INSIGHT: Environmental enforcers prepare to act

23 October 2008 15:53  [Source: ICIS news]

By Joe Kamalick

 

WASHINGTON (ICIS news)--US chemical producers and manufacturers in general can expect much tougher environmental enforcement next year and a surge in anti-pollution legislation from the new Congress.

 

Democrats in key committee leadership positions this week accused the Bush administration’s Environmental Protection Agency (EPA) of being consistently and purposely soft on companies that violate major US laws governing pollution.

 

To redress what Representative John Dingell (Democrat-Michigan) called an eight-year record of under-enforcement, Democrats in the House already are planning tougher oversight for the EPA and stronger environmental legislation.

 

Dingell, chairman of the House Committee on Energy and Commerce, charged that the Bush administration’s EPA has brought fewer enforcement cases, assessed lower penalties and allowed assessed penalties to go unpaid.

 

“The bottom line is that environmental enforcement has significantly declined since the Bush administration took office,” Dingell said. “Somehow, we are not surprised.”

 

Dingell and Representative Bart Stupak, also a Michigan Democrat and chairman of the Energy and Commerce Subcommittee on Oversight and Investigations, asked a federal watchdog agency to examine the Bush administration’s environmental enforcement record.

 

The report produced by the Government Accountability Office (GAO) shows, said Dingell, that “EPA has tried to cover up the decline in enforcement by coming up with exaggerated estimates of pollution reductions and environmental savings”.

 

The report, said Dingell, “shows how environmental enforcement has declined” with a record of “cases not brought, polluters not pursued and fines not collected”.

 

Dingell cited GAO findings that total penalties assessed by EPA, adjusted for inflation, declined from $240m (€180m) in fiscal year 1998 to $137m in 2007.

 

The study shows that EPA fines for pollution violations reached the $250-300m range in the last two years of the Clinton administration (1999-2000) and the first year of the Bush White House but then began a general decline as Bush policies began to take hold in 2002.

 

Even as EPA enforcement activity - as measured by penalties - declined, Dingell pointed to GAO findings that the agency overstated the impact of its enforcement work by reporting penalties assessed against violators rather than actual payments received by the US Treasury.

 

In addition, the GAO said that while the Bush EPA reported increases in injunctive relief (remedial action required by the agency) and reductions in emissions, “annual amounts of injunctive relief and pollution reduction have not yet been achieved”.

 

“They are based on estimates of relief and reductions to be realized when violators come into compliance,” the GAO said.

 

In addition, the study said that EPA’s estimates of the value of its injunctive relief - which rose from $4.4bn in 1999 to nearly $11bn in 2007, were in some cases based on information provided by the alleged violator.

 

Dingell said he expects EPA to immediately implement corrective recommendations made by GAO, including greater transparency in enforcement reporting. 

 

Among other things, GAO recommended that the agency distinguish in its reporting between fines assessed and actually collected and that estimates of pollution reductions note clearly that they are based on anticipated cutbacks in emissions when the charged company actually comes into compliance with the law.

 

Beyond short-term improvements that the GAO says are needed, Dingell indicated that he and others in the Democrat-majority Congress will seek legislative remedies to make US environmental enforcement more stringent.

 

“We are working now to determine next steps” when the 111th Congress convenes in January, said Energy and Commerce Committee spokeswoman Jodi Seth.

 

The focus is already on the next Congress, where Democrats are broadly expected to increase their existing majorities in both the House and Senate.

 

“We already knew that EPA enforcement was moribund under the Bush Administration, and we don’t expect it to get any better until this administration is history,” Seth said.

 

She said the committee has an agenda in place for environmental reform in the new Congress, but she declined to reveal details because it is not yet final and because committee assignments in the next - and likely more heavily Democrat - Congress won’t be known until early in the new year.

 

However, it is virtually certain that chemical makers and US industry in general can expect much closer environmental scrutiny, more charges and more fines with a new EPA next year - with more of all three likely to develop once the new Congress gets its footing and kicks off a round of new environmental legislation.

 

Democrats in Congress have already introduced legislation - thus far not successful - to establish a US regulatory version of the EU's registration, evaluation and authorisation of chemicals (Reach), which would swap the existing US risk-based approach to chemicals control for the precautionary principle that underlies Reach.

 

($1 = €0.78)

 

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By: Joe Kamalick
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