Regulatory Underkill: The Bush Administration’s Insidious Dismantling of Public Health and Environmental Protections by William Buzbee, Robert Glicksman, Sidney Shapiro and Karen Sokol A Center for Progressive Regulation White Paper October 2004 Introduction The intended and achieved consequence of this effort In the 1960s and early 1970s, Congress passed a series has been a significant weakening, and in some cases a of path-breaking laws to shield public health and the wholesale abandonment, of many of the vital and statutorily environment from the increasingly apparent dangers created mandated health and safety protections upon which by industrial pollution and natural resource destruction. Since Americans have come to rely. that time, regulated corporations have made determined and For example, the Bush administration has: concerted efforts to use their wealth and political power to diminish or even to eliminate various health, environment, • proposed a rule change that would relieve thousands and safety protections. As is documented in the pages that of coal-fired power plants of their obligations to install follow, the Bush administration has granted regulated entities technology that would reduce—by the tons—emissions of unprecedented license in this area, according corporate harmful airborne pollutants that are significant causes of officials de facto policy-making power while excluding the cancer, neurological disorders, asthma, and lung disease; general public from decision-making to the fullest extent • stopped prosecuting lawsuits initiated during the possible. Clinton administration against electric-utility companies for In many ways, the regulatory process provides the ideal long-standing, systematic violations of requirements to install setting for this collusion between the administration and cleanup technology, thereby permitting the companies to corporate interests because there are numerous subtle and continue spewing out, on a daily basis, tons of pollutants quiet ways to scuttle regulatory protections even while the that could be controlled with the legally-required technology; laws embodying those protections remain in force. This CPR • entered into a “sweetheart settlement” with the electric- white paper illuminates the array of strategies, referred to utility industry in a case in which the government almost collectively as the tools of “regulatory underkill,” that the certainly would have prevailed, agreeing to issue new rules Bush administration has used to dismantle regulatory that rescind the Environmental Protection Agency’s long- protections of public health and the environment. standing interpretation of monitoring requirements in favor The first chapter of this paper provides a general of the interpretation sought by the utilities, i.e., one that overview of the regulatory-underkill tools. The following effectively places monitoring authority in the hands of the chapters show how the Bush administration has repeatedly regulated industry; used these underkill tools to erode the protections provided • withdrawn the signature of the United States from for in the Clean Air Act, the Comprehensive Environmental the Kyoto Protocol, an international agreement on climate Response, Compensation and Liability Act (known as CERCLA or the Superfund law), and the Clean Water Act. In each case, the administration has provided regulatory relief William Buzbee is a Professor of Law at Emory University to polluting industries as furtively as possible, evading the School of Law. Robert Glicksman holds the Robert W. Wagstaff accountability that would result from open efforts to change Chair at the University of Kansas School of Law. Sidney Shapiro these statutes that the people of the United States have holds the University Distinguished Chair in Law at the Wake Forest consistently supported. Consequently, the Bush University School of Law. All are Member Scholars of the Center administration, so apparently beholden to corporate interests for Progressive Regulation. Karen Sokol is a Senior Policy Analyst rather than the general public, has utterly failed to “faithfully at the Center for Progressive Regulation. Additional information execute the laws,” as required by the U.S. Constitution, and, about the authors appears on page 20 of this white paper. indeed, has systematically defied those laws. CPR White Paper #406 Page 1 The Center for Progressive Regulation change that would have required reductions in emissions of tools of regulatory underkill, the administration has succeeded carbon dioxide and other “greenhouse gases” that contribute in undoing years of progress in protecting public health and to global warming, and then suppressed scientific the environment. information on the reality of and myriad dangers of global warming; Chapter 1: The Tools and Process of • repeatedly fought reauthorization of a tax on the Regulatory Underkill chemical and petroleum industries historically used to fund In the wake of the passage of laws protective of public cleanups of many hazardous toxic waste sites throughout health and the environment, there has emerged a cottage the country, shifting most the burden of paying for cleanups industry of critics who argue that regulatory policy is from the polluting industries to the general public and causing irrational and excessive.1 Their claims of “regulatory a dramatic slowdown of cleanups of the most contaminated overkill,” which are based on the authors’ estimates of the sites in the country, endangering the health of millions of costs and benefits of government regulation, have been cited people living near the sites who continue to be exposed to time and time again by those who seek less regulatory noxious chemicals associated with birth defects, cardiac and protection.2 In reality, however, pervasive and effective pulmonary disorders, compromised immune systems, environmental and risk regulation remains a rarity. As has infertility, and cancer; been widely established, there are numerous methodological • filed an amicus brief urging the Supreme Court to problems with the cost-benefit studies underlying claims of 3 adopt an interpretation of the law governing cleanups of regulatory overkill. Moreover, these studies are based on toxic waste sites that would discourage voluntary cleanups assumptions that make it clear the analysis is not neutral. by industry and thus, if adopted by the Court, would further The authors invariably resolve any uncertainties in favor of slow down the rate at which toxic waste sites are cleaned up; raising the cost of regulation and lowering the benefits. If there is an opportunity to make regulation look bad, the • unjustifiably used a Supreme Court decision as a authors choose that option, even though regulation is pretext to adopt an interpretation of the Clean Water Act, perfectly reasonable under other equally plausible long advocated by regulated industries but vehemently assumptions. opposed by the general public, that would withdraw protection from many of this country’s waters, including 20 While the debate over regulatory costs and benefits has percent of the wetlands (20 million acres) and at least 60 been going on, attention has been deflected away from the percent of all river miles (2.15 million miles) in the contiguous failure of government to regulate when it is obviously in the 48 states, threatening to reverse achievements already made public interest. Most academics have been occupied with under the Act and to preclude any possibility of maintaining this debate, and the subject of government failures to regulate and improving water quality in this country; has escaped the attention of most reporters because of its complexity. Further, even if the efforts to weaken regulation • issued a rule to “legalize” ex post facto the coal-mining do not completely escape public attention, it is often difficult industry’s long-standing illegal practice of burying thousands to understand their significance without a sophisticated of miles of this country’s streams beneath wastes from understanding of the regulatory context in which they occur. mountaintop-mining, just in time to undermine the efforts The path from identification of a pressing harm, to of citizens who were successfully challenging the industry’s enactment of measures to address it, to implementation of illegal dumping in court; and such enactments and alleviation of the threatened harm, is • ceased in effect to enforce the Clean Water Act, fraught with uncertainty. Because the executive branch largely notwithstanding widespread violations of the Act by controls the realm of implementation and enforcement, industrial facilities, many of which have discharged up to six where, as is currently the case, the administration seeks to times the permissible amount of pollutants into waters weaken regulatory protections, it remains unlikely that a social throughout the country. ill, particularly one involving environmental or workplace risks, will actually be addressed. This is not to suggest that None of these steps required congressional approval; all risks will be completely ignored; someone is likely to act most were the subject of little if any public debate. But in some way if the public or interest groups clamor for action. their collective impact has been to reverse course on a number But it is far from obvious that political or regulatory action of the most significant environmental statutes passed by will move from initial or token responsiveness to action that Congress