ENVL417-Environmental Law

Some background on kepone

SOURCE:

Good morning and thank you very much for the opportunity to come here and address you today. My name is Elizabeth Gibbs and I live in Richmond, Virginia. I am an attorney by profession but I am currently taking time off to raise two young daughters. That circumstance, along with a very supportive husband, has allowed me, over the past 2 to 3 years, to pursue my interest in the protection of Virginia's natural resources. I am the leader of a volunteer group focusing on Chesapeake Bay issues.

The message I've come here to bring to you is very simple: don't give up your leadership, coordination and oversight of our nation's environmental policy. We need you to maintain that responsibility, because the states cannot do it alone. The idea that Congress is even considering measures like gutting the Clean Water Act is really somewhat horrifying.

In 1972, when the Clean Water Act was first put on the books, visitors to Washington's home of Mt. Vernon, one of our country's most important historic sites, could walk down to the edge of the beautiful Potomac River, only to be greeted by a sign warning them not to allow any of the river's water to touch them, because it was so dangerously fouled with pollutants. Today the quality of the water in that river is vastly improved, but it was not because Virginia, Maryland and the District of Columbia decided on their own to clean it up. It is instead the direct result of the federal clean water standards imposed by the Clean Water Act.

That act has been the cornerstone of America's water pollution control efforts and has been widely hailed as an essential ingredient in the ongoing restoration of the Chesapeake Bay. That act, and many others, created an historic partnership between the states on the one hand and the federal government on the other, with the common purpose of setting sound, coordinated policies for the protection and management our shared natural resources.

But now we hear that certain members of Congress are suggesting that the federal government simply pull out of that partnership, that it give up its role as the guiding, coordinating partner and instead let the partnership break up into fifty separate, unconnected policy-making units.

Well, this is an incredibly bad idea, for a lot of reasons, starting with the obvious: pollution doesn't respect state borders - it's not a state issue, it's a big picture issue. The Chesapeake Bay watershed, for example, includes portions of six states, from New York down to Virginia. And the airshed for that bay is pretty much everything east of Ohio. Without some measure of federal oversight ensuring accountability among the various states, there will always be certain states that will be a little less committed than others to clean air and clean water - which then leaves the neighboring good guys subject to the excessive pollution blowing in or flowing in from across state lines.

Plus, we've already been there and done that. Before the creation of EPA and other environmental programs, the individual states did have responsibility for the protection of our environment. It was during that time that our states were permitting the creation of most of our present Superfund sites. It was during that time that our states were allowing bodies of water to become so polluted that they would spontaneously ignite. It was during that time that my home state of Virginia was allowing Allied Chemical Company to release 200,000 pounds of the toxin Kepone into the James River, contaminating over 98 miles of it from Richmond to Newport News. The entire James River from Hopewell to the Chesapeake Bay, including all its tributaries, was closed to the harvesting of shellfish and finfish for 13 years. It was not until federal enforcement legislation was passed in 1972 (6 years after the Kepone dumping began) that Virginians had any hope of effectively addressing this environmental disaster. State control was not the panacea that some would have us believe.

But even on top of all that, another reason that I, personally, am so nervous about this possible devolution of power from the federal government back to the states is that I live in Virginia - and the current administration in Virginia's government doesn't know how to handle the responsibility they've already got in this area. Moreover, we're not the only state with this problem. So what I'd like to do is give you a citizen's perspective on what it's like to live in a state whose government has broken faith with the people on the issue of environmental policy to help further illustrate just how bad the idea of giving up federal oversight of that policy really is.

At first glance, it would seem that Virginia would be a perfect state to handle our own affairs; we've actually got a provision in our state constitution that mandates protection of the environment - tells our government what it's supposed to do. I've got a copy right here... it reads in part "...it shall be the Commonwealth's policy to protect its atmosphere, lands, and waters from pollution, impairment or destruction for the benefit, enjoyment and general welfare of the people...." Great, right? The problem is, for the past two years I've watched our very own Secretary of Natural Resources, Becky Norton Dunlop, take this solemn social contract and turn it into... trash. Instead of honoring that commitment, the Secretary has chosen instead to largely ignore it, do as little as possible, and just keep making public statements that everything's fine....

Unfortunately for all of us who live in Virginia, the facts don't bear her out. Just a few of the indicators that everything's not fine include the following:

1. fishing has been banned or advised against for human consumption in hundreds of miles of our rivers.
2. 28% of Virginia's productive shellfish areas are condemned.
3. the majority of species used to indicate the health of the Chesapeake Bay are either in decline or already depleted.
4. the city of Lynchburg and my own home city of Richmond continue to allow discharges of raw sewage into state waters, with no time frame for abatement of the problem.
5. state-sanctioned destruction of Virginia's vital wetlands is being allowed to continue despite both federal and state goals of no net loss.
6. after a period of modest decline, the polluting nutrient nitrogen (used as a key indicator of water quality) is now back on the rise in all of Virginia's main tributaries to the Chesapeake Bay.

Yet despite all of this, and there's plenty more, Ms. Dunlop resolutely denies that any problems exist and has flippantly told those who do have concerns to "hold a parade and go home". She's even tried to dismantle some of her own agencies and gut our award-winning endangered species program - and just last week she decided to discontinue making available to citizens information on toxic discharges.

The sad part is, none of this is a big surprise given the Secretary's background. This is a woman who learned at the feet of the master, James Watt, and was eventually removed from the federal payroll for politicizing staff positions within the Department of the Interior. What a shock that her primary agency in Virginia, the Department of Environmental Quality ("DEQ"), is today under investigation for the exact same abuse.

And, what's worse, she's just a part of the bigger picture. Ms. Dunlop takes her marching orders straight from the top, from the Governor of our state, George Allen. Now here's a politician who claims that he wants environmental decisions made based on "sound science", yet just last year he pushed through a new water quality law which says that Virginia can no longer impose certain water quality standards more restrictive than those bare minimums set by the federal government, regardless of what the scientific evidence might indicate that we really need in a particular situation. They've even given up the pretext of achieving a rational balancing of interests.

Moreover, not only does that administration not want to listen to the scientific community, they don't even want to listen to their own citizens. Instead what we've come up against is an insidious pattern of behavior that can best be described as an intentional and ongoing assault on the very foundation of democracy - that is, the participation by the public in its own governance. These folks prefer to operate with the doors closed.

For example, just last March, there were reports that DEQ had convened at the request of the administration three panels of industry representatives and bureaucrats to look at ways to change how pollution permits are issued, to make the process easier on businesses. Not a bad goal; the problem was, they did it in secret. In fact, the only reason it came to light at all was that someone leaked an internal memo to the press. Naturally, without any members from the public, the scientific community, or any environmental public interest groups, the hand-picked panels were hopelessly lopsided in favor of deregulating just for the sake of deregulating. There was never any serious consideration given to the benefits that would be derived by society as a whole from the permitting process, only the incremental burdens on a very small segment of that society. It was a prime example of skewing the system to preclude any possibility of balance in the decision-making process... and it showed that the powers-that-be are willing to go to great lengths to avoid public dialogue on issues of potential controversy.

Another case in point: TBT... a pesticide added to boat hull paint and one of the 14 most highly toxic chemicals being released into the Chesapeake Bay and its tributaries. Last year, behind closed doors and without even a hint of notice to the public, DEQ decided to delete from the pollution discharge permits of two shipyards, one of which is the largest in the world, Newport News Shipbuilding in Newport News, Virginia, any and all limits on the discharge of this chemical. They gave the shipyard carte blanche to discharge just as much TBT as they wanted to, in spite of hard scientific evidence that even in extremely minute quantities it is highly toxic to marine life. Plus, the secret process they used to make the change was in violation of the law; they had no authority to act.

Fortunately, there's some good news. Deletion of the limit was later discovered by the staff of an environmental public interest group and at that point there did arise a huge public outcry to EPA, to the point that EPA eventually filed an objection to DEQ's action and DEQ agreed, months later, to reinsert the deleted limits on TBT discharge. But note this: absent federal intervention in this case, we would today be enjoying unlimited discharges of TBT into Virginia's waters.

Unfortunately, there's bad news,too; it now appears that in cutting a deal with the shipyards (so the state wouldn't be sued for putting the limits back in the permits), DEQ agreed to remove all chronic monitoring requirements for over 100 other priority pollutants in the shipyards' permits. (I've been telling you that DEQ isn't doing a good job protecting our environment - but I never said they weren't busy). The point is, these kind of deals get made and the public has no right to challenge them because in Virginia, the only one who can challenge the issuance of a pollution discharge permit is the permit applicant, which brings us to our most institutionalized method of keeping the public out of the permitting process - the lack of citizen standing to sue.

Because the only entity which can sue the state to challenge a permitting decision is the applicant, there is a built-in incentive in the system for the state to please the applicant by issuing the permit and thereby avoid being sued. There is no incentive to please a non-applicant. As a result, permits get issued which may not have borne the strictest scrutiny as to their potential harm to non-applicants. Then, if and when a permit is issued which a citizen, a business or even a municipality believes threatens it with harm, those non-applicants have zero rights to challenge the state on its issuance of the permit. The current administration wants to keep it that way, despite efforts to change the law.

And why is that, exactly? The only reason opponents of citizen standing can ever seem to come up with is that tired old argument that it would open wide the floodgates of frivolous litigation, which would, in turn, slow down the permitting process. Somehow they always neglect to mention that Virginia is often labeled the most restrictive state in the nation when it comes to citizen standing and, miraculously, in all the other states where our citizen counterparts actually do enjoy access to their court system, this phenomenon has apparently not occurred. It's never explained why Virginia's experience is expected to be so different.

But we do have one thing going for us this year. There's a standing bill before the legislature which actually has a chance of passing - in no large part because EPA has ruled that it will take over Virginia's air pollution permitting program if we don't change our law to provide for citizen standing to conform to federal law. Once again, it was pressure from the federal level that helped move an important issue up to the forefront of public discourse.

Believe it or not, these three examples of how the public is routinely shut out of the regulatory process in Virginia are all attributable to an administration that ran its campaign on the mighty theme of "empowering the people". I guess we all just forgot to ask "which people?" (Does this sound familiar on the federal level, too?) In any case, things might not seem quite so grim if the state were at least attempting to act in accordance with the will of the people. But they're not.

On the contrary, the public has actually expressed its will pretty clearly on many environmental issues but it just hasn't made any difference to the top policy-makers. In a state-wide poll conducted just last summer by nationally-recognized pollster Dick Morris, and considered to be very reliable, the majority of Virginians polled strongly opposed cutting regulations affecting air, water, wetlands and other environmental concerns. In particular, they said that they thought Governor Allen was going too far in cutting back on environmental protections.

The poll confirms what the environmental community has been saying all along: that even though the public clamors for less regulation overall, we are not willing to give up those regulations which protect our quality of life. Moreover, the questions asked in this poll were very specific, including one about the lack of citizen standing - the respondents were in favor of granting standing to citizens, by a margin of 62% to 29%. Another asked whether Virginia should relax its "very strict standards" for the discharge of pollutants - 70% said no (remember TBT). And 88% wanted planned development that does not endanger the environment - our Secretary of Natural Resources is still preaching that we need to un-plan development and let the developers decide what's in our best interest.

Another poll, this one conducted in the Richmond area last September by one of our local television stations in conjunction with our local (very conservative) newspaper asked what was the most important role for state government. 61% of those responding said that it was the strict enforcement of current clean air and water rules.

These kind of poll results completely discredit the claims of the administration that it has a mandate from the people to cut regulations in the area of natural resource protection. On the contrary, the public has clearly rejected this kind of meat-cleaver approach of dismantling protections of air, water and health as undue burdens on business - because that approach completely fails to take into account the long-term effects those cutbacks will have on the resources being deregulated and, ultimately, on the health of the public and on the economy.

Plus, by now, people have started to realize that this myth that environmental protections are bad for the economy is just that - it's a myth. A 1992 study by M.I.T. concluded that "growth in gross state product among the strong environmental states was more than twice that of environmentally weak states" and that "employment growth among the environmentally strong states was 45% better" than that of the weak states.

We're just waiting for our state governments to wake up to this fact. Instead, many of them, including Virginia, are in a "great race to the bottom" of environmental standards as they promote the illusion that this will make their state more attractive to prospective businesses, in spite of polls such as the one in Money magazine in 1995 in which respondents listed the #1 reason for choosing where to live as clean air and water. Completely ignoring such information, these states are refusing to use the standards set forth in the Clean Water Act and other federal environmental laws as they were intended, as minimum baselines upon which each state was to add protections in accordance with its own individual needs and resources, and have instead decided that the federal minimums are also their state maximums. If Congress now decides to repeal even those federal minimums, why, there's just no telling how low we could go.

All of these things are reasons why I get so nervous every time someone mentions the possibility of the federal government dumping this responsibility on the states, especially on my state. We'd not only be losing the oversight, policy initiatives and funding of the federal government, but we'd also be losing an enormous resource of staff expertise and technical assistance provided by the EPA and other federal agencies in the areas of air and water protection. This loss would be especially difficult on Virginia, since neither of our top two officials at our Department of Environmental Quality have any technical scientific training.

But please do note this: even if our Virginia administration saw the light tomorrow on all these issues and we were guaranteed that in our state we would henceforth and forevermore enjoy enlightened environmental stewardship, I'd still be asking that you retain a strong policy-making role in this area. EPA's coordination of the multi-state Chesapeake Bay Program has been invaluable to the cleanup up that huge resource. And just as pollution draining into the Bay knows no state boundaries, neither do many other discharges throughout the country. Because of this very real need for a coordinated policy to deal with interstate pollution and the ancillary need to hold states accountable for the harm they cause to other states, this is the one area of government where it is completely indefensible to expect a piecemeal approach to be effective.

Which brings us back to you - as our public servants and, by extension, as the stewards of this nation's entire vast natural resource base, you bear the daunting responsibility of protecting those natural resources... and of doing so in accordance with the will of an informed populace. Don't abrogate that responsibility; you know what the public wants: strong environmental protections - and you know the perils we'll be facing if you pull out of the partnership and split up that job among the fifty individual states. The so-called "Republican revolution" on the national level was no more a mandate to bail out in this area than the election of George Allen was 2 years ago in Va - don't be scared off.

There have been recent successful bipartisan efforts to protect our natural resources, such as the reauthorization last year of the Magnuson Fishery Conservation and Management Act - it can be done. Build on that coalition, keep faith with the public you serve... and you will be thanked at the polls.

And, many years after you are gone from this earth, you will be thanked by our children's children, who will inherit the legacy of what you do. Thank you for your time.