The new administrator of EPA’s Region III — stretching from Pennsylvania south to Virginia — shares his boss’ view that environmental enforcement is best done at the state level.

“There are a lot of people who still believe that the only reason anyone does anything good for the environment is because the federal government is there to bop them on the head if they don’t,” Don Welsh said. “I don’t share that belief.”

Neither does President George W. Bush, who is pushing for a shift in the enforcement of environmental laws from federal to state agencies. History suggests that his plan could be disastrous to both the environment and public health.

In Mineral County, W.Va., for example, a Kingsford charcoal plant belched soot and violated air pollution laws for 30 years. In 1997, the state Department of Environmental Protection (DEP) finally “cracked down.” Remarkably, the agency forgave millions in owed fines in return for a $50,000 “donation” from the company, accompanied by a promise to install pollution-control equipment.

The state DEP was so lenient that the U.S. Environmental Protection Agency (EPA) was forced to step in. EPA took Kingsford to court and sought $45 million in fines — $25,000 a day for the most recent five years of air quality violations.

This illustrates the danger in giving states primary authority to enforce environmental regulations. State agencies are not equipped or inclined to truly enforce federal environmental laws and, without strong federal guidance, may not be able to develop this capacity.

EPA audits and studies by the Environmental Working Group show that some states currently are not reporting violations of the Clean Air Act as required, are allowing major polluters to operate without proper permits, or have failed to conduct basic emissions tests of industry smokestacks.

“The real outcome [of Bush’s plan] will not be local control,” says Robert F. Kennedy Jr., chief prosecutor for Riverkeeper, an environmental watchdog group. “It will be corporate control, because these large corporations so easily control the local political landscape.”

The West Virginia DEP, for example, has long been cozy with industry. The head of the Office of Air Quality during the Kingsford incident was a former industry lawyer. And the Kingsford representative who negotiated the lenient deal was the former head of DEP who had changed hats to become a consultant for the industries he once regulated.

West Virginia’s DEP, like many state regulatory agencies, is also poorly funded and woefully understaffed. Its mining office, for example, was recently forced to hire 58 more inspectors to avoid a takeover by the federal Office of Surface Mining.

Similar state negligence is found throughout the Southeast. The residents of Anniston, Ala., for instance, complained for years about high levels of PCB contamination from a Monsanto plant. Alabama’s Department of Environmental Management ignored those pleas. Finally, area residents sent the results of blood tests to the EPA, proving PCB exposure. The contaminated area is now a Superfund site.

Current law assumes federal agencies will step in when states fall down on the job. Too often, that doesn’t happen. And federal regulators can face as much political pressure as those at the state level.

Just ask Peter Kostmayer, former head of EPA’s Region III. He was fired when West Virginia’s governor and senators complained that EPA wouldn’t go along with DEP’s false contention that the Ohio River was dioxin-free — a claim that would have allowed DEP to approve a $1.1 billion pulp and paper mill permit.

When federal and state regulators bail out, citizens have just one recourse: federal courts. Unfortunately, conservative federal appeals courts are shutting off even that source of redress. Several hard-won decisions to enforce environmental regulations have recently been reversed by the ultraconservative 4th Circuit Court of Appeals.

The U.S. Supreme Court reinstated one such case, Friends of the Earth v. Laidlaw Environmental Services, last year, reaffirming the right of citizens to sue to stop ongoing violations of federal environmental regulations.

Another case, Bragg v. West Virginia Coal Association, has been appealed to the Supreme Court. If the 4th Circuit’s Bragg opinion is upheld, the right of citizens to sue state officials in federal court for violating environmental regulations could be greatly restricted.

The Bush administration’s “devolution” of federal power to the states is likely to bring back the bad old days. In the 1970s, the states were fully in charge of protecting their environments, and pollution ran amok. It took landmark federal legislation like the Clean Air Act and the Clean Water Act and decades of federal enforcement and crackdowns to reverse much of the damage.

If both the courts and federal government turn their backs on the environment, the clock could be turned back to a time when industry did as it pleased, when dirty air choked our lungs, and polluted rivers regularly burned.

(Dan Radmacher is the editorial page editor of West Virginia’s Charleston Gazette. He has been writing about environmental issues for close to 10 years. This article and others can be viewed at www.blueridgepress.com)

 

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