Bush the Environment: The First 100 Days
- Published: June 01, 2001, By John W. Watson & Steven J. Murawski, Attorneys-at-Law, Gardner, Carton & Douglas
Now backing off a little, the new Administration marched into office with a tough anti-environmental stance that seems likely to light a fire under the other side.
For many of us in the environmental business, toiling in obscurity is preferred greatly to the bright lights of media attention and public scrutiny. Through much of the 1990s, with the exception of an unlucky few, most industries, including converters, were able to operate below the Environmental Protection Agency's radar screen. Our new President has managed in his first 100 days in office to re-ignite public debate over issues affecting the environment.
Ironically, while many of the actions taken may seem like welcome relief for converters tired of the regulatory burdens heaped on industry, the rancor that has been incited by President Bush's early decision-making on the environment may prove in the end to have done more harm than good.
Certainly, a cautionary note seems appropriate in the near term.
Cooperation Is in Style
In our “Environmental Outlook 2001” article (PFFC, April 2001, p. 75), we made several predictions regarding the Bush Administration's likely approach to the environment. As the details begin to unfold, it appears that many of our predictions have hit the mark.
Significant budget cutbacks at EPA's Office of Enforcement and Compliance Assurance reflect our view that enforcement will be de-emphasized in the coming years, with greater attention being placed on forging cooperative working relationships with the regulated community.
A $25 million increase in enforcement grants to the states also sends the anticipated message that most environmental matters are, in the view of this Administration, the business of the individual states.
What we clearly did not expect was the rapidity with which the Bush Administration seems to be taking on several “hot-button” environmental issues and the extent of the public outcry that has ensued. Within weeks of his confirmation, President Bush stated in no uncertain terms that the US would not sign the Kyoto treaty aimed at the global reduction of carbon dioxide emissions, one of the prime contributors to global warming. This announcement brought outspoken protest from world leaders across the globe and damaged the credibility of EPA Administrator Christine Todd Whitman, who was seen as flip-flopping on this issue.
Before the outrage could subside, the Bush Administration announced it was withdrawing regulations aimed at limiting arsenic levels in US drinking water supplies.
A Complete Pullback
Somewhere in the middle of this debate, the White House also found time to pull back all proposed environmental regulations promulgated by the Clinton Administration for further study and analysis. One proposed rule taken off the table was the National Emissions Standard for Hazardous Air Pollutants (NESHAP) rule for the miscellaneous organic chemical manufacturing and miscellaneous coating manufacturing industries, a regulatory initiative directly impacting the converting industry.
The fate of these regulations, including the miscellaneous coating NESHAP, remains unclear in light of the apparent leanings of the Administration and the controversial nomination of John Graham to oversee regulatory development at the Office of Management and Budget. Mr. Graham has been described by environmental groups as outright “hostile” to environmental regulations and not likely to act on these withdrawn regulations any time soon.
For its part, the Bush Administration continues to justify its actions as necessary to combat faulty or incomplete science or otherwise to prevent unbalanced rules that do too little good for the environment at too much cost for the regulated community.
Citizens Respond
While many might view these early moves as a change for the better, it is much too early to celebrate. Ronald Reagan was the last President to attempt to roll back environmental programs and minimize EPA's reach and influence. These efforts in the early 1980s sparked the first prolonged backlash from the environmental community that brought activist groups such as the Natural Resources Defense Council to prominence and led to years of citizen enforcement of the environmental laws.
It seems almost certain that the Bush Administration's initial actions on the environment will energize citizen groups to take a more aggressive stance against industry.
Under each of the major environmental laws, broad authority exists to sue companies for violations of these laws where EPA or the states have failed to take appropriate action. Citizen groups must give advance notice of their intention to sue offending companies before these claims can be initiated. If the problems are fixed during the notice period (60-90 days), no action can be pursued. Importantly, if a citizen group prevails on its claim, it may be able to recover the attorney fees expended in successfully prosecuting its action.
The 1990s saw a dramatic decrease in citizen enforcement of the environmental laws. In part, this was attributed to a number of court decisions restricting the authority of these groups to sue under the environmental laws. This lack of citizen initiative, however, had more to do with funding than anything else. Without national debate over the environment, citizen groups struggled to fund their enforcement initiatives. All that may be changing, however, as the public outcry over the Bush Administration's early actions grows. A new television spot funded by the Democratic National Committee showing a little girl asking her mother for more arsenic in her drinking water is but one example of the growing political banter that appears to be energizing the environmental movement.
Our experience in environmental enforcement matters over these many years tells us that now is not the time to let your guard down. Converters must remain vigilant in pursuing their environmental compliance programs and initiatives as it may be that more than EPA is looking over their shoulders now. The threat of citizen enforcement is real, and it likely will be growing. Companies with long-term or recurring compliance issues, such as intermittent air or water permit exceedances, are especially vulnerable to citizen enforcement initiatives as past violations are documented in Agency files open to public review, and the nature of these problems is such that quick fixes do not exist.
Companies also should be wary of “sweetheart” deals with EPA or state regulators, as citizen groups likely can show that these deals do not follow Agency protocols and should be set aside.
Casting a Positive Spin
The Bush Administration has been working hard to combat all of this negative publicity. Recently, the Administration allowed stricter lead reporting and wetland rules to go forward despite vehement objections by business groups.
Additionally, to counter the negative attention received on the withdrawal of the Kyoto treaty on global warming, the Administration announced its decision to sign another pending international treaty regulating 12 chemicals linked to cancer and birth defects. Political pundits saw the treaty announcement and the release of these other EPA rules as a counter to the negative press surrounding the President's environmental record before April's annual Earth Day celebration.
Amidst all of the hoopla, there are signs that some consensus might still exist on important matters affecting the environment. Recently, Congress has shown signs of moving beyond partisan bickering to advance some important environmental legislation. At the end of April, the Senate passed the Brownfields Revitalization and Environmental Restoration Act of 2001. This legislation, while falling far short of the changes requested by congressional Republicans, represents the first step in the Superfund reform effort that has been idled for so long by political infighting in Washington.
The Brownfields bill increases funding to assess and clean up Brownfield sites to $200 million. This bill also broadens liability protections for new owners and operators seeking to redevelop and reuse these environmentally impaired sites. Finally, the Senate-passed bill provides greater assurance that state-led cleanups will be honored and not undone by EPA. The bill currently is being debated in the House with the expectation that it will meet with House approval by the end of the summer and be signed into law by the President.
Clearly, the Bush Administration's early decisions have managed — quite unintentionally — to re-energize debate over the environment. What direction this will take ultimately is not altogether clear. The controversial proposal to pursue oil exploration in Alaska is likely to ignite this debate further.
Converters must remain committed to their environmental initiates to ensure they continue to satisfy their regulatory obligations, since the perceived “softening” of EPA may not signal less enforcement as environmental groups move in to fill the gaps. A strong environmental compliance record remains the best protection in good times and bad.
Editors Note: We are seeking feedback from you, our readers, on legal issues you face as converters that you would like to see John Watson address in future articles. Contact him at 312/245-8749; e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.; or contact the editors of PFFC with suggested topics.
Contributing editor John Watson, a partner with Chicago-based Gardner, Carton & Douglas and Chair of the firm's Environmental Group, regularly provides PFFC with feature articles that focus on legislative and regulatory issues within the converting environmental area. Steven Murawski is an associate in Gardner, Carton & Douglas's Environmental Group. Contact John Watson at 312/245-8749; e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it..
