July 12, 2001

At EPA, next 4 years won’t be boring

  • Anyone expecting a move toward less environmental regulation or relaxed enforcement should remember that most of the major strides in environmental protection over the last 30 years occurred during Republican administrations.
    Preston Gates & Ellis

    The Kyoto Treaty. Global warming. Arsenic in drinking water. Oil drilling in the Arctic National Wildlife Preserve. Escalating energy costs and drought conditions in the Northwest. News headlines have been filled with stories about the Bush Administration’s stance on the environment.

    The initial days of Christine Todd Whitman’s tenure as administrator of the U.S. Environmental Protection Agency have been marked by perceived policy swings and controversy. Environmental policy increasingly has become a “wedge issue,” especially for the highly coveted suburban voters. The large number of environmentally focused headlines, many of which seem to contradict one another, also reflect an administration which, as of yet, has had difficulty defining itself in the eyes of the public.

    A look at some key EPA decisions so far
    Often, the EPA seems to be playing a game of ping pong, volleying between “pro-business” and “pro-environment” decisions. For example, consider the following key decisions during the first months of Whitman’s EPA:

  • Approved the diesel rule with significant costs for truck manufacturer, fleet operators, transit authorities and petroleum refineries;

  • Initially endorsed and then immediately reversed a Bush campaign pledge to regulate carbon dioxide and announced withdrawal from the Kyoto Treaty limiting greenhouse gases, causing a fervor not only among American environmentalists but throughout Europe and the world;

  • Approved lead reporting rules, which were criticized by the National Association of Manufacturers as imposing unprecedented costs on small business;

  • Overturned the proposed new arsenic standard for drinking water, pleasing businesses and local communities that were facing millions in compliance costs, but provoking a storm of criticism that the administration favors putting poison in drinking water;

  • Approved the so-called “Tulloch” wetlands rule, which significantly expanded protection for wetlands in the context of development;

  • Promulgated an energy policy that was widely perceived as favorable to fossil fuel developers and industry;

  • Approved clean air standards relating to parks and wilderness areas that are widely criticized by the industry. With this track record to date, observers can be forgiven for reaching for a Magic Eight Ball to try to predict the next decision coming out of the EPA.
  • To give it credit, Whitman’s EPA has encountered some unique policy challenges during the first days of the administration. Under Clinton’s appointee Carol Browner, the EPA developed and enacted an unprecedented “midnight rush” of regulations, guidance and policy decisions during its last two weeks in office. This rush included many highly controversial protocols and issues which had been awaiting decisions for months. In many cases, Browner’s team knew that the proposed rules faced major political, scientific and legal hurdles. This led her to defer action to the last minute, leaving the challenge to her successor.

    Whitman’s EPA has been faced with the task of evaluating and making up or down decisions on each of the proposals that had not been finalized in the Federal Register. This challenge has been exacerbated by the slow pace at which the Bush administration is moving to make federal nominations and confirmations, leaving key administrative positions unfilled with officials often doubling or tripling up on responsibilities. Senator James Jeffords’ departure from the Republican Party, giving Democrats control of the United States Senate, further exacerbates the situation.

    At the EPA, this has resulted in very few policy appointees in place. The frequent reversals and suspicions of conflict between the White House, EPA and other agencies have demoralized staff within EPA and have made it more difficult to seize the controls. With the Senate in Democratic hands, the likelihood of substantive changes to major environmental laws appear increasingly remote.

    New themes emerging

    Nevertheless, some themes are starting to emerge from Whitman’s EPA. These include increased concern for the interests of the business community, interest in compliance incentives, and a special emphasis on the cost and supply of energy. A renewed emphasis on alternatives to command control methods of environmental enforcement and a push for alternative compliance-based systems dominates the agenda. These themes are being balanced with a focus on assuring the public of the administration’s real concern for environmental protection.

    The increased concern for business interests has been reflected in many of the policy decisions mentioned above. It seems clear that many business groups will have a greater opportunity to have their voices heard at EPA and the White House than in the previous administration. Additionally, the EPA has announced a new focus on compliance assistance as an alternative to traditional enforcement mechanisms. Thomas Gibson, head of EPA’s office of Planning, has promised a fundamental re-evaluation of EPA’s compliance programs.

    The EPA is also trying to implement recommendations from the National Advisory Council for Environmental Policy and Technology to shift the agency’s enforcement ideology. The federal budget, which reduced EPA enforcement resources and increased those for states, also reflected this shift.

    Energy policy takes center stage

    Clearly, with the energy crisis raging on the West Coast, and extreme concern about gas pump prices nationwide, energy policy issues are likely to remain at center stage for some time. As noted above, the administration scrapped a campaign pledge to regulate carbon dioxide and formally announced that it would be seeking to renegotiate the Kyoto protocols on global warming. This is no real surprise; the Senate had unanimously rejected the treaty.

    The administration has tried to stress that this does not reflect an interest in completely backing away from research and controls on greenhouse gases. Nevertheless, the administration has emphasized that any such controls must be consistent between the developing and developed world.

    Further, the energy plan included a proposal to re-evaluate enforcement efforts that have been pending against major utilities for claimed failure to undergo new source review under the Clean Air Act. Many companies believe this review is long overdue.

    Concern for the environment

    At the same time, Whitman is leading efforts to assure the public that the Bush administration cares about environmental protection and public safety. It is moving forward with a number of well-publicized environmental enforcement cases. Most recently, the EPA announced the first major multi-facility enforcement effort against a company – Wal-Mart – based on alleged failure to comply with regulations for controlling storm water runoff from construction. It has continued Clinton/Browner enforcement initiatives in clean air, water, and other media. Further, many of the new rules approved by EPA will impose significant costs on business and expand environmental controls.

    Anyone expecting a clear policy trend in favor of less environmental regulation or relaxed enforcement should remember that most of the major strides in environmental protection over the last 30 years occurred during Republican administrations. For example, it was during the Nixon Administration that Congress first adopted the epochal Clean Water and Clean Air Acts; under Reagan that EPA first implemented the federal Superfund; and under the first Bush administration Congress adopted the sweeping 1990 Clean Air Act amendments.

    It seems clear that a policy debate is raging within this administration, between those who favor embracing this legacy of moderate, “pro-environment” Republicanism, and those who are focused on rolling back the perceived excesses of the Clinton/Browner years. How it will come out is anyone’s guess.

    Local impact

    So what does this all mean for the people and businesses of the Pacific Northwest?

    It means that uncertainty in key policy areas will likely increase. While the number and type of environmental restrictions will likely not decrease, environmental regulations relating to power generation and consumption may ease. For example, water spilling from Northwest dams to help salmon is being curtailed in favor of increased power generation. Similarly, EPA has said that it will seek ways to spread approvals to new power plants.

    Because of such decisions, the Northwest will also likely see an increase in third-party litigation, with citizen and environmental groups suing local businesses and/or government agencies for failing to comply with what are complex and, in some cases, contradictory laws.

    Moreover, because of the policy tension, slow pace of appointments, and morale issues, it will be even more difficult to get the EPA to make decisions about any major policy in a timely fashion. As such, now more than ever, local businesses need to participate in policy discussions on both the state and federal level to ensure their input is taken into account when decisions finally do come down.

    With all of these issues, the only clear prediction is that the next four years will not be boring. Environmental law policy and science appear likely to remain very much in the forefront of public concern. We can also expect increased attention on these issues as the parties gear up for the mid-term elections and ultimately the next round of presidential elections. Fasten your seat belts and enjoy the ride!

    Ross Macfarlane is a partner in the Land Use and Environment practice of Preston Gates & Ellis LLP in Seattle. He can be reached at

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