling, Washington Post (Oct. 19, 2001). The White House, Remarks By the President on Stem Cell 23 Natural Resources Defense Council, Alaska Oil Drilling Research (Aug. 9, 2001) (online at http://www.whitehouse.gov/ Would Harm Environment, Despite Bush Claims (April 7, 2002). news/releases/2001/08/20010809-2.html). 57 24 Id. Ted Agres, Coming Clean on Stem Cells, The Scientist 25 Michael Grunwald, Interior: Drilling Won’t Violate Polar (Jan. 21, 2003). 58 Bear Pact, Washington Post (Jan 18, 2002). Elias Zerhouni, testimony before the Senate Committee 26 Id. on Appropriations, Subcommittee on Labor, Health and Human 27 Statement of Michael S. Kelly, Fishery Biologist, Services, and Education, (May 22, 2003). 59 National Marine Fisheries Service (online at http://www.peer.org/ American Association for the Advancement of Science, kellynarrative.pdf). Center for Science Technology and Congress, GOP Moderates 28 Earthjustice, White House Watch Administration Profiles: Question Bush Stem Cell Policy (June 30, 2003). 60 Bennet William Raley (2002). See http://www.politicsandscience.org. 61 29 Democratic Policy Committee, A Sweetheart Deal: How Letter from Rep. Henry Waxman to Secretary Thompson the Republicans have Turned the GOVERNMENT Over to Special (Oct. 27, 2003). 62 Interests (Feb. 14, 2003). Letter from Secretary Tommy Thompson to Rep. Henry 30 Public Employees for Environmental Responsibility, PEER Waxman (Oct. 28, 2003). 63 and Others Oppose Manson Nomination, (Sept. 19, 2001) (online Scott Shane, NIH Notifies Scientists on Grant ‘Hit List’, at http://www.peer.org/FedEnforce/Manson_letter.html). Baltimore Sun (Oct. 28, 2003). 64 31 Id. Democratic Staff, House Committee on Government 32 Democratic Staff, House Committee on Resources, supra Reform, supra note 43. 65 note 20. Id. 66 33 Aaron J. Douglas, U.S. Geological Survey, Estimating Id. 67 Recreation Trip Related Benefits for the Klamath River Id. 68 Basin with TCM and Contingent Use Data (online at http: USAID, USAID The Effectiveness of Condoms in //www.earthjustice.org/news/documents/klamath%20recreation. Preventing Sexually Transmitted Infections (2003). 69 pdf). USAID, USAID: HIV/AIDS and Condoms (2003). 70 34 Elizabeth Shogren, supra note 1. National Cancer Institute, Early Reproductive Events 35 Id. and Breast Cancer (Nov. 25, 2002) (online at http://cancer.gov/ 36 Id. cancer_information/doc.aspx?viewid=8cf78b34-fc6a-4fc7-9a63- 37 Letter from Roger Kennedy to Secretary Bandarin and the 6b16590af277). 71 UNESCO World Heritage Committee (June 25, 2003). National Cancer Institute, Summary Report: Early 38 Mike Stark, Park Will Be Off List; World Panel Still Worried, Reproductive Events and Breast Cancer Workshop (March 2003) Billings Gazette (July 2, 2003). (online at http://cancer.gov/cancerinfo/ere-workshop-report). 72 39 Peter Carlson, Green for Greenbacks? Bush’s Record Shankar Vedantam, Abortion’s Link to Breast Cancer

142 143 Discounted, Washington Post (March 26, 2004). Research Protections (online at http://ohrp.osophs.dhhs.gov/ 73 5 U.S.C. Appendix 2 § 5 (Federal Advisory Committee Act). sachrp/charter.pdf). 74 Union of Concerned Scientists, Scientific Integrity in 109 Rick Weiss, New HHS Panel Makeup Draws Ire of Patient Policymaking (February 2004) (online at http://www.ucsusa.org/ Advocates, Washington Post (Jan. 5, 2003). global_environment/rsi/report.html). 110 See http://www.childrenscause.org/. 75 Id. 111 C. Christopher Hook, testimony before the House 76 Staff of Rep. Edward J. Markey, Turning Lead Into Government Reform Subcommittee on Criminal Justice, Drug Gold: How the Bush Administration is Poisoning the Lead Policy and Human Resources (July 17, 2001). Advisory Committee at the CDC (Oct. 8, 2002) (online at http: 112 Rick Weiss, Bush Ejects Two From Bioethics Council, //www.house.gov/markey/iss_environment_rpt021008.pdf). Washington Post (Feb. 28, 2004). 77 Bureau of National Affairs, Bush Administration Accused 113 Elizabeth Blackburn, A ‘Full Range’ of Bioethical Views of Making Pro-Industry Choices for Panel on Lead (Oct. 10, 2002). Just Got Narrower, Washington Post (March 7, 2004). 78 Staff of Rep. Edward J. Markey, supra note 76. 114 CDC, Secretary Thompson Appoints Nine to CDC 79 Id. Advisory Committee (Feb. 20, 2003). 80 Id. 115 See http://www.medinstitute.org/about/whatis.htm. 81 Id. 116 See http://www.youthdevelopment.org/. 82 Id. 117 Ceci Connolly, AIDS Panel Choice Wrote of a Gay Plague, 83 CDC, Advisory Committee on Childhood Lead Poisoning Washington Post (Jan. 23, 2003). Prevention Roster (online at http://www.cdc.gov/nceh/lead/ 118 Karen Tumulty, Jesus and the FDA, Time (Oct. 5, 2002). ACCLPP/members.htm). 119 Id. 84 The New Republic, Toxic: The Lead Industry Gets Its Turn 120 Aaron Zitner, supra note 91. (Dec. 23, 2002). 121 Donald Kennedy, An Epidemic of Politics, Science (Jan. 85 See CDC online at http://www.cdc.gov/nceh/lead/about/ 31, 2003). about.htm. 122 William E. Howard III, Advice Without Dissent at the DOD, 86 Science, Critics See A Tilt in CDC Science Panel (Aug. 30, Science (Nov. 15, 2002). 2002). 123 Id. 87 Natural Resources Defense Council, ExxonMobil, Bush Administration Succeed in Ousting Top Global Warming Scientist During Heated Geneva Meeting (April, 19, 2002) (online at http: Irresponsible //www.nrdc.org/media/pressreleases/020419a.asp). Contracting 88 Natural Resources Defense Council, Confidential Papers Show Exxon Hand in White House Move to Oust Top Scientist from International Global Warming Panel (April 3, 2002) (online at 1 66 Fed. Reg. 66984 (Dec. 27, 2001) http://www.nrdc.org/media/pressreleases/020403.asp). 2 89 65 Fed. Reg. 80255 (Dec. 20, 2000) See http://www.mercatus.org/people.php/17.html. 3 90 Project on Government Oversight, Federal Contractor Dan Ferber, HHS Intervenes in Choice of Study Section Misconduct: Failure of the Suspension and Debarment System Members, Science (Nov. 15, 2002). 91 (2002); Christopher H. Schmitt, Wages of Sin, U.S. News and Aaron Zitner, Advisors Put Under A Microscope, Los World Report (May, 13, 2002); Ken Silverstein, Unjust Rewards, Angeles Times (Dec. 23, 2002). 92 Mother Jones (May/June 2002); General Accounting Office, Dan Ferber, supra note 90. WORKER PROTECTION: Federal Contractors and Violators 93 Id. 94 of Labor Law (October 1995); General Accounting Office, USDA, USDA Names Members to National Advisory OCCUPATIONAL SAFETY AND HEALTH: Violations of Safety and Committee on Microbiological Criteria for Foods (March 18, Health Regulations by Federal Contractors (August 1996). 2003) (online at http://www.fsis.usda.gov/OA/news/2003/ 4 This appeals process was already provided for under nacmcf031803.htm). 95 Executive Order 12979, Agency Procurement Protests. Center for Science in the Public Interest, Dietary 5 Executive Order 13202 Guidelines Committee Criticized (Aug. 19, 2003). 6 Leadership Conference on Civil Rights Education Fund, The 96 Id. 97 Bush Administration Takes Aim: Civil Rights Under Attack (2003). Id. 7 98 Id. Id. 8 99 Id. HHS, HHS, USDA Designate Experts to the Dietary 9 “Community Solutions Act of 2001” (H.R. 7). Guidelines Advisory Committee (Aug. 11, 2003) (online at http: 10 68 Fed. Reg. 56429 (Sept. 30, 2003) //198.102.218.57/dietaryguidelines/dga2005/pressrelease.htm). 11 100 68 Fed. Reg. 56395 (Sept. 30, 2003) Center for Science in the Public Interest, Pork Promoter 12 69 Fed. Reg. 10354 (March 5, 2004) Appointed to Senior USDA Nutrition Post (Feb. 26, 2003). 13 101 69 Fed. Reg. 10125 (March 3, 2004) Id. 14 102 CBS News, Bush OKs Faith-Based Funding (Dec. 12, 2002). Public Citizen, Letter to FDA Concerning Potential Conflict 15 Partha Deb and Dana Jones, Does Faith Work? A of Interest (Nov. 17, 2003). Comparison of Labor Market Outcomes of Religious and Secular 103 Id. 104 Job Training Programs, Center for Urban Planning and the Transcript of Oct. 14, 2002, meeting of the FDA general Environment, Indiana University, Indianapolis (October 2003). and Plastic Surgery Devices Panel of the Medical Devices Advisory 16 Adele Banks, Studies Begin to Probe Effectiveness of Committee (online at http://www.fda.gov/ohrms/dockets/ac/03/ Faith-Based Programs, Religious News Service (Dec. 3, 2003). transcripts/3989T1.htm). 17 105 Mike Allen, ‘Faith-Based’ Initiative to Get Push, FDA, Draft Guidance on Disclosure of Conflicts of Interest Washington Post (Aug. 31, 2002). for Special Government Employees Participating in Specific 18 Mike Allen, Bush Presses ‘Faith-Based’ Agenda, Product Advisory Committees (January 2002) (online at http: Washington Post (Sept. 23, 2003). //www.fda.gov/oc/guidance/advisorycommittee.html). 19 106 Religious organizations are exempt from filing annual David Michaels et. al., Advice Without Dissent, Science reports on finances and activities with the IRS (Form 990); all other (Oct. 25, 2002). 107 501(c)(3) charitable organizations must file 990s. Rick Weiss, HHS Seeks Science Advice to Match Bush 20 White House, Compassion in Action: Helping America’s Views, Washington Post (Sept. 17, 2002). 108 Charities Serve Those Most in Need (March 3, 2004) (online at HHS, Charter, Secretary’s Advisory Committee on Human http://www.whitehouse.gov/government/fbci/CompassionFS3-3-

142 143 04.pdf). 54 Dallas Morning News, Cheney Gets $33 Million Exit 21 Congress has not authorized the Compassion Capital Package from Dallas-based Energy Services Firm (Aug. 17, 2000). Fund, but has appropriated funds for distribution. 55 White House, Vice President Dick Cheney and Mrs. Cheney 22 President Bush requested $100 million for the Compassion Release 2002 Income Tax Return (April 11, 2003). Capital Fund in his FY 2004 budget, up from the $30 million 56 Jane Mayer, Contract Sport, The New Yorker (Feb. 16 & appropriated for it in both FY 2003 and FY 2002. 23, 2004). 23 HHS, HHS Awards $30 Million to Help Level Playing Field 57 Department of Defense, Army Named Executive Agent for Faith-Based and Community Institutions (Oct. 3, 2002). for Combating Iraq Oil Fires (March 24, 2003) (online at http: 24 68 Fed. Reg. 38055 (June 26, 2003) //www.defenselink.mil/news/Mar2003/b03242003_bt146-03.html). 25 White House, Guidance to Faith-Based and Community 58 Letter from Rep. Henry Waxman to Lt. Gen. Robert B. Organizations on Partnering with the Federal Government Flowers, U.S. Army (Nov. 5, 2003). (online at http://www.whitehouse.gov/government/fbci/guidance/ 59 Letter from Lt. Gen. Robert B. Flowers, U.S. Army to Rep. index.html). Henry Waxman (May 2, 2003). 26 Congressional Record S11546 (Nov. 7, 2001). 60 Id. 27 OMB Circular A-122 61 U.S. May Drop Plan for Open-Bid Iraqi Oil-Field Contract, 28 Lisa Monteil, The Use of Public Funds for Delivery of Faith- Dow Jones Newswires (June 4, 2003). Based Human Services, The Roundtable on Religion and Social 62 Corps to Amend Solicitation for Contracts for Repair of Welfare Policy (June 2003). Iraq’s Oil Infrastructure, U.S. Army Corps of Engineers (Oct. 29, 29 Carolina Bolado , Faith Based Charities Check Into Federal 2003). Funding, The State (June 20, 2002). 63 Letter from Lt. Gen. Robert B. Flowers, U.S. Army to Rep. 30 Faith-Based Flim-Flam, Church and State (October 2002). Henry Waxman (June 10, 2003). 31 Id. 64 Id. 32 CDC and GAO (at the request of abstinence-only 65 Mark Fineman, Halliburton Unit’s Bill for Iraq Work advocates in Congress) both performed audits in 2002. CDC, Mounts, Los Angeles Times (May 9, 2003). which is housed within HHS, also performed the third audit. 66 Letter from Rep. Henry Waxman to Les Brownlee, 33 Marc Kaufman, Sex-Ed Group Faces New Review, Acting Secretary of the Army (May 29, 2003)(online at http: Washington Post (Aug. 16, 2003). //www.house.gov/reform/min/pdfs_108/pdf_inves/pdf_admin_ 34 Ceci Connolly, Administration Promoting Abstinence, halliburton_contract_may_29_let.pdf). Washington Post (July 30, 2001). 67 Mark Fineman, supra note 65. 35 Chris Brennan, Federal Funds Aid Parents on School 68 Waxman, supra note 66. Options, Philadelphia Inquirer (Oct. 16, 2002). 69 Letter from Rep. Henry Waxman to Condoleeza Rice (Oct. 36 OMB Watch, Gary D. Bass, Kay Guinane, and Ryan Turner, 29, 2003). An Attack on Nonprofit Speech: Death by a Thousand Cuts (July 70 Id. 2003). 71 Id. 37 National Head Start Association v. Dept. Health and 72 Jackie Spinner, Army, Halliburton Deny Iraq Fuel Price Human Services, United States District Court for the District of Allegation, Washington Post (Oct. 18, 2003). Columbia. 73 Letter from Rep. Waxman to Lt. Gen. Robert B. Flowers, 38 This responded to a request by Republican members of U.S. Army (Nov. 5, 2003). the House Education and Workforce Committee. 74 GAO, Opportunities to Improve the Logistics Civil 39 68 Fed. Reg. 64351-64352 (Nov. 13, 2003) Augmentation Program (February 1997) (online at http:// 40 57 Fed. Reg. 26742 (1992) www.gao.gov/archive/1997/ns97063.pdf). 41 Congress later adopted this rule as an appropriations 75 GAO, Army Should Do More to Control Contract Costs in amendment with the blessing of the administration. the Balkans (September 2000). 42 White House, The President’s Management Agenda, 76 Complaint for Damages under False Claims Act and Fiscal Year 2002 (online at http://www.whitehouse.gov/omb/ demand for Grand Jury at 7, U.S. ex rel Dammen Grant budintegration/pma_index.html). Campbell v. Brown & Root Service Corp. (E.D. Cal.) (No. CIV-97- 43 68 Fed. Reg. 32134 (May 29, 2003) 1541WBSPAN). 44 Testimony of AFL-CIO President John J. Sweeney, GAO 77 Jane Mayer, supra note 56. Commercial Activities Panel, Outsourcing Principles and Policies 78 Statement by Rep. Waxman before the House Committee (June 11, 2001). on Government Reform (March 11, 2004) (online at http: 45 Max Sawicky, Show Me the Money: Evidence is Sorely //www.house.gov/reform/min/pdfs_108_2/pdfs_inves/pdf_admin_ Lacking that the Bush Administration’s Proposed A-76 Rules for iraq_contract_march_10_statement.pdf). Contracting will Bring Budget Savings, Economic Policy Institute 79 The Center for Responsive Politics, Postwar Profits, (2003). Capital Eye (2003) (online at http://www.capitaleye.org/ 46 Memorandum from Fran Mainella, director of the National iraqchart.3.12.03.asp). Park Service, to Lynn Scarlett, assistant secretary of Interior for 80 The Center for Responsive Politics, Rebuilding Iraq – The policy, management and budget (April 4, 2003). Contractors (April 28, 2003) (online at http://www.opensecrets.org/ 47 Memo from Fran Mainella, supra note 46. news/rebuilding_iraq/index.asp). 48 Public Employees for Environmental Responsibility, Park 81 In addition, AT&T has accused MCI/WorldCom of Service Must Cut Operations to Pay Outsourcing Costs (April 21, improperly routing domestic calls through Canada to avoid paying 2003). fees to local phone companies, prompting a Justice Department 49 Environmental News Network, Plan to Privatize Park investigation. Service Panned (July 25, 2003). 82 GSA, MCI WorldCom Proposed Debarment (July 31, 2003) 50 Campaign to Protect America’s Lands, Safe Parks for the (online at http://www.gsa.gov/Portal/newsreleases.jsp?query=doc People or Profits for the Lowest Bidder? The Bush Administration’s &id=9423CB9E229052CC85256D750042D1D7&title=GSA%20Propo Plan to Privatize the National Park Service (online at http://www.pr ses%20Debarment%20of%20MCI%20WorldCom). otectamericaslands.org/Learn_Facts.asp). 83 The Center for Responsive Politics, supra note 80. 51 Memo from Fran Mainella, supra note 46. 84 Department of Homeland Security, Secretary Ridge 52 National Parks Conservation Association, National Parks Announces New Initiatives for Port Security (June 12, 2003). Threats Yield Political Watch List (March 13, 2003). 85 Jennifer Lin, Big Grant to Oil Firm Shrouded in Secrecy, 53 Jason Peckenpaugh, Curb on Justice Job Competitions Philadelphia Inquirer (June 19, 2003). Draws Veto Threat, Government Executive Magazine (Nov. 12, 2003). 86 Id.

144 145 87 Although Homeland Security would not disclose why Force’s Plan to Acquire 100 Boeing Tanker Aircraft, (August 2003) Citgo received the grant, an agency official said that Citgo’s (online at http://www.cbo.gov/showdoc.cfm?index=4494&sequen proposal was ahead of others because the company had already ce=0). 105 conducted plant security assessments of its Lake Charles facility in Smith and Merle, supra note 96. 106 December 2001 and April 2003. Id. 107 88 Jeremy Torobin, Private Companies Elbowing In On Port Id. 108 Security Grants, CQ Homeland Security (July 10, 2003). The Center for Responsive Politics, President George 89 Lin, supra note 85. W. Bush: Inauguration 2001 (Jan. 25, 2001) (online at http:// 90 Id. www.opensecrets.org/2000elect/other/bush/inaugural.asp). 109 91 Id. Renae Merle, Pentagon Agrees to Compromise on 92 Griff Witte, Federal Ban Doesn’t Hurt WorldCom Much, Boeing Tankers, Washington Post (Nov. 7, 2003). 110 Washington Post (Oct. 24, 2003). Helen Jung, Two Senators Want 767 Deal Postponed, 93 Id. Washington Post (Nov. 29, 2003). 111 94 Jane Mayer, supra note 56. Bureau of National Affairs, Air Force-Boeing Tanker 95 Marianne Brun-Rovet, Senate Backs Plan to Lease Boeing Arrangement On Hold Pending IG Probe, Wolfowitz Says (Dec. 3, Tankers, Financial Times (Nov. 13, 2003). 2003). 112 96 R. Jeffrey Smith and Renae Merle, Rules Circumvented on Andrea Shalal-Esa, Pentagon Puts Hold on Boeing Tanker Huge Boeing Defense Contract, Washington Post (Oct. 27, 2003). Deal, Reuters (Dec. 2, 2003). 113 97 Id. Bureau of National Affairs, supra note 111. 114 98 Id. Id. 115 99 Id. Id. 100 GAO, Preliminary Briefing on AF Tanker Leasing Issues (May 2002) (online at http://www.gao.gov/new.items/d02724r.pdf). 101 Public Citizen, Fact Sheet on Boeing and Proposed Deal Whose Government to Lease 100 Tanker Jets (2003). Is This ? 102 Smith and Merle, supra note 96. 103 Id. 1 These figures, from the Center for Responsive Politics, 104 Congressional Budget Office, Assessment of the Air include donations to the Republican National Committee.

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