In December 2009, after a series of blistering news reports—in the New York Times, the Washington Post, and the Associated Press—about the rise of water pollution in recent years, the House Committee on Transportation and Infrastructure held hearings on water quality, which revealed a deepening rift between federal and state lawmakers.
“States are doing a good job of enforcing provisions of the Clean Water Act and should be commended given the many constraints such as small budgets and an expanding number of polluters,” said Tom Porta, an environmental official from Nevada. CWA violations, he said, “represent a small part of the compliance picture.”
But many congressmen were unconvinced by this and said they were shocked to learn that water pollution was such a big problem thirty-seven years after the CWA was signed. “I don’t think anyone realized how bad things have become,” said Representative James Oberstar, a Minnesota Democrat. “The EPA and states have completely dropped the ball.”
The question of what role the Environmental Protection Agency and its leader, called an administrator, should play has been a sore point in Washington for years.
Since its heyday in the seventies, the EPA has suffered a long, slow decline. Underfunded, overly politicized, and widely dismissed as toothless, the agency shed water-pollution experts and became increasingly ineffective during the administration of George W. Bush. During his presidency EPA regulators took a hands-off approach to municipal water systems and tried to nudge repeat polluters to comply with the Clean Water Act and Safe Drinking Water Act rather than punish them with fines. This approach proved ineffective at stemming pollution, and agency employees grew cynical and demoralized.
Part of the problem was (and is) that EPA regulators lack jurisdiction to prosecute many major pollution cases. This is the result of rulings that have left it unclear which waterways are protected. An estimated fifteen hundred major pollution cases were not prosecuted in recent years because of confusion over jurisdiction, according to the New York Times. Most notorious was the muddying of the Clean Water Act by the US Supreme Court.
In 1995, in Midland, Michigan, developer John Rapanos filled fifty-four acres of wetland with sand to build a mall. He had not filed a permit, but argued the land was not technically a wetland, and that he didn’t need a permit. The US Army Corps of Engineers denied him a permit to build, and the EPA charged Rapanos with violating the law by filling in the wetland. The Clean Water Act protects “navigable waterways,” and Rapanos said his property was twenty miles from the nearest navigable waterway. In enforcing the law against Rapanos, the EPA had interpreted the law broadly, to include wetland areas connected by tributaries, as it had traditionally done. State officials, and even Rapanos’s own environmental consultant, agreed with the EPA. Rapanos was convicted of two felonies for violating the law and faced millions of dollars in fines.
But Rapanos appealed his case up to the Supreme Court. In June 2006, five of the justices agreed to void the rulings against Rapanos. Four conservative justices argued in favor of a restricted interpretation of “navigable waters,” while four liberal justices argued in favor of the EPA’s interpretation. Justice Anthony Kennedy did not fully join either side and argued for a case-by-case evaluation. The result of the Rapanos case was general confusion as to what legally constitutes a wetland and how to enforce the law.
In 2007, the US Chamber of Commerce complained that because of the Rapanos ruling, some sixteen thousand permits for projects around streams had been delayed because developers were unsure of their rights.
On the other hand, EPA’s chief enforcement officer, Assistant Administrator for Water Granta Nakayama, wrote in an internal memo (leaked to Greenpeace) that the Rapanos decision “ignores longstanding ecosystem … protection,” was causing “jurisdictional uncertainty,” and “a significant impact on enforcement.” Nakayama concluded that the decision had “negatively affected approximately 500 enforcement cases” in nine months. Not long after Nakayama’s memo came to light, Representative Henry Waxman revealed that the EPA had dropped or delayed more than four hundred cases involving illegal pollution from industrial discharges and the like. (John Rapanos never admitted to breaking the law. But by 2008 he had paid a $150,000 civil penalty and agreed to spend another $750,000 to re-create the wetlands he had destroyed.)
Rancor over the Rapanos case continues to fester, not the least among EPA regulators. “We are, in essence, shutting down our Clean Water programs in some states,” Douglas Mundrick, an EPA lawyer in Atlanta, told the New York Times. “This is a huge step backward. When companies figure out the cops can’t operate, they start remembering how much cheaper it is to just dump stuff in a nearby creek.”
Part of the problem was that EPA officials lacked meaningful enforcement tools or were pressured not to use the ones they had. Peter Silva, assistant administrator for water, defended the EPA’s regulatory actions—known as administrative and judicial referrals—saying they rose from 4,478 cases in 2004 to 5,875 in 2008. But a study of CWA enforcement by Jay Shimshack, an economist from Tulane University, found that while EPA is allowed to fine polluters up to $50,000 per day for illegal discharges, actual fines were much lower. Between 2001 and 2008, the median amount of EPA penalties for water pollution was $3,000, and these fines often targeted multiple violations over several months. “Environmental monitoring and enforcement has been falling over time,” Shimshack wrote.
The most basic problem for the EPA, though, is a lack of public support for pollution control. While most Americans support the idea of environmental protection in the abstract, many resist—sometimes fiercely—government oversight of their water use. People who tell pollsters they are in favor of reducing the human “footprint” on the environment are often unwilling to pay for cleanup and conservation measures. Where the payer (the current generation) is not the same as the beneficiary (future generations), “the American people are ideological liberals and operational conservatives,” wrote former EPA administrator William Ruckelshaus in the Wall Street Journal.
Even when state governments enact tough environmental laws, they don’t always appropriate enough money to enforce them, while local courts often refuse to prosecute water contamination cases as fully as they could. But, then, legislators and courts simply reflect the public’s will.
As he campaigned for the presidency, Senator Barack Obama vowed to reinvigorate the EPA. Upon his election, he announced a new era of “scientific integrity,” “rule of law,” and “transparency” at the agency—implicit rebukes of the Bush administration’s poor environmental stewardship. He backed his words by raising the EPA’s annual budget from $7.7 billion in 2008 to nearly $10.5 billion a year in 2010, the largest budget in the agency’s history. And in January, 2009 he swore in Lisa P. Jackson as the first African American woman to head the EPA.
But even before Jackson’s swearing-in, the EPA was faced with a crisis.
At 1:00 a.m. on December 22, 2008, a massive dike at the Kingston Ash plant, a Tennessee Valley Authority (TVA) facility, ruptured, unleashing a toxic wave of some 1.1 billion gallons of coal slurry and water. Of the 5.4 million cubic yards of coal ash released, about 3 million cubic yards flowed into the Emory River, polluting it and downstream rivers. The ash also destroyed three homes, disrupted electrical power, ruptured a natural gas pipeline, covered roads and railroad tracks, and caused dozens of people to be evacuated. It was the largest coal ash spill in US history, and the cleanup will cost an estimated $1.2 billion.
EPA investigators found that the ash spill had swept numerous poisons—including arsenic, cobalt, iron, and thallium at dangerous levels, as well as naturally occurring radioactive materials, such as radium—into the Emory River. But the agency does not classify coal ash as a toxin, a situation that hobbled EPA regulators: how could they fine or punish the TVA if the dangerous pollutants it spilled were not classified as such?
The question was made even murkier by its timing: the Kingston spill took place in the last days of the Bush White House, and before President Obama had sworn in Lisa Jackson as the EPA’s new administrator.
Jackson, forty-six at the time, and a Princeton-educated chemical engineer, had worked for sixteen years as an EPA scientist before overseeing enforcement of water and land-use laws for the New Jersey Department of Environmental Protection (NJDEP). At her confirmation hearing in January 2009, a few weeks after the Kingston spill, she said she intended to review whether coal ash should be treated as hazardous waste. But while the agency announced proposed new regulations in May 2010, it deferred answering the key question of whether to treat coal ash as hazardous waste, drawing criticism from the environmental community.
The Kingston disaster was a trial by fire for Jackson, and her response—well-intentioned rhetoric followed by inaction—became a symbol of the political difficulty of environmental protection and of what Jackson’s critics perceived as her weakness.
While some hailed her as “one of EPA’s most progressive administrators,” critics from both the right and left questioned Jackson’s fitness for the EPA’s top post. “Under her watch, New Jersey’s environment only got dirtier, incredible as that may seem,” said Jeff Ruch, executive director of Public Employees for Environmental Responsibility (PEER), referring to Jackson’s previous job at the NJDEP. “If past is prologue, one cannot reasonably expect meaningful change if she is appointed to lead EPA,” Ruch wrote to President Obama.
Jackson had worked as an EPA staff scientist in Washington, DC, and New York City. In 2002, she moved to the NJDEP and headed several high-profile cases—including the landmark Highlands Water Protection and Planning Act, which preserved 860,000 acres slated for development and protected freshwater supplies for 5.4 million people. She proved herself a quick study and was hired by New Jersey’s then governor John Corzine as his chief of staff in December 2008; two weeks later, she was tapped by Obama for the EPA.
But, according to PEER’s reports, Jackson did such a poor job of regulating toxic Superfund sites at the NJDEP that the Bush EPA felt compelled to intervene. In a separate case, Jackson’s unit discovered that a day-care facility housed in a former thermometer factory was exposing toddlers to mercury pollution, but failed to alert parents for more than three months. (Jackson did not respond to my requests for an interview.)
In her first months as administrator, Jackson seemed to confirm the suspicions of critics such as PEER’s Jeff Ruch when she stumbled over the charged question of mountaintop coal mining. In this practice, tops of mountains are blasted away to reveal subterranean coal seams. Under the controversial “fill rule,” the fractured rock waste, which can be toxic, is often bulldozed into local rivers, killing fish and making the water undrinkable.
Early in her tenure at EPA, Jackson approved over two dozen permits for mountaintop coal mining that were holdovers from the Bush administration. Environmentalists were aghast. “This mining is devastating Appalachia,” declared Robert F. Kennedy Jr., Riverkeeper’s chief prosecuting attorney. “Everyone expected Obama to do something about it. Instead they’re saying, ‘We’re going to let this happen.’ “
A year later, Jackson admitted those quick approvals were a mistake. “In hindsight, I certainly wish we could have gone through a longer process,” she told Rolling Stone. In the meantime, she had put seventy-nine permits for mountaintop removal on hold, pending a review to ensure that each complied with the Clean Water Act. In an unprecedented move, the EPA revoked a permit for the Spruce No. 1 Mine, Appalachia’s largest mountaintop-removal operation, which had sought permission to destroy seven miles of West Virginia streams.
In her first year on the job, Jackson seemed to find her footing in Washington, and water quality emerged as an important theme for her. She declared that enforcement of the Clean Water Act was “a priority,” while acknowledging that the EPA had fallen “short of this administration’s expectations…. The time is long overdue for EPA to reexamine its approach.”
She vowed the agency would establish strict new benchmarks for state regulators, compel companies to submit electronic pollution records so violations could more easily be detected, and target enforcement of the most egregious contamination cases. Jackson said that EPA regulators would refocus on nonpoint polluters, such as CAFO feedlots, mines, wastewater treatment plants, and building sites. Jackson also worked with Congress on legislation to require chemical manufacturers to prove that their compounds are safe before they enter the environment, saying, “Safety standards … should rest on industry.” The EPA targeted 104 chemicals for regulation under the Safe Drinking Water Act, a move that would more than double the 91 toxic substances currently regulated.
In 2010, Jackson announced a new strategy to limit contaminants in drinking water. Instead of assessing pollutants one by one, as in the past, the EPA said it intends to address contaminants in groups, promote new treatment techniques, use multiple statutes to protect water supplies, and build better state and local partnerships.
Despite these promising efforts, resistance to environmental regulation remains strong. The agriculture industry, for example, worried that tougher regulations would be difficult and expensive for small farmers to comply with and might even drive them out of business. In signing the Clean Water Act, “Congress did not intend [the act’s reach] to be unlimited,” averred Don Parrish, a lobbyist for the American Farm Bureau Federation.
And powerful politicians—most notably Senator James Inhofe, Republican of Oklahoma, the ranking member of the congressional Committee on Environment and Public Works—said that the EPA’s rules were already too difficult for operators of small water systems to comply with.
Gene Whatley, executive director of the Oklahoma Rural Water Association, which represents 458 rural systems, told Inhofe’s congressional committee, “Many of the regulations and water quality standards are unnecessary, and the benefits and regulations do not justify the cost. This is a significant problem for small systems.”
Rural water suppliers were worried they wouldn’t be able to afford or comply with increasingly restrictive laws, Whatley said. At one Oklahoma water plant, the cost of water treatment chemicals rose from $1,800 a month to $18,000 a month, which Whatley blamed on more stringent EPA rules. Using their limited funds to keep up with “unnecessary regulations,” Whatley said, left small operators unable to afford other important projects, such as upgrading their water treatment facilities.
But Jackson wasn’t just pressured by Republicans: coal-state Democrats, such as Representative Earl Pomeroy of North Dakota and Senator John D. Rockefeller of West Virginia, attempted to weaken the EPA’s authority to restrict climate-polluting gases. David Obey, the chairman of the House Appropriations Committee, exempted Great Lakes shippers from strict EPA restrictions on diesel emissions from lake shipping. The move—reportedly a favor done for a diesel-fuel refinery in Obey’s district—undermined an antipollution measure designed to save twelve thousand lives a year.
By 2010, some of the environmentalists who’d questioned Jackson’s fitness for the job had been won over. Buck Parker, the former head of Earthjustice, told Rolling Stone, “She’s fantastic … one of the bright lights of the administration.” But Jeff Ruch of PEER told me it was too soon to appraise Jackson. Pointing to her “opaque” promises and her “waffling” on mountaintop removal, he said that many of Jackson’s pronouncements “appear to be more hype than reality. Many of the plaudits she has received have been for low-hanging fruit. On issues requiring heavy lifting the jury is still out.”