The Buck Stops Here: Citizens’ Role in Helping the EPA Protect Public Health
In the past few years, EPA efforts to set pollution standards that protect public health and the environment have come under increasing attack from industry lobbyists and their allies in Congress. For example, several U.S. Representatives have introduced a bill that would repeal or preempt a suite of regulations to protect public health and the environment from pollution from coal-fired power plants.1 And last August, a group of thirteen state Attorneys General asked EPA for detailed information on litigation brought by environmental groups, suggesting that EPA and environmental groups are conspiring to issue “sweeping new regulations.”2 These are just two recent instances of anti-regulatory forces accusing EPA of colluding with public interest groups to release an “onslaught” of job-killing regulations.
These claims have no merit. First, many rules recently issued or contemplated by EPA are actually long-overdue obligations required by statute. For example, EPA is slated to publish this fall a proposed rule to limit toxic discharges from coal-fired power plants that is 30 years overdue.3 Second, far from conspiring with EPA to overregulate, public interest groups have been forced to file citizen suits just to get EPA to comply with the mandatory minimum requirements set forth in our environmental laws.4 In fact, citizens may only file suit against EPA where EPA has failed to take action required by law.5
The problem is not overreaching or over-regulation, but under-regulation of industries like coal, oil and gas, and factory farming that have profited for decades from lax pollution controls at the expense of public health and the environment. In fact, EPA must clear significant hurdles to issue required rules, including industry pressure, congressional interference, an OMB review process that one academic has referred to as a regulatory “gauntlet,”6 and increasingly fewer resources to do its job. Congress deliberately provided citizens with enforcement authority under our environmental laws, precisely because it was aware of the obstacles EPA faces when promulgating regulations and taking enforcement action against polluters. Without citizen actions, required rules often sputter and stall. As anti-regulatory forces launch unprecedented attacks on EPA, the citizen’s role in protecting public health and environmental quality is more important than ever.
Recipe for Regulatory Paralysis
Despite clear statutory mandates to set pollution standards, the task of issuing rules often involves a Herculean effort on EPA’s part. Shrinking budgets cripple EPA’s ability to comply with its obligations to set pollution standards.7 EPA also faces intense pressure from powerful lobbyists paid by the industries EPA is charged with regulating. Industry allies in Congress exert their own pressure in various ways: proposing legislation to strip EPA of authority,8 hauling the Administrator and other decision-makers before Congressional committees to testify,9 and submitting extensive information requests,10 to name a few.
Last but not least, all major rules must survive the OMB review process. OMB’s stated mission is to ensure that significant regulations “reflect Presidential priorities” and account for “economic and other impacts.”11 What this means in practice is that OMB frequently weakens regulations that it deems to have an unacceptable burden on regulated industries. As the Center for Progressive Reform astutely observed in a recent report:
OIRA [the Office of Information and Regulatory Affairs within OMB] serves as a one-way ratchet, eroding the protections that agency specialists have decided are necessary under detailed statutory mandates, following years—even decades—of work. OIRA review is tacked on at the end of rulemakings that involve careful review of the authorizing statutes, lengthy field investigation, extended advice from scientific advisory panels, numerous meetings with affected stakeholders, days of public hearings, voluminous public comments, and thousands of hours of staff work. When all else fails, regulated industries make a bee-line for OIRA’s back door.12
OMB meets with industry lobbyists far more frequently than it meets with public interest groups; since 2009, industry meetings with OMB “outnumbered public interest visits by a ratio of four to one.”13 Considering that costs to industry associated with a regulation are always easier to quantify than the benefits of reduced pollution to public health and the environment, it is no surprise that OMB often waters down environmental regulations or scuttles them altogether.14 All of these combined forces—shrinking budgets, industry and Congressional hostility, and the OMB gauntlet—create a recipe for EPA inaction.
Citizen Suits: Holding EPA Accountable
Fortunately, Congress was wise enough to anticipate this scenario and provide a backstop for agency inaction. Our environmental statutes provide authority for citizens to hold polluters liable for violations where government agencies are unable or unwilling to enforce the law, and to hold agencies accountable for following through on mandatory obligations.15 These citizen actions matter. “Citizen suits,” it has been written, “have secured compliance by myriad agencies and thousands of polluting facilities, diminished pounds of pollution produced by the billions, and protected hundreds of rare species and thousands of acres of ecologically important land.”16
While anti-regulatory voices in industry17 and Congress18 assert that citizen suits settle lawsuits behind closed doors and hobble businesses with burdensome regulations, this argument is deliberately misleading. The reality is that citizens can only bring suit where EPA has failed to take some action that the statute requires them to take. In other words, citizens can file a lawsuit only to force EPA to do something it is already required to do by statute. The fact that these lawsuits often result in EPA action after years (and sometimes decades) of regulatory inaction is a sign that our laws are working as Congress intended. This was precisely the intent when Congress gave citizens the authority to ensure that EPA complies with its responsibilities to protect the environment and public health.
Case Study: Coal Ash Disposal Regulations
EPA’s failure to issue minimum safeguards to protect communities from unsafe disposal of coal ash is a perfect illustration of how a rulemaking based on sound science and the rule of law can come to a grinding halt in the face of political pressure. Each year, U.S. power plants generate 140 million tons of coal ash containing a mixture of toxic pollutants like hexavalent chromium, arsenic, cadmium, lead, mercury, selenium, and thallium. Coal ash is dumped in thousands of landfills, ponds, and mines that often lack basic safeguards like liners and groundwater monitoring. Under federal law, EPA is required to review solid waste regulations—including a revision of a 1980 regulation exempting coal ash from hazardous waste rules—every three years, determine whether revision is appropriate, and issue new regulations to account for advances in science and technology.19 Although EPA published a formal determination that the existing regulations pertaining to coal ash do not protect public health and the environment,20 and despite the serious threat coal ash poses to public health and the environment and clear statutory mandates to take action, EPA has thus far failed to set national standards for safe coal ash disposal.
When EPA finally began the rulemaking process in the wake of the disastrous 2008 TVA Kingston spill, the process was stalled by intense pressure from industry, Congress, and OMB. Industry and its allies in Congress launched an effort to derail meaningful EPA coal ash rules by claiming that regulation of coal ash as a hazardous waste would create a stigma that would prevent utilities from recycling coal ash, costing them billions of dollars.21 Historical market evidence proves these industry claims to be wholly without merit;22 however, the intense lobbying effort had its desired effect: after EPA submitted a strong proposal to OIRA, OIRA held the rule for six months—well beyond its 90-day limit—and rewrote the rule to include a much weaker option for regulation.23 The proposed rule ended up with two options for regulation: the weak OIRA approach, and EPA’s initial proposal.24 Not content to influence EPA’s decision-making through OMB, industry and its Congressional allies have also pushed a flurry of legislation to strip EPA of its authority to regulate coal ash.25 EPA has failed to act on its own proposal; meanwhile, coal ash dumps continue to pollute waters across the nation.
After years of waiting for EPA to fulfill its promise to protect Americans from toxic coal ash dumps, citizens exercised their right to hold government accountable: In 2012, Earthjustice filed a citizen suit on behalf of Physicians for Social Responsibility and ten local, state, and national environmental groups to ensure EPA complies with its legal obligations.26 While the ultimate result of this lawsuit remains to be seen, this citizen action ensures that EPA does not bury its head in the sand on this issue for another decade.
Citizen suits are the last line of defense against government inaction and help hold EPA accountable for protecting health and the environment. When Congress created the authority for citizen action, it also created a responsibility. Where EPA does not have the resources or political will to enforce existing laws or comply with mandatory obligations—a situation that is becoming increasingly common—our laws will protect our communities and the environment only if citizens take action. Without action we face regulatory paralysis, or worse, industry capture. With citizen action, we strengthen democracy and protect human health.
1 Stop the War on Coal Act of 2012, H.R. 3409, 112th Cong. (2012), available at http://docs.house.gov/billsthisweek/20120917/CPRT-112-HPRT-RU00-HR3409.pdf.
2 Letter from E. Scott Pruitt, Oklahoma Attorney General, et al., to Freedom of Information Officer, U.S. Envtl. Prot. Agency (Aug. 10, 2012).
3 U.S. Envtl. Prot. Agency, Steam Electric Power Generating, http://water.epa.gov/scitech/wastetech/guide/steam_index.cfm (last visited Sept. 14, 2012) (noting that EPA has not revised the discharge limits for power plants since 1982).
4 See, e.g., Defenders of Wildlife v. EPA, Docket No. 1:10-cv-01915 (D.D.C. 2010) (schedule to complete review and consider revisions to effluent limits for power plants), American Nurses Association v. EPA, Docket No. 1:08-cv-2198 (D.D.C. 2010) (schedule to issue emission standards for power plants), Environmental Integrity Project v. EPA, Docket No. 1:09-cv-00218 (D.D.C. 2010) (schedule to issue revised emissions standards for nitric acid plants), WildEarth Guardians v. EPA, Docket No. 1:09-cv-00089 (D.D.C. 2010) (schedule to complete review of oil and gas sector emission standards.
5 See, e.g., 33 U.S.C. § 1365(a) (noting that citizens may only take action where EPA has failed to comply with a “mandatory duty).
6 Steinzor, Rena, The Case for Abolishing Centralized White House Regulatory Review, 1 Mich. J. Envtl. & Admin. Law 209, 209 (Spring 2012).
7 See, e.g., Memo from Bob Perciasepe, U.S. Envtl. Prot. Agency, to General Counsel et al., U.S. Envtl. Prot. Agency (June 15, 2012) (noting that “the fiscal picture for FY 2012 is very constrained and we expect FY 2013 to be very challenging as well” and asking senior staff to “monitor your resources closely”). EPA’s lack of resources can adversely impact important air quality decisions, especially where this translates into a lack of technical data. For example, EPA withdrew a final rule that concluded that health-based pollution standards were not necessary for petroleum refineries because the risk assessment used to make this decision was fundamentally flawed. See 74 Fed. Reg. 55,505 (Oct. 28, 2009). The data used to estimate risk grossly underestimated the actual amount of toxics emitted by refineries, and EPA evaluated risk from each refinery process unit separately instead of looking at risks posed by the refinery as a whole or multiple refineries. Although EPA promised it would conduct a new risk assessment with accurate data, refinery communities are still waiting for the protections the Clean Air Act requires three years later. See Letter from Emma Cheuse & James Pew, Earthjustice, & Sparsh Khandeshi, Envtl. Integrity Project, to Administrator Lisa Jackson, U.S. Envtl. Prot. Agency (July 18, 2012) (notifying EPA of intent to sue for failure to conduct required risk assessment).
8 See, e.g., Coal Ash Recycling and Oversight Act of 2012, S. 3512, 112th Cong. § 4011(i)(2)(A) (2012) (permanently stripping EPA of its statutory authority to respond to public health and environmental threats caused by unsafe disposal of coal ash).
9 U.S. Envtl. Prot. Agency, Congressional and Legislative Information, EPA Testimony Statements, http://www.epa.gov/ocir/hearings/testimony/112_2011_2012/index.htm (last visited Sept. 14, 2012).
10 See, e.g., Letter from Representatives John L. Mica and Bob Gibbs, Committee on Transportation & Infrastructure, U.S. House of Representatives, to Administrator Lisa P. Jackson, U.S. Envtl. Prot. Agency (Oct. 13, 2011) (asking for a detailed accounting of all administrative challenges, litigation, and settlements related to public interest groups in the past five years).
11 U.S. OMB, The mission and structure of the Office of Management and Budget, http://www.whitehouse.gov/omb/organization_mission/.
12 Steinzor, Rena et al., Center for Progressive Reform, Behind Closed Doors at the White House: How Politics Trumps Protection of Public Health, Worker Safety, and the Environment 4–5 (Nov. 2011).
13 Id. at 8.
14 See, e.g., id. at 5 (noting that “the participation of . . . President Obama’s Chief of Staff in OIRA deliberations . . . eventually compelled . . . Administrator Lisa Jackson to promulgate a[n air quality standard] for ozone pollution” that was much less protective than EPA’s original proposal and “that she described as ‘legally indefensible’ only a few months earlier”).
15 For example, the Clean Water Act states that “[a]ny citizen may commence a civil action on his own behalf . . . against any person . . . who is alleged to be in violation of an effluent standard or limitation under this Act, or an order issued by the Administrator or a State with respect to such a standard or limitation, or against the Administrator where there is alleged a failure of the Administrator to perform any act of duty under this Act which is not discretionary with the Administrator.” 33 U.S.C. § 1365(a). See also 42 U.S.C. §§ 6972, 7604. These provisions show a “deliberate choice by Congress to widen access to the courts, as a supplemental and effective assurance that [environmental laws] would be implemented and enforced.” Natural Res. Def. Council v. Train, 510 F.2d 692, 799 (1974).
16 James R. May, Now More Than Ever: Trends in Environmental Citizen Suits at 30, 10 Widener L. Rev. 1, 3–4 (2003) (citing Adam Babich, Citizen Suits: The Teeth in Public Participation, 25 Envtl. L. Rep. 10, 141 (1995)).
17 See, e.g., U.S. Chamber of Commerce, ’Sue and Settle’ Threatens Business,” http://www.uschamber.com/feed/sue-and-settle-threatens-business (last visited Sept. 14, 2012).
18 See, e.g., Sunshine for Regulatory Decrees and Settlements Act of 2012, H.R. 3862, 112th Cong. (2012) (imposing limitations on consent decrees between EPA and citizens that require EPA to take regulatory action).
19 42 U.S.C. § 6912(b); 40 C.F.R. § 261.4(b)(4).
20 See Regulatory Determination on Wastes from the Combustion of Fossil Fuels, 65 Fed. Reg. 32,214 (May 22, 2000).
21 See, e.g., Manuel Quinones, EPA Has Created ‘Stigma’ for Ash, Depressed Recycling Market – Industry Group (Dec. 13, 2011) (noting that the American Coal Ash Association claims that EPA regulation will decrease recycling and that the House approved legislation to prohibit EPA regulation).
22 For example, electric arc furnace dust or steel dust is regulated as a hazardous waste. Yet EPA states that large volumes of steel dust are recycled because it is a hazardous waste and notes that “there is little doubt that without its regulation as a hazardous waste . . ., a significantly greater amount of [steel dust] would be diverted from recycling to disposal in non-hazardous waste landfills.” Disposal of Coal Combustion Residuals, 75 Fed. Reg. 35,128, 35,186 (June 21, 2010) [hereinafter Proposed Coal Ash Rule]. In fact, industry groups have conceded that there is no historical evidence to support their concerns. In response to EPA’s request for an actual example of a regulation creating a stigma effect that prevented safe recycling, the American Coal Ash Association conceded that “we cannot find any case history information on this subject.” Letter from Thomas Adams, Exec. Dir., ACAA, to Mathy Stanislaus, Assistant Administrator, Office of Solid Waste & Emergency Response, EPA, Re: Stigma Studies (Aug. 4, 2009).
23 Steinzor, supra note 5, at 225.
24 See Proposed Coal Ash Rule.
25 See, e.g., Stop the War on Coal Act of 2012, H.R. 3409, 112th Cong. (2012), Coal Ash Recycling and Oversight Act of 2012, S. 3512, 112th Cong. (2012), Coal Residuals Reuses and Management Act, S. 1751, 112th Cong. (2011).
26 Letter from Lisa Evans & Abigail Dillen, Earthjustice, to Administrator Lisa Jackson, U.S. Envtl. Prot. Agency (Jan. 18, 2012).
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