Buck In Brief

Breathing Less Poison

In Brief: In a month of high-profile victories, Buck focuses on a long-term effort.

09/18/06

Although Earthjustice has a slew of victories in the last month to talk about -- blocking a mining company's plan to dump waste into an Alaskan lake, protecting Sequoia National Monument from a thinly-disguised tree harvesting program, ensuring that imperiled Colorado River fish are fairly considered for listing under the Endangered Species Act, and defeating a quick land grab by a Southern Utah county that claims to own thousands of "highways" across national parks and other federal land -- I want to highlight a win that seems commonplace at first blush.

In late August, a federal judge in Washington, D.C. ordered the Environmental Protection Agency to begin writing long overdue regulations under the Clean Air Act that will protect millions of Americans from some of the most poisonous air pollutants.

This ruling follows more than a decade of work by Earthjustice to make EPA do what the Act requires: act promptly to reduce emissions that cause cancer and other serious diseases. Those requirements were enacted by Congress in 1990 to light a fire under the agency for its failure to do what the 1970 Clean Air Act called for regarding airborne toxins. In the two decades between 1970 and 1990, EPA had identified and set some limits for just seven toxic air pollutants. The changes made in 1990 targeted more than 180 chemicals for regulation and set a schedule for action by the EPA Administrator that would start cutting emissions from the sources responsible for all of them by the end of 2000.

But that didn't happen. EPA stuck to its own agenda and continued to give the air toxics program a low priority. As the agency missed deadlines and began to slip behind the timeline set in the Act, Earthjustice went to court on behalf of environmental, public health and community groups. All told, the set of rules covered by the August court order, for example, was the subject of seven different Earthjustice complaints since 2001. Deadline by deadline, regulation by regulation, our legal efforts made progress. As Judge Paul Friedman observed in his order from August: "The history of regulation under Sections 112(c) and 183 of the Clean Air Act shows that EPA has fulfilled its statutory duties only when forced by litigation to do so." He called the agency's efforts to meet its obligations "grossly delinquent."

Those criticisms were corroborated by a Government Accountability Office report issued at the end of July. The GAO report was nowhere near as blunt as Judge Friedman, concluding simply that EPA has given the air toxics program a "relatively low priority," and that the agency lacks data backing up its claims that other programs are reducing hazardous air pollution and the accompanying risks to public health.

EPA's answer to its critics, including Judge Friedman, has been that Congress has failed to give the agency enough resources to control hazardous air pollution. The truth, however, is that EPA prefers to spend the public's money elsewhere. By using its staff instead on discretionary, industry-friendly initiatives such as relaxing the rules that require old power plants to install current-generation air pollution controls, removing coal- and oil-fired generating plants from the list of toxic sources subject to regulation under the toxic air pollutant program, and easing rules that require industry to report releases of toxic chemicals into the environment, EPA has manufactured the resource crunch it now seeks to use as a shield. 

What we're up against is a $7.6 billion-a-year federal agency that's to some extent unwilling and to some extent unable to do its job -- an institutional failure plain and simple.  One can certainly see the hand of the Bush Administration in what EPA has recently chosen to do instead, but the core problem goes back decades. EPA, under Democratic and Republican administrations alike, has simply ignored obligations important to public health. What's driving EPA's air toxics program forward now is the force of litigation, ironically enough cheered on quietly by dedicated EPA staff looking to the public for help in keeping their agency on course. The kind of help that no administration has delivered.

At this point, EPA finds itself about five years behind schedule for the next round of rules that are to be set based on what's necessary to protect human health rather than just off-the-shelf control technology. And even that prospect could prove optimistic unless we press on in court. Top EPA officials will continue to fight for delay, painting themselves as the victims -- of a penny-pinching Congress, of other court-ordered rulemaking schedules, of uncertain science, of complex problems. A frustrated Judge Friedman saw through this game: "It is emphatically not within an agency's authority to set regulatory priorities that clearly conflict with those established by Congress."  Earthjustice doesn't intend to let that happen.

Vawter "Buck" Parker, Executive Director
buckparker@earthjustice.org