Activists' Assessment
Environmental Leaders Give EPA Mixed Reviews On Its Performance Bette Hileman, C&EN Washington
T
he Environmental Protection Agency has reached a turning point, environmental leaders say. This is a point at which, even without the strong attack from Congress, EPA needs to rethink its mission and its methods. The progress EPA made in its early days in cleaning up and preventing gross pollution—sewage, oil, grease, and visible industrial waste—was enormous, they say. But EPA is having a much harder time dealing with invisible toxics, especially persistent ones that are found at low levels and that bioaccumulate. EPA's laws work reasonably well for Fortune 500 companies, but many laws are not well crafted to regulate the hundreds of thousands of small businesses and small municipalities scattered across the country. Throughout its history, some of EPA's deficiencies have come from within: failures of leadership, failures to attack important problems quickly enough, failures to rethink its approaches. Others have resulted from outside pressures—the inevitable consequences of operating in a democracy. EPA has to respond to the demands of the public, even when the public may not be focusing on the most important issues, and in some cases it must work within the confines of congressional mandates that are too restrictive, too detailed, and, quite often, impractical. And it has not effectively communicated its successes to the public. But despite its problems, EPA has made remarkable progress in some areas over the past 25 years, environmental spokesmen say. They cite a number of accomplishments: The number of U.S. rivers considered fishable and swimmable has doubled since the Clean Water Act was enacted in 1972. And urban air quality has improved dramatically in most cities, though it is still not up to health-based standards. One of EPA's clearest victories was 30
OCTOBER 30, 1995 C&EN
*L P R O ^ They admit EPA has had some major cleanup successes, but they are deeply disturbed by newly developing trends its role in establishing control over ozone-depleting chemicals in the U.S. and in pushing for global controls, says Michael Oppenheimer, an atmospheric physicist at the Environmental Defense Fund. 'There is no doubt that EPA did a terrific job in putting the U.S. in a forward position at the international negotiations, in putting regulations in place, and in putting a solid section in the Clean Air Act of 1990 to deal with the whole issue." Another success was the voluntary emissions reductions achieved under the Toxics Release Inventory, mandated by the Community-Right-to-Know provisions of the Superfund Amendment & Reauthorization Act of 1986, says Gregory S. Wetstone, legislative director for the Natural Resources Defense Council. Being forced to release information about emissions has alerted firms to emissions and waste that even the firms themselves often were not aware of, and has led to voluntary reductions. However, EPA now finds itself fac-
ing a barrage of criticism from a Congress that is seeking to cut back drastically both the agency's budget and its regulatory activities, and it faces an ever-rising volume of complaints from portions of the business community. And probably no program has generated as much criticism of EPA as Superfund. "Ninety percent of the flogging of EPA comes out of the Superfund program," says J. William Futrell, president of the Environmental Law Institute, Washington, D.C. But environmental leaders view Superfund as both a great success and a great failure. All agree that Title I of the Superfund law—the emergency response program designed to keep aquifers from being polluted or people from being exposed after a spill—has been beneficial. "Title I has been one of the most effective costbenefit programs in the history of our country," says Futrell. And the joint and several liability provision of Superfund, though often condemned by business, has been a strong force in changing attitudes, Futrell says. Fortune 500 companies have been turned around because of the introduction of liability systems, he says. "As a former lawyer who defended doctors in liability suits, I know that nothing changes behavior like liability." Superfund does encourage firms to look at processes and reduce their future exposure to liabilities, agrees R. Darryl Banks, director of the program in technology and the environment at the World Resources Institute. It stimulates them to "change the design of whatever they make or do, so that in future years they will not be creating circumstances where they will be responsible for [adverse] environmental consequences" of their actions, he says. "If EPA backs away from liability just when the rest of the world is looking at the benefits of this free-market regulator of risk, it is courting disaster," says Richard Hind, legislative director of the toxics campaign at Greenpeace.
The most criticized aspect of the Su- environmental leaders contacted by perfund program is that the number of C&EN. But they have worked less well sites actually cleaned up has not been to guide the decision-making of the naproportional to the amount of money tion's hundreds of thousands of small spent, Banks notes. Superfund has be- businesses. "Small businesses are genucome deadlocked over process, proce- inely frustrated with an ever-growing dure, and litigation, he maintains. Envi- level of, to them, almost impossible-toronmental leaders see two problems meet requirements from local, state, and with Superfund that were not anticipat- federal governments," says William M. ed in the beginning: Some sites have Eichbaum, vice president for U.S. proturned out to be unexpectedly difficult grams at the World Wildlife Fund. and extremely expensive to clean. And Eichbaum thinks small businesses the public is reluctant to accept partial may be regulated best at the state and remediation. It demands a total cleanup, local level. If states were to marry their when, for some sites, the only practical economic development policies to ensolution may be a partial cleanup. vironmental policies, "it seems to me Futrell suggests that if the Superfund you would have a pretty powerful coacleanup program must be changed, it lition of two forces for the long-term be changed incrementally, by testing sustainable development of society," new programs first in the states. Then he says. "state government should advise EPA One of EPA's major long-term failhow to conduct a national program." ures has been its inability or unwillingHe considers "brownfields" legislation ness to communicate its successes in a passed by several states very promis- meaningful way, says Michael McClosing. Under such legislation, urban Su- key, chairman of the Sierra Club. perfund sites are cleaned up only to the "EPA's best chance of gaining the pubpoint that they can be safely used for lic support it needs lies in reaching out industrial development. and communicating clearly with the Another area where EPA has had public," he says, but it has failed to do only partial success is protecting drink- that through much of its history. "EPA ing water supplies. "The Safe Drinking speaks almost in code regarding its Water Act has not done nearly enough work," he says. As a result, "the public to address the problems caused by con- is seldom able to understand what EPA tamination of tap water," says Wet- is talking about." stone. Drinking water contaminated Mark Van Putten, director of the with pesticides, which millions of Great Lakes Regional Office of the NaAmericans are exposed to, is a prime tional Wildlife Federation, says this lack example of EPA's failure to protect wa- of communication came about because ter supplies, he says. "Where agency EPA, as well as some of the public interofficials once moved forward, they est groups, became "too caught up in have backed off in response to political the details of policy implementation" pressures," Wetstone charges. and "lost sight of the moral force of their Nor has EPA solved the problem of task." They failed to play the role they how to regulate persistent chemicals could and should have played as leadthat, although present in the environ- ing spokesmen for protecting the enviment at relatively low concentrations, bioaccumulate, says Banks. Sometimes these chemicals can be found in drinking water. Sometimes they are in lakes, rivers, or bays where they bioaccumulate in fish, leading to fish advisories. "They are generally an intractable and difficult problem and one that is more difficult than we [originally] thought, in terms of the regulatory instruments being used to solve it," Banks explains. Overall, EPA's regulations have worked reasonably well for the few thousand heavy indusBeach advisories such as this one have become tries in the nation, say some of the less common since the creation of EPA.
Futrell: EPA flogged over Superfund
ronment and conserving natural resources, he says. "They lost sight of the fact that the environmental movement is a social movement that tries to marshal collective action to change individual behavior to achieve some collective goals," Van Putten explains. "As a result, the broad public support for EPA programs was frittered away." Futrell observes that some of EPA's lack of success in communicating with the public may have been the fault of the White House. Throughout EPA's history, "most of the time, the White House staff wanted quiet on the environmental beat. No news is good news. The last thing the White House wanted was a flamboyant EPA administrator," he says. Perhaps due to its lack of communication skills—but perhaps not—EPA seemed weak and overly rigid throughout much of its history. Futrell attributes that perception to the agency's almost chronic lack of strong, experienced program managers. This lack has been caused in part by the departure of some of the agency's most experienced and talented people, especially when Anne M. Gorsuch (later Burford) was administrator. However, Futrell also points out that EPA employees who draw the most complaints often are people in their 20s with a bachelor's degree in one of the sciences. Like many young people in positions of authority, Futrell claims, OCTOBER 30,1995 C&EN
31
ACTIVISTS'ASSESSMENT
they tend to be rigid and sometimes make decisions that can be made fun of at a later time. Hind sees the agency's leadership problems differently. "EPA is composed of a whole lot of very smart, but cowardly people," he says, "who are always looking for an ingenious way to avoid making some big companies— some captains of industry"—obey the regulations. "You can't blink when you do that," he says. For the most part, environmentalists say, given the gradual unfolding of scientific understanding, EPA has done reasonably well in choosing problems to focus on. Some of its choices were unfortunate, but these were not always the result of decisions made at the agency. Public pressure and legislative mandates have also played an important role. "Some of the things most complained about by the 104th Congress were put into the statutes by [earlier] Congresses against EPA's recommendation," Futrell says. He cites especially the extremely detailed Resource Conservation & Recovery Act Amendments of 1984, which Congress passed even though EPA testified against them. Environmental advocates argue that, in evaluating chemicals, EPA has focused too much on cancer and not enough on neurological effects and endocrine disruption. "Certainly, the ecological implications of the endocrine disrupters [chemicals that disrupt hormones] are huge and aren't considered at all in the regulatory process," Wetstone says. Banks thinks EPA has missed a number of opportunities to improve its performance since Bill Clinton was elected president. "Early movements on several fronts could very well have positioned the agency so it would have a much stronger stature right now to deal with these calls for regulatory rollback and dismantlement," he says. In 1993, Banks says, EPA should have articulated clearly how it was going to change and should have moved ahead aggressively on several fronts: factoring comparative risk issues into its regulatory regime, making permitting more flexible, moving toward performance-based standards, and dealing creatively with the states to give them regulatory flexibility to use their grants on the issues of greatest concern. Oppenheimer observes that right after Clinton was elected, EPA could have de32
OCTOBER 30,1995 C&EN
veloped more policy alternatives to control global warming. "[EPA] put all their eggs in the energy tax basket and lost. And all they had left were the voluntary emission reduction programs," he says. Voluntary compliance alone will not work well in most situations, Eichbaum says. "There is still a need to have a basic regulatory program in place that sets the standards and has mechanisms— permits—by which these standards are tied to behavior," he explains. But government needs to find the most efficient way to achieve environmental protection, he continues, and this often can be accomplished with economic incentives and voluntary mechanisms supplemented by a regulatory base. This is especially true when the number of sources is large and very diffuse, such as in the Wetstone: unsafe dunking water farming community. I; "We still need command and con| trol," Banks says, "because we are still dealing with a large number of businesses that may lack the means and in some cases the will to operate in a voluntary mode." To use a voluntary system, "you have to assure the public that the scheme is moving the regulated party on a path that is continually improving." Environmental advocates believe that in the long run strong environmental protection is not inconsistent with a strong economy. In fact, they say that environment and economy are really two sides of the same coin. Consequently, they believe that if EPA provides strict environmental protection, it may cause some temporary economic dislocations, but it will help the economy in Banks: Superfund is deadlocked the long run. They also say that if the benefits to the environment were calculated correctly, cost-benefit analysis would show that most environmental laws have greater benefits than costs. "You have to sustain the globe—that is, practice environmentalism—if you are going to have long-term well-being of people and economic activity," Eichbaum says. The cost-benefit proposals in the House Republicans "Contract With America" could be good for the nation if true cost-benefit analysis were done, says Futrell. The problem with the regulatory reform bill passed by the House is that "it is very, very detailed on costs, and limits the calculation of benefits," he explains, making it a cost-analysis bill. Van Putten sees another problem Continued on page 37 Hind: EPA has leadership problems
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ACTIVISTS9
ASSESSMENT
Continued from page 32 with the legislation. It will not solve any of the uncertainty and argument over regulations, he says. It will just move the uncertainty into another field. "Instead of arguing, for example, about what level of dioxin harms health, economists will argue about how to evaluate shadow pricing, willingness to pay/' he explains. In trying to comply with the public's and Congress' demand for less burdensome, more flexible regulations, the agency has already crossed the line from being flexible to being lax, Oppenheimer contends. "There are people at EPA who have confused being flexible with being soft on pollution," he observes, "and it doesn't have to be that way." For example, he says, the legislation to control acid rain is both flexible and tough, requiring a 12 million-ton reduction in sulfur dioxide emissions. "I think EPA has gone too far in trying to soothe the savage beast," says Van Putten. "They think if they give industry a little, it won't come back and ask for more. There is no evidence that is working." Van Putten says that in his region, state environmental agency people are allying themselves with industries to undermine the federal EPA requirements. Hind of Greenpeace agrees: "EPA has been too responsive to industry's demand for flexibility . . . because of a flawed political theory that if the agency does what industry lobbies for, it will take the wind out of industry's sails for larger demands. Industry only sees EPA's flexibility as weakness and an opportunity to demand more of its opponent." Environmental leaders stress that, despite EPA's problems, a strong federal environmental presence is still necessary. They say that on environmental issues, power is constantly shifting between federal, state, and local agencies and the need to rethink which level of government should be responsible for what did not come about just since the 1994 election. "Everyone dealing with this problem now is trying very hard to understand what is the appropriate level of government to solve what part of the problem," Oppenheimer says. Environmentalists agree that the federal government should set minimal national standards. These provide a level playing field so one state will not have an advantage over another in competing for industry while providing a minimal
Eichbaum: sustain the globe level of public protection from pollution. "On the other hand," says Futrell, "regional and local efforts offer powerful advantages. Decentralized decisionmaking can be speedy, can be flexible, can be tailored to local conditions." The level of government that should be used to regulate depends on the nature of the problem, he says. For this reason, he thinks groundwater policy should be set at the state level because groundwater conditions vary so much from state to state. Also, he says, federal control is more appropriate for large corporations, but for "the local small-scale polluter, a local response may be more sensible." However, for stream and air quality, says Banks, the federal government must have an important role to play because air and many streams transcend jurisdictions. Also, he notes, the federal government should register chemicals because of their commerce across state borders. As C&EN went to press, 17 environmental riders were attached to House appropriations bills and 11 riders were attached to Senate funding bills. All of these riders seek in one way or another to dismantle environmental protection. Many of them prohibit EPA from carrying out various programs. In addition, the House funding bill for EPA would cut the agency's budget 34%, while the Senate cuts it 23%. Environmental leaders fear that through these riders and other mechanisms, the majority in Congress may succeed in rolling back environmental
protection, at least in the short run. They say that small businesses and the extractive industries, like mining and timber, have been the main forces urging Congress to cripple environmental protection, but that the other large industries either support this trend or have done little to arrest it. "Right now, EPA is the target of the antipathy from business that is seeking to avoid the cost of environmental protection," Wetstone says, "because industry knows that to attack environmental laws directly is much harder. When the public catches on, there will be a real grassroots backlash against this effort to dismantle important popular programs." Oppenheimer is somewhat more optimistic. "There will be losses. Progress will be retarded. But the desire for a healthy environment is so profound, so American, that the political winds of this year or even the next five years will not be enough to change it," he says. The job of protecting the environment has become tougher, with or without the political changes that have been occurring, Oppenheimer says. "We are heading into an era of subtle, complex problems that are intertwined with many other aspects of the human endeavor, and these are not easily solved," he says. "If the Republicans had not taken control of Congress, we would still be facing a difficult resolution of the global warming problem. We would be facing increasing difficulty on endangered species as metropolitan areas grow and grow and land-use problems become more difficult to deal with. "That said, what's being done in Congress ranges from the silly to the unconscionable. And those who want to dismantle environmental protection will be successful at certain things, which will be extremely damaging. Undermining the federal role in environmental research is one. It is a headin-the-sand approach that will cripple the ability to protect the environment in the future," he says. On the other hand, "some good may come of all of this," says Futrell. "The iconoclasm of the 104th Congress may actually cause EPA to tighten up, to rethink, and to touch base with the public again." But the agency may have a great deal of trouble accomplishing these things over the next few years because it is under a great deal of pressure to simply stop enforcing the laws. • OCTOBER 30,1995 C&EN
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