Western New England Law Review Volume 25 25 (2003) Issue 1 ENVIRONMENTAL LAW SYMPOSIUM – Article 2 THE FIRST YEAR OF THE BUSH ADMINISTRATION 1-1-2003 FROM THE TRENCHES: WHAT HATH BUSH WROUGHT FOR THE ENVIRONMENTAL LAWYER IN PRIVATE PRACTICE? OR MUCH CAN-DO ABOUT NOTHING Chris Mhyrom Esq. Follow this and additional works at: http://digitalcommons.law.wne.edu/lawreview Recommended Citation Chris Mhyrom Esq., FROM THE TRENCHES: WHAT HATH BUSH WROUGHT FOR THE ENVIRONMENTAL LAWYER IN PRIVATE PRACTICE? OR MUCH CAN-DO ABOUT NOTHING, 25 W. New Eng. L. Rev. 29 (2003), http://digitalcommons.law.wne.edu/lawreview/vol25/iss1/2 This Symposium Article is brought to you for free and open access by the Law Review & Student Publications at Digital Commons @ Western New England University School of Law. It has been accepted for inclusion in Western New England Law Review by an authorized administrator of Digital Commons @ Western New England University School of Law. For more information, please contact [email protected]. FROM THE TRENCHES: WHAT HATH BUSH WROUGHT FOR THE ENVIRONMENTAL LAWYER· IN PRIVATE PRACTICE? OR MUCH CAN-DO ABOUT NOTHING CHRIS MHYROM1 President Bush has managed to undo most of the modest gains [the Clinton Administration] made with almost no effort. Within months of taking office, he had scuttled new standards for arsenic in drinking water, pulled out of the Kyoto treaty on global warming, and rejected stricter fuel-efficiency standards. Since then, his Administration has expedited the permit-granting process for power companies, enabled logging companies to build new roads in national forests, and sought to open the Alas­ kan wilderness to oil exploration? This comment exemplifies a popular opinion of the Bush Ad­ ministration's environmental record. I will attempt to provide, though perhaps summarily, a perspective of the Administration's environmental performance from the viewpoint of an environmen­ tal attorney in private practice.3 For additional insight, I have spo­ ken with friends and professional acquaintances in the environmental departments of megafirms, in the more generalized practice areas of small to medium sized firms, and in environmental boutique firms. The general consensus is that the Bush Administra­ tion has had little impact on their respective practices. Do they an­ ticipate significant changes in practice over the remaining years of this Administration? Yes, no, and maybe. One would be hard pressed to come up with a murkier response, but that is what one hears. 1. I am a partner in a Springfield law firm. My practice is very enjoyable; I get to represent a wide yet comfortable panoply of interests in a broad range of environmen­ tal subject areas. I do not purport to be up on the latest trends in Washington, D.C.; indeed, I have three kids, and I would be glad to be up on their latest trends. 2. Elizabeth Kolbert, Comment Bad Environments, THE NEW YORKER, May 20, 2002, at 35, available at http://www.Kingchuck.com/mining.strearns4.html. 3. Thank you, Professor Craig, for inviting me to participate in this environmental symposium. 29 30 WESTERN NEW ENGLAND LAW REVIEW [Vol. 25:29 When assessing an executive administration's affect on envi­ ronmental policy, it is important to first survey the national eco­ political milieu. Consider the following questions: Can the most powerful man in the world, the President of the United States, sub­ stantially affect environmental policy and enforcement in the United States in the first year of his administration? What about in four years? Does recent experience teach that the statutory frame­ work and regulatory structures of environmental law are now so securely ensconced as American icons that material revisions to our pantheon of environmental statutory gods defies even the most ear­ nest efforts of reformers, whether liberal or conservative? Can the Chief Executive really hope to implement substantial change in en­ vironmental regulation effectively? If not, is it nonetheless true that President Bush's Administration has demonstrated in its first year an inability to manage details competently in this field? One must accept the threshold premise that the President can, through appointments, policy announcements, or executive orders, attempt to set the stage for public debate on environmental issues during the remaining years of the administration. Obviously, the electoral process itself is a significant factor influencing the environ­ mental arena. Some so-called natural resources lawyers represent­ ing mining, petroleum and natural gas drilling, and timber interests presumably have not stopped salivating since the Supreme Court put the Florida returns to bed.4 Conversely, considering the lack of electoral punch in New England, how much could the Bush Admin­ istration care about garnering environmental votes in the Northeast? Recall how a few votes would have shifted New Hampshire's electoral victory to Vice President Gore, which would have ren­ dered Florida's results irrelevant.5 Ironically, Robert Varney, New Hampshire's long time Commissioner of Environmental Protection, is now the Administrator of the EPA's New England Region.6 Re­ 4. Mr. Meyer is much better positioned than I to afford a national perspective. See Dan Meyer, "W" For War and Wedge? Environmental Enforcement and the Sacri­ fice ofAmerican Security-National and Environmental-to Complete the Emergence of a New, "Beltway" Governing Elite, 25 W. NEW ENG. L. REV. 41 (2003). 5. See http://www.leinsdorf.com/president2000.htm (listing results from each state). President Bush had 273,559 votes, while Vice President Gore had 266,348 votes. If only 3,606 people had changed their mind between the two of them, or thrity-three percent of those who voted for Mr. Nader had voted for Vice President Gore, then Gore would have won New Hampshire's four electoral votes. 6. See Press Release, EPA New England, Whitman Swears in Robert Varney as 2003] THE ENVIRONMENTAL LAWYER IN PRIVATE PRACTICE 31 cently I heard Mr. Varney describe himself publicly as a "Democrat on Sabbatical." Even from a charitable perspective, the Bush Administration's first year foray into the battle of Beltway environmentalism was grossly inept. ·Opportunities presented by the favorably reviewed selection of Governor Whitman to head the EPA were dashed by the rather obtuse decision to declare publicly the "re-review" of the arsenic in drinking water regulation promulgated after lengthy debate.7 Assume, arguendo, that the arsenic rule is wrong and repre­ sents the triumph of politics over science. So what? It is incompre­ hensible why any rational issues manager for the White House would provide Administration critics the chance to open every pub­ lic address with the query: Who here is in favor of more arsenic in their drinking water? Since this announced re-review resulted in the same standard being proposed, what was accomplished? The whole episode could be aptly dubbed "the Arsenic Fiasco." From the private practice perspective, I can tell you none of my industrial or commercial clients were impressed. Environmen­ tal organizations, on the other hand, loved this show. Struggling since the fund-raising glory days of the Reagan and "Bush the First" Administrations, the major environmental groups could not have asked for a better opening move from the current Bush Ad­ ministration. Through appointments like the much-maligned Gale Norton and the sweeping regulatory reviews called for by Massa­ chusetts-trained Andrew Card,s which lead to the new Beltway ex­ pression of "getting Carded,"9 the Administration seemed eager to help these organizations replenish coffers depleted by the absence of good environmental alarm issues during the Clinton-Gore years. Still, one can argue that this Administration's first year per­ formance will have to be evaluated towards the end of its second year. The first year of any administration must succumb to an inev- EPA New England's Regional Administrator (July 31, 2001), available at http:// www.epa.govINE/pr/2001ljul/010719.html. 7. See National Primary Drinking Water Regulations, 66 Fed. Reg. 16, 134-35 (Mar. 23, 2001) (codified at 40 C.F.R. pt. 141) (delaying effective date by sixty days). 8. See Memorandum for the Heads and Acting Heads of Executive Departments and Agencies, 66 Fed. Reg. 7702 (Jan. 24, 2001). In this memorandum, Mr. Card delayed implementation of several regulations. 9. See Robert Perks & Gregory Westone, The Bush Administration's Assault on the Environment, REWRITING THE RULES, YEAR-END REPORT 2002 (Nat'l Resources Def. Council, New York, N.Y.), Apr. 2002, available at http://www.nrdc.org/legislation/ rollbacks/rollbacksinx.asp. 32 WESTERN NEW ENGLAND LAW REVIEW [Vol. 25:29 itable lethargy while new personnel are hired, or transferred into obscurity, and seasoned bureaucrats hunker down until the dust set­ tles. However, the horrors of September 11 so affected this nation that virtually all issues went into a sort of suspense following that tragic day. Only since late January 2002 have we begun to see the sort of reporting and editorializing that will foster meaningful dis­ cussion of this Administration's environmental tilt (or spin, depend­ ing on your view of the vortex). September 11th has already caused and will continue to compel major reallocation of personnel and programmatic resources at all levels of government. Toxic Sub­ stances Control Act (TSCA) or Resource Conservation and Recov­ ery Act (RCRA) inspections become impracticable when officials are tied up looking for anthrax at the headquarters of news organi­ zations ranging from NBC to the National Enquirer.1° The single piece of environmental legislation born in Year One is the Small Business Liability Relief and Brownfields Revitaliza­ tion Act.l1 This Administration could not possibly keep a straight face while trying to take credit for this legislation because it is merely old news with some new ribbons.