The Multinational Monitor

May/June 2004 - VOLUME 25 - NUMBERS 5 & 6

Shocking and Discouraging
Bush, Corporate Power and
the Environment — An Insider’s View

An Interview with Eric Schaeffer

Eric Schaeffer is the founder and director of the Environmental Integrity Project in Washington, D.C. Schaeffer directed the U.S. Environmental Protection Agency's Office of Regulatory Enforcement until 2002, when he resigned after publicly expressing his frustration with efforts of the Bush administration to weaken enforcement of the Clean Air Act and other laws. The Office of Regulatory Enforcement has primary responsibility for enforcing clean air, clean water and hazardous waste laws.


Multinational Monitor: Why did you leave your job at the Environmental Protection Agency (EPA)?
Eric Schaeffer:
I left because the political interference with enforcement that came in with Bush Jr. was, I thought, pretty shocking and discouraging. It got to where I felt like I couldn't really do my job effectively, and I thought for me personally it made more sense to join the loyal opposition and go public with my concerns.

I've got friends who are still at the agency who are fighting the good fight, from the inside, trying to do their jobs. I have a lot of respect for them -- I don't suggest that everybody there should resign. It was a personal choice for me.

MM: Did the interference you feel come on general policy grounds or on specific cases?
Mostly on general policy grounds.

The most notorious examples come from the Clean Air Act, and from the lawsuits that we had filed against big power companies. We had filed a series of lawsuits against big power companies for violating the New Source Review provisions of the Clean Air Act. That's a law that says you can't modify an old coal-fired power plant or refinery in a way that substantially increases emissions without first getting a permit and putting on pollution controls.

It's a very important law because a lot of power plants and refineries and manufacturers are grandfathered under the Clean Air Act. That means they don't have the emission controls that we've required of new plants for the last 30 years.

These plants are grandfathered until they undergo a physical modification, at which point the law says your grandfathering exemption is up and you have to come in for a permit and upgrade your pollution controls. We saw too many examples of power companies in particular, but also some other industries, ignoring that law and pushing emissions up. So we brought these lawsuits and we started negotiations.

The Cheney task force was established in the spring of 2001, and started with a focus on energy policy, but included a look at the Clean Air Act and sort of a directive to the agency to re-visit the New Source Review, the law that we were trying to enforce. Over the course of the summer, it became pretty clear that they were really going to cut that particular provision -- this was at a time when we had cases in court against power companies for violating the very same laws they were proposing to eliminate. I found that disturbing.

A second example involves the agriculture industry. We had started to issue orders to test their air emissions to the large industrialized farms. We're talking about huge, huge operations, on an industrial scale, where you have a million or more chickens housed in a series of barns or 50,000 to 60,000 hogs raised in one operation. We had started to issue the orders to test their air emissions because we had people living around those sites complaining, and apparently being made sick by the odors and the emissions that you get when you pack so many animals together in a small space.

We thought we were making some headway. We were starting to see a little bit of response in the industry.

But we were ordered to stop doing that in August of 2001. That was pretty discouraging.

MM: Did the pressure you felt come exclusively from the Cheney energy task force?
No, there were other mechanisms. There was the Cheney task force. There was the announcement in May or June of 2001 that some of the defendants in our cases were hiring Haley Barbour to lobby for them. Haley Barbour used to run the Republican National Committee. He doesn't know anything about the Clean Air Act, but he wasn't hired for his expertise in the Clean Air Act. He was hired to make sure that the right doors were opened in the Bush Administration, so we took that as a very bad sign. And sure enough his name appears at a couple of meetings over at the Energy Department. We also began hearing from the industry about White House interest in basically gutting these laws that we were asking them to comply with. The feedback from the industry was: Why should we spend our money to comply with a law that the White House seems to want to eliminate? We got that message in many different ways: through industry lawyers, through the Cheney task force, through the Haley Barbour contacts that we kept reading about.

MM: Did you have any of the political people at the EPA or White House call you and tell you to stop doing things?
No -- well, yes, actually. Going back to industrial agriculture, we were told point blank to stop pushing these companies to test their emissions. And that's been the policy as far as I know for the past three years.

There's always a kind of cover story that you get, and the cover story was: Well, we don't really know what the emissions are so we should enter into this long process, which is still unfolding, to try to establish a way of measuring these emissions. We said it's fine do to that -- in fact that would be a good thing -- but that's not inconsistent with going ahead and asking facilities where people feel they are being injured right now to test their emissions. There's no reason we need to wait. So we did get the order there.

For power plants and refineries, it wasn't a matter of being told to stop, it was a matter of trying to have the law you're trying to enforce be rewritten, or I should probably say unwritten. You don't need to tell enforcement to stop enforcing the law when you're sawing the legs off from under the table their sitting at. We could hear those sawing noises the whole time we were negotiating.

MM: Who gave you the order to stop asking industrial farms to test their emissions?
That came from my boss, who was a career appointment, Sylvia Larance. She also left in disgust, not long after I did. She got that from I believe the office of Linda Fisher, deputy administrator at the time.

We had had a big political meeting at the time that was attended by Jeff Holmstead and Linda Fisher. We briefed the political managers about the problem and basically begged for the opportunity to continue to ask these guys to test their emissions. Let the studies go forward, we said, but in the meantime let's get the data. I don't remember getting much in the way of skeptical questioning or having any kind of intellectual give-and-take at the meeting. We just heard later through Sylvia: No more of that, kids. Sylvia wasn't happy about it, she was just relaying the message.

MM: Getting back to the New Source Review, after you left what happened with the administration's policy initiatives in this area?
It went from bad to worse -- not because I left, but because it was what they intended to do all along.

They've pretty much unwritten the law in two or three ways: They've said power plants can do any kind of physical modification and increase emissions as long as that modification doesn't cost more than 20 percent of the replacement value of that plant. That's for a single project. The cover story for that is well, that's just a routine repair. The reality is it costs a billion dollars to replace a power plant that was built in the 1950s or 1960s -- so to say that you can rebuild the plant 20 percent at a time means you can spend $200 million on a single project. Do that several times a year, and you've effectively rebuild the plant. They created an effective exemption that allows you to take an old grandfathered plant and rebuild it without the pollution controls that the law used to require.

That approach is so controversial that the DC Circuit Court of Appeals has put it on hold. The Court said that that particular roll back couldn't go forward until the case could be heard as to whether or not those changes were consistent with the Clean Air Act.

While that controversy unfolds, the administration has told their enforcement staff to put your existing investigations of power companies on ice; the only cases that will proceed are the ones that were filed in court when we took office. There are a handful of cases that are slouching their way toward some kind of decision beginning maybe this summer, but meanwhile all the investigations of other plants have been deep-sixed. We keep hearing that that may be about to change, so we will see what Governor Leavitt, the current EPA administrator, does, but that's been the policy for the past six months.

MM: How important are the grandfathered plants?
They're hugely important. There is no other stationary source of air pollution that is as significant as power plants. Two out of three tons of sulfur dioxide emissions come from coal-fired power plants; almost a quarter of nitrogen oxide, which contributes to smog formation, comes from these plants; and over a third of airborne mercury emissions come from these plants.

When people think of sulfur dioxide emissions, they probably remember the acid rain debate. Sulfur dioxide does contribute to acid rain, but it also forms fine particle pollution. EPA studies show this pollution triggers hundreds of thousands of asthma attacks every year, and also heart disease and lung cancer. The agency estimates that power plant pollution contributes to premature death for more than 20,000 people a year. That's a pretty shocking statistic, and even the Bush administration doesn't disagree with that -- it's just that their solution is to drag the clean up out for so many years instead of enforcing the law we've got.

This pollution comes from between 50 and 100 plants, depending on the type of pollutant you're talking about. These are big polluters, highly concentrated sources of pollution. If you look at the cost-benefit of clean up, there's really no cheaper way to get pollution control than to make these grandfathered plants do what new plants have had to do for 30 years.

Just looking at air emissions, you can run a coal-fired powered plant quite cleanly compared to what you used to be able to do. With coal, you have to consider mountain top mining and other environmental costs, but if you just look at air pollution -- if you put a scrubber, a technology that's been around for 30 years, on a coal-fired powered plant, you're going to get a 90-95 percent reduction in emissions.

MM: What are the names of some of the abusing grandfathered companies?
The top four would be: Southern Company, which is a large holding company based out of Georgia, American Electric Power, the Tennessee Valley Authority and Cinergy.

MM: Are the favors the administration is doing for these and the other major companies an outgrowth of their direct ties to the administration?
Yes. But we have to remember that Bush and Cheney came from the oil patch, so they didn't need much convincing. They are born and bred of the energy industry and they are very inclined to believe that what that particular group of lobbyists wants is good for the country. But they are also being richly rewarded for policies which favor coal- and oil-fired sources of energy.

MM: On the factory farm issue, what were the health impacts you were worried about?
These big industrial sites have just come up in the last 10 or 15 years. They are set down often in the middle of rural communities, which are used to barn and agricultural odor, so it's not that that is causing the problem. There is something in the air around these plants -- we don't know if it is ammonia, hydrogen sulfide or particulate matter -- that is causing shortness of breath, asthma attacks, bronchitis, constant throat irritation and eye irritation.

If you were living in the suburbs, these are things that you would probably find intolerable and wouldn't put up with. But because a lot of these communities are relatively isolated, far from where state environmental agencies are located, they haven't gotten much attention.

MM: And your enforcement issue was to ask them to begin to do monitoring?
That's pretty much what we were aiming for. We were not coming in saying, "We know you're a big polluter." We were saying, "People are complaining, we think you may be covered under the Clean Air Act, and we are ordering you to test your emissions." That was it. And if the emissions tests had come up negative and we weren't able to prove that there was in fact a violation of a standard we could enforce, that would have been the end of it. But I think the industry knew enough to know they had some potential liability. So they went through the back door to the administration and got us pulled off the case.

MM: Are you able to trace the route by which they exercised that influence?
Not entirely. There was a woman brought in to be the industry's kind of in-house lobbyist at EPA, Jean-Marie Peltier, who was the agricultural adviser at EPA. I know she was part of our briefing when we talked about these problems. I cannot honestly say I remember her saying much, but she may have had some influence.

MM: How would you characterize the current overall level of enforcement at EPA?
I think the professionals at EPA and at the Justice Department have done a great job of keeping cases that had already been initiated going. They've managed to get some additional power plant settlements, for example, against great odds. These were companies that were inclined to settle -- at least one, Dominion Electric, had promised before the election that they would settle. But the professionals tried to stay the course and get the work done and they've had some good results to show despite the odds.

It's not been nearly what it could have been because of the administration's shucking and jiving. On the Clean Air Act, the administration's posture has made it really hard to get settlements and it has significantly weakened the chances of the government winning in court. Judges hate it when the government comes in speaking out of both sides of its mouth, which it is now doing.

The issue with enforcement is there is a lag time, kind of like with environmental damage itself. There is a lag time between when you push the button that changes the direction of the big government super tanker and when you actually see the results of that change. So for example, we've had significant damage to the Clean Air Act. Starting particularly this year, you'll see a pretty significant drop off in cases. That will just get worse if this particular group is re-elected.

MM: What have you seen in terms of damages being collected in these cases?
The penalties have not been too bad. Again, the professional staff came in with a very good set of cases to continue to finish negotiating and collect penalties from. They have done reasonably well with the cases that were in the pipeline. The question is: Have they filled the pipeline with new cases or has that activity started to decline? I've heard that it has. We won't know that for a few years.

A second problem they've had is that, at least in the area of the Clean Air Act and New Source Review, there are at least about 50 notices of violation that have been filed against companies for violating that particular law. Many of these have been out there for four years or longer and they're just sitting there. No complaints have been filed and no settlements have come out. So that's where you see the damage: a lot of violations that were ripe and ready for action, have gotten stale on the shelf. If the violations get old enough, under the statute of limitations you can no longer collect the penalty.

MM: Do you suspect that there have been similar developments under other environmental statutes?
Yes, I do. For example, the government was very focused on getting cities to clean up sewer systems that were in dire need of repair and that were tending to collapse and over-flow raw sewage during big storm events. The government has since put in a new policy that says it is OK to blend raw sewage and storm water. If you have a policy like that, it's a lot harder to negotiate the kinds of clean-ups we used to get -- where cities had to rehabilitate and bring up to date their sewage capacity.

I don't think there's been much activity in enforcing the Clean Water Act against confined animal feeding operations in the last few years. That used to be a major initiative at EPA and I think that's slowed down too, almost to nothing.

MM: What is the capacity and the will of the states to fill in the enforcement vacuum?
It is very limited. Some states -- New York and Attorney General Eliot Spitzer being the best example -- have tried to step up. A group of attorneys general, mostly but not all from the Northeast, have been suing some of the power companies and have also helped to keep the federal cases alive. But for the average state, the thin line of inspectors is very thin, much thinner than the public realizes. They are not able to get out to the facilities often enough. If it's a case against a big sophisticated multinational like Exxon Mobil, it may be very difficult to take on a polluter like that. You need to have the federal government behind you, at least in principle. It's not that the states can't sometimes do those cases, but if the federal government starts to go south on you, then the states have lost their political cover, and they've lost technical assistance they otherwise could have depended on.

MM: If the administration is re-elected, would you anticipate more of your former colleagues joining you outside of government?
I would. I think people are upset about the political direction. Again, there are people at EPA working really hard and still trying to get things done, so I don't want to make it seem like a situation where people are weeping and wailing all the time. People are still trying to work, but sure if these guys get re-elected, I would expect other people are going to start assessing their chances of getting anything done. n

I left because the political interference with enforcement that came in with Bush Jr. was, I thought, pretty shocking and discouraging. It got to where I felt like I couldn’t really do my job effectively.

If you look at the cost-benefit of clean up, there’s really no cheaper way to get pollution control than to make these grandfathered plants do what new plants have had to do for 30 years.

You don’t need to tell enforcement to stop enforcing the law when you’re sawing the legs off from under the table their sitting at. We could hear those sawing noises the whole time we were
  A lot of violations that were ripe and ready for action have gotten stale on the shelf. If the violations get old enough, under the statute of limitations you can no longer collect
the penalty.