5. HOLLOW LAWS
For democracy, the enduring consequence of random law is the culture of permissiveness and deception that permeates the highest levels of government. The general political climate is now infected with a cynical understanding that things need not be real in order to satisfy the public's desires and demands. Instead, both political parties and the webs of client-representative relationships surrounding them have perfected the practice of concocting hollow laws -- promises the government makes to the people which it does not necessarily intend to keep.
The political community as a whole, including the media and even many reformers, has come to accept the legitimacy of this and even celebrates new laws that are really no more than gestures of good intent -- grand declarations of what would be nice to accomplish someday. The reality, as every insider knows, is that the laws lack the precision and capacity to deliver on the intentions.
The legislative arena, including the presidency, has become addicted to these artful charades, which are now commonplace, both for regulatory issues and for general subjects like education or social welfare. Every few years, for example, usually just before presidential elections, a new "crime bill" is enacted with bristling resolve in response to public fears. Over two decades, these measures have had no measurable effect on crime or its causes, but they are popular in Washington as election-year gestures to the anxious voters.
Likewise, various social programs are enacted in response to obvious areas of concern -- hunger or homelessness or disadvantaged children -- but none of them is equipped with the funds to accomplish what they promise. These too are merely political gestures. Even a supposedly popular program like the Head Start preschool education program for poor children (universally applauded by both parties) is funded at a level that reaches only one in five of the eligible children.
Symbolic legislation is passed with fanfare, self-congratulation and the knowledge that the real political fight has only just begun. The participants will decide later, elsewhere, what will actually happen. Citizens at large cannot usually see the details of these evasions, but they observe, in time, that nothing much seems to have happened.
"One of the best ways to kill a civil rights concept is to pass a law and not enforce it," Mary Johnson, editor of The Disability Rag, wrote after the Americans with Disabilities Act was enacted in 1990 with huge bipartisan majorities and George Bush's blessing. After al1, she noted, federal agencies were still not observing the terms of disability laws that Congress had passed in 1986 and 1973. [1]
The standard reasoning behind these grandiloquent laws is that the approach leads to some incremental progress. It establishes broad public goals that may be fulfilled sometime in the future. But the political price for this is enormous. The approach fosters public deception on a grand scale and a legacy of deepening cynicism among citizens who thought something might actually be accomplished by government.
Richard C. Fortuna, a microbiologist who spent six years drafting environmental laws as a staff aide on the House Public Works Committee and now works for private industry, described the legacy of deceitful law:
"The worst situation is not the absence of laws, but the presence of laws in name only. Right now, we have lots of laws in name only." [2]
***
The shame of modern government was conveyed with appropriately dry authority in a statistical printout EPA provided to inquiring congressmen in early 1990. With some reluctance, EPA identified 149 industrial facilities in thirty-three states where the surrounding air was known to be quite dangerous, even deadly, due to extraordinary emissions of butadiene, carbon tetrachloride, chloroform, ethylene oxide and other toxic chemicals.
The worst facility was in Port Neches, Texas, where Texaco operated a chemical plant that dispensed butadiene so freely that the lifetime risk of cancer for neighboring inhabitants was rated at 1 in 10. Asarco, Mobil, Shell Oil, Goodyear, Uniroyal and American Chrome each operated smelters, refineries or factories that created a cancer risk for their neighbors greater than 1 in 100.
The EPA printout listed another 45 industrial plants where the cancer risk was less than 1 in 100 but greater than 1 in 1,000. The remaining facilities on the list posed a risk greater than 1 in 10,000. As a matter of public policy, Representative Henry Waxman of California noted, an environmental health risk greater than one cancer per million is considered unacceptable. [3]
The repetitious details of the EPA list were enlivened only by the presence of some well- known corporate names, including some companies that appear regularly in television commercials proclaiming their devotion to the environment. Weyerhaeuser, which calls itself the tree-growing company, operated four mills with acutely dangerous emissions. Du Pont and General Electric each had four plants on the list. Dow Chemical depicts itself in TV commercials as an enlightened company that recruits idealistic young people to go forth and save the earth. In real life, Dow operates eleven factories where the risk of cancer is alarmingly high.
For twenty years, this sort of behavior has ostensibly been against the law, under the terms of the Clean Air Act of 1970. Yet the toxic air pollution continued with virtually no interference from government regulators. How could these companies get away with it for two decades? The sorry history of the regulation of toxic air pollution provides a convenient vehicle for understanding the tangled politics of debased laws.
The Clean Air Act of 1970 empowered EPA to curb toxic air pollution. from industrial sources in order to guarantee "an ample margin of safety" for the citizens who live nearby. Yet, by 1990, none of the toxic pollutants listed on the EPA printout was being regulated by the agency. Over two decades, EPA had managed to promulgate emissions standards for just seven of the more than 275 dangerous substances emitted by industrial plants. The continuing violations were not a secret to anyone. For instance, both Texaco and EPA had known since at least 1984 that the Port Neches plant was extremely dangerous. Nothing had happened.
The high-risk factories and refineries on EPA's printout were the dramatic edge of a much larger and more generalized form of lawlessness. In a separate accounting from EPA, for instance, the steel industry was found to be operating thirty-six coke ovens that posed a cancer risk greater than 1 in 10,000 -- and six mills where the risk was greater than 1 in 100.
Nationwide, according to the companies' own filings with EPA, a total of 2.7 billion pounds of poisonous chemicals are launched into the air every year by American industries. EPA has estimated that fifteen hundred to three thousand people contract cancer each year as a result but, in truth, the full consequences of this casual pollution, both for human beings and for the natural environment, are unknown and probably unknowable.
A law enacted in 1970 to protect human life from straightforward industrial hazards yielded virtually nothing over two decades. The principal explanation is neither bureaucratic laxity nor scientific uncertainty, but an esoteric form of political deadlock. The companies did not have to bribe people, since they could accomplish the same thing by exploiting the evasive opportunities embedded in the law itself. The evisceration of law is sometimes a story of dramatic backroom fixes by politicians, but more routinely, the law is neutered in the tedious details -- a process that resembles water eroding rock and makes no headlines. Democracy, as political scientist Theodore Lowi once observed, is undone by "administrative boredom."
Enacted with appropriate celebration in 1970, the regulatory terms for industrial toxics were immediately swallowed up in an interminable legal argument over the stringency of enforcement. From 1971 on, lawyers were in court virtually every year punching and pulling at those ambiguous words, "ample margin of safety." Without ever saying so, EPA decided on its own that the terms were unenforceable and went into a deep stall. The agency's evasion was implicitly accepted by the political leaders of both parties, who, aside from a few persistent critics in Congress, did nothing to resolve the impasse.
Stalemate, of course, constitutes victory for opponents of the law -- the oil, chemical, steel, timber and mining industries -- which did not wish to alter their behavior and had the legal and political resources to avoid doing so.
In broad political terms, the government's dereliction could be explained as a function of class bias and geography. Twenty-nine of the high-risk plants were located in Texas and fifteen in Louisiana -- the Gulf Coast industrial belt that is now popularly known as "cancer alley." Dozens more were in other southern states, which, given their history of economic deprivation, were anxious for industrial development on almost any terms. In the South, the conservative Democrats who dominate politics are closely aligned with business interests and they generally work to fend off any form of government interference in the name of defending free enterprise and jobs.
In both North and South, the afflicted neighborhoods that suffer from this toxic pollution are generally the working-class and poor neighborhoods whose citizens are most neglected in contemporary politics. Other Americans might sympathize abstractly, but most would not be directly affected. Several important environmental organizations did mount continuing legal battles in behalf of enforcement, but the environmental movement's major priorities were elsewhere -- the smog problem, the haze over the Grand Canyon and other competing goals for clean-air regulation. No one ever disputed the harmfulness of the chemicals themselves or claimed that toxic emissions control was beyond the capabilities of engineering. It was always fundamentally an argument about whether the risk to people justified the cost of fixing things.
"We're not talking about rocket science," explained Richard Ayres, the Natural Resources Defense Council lawyer who chaired the Clean Air Coalition formed by major environmental groups. "It's just using your brain. Companies don't like it because they never had to pay attention to it before, but basically we're talking about tightening the plumbing -- reducing the leakage."
The regulatory debate focused instead on the vague language of the original law. What exactly was an "ample margin of safety" if even a slight exposure to cancer-causing chemicals was potentially harmful? After listing three substances for regulation, EPA decided, with considerable kibitzing from industry, that the law literally required "zero emissions." Therefore, the standard seemed impossible to achieve, not to mention greatly disruptive to industrial processes.
The EPA's practical decision was to not enforce the law, but this was never disclosed in a forthright manner. Instead, the agency pretended for years to be faithfully pursuing the law's mandate.
"The legislation gives the agency an assignment that the agency's own scientists say you can't accomplish," William Ruckelshaus explained. "It had the effect of freezing the agency. Once you started into the regulatory process, it meant you were going to end up banning the substance, which would not have made any sense. So, instead of starting the regulatory process, the agency studied it and studied it as long as they could."
Banning some substances and compelling industry to use less dangerous substitutes might, in fact, be a plausible solution for some pollution problems, but politicians never considered such questions when they passed the original law. Lawyers for environmental groups conceded that the statute was ambiguous and would have to be resolved politically, but they saw the legal argument being used as a convenient tool for gross evasion.
"Industry argues the zero emissions interpretation so the perfect becomes the enemy of the good," said David D. Doniger, a senior lawyer with the NRDC. "Instead of imperially taking it on themselves to rewrite this law, EPA should have carried out the law and developed the regulations and that would have constructively put the question to Congress for evaluation."
Over more than fifteen years, NRDC, the Environmental Defense Fund and the Sierra Club sponsored a series of lawsuits on various toxic chemicals, designed to force the issue to a resolution. "What we were trying to do was deliberately force the literal interpretation of the law in order to force the matter back into Congress and write a law that would work," Doniger said.
Instead, what resulted was more lawsuits -- appeals brought by both industries and environmental groups, more judicial decisions and court-ordered deadlines and more missed deadlines. The environmentalists thought they had achieved their goal in 1977 when an EDF lawsuit on vinyl chloride was settled with a negotiated agreement that provided a quid pro quo to both sides. "Ample margin" would be defined so that the regulatory agency could require the "best available control technology" on toxic emissions while the goal of total protection against cancer risks would be treated as a long-term objective.
"We said, let's put aside the argument over perfect protection and concentrate on getting a whole lot of protection for a whole lot of people," Doniger explained.
Nothing much happened. EPA instead began defining the control standards in terms of how much it might cost each industry to comply. Environmentalists complained that this was a violation of the settlement terms. The Carter administration, having listed only four more toxics, announced a "cancer initiative" in 1979 and published a priority list of dangerous chemicals. Then it left office without having acted on any of them.
The environmentalists were afraid to turn to Congress for help. By the late 1970s, industry's political campaign against federal regulation in all forms was at its peak. In that political climate, the environmentalists feared they might get something worse if the fuzzy legal definition was resubmitted to Congress as an abstract question of legal definitions.
The Reagan administration was even more recalcitrant than its predecessors, of course, and did virtually nothing beyond defending itself against lawsuits. In 1983, Ruckelshaus promised Representative John Dingell of Michigan, the aggressive chairman of the House Commerce Committee, that he would act on some twenty toxic chemicals by 1985. But, instead of actually listing the twenty chemicals for enforcement, Ruckelshaus merely announced an "intent" to put them on the list. He was held in contempt of court for refusing to observe a court-ordered deadline on regulating the emission of radionuclides.
"Instead of a quid pro quo, what we were getting was a snail's pace and standards very heavily watered down by cost considerations," Doniger said, "and so we raised the issue again in court and tried to drive the legislative debate to get a clean standard."
The Reagan administration's lackadaisical attitude changed somewhat after December 1984. That was the month when Union Carbide's chemical plant in Bhopal, India, released toxic fumes that killed two thousand people and blinded thousands more. Eight months later, another Union Carbide plant in Institute, West Virginia, had a toxic release that injured 141 people. EPA promptly announced a "Policy Initiative" on air toxics.
"It was all hype and nonsense," Doniger said. "They were basically asking industry to care more and, sure enough, industry had a program called CARE. Then EPA referred the pollutants to the states. Nothing happened."
The legal battles dragged on through most of the 1980s and finally in 1986 produced a court-ordered definition of "ample margin" that was presumably acceptable to all sides. By 1990, enforcement standards were in place for a handful of chemicals -- the ones first listed more than a decade earlier.
In a sense, however, the story of air toxics regulation began all over again in 1990. That year, Congress enacted a new clean-air law that largely rendered the previous legal arguments moot. The new legislation sets out different and less ambitious terms for how the government will regulate toxic air pollution. Thus, government begins anew the laborious process of regulation writing and litigation. The new law puts aside the question of health risks and instead attempts a simpler approach -- an engineering standard for tighter plumbing. EPA is ordered to devise technological standards for controlling 189 toxic chemicals, based on the emissions control performance already achieved in the best plants.
A decade hence, in 2001, if the control technology proves inadequate, EPA may then take up again the health question of an "ample margin of safety," now defined by law in much more conservative terms as one cancer case per ten thousand residents.
In effect, the complicated deadlines and exceptions in the new clean-air legislation give industries another twenty years -- till 2010 -- to comply with a public-health objective that was first set in law in 1970. The steel industry is given another thirty years to comply on its coke ovens -- law for the year 2020.
"The new law gives us deadlines," said Richard Ayres of the Clean Air Coalition, "but it's a nonlaw -- making deadlines long enough so that they don't have meaning."
Some leading environmentalists were more confident that, this time, something might actually happen. For one thing, after two decades of indifference and resistance, the chemical industry claimed to have gotten religion on environmental questions, and it launched an aggressive public-relations campaign to persuade the public of its good intentions. The timing was coincidental with the congressional debate on clean air, but some environmentalists like Doniger perceived a genuine change in attitude, at least among some major chemical companies (though not in the oil and steel industries).
Monsanto announced an ambitious commitment to reduce its own toxic emissions by 90 percent voluntarily, regardless of what the future regulations may require. Texaco, Du Pont and others made similar promises. In full-page newspaper ads published on Earth Day 1990, the Chemical Manufacturers Association unveiled its "Responsible Care Initiative," an environmental manifesto signed by 150 companies. Indeed, a number of the companies taking the pledge-Texaco, Du Pont, Dow, Mobil, Exxon, General Electric, Weyerhaeuser, BF Goodrich, W. R. Grace and others-were the same ones that showed up that year on EPA's list of high-risk cancer factories.
What discomfited the chemical companies was not the prospect of stern federal law enforcement-they had been quite effective at neutralizing that -- but the unwieldy threat of aroused public opinion. The regulatory law had proved impotent but another law enacted by some states and by Congress in 1986 had stimulated widespread public alarm by establishing the people's "right to know" about what poisons were being dumped on them. As the plant-by-plant reports on toxic pollution were collected and made public by EPA, community after community became angered by the frightening data.
"It's no secret that a lot of people are unhappy with chemical companies," the CMA advertisement acknowledged. Corporate executives still belittled the health implications of toxic air pollution but, as some of them confided to Doniger, the 2.7 billion pounds of toxic chemicals they distributed each year through America's air had become a "public-relations problem."
The clean-air law itself, nevertheless, is still a doubtful authority. Aside from the virtuous intentions of some companies, the new law does not close off the avenues for evasion and, in fact, the new complexities multiply the litigious opportunities for those who wish to resist by exploiting the fine print. Companies will be free, as always, to choose for themselves whether to comply or keep stalling. If they do not wish to spend the money, they will restart the lawsuits and agency lobbying and can hang up the newly reformed regulatory standards for many years to come.
William Ruckelshaus extolled the new environmental consciousness of corporate management, but he also acknowledged that there are many "bad actors" for whom voluntary compliance is meaningless. "For most companies," Ruckelshaus conceded, "they're not going to spend the money unless the government tells them to. If the government doesn't say what you're doing meets the standards, they won't do anything."
***
The lawless quality of modern government originates, naturally enough, with the lawmakers themselves. For most members of Congress, the legislative process represents a chance to please public opinion by voting for high-minded legislation while protecting corporate balance sheets or other interests by acceding to the legislation's deceptive details.
As conservative critics have observed, the legislative atmosphere of inflated promises was doubtless encouraged by the grandiose expectations promoted during the presidencies of John F. Kennedy and Lyndon Johnson in the liberal hubris of the 1960s. Great goals for the nation were announced rather regularly -- eliminating poverty, for instance. But the objectives often lay far beyond the government's existing capacities or the sponsor's real political intentions. Indulging in hollow pronouncements has become a commonplace of modern politics. President Bush announced, for instance, that his great goal . for education is that by the year 2000 (well after he has left office) American high schools will have a graduation rate of 90 percent. Senator Daniel P. Moynihan mischievously observed that Ronald Reagan had made the very same announcement back in 1984, only Reagan had set the target date for 1990. Both presidents received abundant congratulations and press attention for facing the problems of education so boldly. [4]
In the media age, however, empty promises make smart politics. Enacting grand measures has the appearance of responsiveness to constituents' desires and creates a sense of forward motion. When the law fails, enact another one. "We don't have just a failure of one law, but a series of laws," said Curtis Moore, former Republican counsel on the Senate Environment and Public Works Committee. "Toxic pollution is such a potent issue, we have been able to enact more than one law. By and large, they've all been failures."
Despite years of industry-government propaganda, the general public does not accept the trade-offs between corporate profit and human life or the environment. But the governing elites do. So dozens of statutes have been designed to paper over this basic conflict. Political action driven by intensified public opinion is artfully derailed in the legislative details.
A public-opinion survey by The Wall Street Journal and NBC in the spring of 1990, for instance, put the question this way: "Sometimes the laws that are designed to protect the environment cause industries to spend more money and raise their prices. Which do you think is more important: protecting the environment or keeping prices down?" The public believed overwhelmingly -- 80 percent to 13 percent -- that the environment comes before costs.
A New York Times survey conducted in the same month sharpened the point further: The public endorsed the view, 71 percent to 25 percent, that "we must protect the environment, even if it means increased government spending and higher taxes." A majority even agreed, 56 percent to 36 percent, that protecting the environment comes first, "even if it means jobs in the local community' are lost." [5]
In a healthy democracy, these popular expressions of value choices would be taken seriously. Public desires would at least be confronted in an open manner by those who think them unrealistic. If the government considered a congressional legislative mandate unachievable, it would explain why. If economic discomfort were the real reason why regulations were not being enforced, political leaders would force a visible debate on the question so that the public could at least understand the terms of the trade-off and respond with its own preferences.
Are Americans serious about their new environmental values and willing to accept the deep changes these values imply for American economic processes? In different ways, the public keeps saying it is serious. But politicians respond as though public opinion is merely a transient romantic sentiment to be indulged. The deeper political question about this clash of values never gets answered because the political community has discovered how to have it both ways -- appealing to the public's environmental values but without disturbing corporate power.
The Clean Air Act of 1990, for instance, advanced matters on several fronts but it did not even consider the technological breakthroughs that many believe are possible. The new law, in effect, rolled over the deadlines for compliance that were first set in 1970 and promised once again that, by 2010, people everywhere will be breathing healthy air.
"We could deal with all this much faster if we wanted to get it done," Richard Ayres of the Clean Air Coalition said. "The government could figure out substitutes for toxics that pollute or it could go 'upstream' and make the chemical companies responsible for the pollution that results from their products and processes. None of that has ever been done. That would be attacking the problem like you really wanted to solve it."
Defenders of the status quo argue that, notwithstanding the evasions and delays, substantial improvements were derived from the original clean-air law and, in time, the system will achieve its goals, however imperfectly. The public at large does not share that optimistic view and even some scholars regard the claims as dubious. Robert W. Crandell of the Brookings Institution wrote, for instance, that "because of delays, poor enforcement, and imperfectly understood dispersion and transport characteristics, it is possible that the entire program has generated little reduction in air pollution.... The data on air quality are so poor that one cannot confidently assert that air quality has improved because of the 1970 Clean Air amendments." [6]
All of the interested parties, however, have learned to coexist comfortably in a system that relies on public deception -- the legislators, the regulators, the regulated industries and even many of the reformers in the environmental movement. Forcing an honest debate would be disruptive and unpopular among political elites, in and out of government.
At their core, the continual evasions are about "the problem of power," as Theodore Lowi put it. What was missing in the modern era of legislation was a straightforward determination to use the government's power to achieve certain results and accept the burdens of doing so. The purpose of representative government, Lowi wrote, was' 'to bring the democratic spirit into some kind of psychological balance with the harsh reality of government coerciveness."
Does the government really intend to use its power to force these changes or doesn't it? When that hard choice is deflected into murky bargaining arrangements and endlessly negotiable standards, it reflects a breakdown of the representative process itself.
Sophisticated members of Congress know how to evade the hard choices about power. The imperfections and impediments built into the laws are not accidental or unintended, but usually represent silent concessions to the lobbyists who were ostensibly the losers in the overall battle. From the perspective of legislators, enacting incoherent laws has a rational purpose -- it allows them to have it both ways. Representative Mike Synar of Oklahoma, himself a vigilant overseer of health and safety laws, explained:
"We're really pretty smart around here and we know pretty well who's going to get mad, so we know how to avoid getting them mad at us. The easiest way is to not decide. It's like a golf game -- you score well by not making bad shots. So we defer the tough decisions to the regulatory agencies. If we're really deadlocked, we say: Let's defer to EPA for a six- month study and let EPA tell us what to do. A lot of people can hide behind that.
"The bureaucrats look at the legislative record and they can see the issues where we didn't want to make a decision. So they know they're in no hurry either. Why make a decision that will make the same people mad at them, if Congress didn't want to make it? Then the lobbyists move in and overwhelm the agency. If a lobbyist sees he's going to lose in Congress, he'll say to us: Let the agency decide. Then the regulatory side of his law firm will get another shot at it."
For most members of Congress, there is very little political risk in this sort of permissiveness. Indeed, the larger risk for them is on the other side -- that the final regulations will be too stringent and angry clients will come back to Congress demanding relief. For the most part, senators and representatives have learned how to deal with this problem too. Senator Dale Bumpers of Arkansas explained:
"When the regulation writers run amok and constituents start writing and saying, 'My God, have you guys lost your minds?' you can write back and say: 'Why, those guys in the agency have gone crazy and this is not what we intended and I'm going to demand hearings on the matter.' Which is usually where it ends."
The dysfunctions of the regulatory system were actually becoming the focus of serious debate in the late 1970s, but ironically, when the Reagan administration came to power, the debate was foreclosed. The Reagan regime's political fixes were so flagrant that a complex problem of governing was swiftly reduced to a simple matter of political hacks doing dirty deals for their corporate patrons.
Yet, if one asks corporate executives about environmental regulation, they will describe it as their nightmare. After all, plant managers are buried in complex and overlapping legal strictures that did not exist a generation ago. Companies have spent billions on compliance and small armies of employees are devoted to keeping up with exhaustive requirements for testing and handling, monitoring and reporting -- not to mention the corporate lawyers and lobbyists who attend to the legal language in Washington.
Lloyd N. Cutler's law firm at one time or another has represented nearly all the major trade groups, chemical manufacturers, petroleum, textiles, motor vehicle manufacturers, pharmaceutical makers and major banks, plus leaders of the Fortune 500 corporations. The suggestion that industry has captured regulatory agencies like EPA seems ludicrous to him.
"It would be wrong to think that corporations are on top or ahead," Lloyd Cutler protested. "They feel very put upon or even defeated. It's true that they manage to survive and deal and push things off -- they feel the added costs of regulation exceed the benefits -- but they would say the notion that they now control or dominate the health and safety agencies is just crazy. Because all industries are fighting running battles with these agencies."
The explanation, as Cutler suggests, is more complicated than the simple image of a captive agency, bound and gagged by its regulated constituency. The contemporary governing system would be more accurately described as a disorderly bazaar that is not securely in anyone's control -- a maze of diffused power with endless opportunities for reversal. If the power to decide things is located everywhere, then it really exists nowhere.
Modern political reforms, combined with the new generation of regulatory laws, had the overall effect of multiplying the decision points within the government-this was often their stated objective -- in order to break up concentrations of power. The decision making was splintered into many discrete steps, and authority was shared among many more agents along the way. While this broke up the easy politics of the back room or at least complicated it, it also created many more doors at which influence might knock and enter.
The diffusion of authority, as Lloyd Cutler himself observed, provides an ideal arena for special-interest lobbyists -- the more of them the better. Corporations may be perpetually frustrated by modern government, but, in the end, corporate interests are much better equipped to manipulate it.
"If you're against something, you're much better off in this diffuse world," Cutler explained. "It's harder to pass a law than to stop one. On the whole, I would say the professional lobbyists and lawyers prefer to live in this world where there are so many buttons to push, so many other places to go if you lose your fight. In a cohesive government, once you lose, it's over."
***
A minority of conscientious lawmakers has struggled for years to overcome the gap between appearance and reality. One by one, as regulatory laws came up for renewal, Congress often tried to tighten the legislative plumbing, so to speak, by drafting the legal commandments with much more precision and less grandiosity. If EPA would not set meaningful standards, then Congress would do it for EPA.
When this approach did not produce much improvement, innovative legislators devised an even tougher form of legislative command -- elaborate traps written into the statutes that are designed to force the Executive Branch into actually doing what Congress said it intended. These legislative devices became known as "hammers" because they confronted the regulatory agency and the regulated industries with a harsh either-or choice.
If the agency stalled and failed to produce a new regulation by the legislated deadline, then another set of stringent rules -- drafted by Congress -- would automatically go into effect on a date prescribed by law. The "hammer" provisions were intended to take the profit out of delay and inaction, to persuade the industrial sectors they would be better off cooperating with the regulatory process than endlessly obstructing it.
The first set of "hammers" was enacted in 1984 when Congress renewed the Resource Conservation and Recovery Act, better known as RCRA, which governs the handling and disposal of billions of gallons of hazardous wastes. The scandal of careless disposal -- symbolized by Love Canal and hundreds of other despoiled places -- had spawned the Superfund legislation to clean up thousands of old dangerous dumps; RCRA was supposed to prevent the creation of new ones.
The legislators' innovation has proved to be a dubious remedy. By 1990, EPA had complied with all of the "hammer" provisions written into the 1984 RCRA law -- yet the practical experience was not much different. Industry was given six years' advance notice on what to expect in requirements for pretreating hazardous wastes before disposal. Yet industry again claimed at the eleventh hour that the law would force the sudden shutdown of dozens of refineries and chemical plants.
Once again, the terms of the law were subverted in the final stages by strenuous industry lobbying. Once again, the law's meaning would have to be settled in protracted litigation. The message of this regulatory episode is that restoring reliable authority to law is not something that even the lawmakers are likely to accomplish on their own. The political system itself is stacked against the law -- even laws made with reinforced steel.
From the beginning, RCRA has been another story of pliant law. The first version was passed in 1976 and, like so many other environmental statutes, it set deadlines for action that were not kept. The Carter administration gave RCRA a low priority and the bulk of final regulations was not published until four years later, when Congress was already renewing the statute in 1980.
EPA immediately was inundated with fifty-two notices of intent to file lawsuits on the new regulations from industries and environmental groups as well as thousands of specific complaints and questions. The agency began negotiating "technical amendments" with hundreds of private parties, trying to answer their complaints and avoid an avalanche of litigation.
In 1981, Reagan's new EPA administrator, Anne Gorsuch, began suspending and deferring key sections of RCRA's new hazardous-waste rules. Even when federal courts ordered EPA to reinstate the regulations, enforcement was so anemic and compliance so spotty that even some businesses complained. Chemical Week, a trade publication, warned: "In a highly competitive industry, companies cannot afford to spend their resources on environmental protection, however well conceived the rules, unless they perceive those rules are backed up by credible enforcement policy."
By 1984, after the EPA scandals involving hazardous-waste sites, Congress was sufficiently fed up to enact its "hammers" -- a series of five do-or-die regulatory deadlines spaced over six years, requiring industries to treat chemical wastes to reduce toxicity and other characteristics before the materials are dumped in the ground. [7]
The first four "hammers" covered treatment of specific subcategories of industrial wastes such as solvents and organic chemicals and seemed to be effective; that is, the regulators produced meaningful regulations. When the first "hammer" came due in 1986, EPA at first issued a weakened version pleasing to industry, but this set off a firestorm in Congress. EPA had failed to require that the best available treatment methods be applied to solvents before disposal -- in other words, that the stuff be made as harmless as possible before it is dumped into the ground.
Eleven members of Congress, who had been the key draftsmen of the law, complained vigorously that their intentions were betrayed. After the uproar, EPA reversed itself and adopted the best-available-treatment standard for solvents and the three other subcategories covered by subsequent "hammer" deadlines. On the final "hammer" that came due in May 1990, the most important one because it covers roughly half of all hazardous wastes, EPA took a dive.
"In some ways, we've won all the battles and lost the war," said Richard C. Fortuna, executive director of the Hazardous Waste Treatment Council, a trade group composed of companies that manufacture incinerators and other waste-treatment equipment. "If we can't win this back in court, this country is back where it started in 1980 in terms of preventing more Superfund sites."
Fortuna's trade group had an obvious profit incentive in promoting hazardous-waste regulation that imposes tougher standards, but its critique was seconded by angry environmentalists and disappointed members of Congress. The industry treatment council and the Natural Resources Defense Council jointly sued EPA in 1990, charging that the mandate of the 1984 "hammer" had been subverted by regulatory fiat. Instead of requiring the best available treatment technology to reduce toxicity, corrosiveness and other harmful characteristics before the chemical wastes are put into the ground, the EPA regulation set a much more permissive standard.
Companies, in many instances, would be able simply to dilute the chemical wastes with water before injecting the chemicals into deep wells. Dilution, of course, doesn't really change the harmful characteristics of the chemicals. Once in the ground, the toxics are beyond anyone's control.
Deep-well injection has become a widespread practice for hazardous-waste disposal but, like earlier landfill methods, its eventual consequences for land and water pollution are not fully understood. Companies claim the chemicals are pumped so deep into the earth, sometimes thousands of feet down, that the wastes cannot possibly affect surface soil or ground water tables, but no one really knows what may occur ten or twenty years from now.
The practical experience so far suggests that deep-well injections may be a kind of geological crapshoot with the environment. If an underground formation has cracks or leaks through which the hazardous chemicals may migrate, that won't be discovered until many years later when the toxic wastes show up someplace else, perhaps in someone's water supply. A legendary failure occurred at Chemical Waste Management's deep wells in Vichery, Ohio, where 60 million gallons of hazardous wastes mysteriously "escaped."
Companies like Shell Oil, Vulcan Chemicals, Du Pont, BP Chemicals and Monsanto are sufficiently nervous about the practice that they announced their intention to shift away from deep-well injection. For instance, the manager of Du Pont's Beaumont, Texas, works told EPA's Pollution Prevention News that his company "recognizes the public concern about deep-wel1 injection and, for that reason, has set a goal of eliminating all toxic discharges into the ground or verifying that they have been rendered non-hazardous by the year 2000." [8]
In other words, the oil and chemical companies promise to do the right thing and stop polluting the ground -- a decade or so hence. In the meantime, however, these same companies do not want government telling them to stop now.
As the "hammer" deadline approached in the spring of 1990, the oil and chemical industries subjected EPA professionals to an extraordinary full-court press-warning them that dozens of industrial facilities would be imperiled if the agency went forward: with its best-treatment standard. The advocates of stronger regulation were caught off guard because EPA had already issued a preliminary version of the rule in December 1989 that enunciated the more stringent level of protection. Six months later, after lots of meetings with industry lobbyists and lawyers, EPA reversed itself.
"Between the proposal and the final rule, there was no significant new information," an EPA staff professional said. "It was basically a case of EPA management becoming more nervous about what they'd done."
Geraldine Cox, a vice-president of the Chemical Manufacturers Association, described the industry as "very upset," and therefore it mobilized. "We agree with the objectives of the law, " she said, "but we will fight very hard if we think something doesn't make sense."
Environmental regulation often doesn't make sense to chemical companies. "In these matters," Cox said, "there's an awful lot of chasing angels to see how many can dance on the head of a pin. But, if that's what the public wants us to do, we will do it."
A delegation of six lobbyists and experts from the Chemical Manufacturers Association and the American Petroleum Institute first called EPA in October 1989 to open the argument for abandoning the best-treatment standard, even though CMA had just lost a court suit on the same issue. Then another group from CMA came back two weeks later. "CMA believes that EPA can interpret that dilution is permissible for characteristics," according to an EPA official's notes of the meeting. [9]
In early December, experts from CMA, Monsanto and CYRO Industries came in to plead for speedy action on exemptions for fifty-four deep wells that industry claimed would pose no risk of migrating chemicals. J. T. Smith, senior partner at Covington & Burling, a premier Washington law firm, rang up with his own legal interpretations on behalf of CMA. Dow, DuPont, Monsanto and other CMA representatives met again with EPA in mid-January to suggest rules changes for granting the exemptions.
BP Chemicals arranged a teleconference in which it informed EPA staff professionals that its Lima, Ohio, plant would be closed if it received no exemption by the time the new regulation was made final. Vulcan Materials delivered the same message about its Wichita, Kansas, plant.
Many of the same companies appeared once again in early February, accompanied by CMA lawyers, to warn again about the potential economic consequences of a tough standard. ARCO Chemical wrote that its plant at Channelview, Texas, would curtail production in May if its injection wells were not exempted. The plant, ARCO explained, produced waste volume of 142 million gallons a year from the production of propylene oxide and styrene monomer -- various waste streams that were highly corrosive. Celanese, Cyanamid, Du Pont and Monsanto provided similar data and warnings on six other southwestern plants.
Beyond the familiar tactic of economic blackmail, there is a deeper point for democracy: the question of power. Who has the power to decide when industry will make these changes -- the companies or the government? The corporations naturally wish to retain that power for themselves and, in this case, they succeeded.
Most of the lobbyists' meetings were held with EPA division chiefs, middle-level staff technicians and agency lawyers, who mostly listened as the industry experts advanced legal interpretations meant to intimidate. "We were attacked. on a technical basis -- the kind of case they felt they could make in a lawsuit if we didn't yield," the EPA professional said. "Industry argued there would be huge costs if we went forward with the proposed rule. Depending on who you listened to, it was the end of the world."
By late March, industry had evidently won its point. The dialogue was taken to a higher political plane by E. P. Blanchard, vice-chairman of Du Pont's board of directors, who wrote directly to Henry Habicht, EPA deputy administrator and the official who would ultimately decide the matter.
Blanchard wrote: "We ... understand you are contemplating revisions to the agency's so- called Third-Third land disposal proposal to provide relief for underground injection facilities. We applaud and support your efforts to resolve our May 8 difficulties and encourage you to revise the Third-Third final rule." Copies were sent to four EPA division chiefs, Habicht's subordinates.
Some of the corporate pleadings invoked a threat of political fallout if EPA did not fold. Dow Chemical representatives told EPA in April that "they felt compelled to advise Congress that, if finalized, this standard would be very expensive, environmentally counterproductive, and impossible to meet on May 9 or in the foreseeable future." CMA's lobbyists informed EPA staff professionals that they were "likely to raise their concerns to senior Agency management and with Hill staff."
A few weeks after Earth Day 1990, EPA announced its final regulation, which attempted to straddle the argument with half-pregnant logic. The agency claimed the legal authority to impose a higher standard involving best-available-treatment technology, but said it was choosing not to do so in this instance because it lacked sufficient data to justify the tougher rule. In the abstract legal argument, EPA was siding with the environmentalists. In practical terms, it was giving industry what it wanted. EPA, simultaneously, was issuing lots of exemptions for the companies' deep-well injection sites.
The administrative record, typically, is silent on the question of outside political intervention, though EPA staff professionals felt certain that somewhere along the line the White House had added its voice to the case made by industry advocates.
"My understanding," an EPA professional said, "is that there was a lot of back-channel traffic, calls to the White House and to the agency management at every level. I can't prove that because nothing like that is ever said. But we were getting a barrage of questions from EPA management that was almost identical to the questions industry was asking us. When I pushed the management for rational explanations -- why are we changing this? -- they said: 'Listen, this is the way we're going to do it. We've changed our minds.'"
The political overtones seemed "pretty blatant" to Richard Fortuna of the Hazardous Waste Treatment Council, though he had no direct proof either. Three different firms that were members of the treatment council, he said, reported that oil companies had planned to buy equipment for pretreatment and reclamation of their hazardous wastes in anticipation of the new regulation -- then they abruptly canceled the orders before the final rule was announced.
"These guys were on the verge of signing contracts and they were suddenly canceled," Fortuna said. "Our salesmen were being told the same thing by a variety of clients. The oil guys said, 'Hey, Sununu went in and got us a break.'"
Whether or not John H. Sununu, the White House chief of staff, or other presidential aides personally intervened in support of the industry's case could not be determined, but that is not the larger point, in any case. The RCRA episode demonstrates, in up-to-date fashion, that the law remains vulnerable to powerful manipulation -- despite the best efforts of congressional reformers to stymie irregular intervention. The "hammer" provisions, invented as the remedy to political manipulation, had proved as vulnerable as earlier legislative commandments.
Richard Fortuna despaired over the implications, though he believed a stronger standard would eventually win in court. As a congressional aide in the early 1980s, Fortuna had spent years on the RCRA legislation and helped draft the "hammer" provisions meant to insure the law's faithful execution. Now it was clear that even this device could be defeated by Executive Branch politics.
"There are ninety-nine ways to lose and only one way to win -- the final rule on hazardous wastes has every form of capitulation to every political interest imaginable," Fortuna said. "Basically, what they've done is gut the whole RCRA program because it's very easy to dilute hazardous wastes or switch the wastes to another category with easier treatment requirements. I hate to say that about something I've spent a decade of my life on, but I really think it's that serious.
"What EPA and industry are counting on is that this issue is a little too complex and people won't get it, even Congress. They're figuring that the combination of Earth Day and an 'environmental president' will let them slide by. But they can't get away with this. Sooner or later, people will figure out what's been done and fight back. In the meantime, huge quantities of hazardous wastes are going to be dumped under these easier rules."