Environmental enforcers get out while the getting’s good (and everything else is bad)
When John Suarez, the U.S. EPA’s top enforcement official, resigned on Monday to take a job at a Wal-Mart division, he assured his colleagues and President Bush that the EPA has “been able to provide more compliance assistance to industry than ever before.” The operative wording here, of course, is “assistance to industry,” seeing as Suarez played a key role in the notorious decision by the Bush administration to scrap lawsuits against dozens of coal-burning utilities for past dirty-air infringements under the New Source Review provision of the Clean Air Act — one of the biggest and most controversial enforcement lapses in the agency’s history.
To make the situation even more absurd, Suarez concluded his resignation letter by saying, “I can assure you that the enforcement and compliance efforts are [left] in good hands at EPA.” [Download a PDF copy of the letter.] Apparently, he failed to notice that there are a fast-dwindling number of good hands after an exodus of senior talent from the EPA over the holidays, including the unexpected retirements of two top-level career employees in the agency’s enforcement division just weeks before Suarez’s own announcement. Bruce Buckheit, who had served in the EPA through six presidential administrations, and his deputy, Richard Biondi, both retired with clear signs of indignation about the Bush administration’s disregard for their positions.
“I just didn’t feel comfortable working in that environment anymore,” Biondi told Muckraker from his home soon after his resignation. “Certainly the direction that the agency was going over the last couple years was different than what I’d experienced during my 32 years working for EPA. It was contrary to everything that I had worked for.”
Buckheit, who was director of the EPA’s air enforcement division, is on extended holiday travel and could not be reached, but made strong statements to Greenwire just before his departure: “This new enforcement policy [under the Bush administration] will stop almost all work in the power plant enforcement world,” he said. “If there was any interesting and useful work [left] in the power plant sector, I’d still be [at my desk].”
They’re not the first to take a stand: Eric Schaeffer, former director of EPA’s regulatory enforcement division, quit EPA in February 2002 in a fury and sent a withering public resignation letter to then-Administrator Christie Whitman. Sylvia Lowrance, an agency employee for more than 20 years who was in Suarez’s very shoes as acting Assistant Administrator of the EPA Office of Enforcement and Compliance Assurance for the first 18 months of the Bush administration, retired quietly in July 2002. Though at the time she did not speak out, she has since voiced serious misgivings about the state of the enforcement program.
In fact, the number of EPA enforcement staff has fallen to its lowest level since the agency was established, having decreased by 12 percent — from 528 to 464 — since Bush took office. According to a former EPA employee who spoke on condition of anonymity, the administration is working on a master plan to quietly get rid of the senior career staff at EPA. The plan is carried out through one very effective strategy: an incentive for early retirement. “I’ve heard that they are offering a financial incentive of $25,000 in addition to their retirement plans to get out,” said the former official. “The Bush administration is the first ever to offer such a plan to senior officials at EPA.”
This is rumored to be precisely the bait that hooked both Buckheit and Biondi: The administration offered them a buyout. And given the officials’ tremendous frustrations, it’s perfectly understandable that they took it. “This administration came in with a very obvious bias against the career staff at EPA,” said Lowrance. “I think that they believed that many of us were not in tune with their thinking about environmental standards and enforcement, and therefore didn’t trust their career staff from the beginning. But what’s interesting about these retirement incentives is that EPA is not exactly one of the older agencies in government — there isn’t a whole bunch of dead wood sitting at the top echelons.”
Another problem, added Lowrance, is that retirees are not just dropping out of the enforcement office. “There are people retiring all over EPA,” she said. “I can think of about half a dozen people that have recently decided to leave the Superfund office, for example — a program where the administration is totally ignoring the funding demands for toxic waste cleanup.”
But how does Suarez fit into this crisis of conscience that’s sweeping the agency? He was a Whitman-appointed Republican loyalist whose prior job was overseeing gambling laws in New Jersey’s Atlantic City casinos. He had no previous professional connection to the environment and had voiced no objections to the toothless EPA enforcement system. So what would cause him to leave?
“For months I’ve been hearing rumors that Suarez was frustrated with his position and wanted out,” Schaeffer said. The anonymous former EPA employee added that Suarez was concerned about his reputation: “As chief law enforcer for environmental protection in this country, it was clear to everyone [in Washington] that he was summarily unsuccessful — that he was not able to run an effective enforcement program under this administration,” said the former official. “So from a reputation standpoint, there were pretty clear indicators that he should resign.”
As far as environmentalists are concerned, Suarez’s departure is a welcome riddance. There’s even a bit of humor in the fact that Suarez suddenly decided to jump the EPA ship for Wal-Mart — as if protecting the welfare of the world’s largest company is an altogether more upstanding pursuit than enforcing environmental law throughout the U.S. But there’s nothing humorous in the mass exodus of the agency’s seasoned officials, because, as Schaeffer observed, “with us goes the institutional memory of the agency.” All the people who had a connection to and understanding of the regulatory framework of the past will be replaced with new blood — employees who will more easily dismiss and forget the decades of regulations that the Bush administration has set out to dismantle.
Swings of Victory
Nowhere is this reality more sobering than in the area of Clean Air Act enforcement. While environmentalists enjoyed a surprising victory over the holidays when the Circuit Court of Appeals in Washington, D.C., issued a preliminary injunction to block the Bush administration’s efforts to rewrite the act’s New Source Review rule, it was in all likelihood more a symbolic than a practical victory.
The court action was brought by a coalition of attorneys general from 14 states and attorneys from 30 cities and municipalities. They argued that the EPA’s rule would have let more than 22,000 utilities, refineries, and industrial facilities make major expansions without being required to install additional pollution controls. A three-judge panel of the court agreed that this was a violation of the Clean Air Act and issued a temporary injunction.
On the one hand, the decision was “proof that law is king in this country, not the other way around,” said Chris Miller, a staff member for the Senate Environment and Public Works Committee. On the other, it may be that this legal injunction is a phantom king with a tenuous rule. Here’s why: The hearings will likely drag on for at least a year, during which time the New Source Review rule will remain in limbo, and the administration will get exactly what it is looking for: more time. “While this remains up in the air, the Bush administration will in all likelihood simply continue to do nothing,” said Frank O’Donnell, director of the Clean Air Trust. “And this is precisely the payback its corporate contributors are hoping for.”
Worse still, even if the appellate court does decide to officially reject the Bush administration’s proposed rule changes, there will be few top-level enforcement officials left who have previous knowledge of the cases and can move forward with them. After all, it was Bruce Buckheit and his deputy Richard Biondi who were the most knowledgeable about how to prosecute New Source Review cases. According to John Stanton of the National Environmental Trust, “Once you lose your brain trust, once you lose your institutional memory, it has a crippling effect on the ability of the enforcement office to even proceed.”
Judith Enck, a policy advisor to New York Attorney General Eliot Spitzer, the man spearheading these cases against the administration, said she was well aware that this victory may not, practically speaking, have any positive implications as long as the Bush administration is running the show. But, she said, the attorneys general are thinking longer-term: “This effort will preserve the [New Source Review] tool so it can be used in the future — assuming that down the road another administration will come along that actually wants to enforce the Clean Air Act.”
Holiday Treats for Pollutocrats
And that’s not the only grim news from over the holidays. While the American public stuffed stockings, lit menorahs, and guzzled champagne, EPA Administrator Michael Leavitt and Interior Secretary Gale Norton were hard at work pushing some major regulatory changes through their agencies’ pipelines. Two in particular are of note:
Photo: Alaska Rainforest Campaign.
Late in the day on Dec. 23, the U.S. Forest Service announced that it is exempting 9 million acres in the Tongass National Forest in Alaska from the so-called roadless rule enacted by the Clinton administration. The decision would open 300,000 acres of dense, old-growth woodland in the largest U.S. national forest to logging and road building, and expose a total of more than a million acres to damage from development.
The administration and Alaska Gov. Frank Murkowski (R) are defending this decision as a major economic stimulant, while environmentalists are calling it a major tragedy in which common federal land is being used for narrow local purposes. Of the nearly 250,000 public comments submitted to the Forest Service on this matter, fewer than 2,000 supported the administration’s plan, according to the Heritage Forests Campaign. Critics of the proposal included the office supply giant Staples, as well as some Forest Service employees and a considerable number of Alaskan citizens. The decision was, of course, most eagerly heralded by companies that have already proposed 50 logging projects in the area. Least enthusiastic, perhaps, are the wolves, bears, eagles, salmon, and other wildlife that inhabit the forest and are steadily vanishing from the rest of the country.
Then, on New Year’s Eve, the Bush administration said it would not stop companies from using treated sewage as fertilizer on farmland and abandoned mines, despite a petition from more than 70 groups including the Center for Food Safety and the National Farmers Union that alleges the sludge has sickened, and in some cases killed, people and livestock. The EPA’s science and technology office argued that the agency already forces waste management companies to filter about 40 pollutants from sewage sludge, and that there isn’t a reasonable case that they need to do more.
The EPA did, however, promise to conduct further tests on 15 untreated chemicals and metals in the sludge, including acetone, barium, and nitrite, to determine if the pollutants should be removed down the line. In the meantime, however, sludge-smearing can continue as usual. The groups critical of the practice claim that at least three people have died in the past decade after contracting staphylococcus infections from sewage sludge. It seems they may have to wait for a few more deaths before the shit finally hits the fan and the feds take protective action.