Rosenbaum, Improving Environmental Regulations at the EPA

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Unformatted text preview: 168 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. Rosemary O'Leary See U.S. Constitution, Article III, Section 2. Friends ofthe Earth, Inc. v. Laidlaw Environmental Services, 890 F.Supp. 470 (1995); 956 F.Supp. 588 (1997); 149 F.3d 303 (1998); 120 S.Ct. 693 (2000). Sierra Cluh v. Thomas, 105 F.3d 248 (1997). Ohio Forestry Association, Inc. v. Sierra Cluh, 523 U.S. 726 (1998). Whitman v. flmerican TruckingAssociation, 531 U.S. 457 (2001). 87 Stat. 884, 16 U.S.C. Section 1531 (1988 ed. and Supp.V). 16 U.S.C. Section 1538 (a)(1). 50 C.F.R. Section 17.3 (1994). Sweet Home Chapter of Communities for a Great Oregon v. Lujan, 806 ESupp. 279 (1992); 1 F.3d 1 (1993);17 F.3d 1463 (1994). Bahhitt v. Sweet Home Chapter ofCommunitiesfor a Great Oregon, 515 U.S. 687 (1995). Solid Waste Agency (f Northern Cook County v. United States flrmy Corps of Engineers, 998 F.Supp. 946 (1998); 191 F.3d 845 (1999); 536 U.S. 159 (2001). Ibid., at 173. Earthjustice, NRDC, NWF, Sierra Club, Reckless Ahandon, August 12, 2004, www.earthjustice.0rg/news/documents/8—04/CWA_Jurisdiction_8—12-04.pd£ March 5, 2005. SC. Code Ann. (1989) Sections 48—39~1O et seq. Lucas v. South Carolina Coastal Council, 304 SC. 376 (1991). Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Dolan v. Tigard, 512 U.S. 374 (1994). Nollan v. California Coastal Commission, 483 U.S. 825 (1987). Fed Cl. No. 98-101 (2003). Friends of the Earth, Inc. v. Laidlaw Environmental Services, 120 S.Ct. 693 (2000). Clean Air Act, Section 113. In the Matter of The Commonwealth of Massachusetts, Massachusetts Highway Depart— ment, EPA Docket No. RCRA—I—94—1071, Consent Agreement and Order, October 3, 1994. United States v. Mohil Exploration and Producing US. Inc, D. Utah, No. 2:98—CV—220 (August 3, 2004). State of Texas v. Marathon Oil Co. (August 26, 2004). United States v. VVal—Mart Stores, Inc, D.Del., No. 04-301 (May 12, 2004). United States v. Monroe, W.D. La., No. 040944 (April 27, 2004). United States v. Bihh County Board of Commissioners (July 9, 2004). U.S. Environmental Protection Agency, “Supplemental Environmental Projects,” Feb— ruary 10, 2004, www.epa.gov/compliance/civil/programs/seps, June 1, 2005. Environmental Media Services, “Senators, Environmental Groups Respond to Report Finding Pattern of Conservative Judicial Activism,” July 18, 2001. Full report available at www.cms.org; press releases available via Ascribe newswire via LEXIS and PR Newswire Assoc. Inc. (www.prnewsire.com). William Snape Ill and John M. Carter II, “Weakening the National Environmental Policy Act: How the Bush Administration Uses the Judicial System to Weaken Envi— ronmental Protections,” 2003, www.defenders.org/publications/nepareport.pdfl June 1, 2005. Eric Schaeffer, Report: EPfl Taking 75% Fewer Polluters to Court, Major Polluter Cases Down 90%, October 12, 2004, www.environmentalintegrityorg/pubs/101204_eip_ news_release_final3.d0c, June 1, 2005 . See Rosemary O’Leary and Lisa Bingham, eds., The Promise and Performance of Envi— ronmental Conflict Resolution (Washington D.C.: Resources for the Future, 2003). Improving Environmental Regulation at the EPA: The Challenge in Balancing Politics, Policy, and Science Walter fl. Rosenhaum We will use strong science. Scientific analysis should drive policy. Neither policy nor politics should drive scientyic results. EPA administrator Christine Todd Whitman, statement to Senate Committee on Environment and Public Works, January 17, 2001 Oh, the President is who was elected to run the country. I am a part of or was a part of his administration. So the President sets overall environmental policy. EPA administrator Christine Todd Whitman, “Clearing the Air: Christine Todd Whitman on Life in and Outside the EPA,” interview on the PBS program NOW with Bill Moyers, September 19, 2003 In the cornucopia of the top presidential job appointments there are plums and prunes. One of Washington’s most trusted guidebooks for political insiders awards the Environmental Protection Agency (EPA) administrator a prune. “One of the toughest jobs in Washington,” it warns.1 One former EPA administrator compared his job to racing a train to an intersection. Another EPA chief, considered the EPA’s most successful and popular leader, complained that the EPA was “Congress’ designated whipping boy.” If political trouble is the administrator’s daily bread, what did Christine Todd Whitman, George W. Bush’s newly appointed EPA administrator, think about her job? “I love it,” she said emphatically in 2001. “The more time I spend in this job, the more I realize that the issues are so important that it is worth the hassles.”2 She spoke too soon. By June 2003, despite for— midable political skills and experience, Whitman was out of a job. She had vastly underestimated the complexity of the EPA’s mission and the pun— ishing cross—pressures on her that resulted. The troubles that Whitman encountered at the EPA continued under her successor, former Utah gov— ernor Mike Leavitt, who left the EPA less than two years later to become Secretary of Health and Human Services. The Administrator’s revolving 169 170 Walter A. Rosenbaum door suggests that the job rating at George W. Bush’s EPA is unlikely to improve. A Collision of Responsibilities: Presidential Leadership, Congressional Accountability, and “Sound Science” One matter that hastened Whitman’s departure was a conflict over “sound science” at the EPA, a controversy that has become a defining issue in the EPA’s turbulent relationship with George W. Bush’s administration. Troubles with “sound science” vexed Whitman’s tenure from the start. Among the most publicized matters were two controversies inherited from the Clinton administration: what should the regulatory standards be for arsenic in drinking water and for mercury air emissions from electric power plants? These issues created a collision between several of the many tasks inher- ited by the EPA and its leadership. As part of the executive branch of the federal government, the EPA and its administrator are expected to be responsive to the president’s policy initiatives and to White House political leadership—and the White House had very definite and outspoken opinions about what both standards should be. At the same time, Congress also expects the EPA, as an environmental regulatory agency, to enforce a multi— tude of scientifically complex environmental laws whose implementation often requires the EPA’s staff to use sound scientific information and judg— ment as a basis for policymaking—for example, when setting the arsenic and mercury standards. Unfortunately for Whitman, environmental and science advocacy groups vigorously opposed Bush’s preferred standards as scientifi— cally dubious. Like other EPA administrators, Whitman quickly inherited the tribulations involved in trying to satisfy both White House and congres- sional expectations concerning what constituted “sound science” in policy implementation. These conflicting expectations accelerated Whitman’s exit from Washington. Still, her departure could not banish the discordant “sound science” debate settling about the EPA. The controversies stirred by the arsenic and mercury standards unfolded differently yet grew from common ground. They originated in the EPA’s fundamental regulatory responsibility to integrate science into policymaking and explain especially well the nature of current contention over “sound sci— ence” in the EPA’s relationship with the Bush White House. However, in a larger and more important perspective, the disputes are embedded in deeper conflicts of expectations and responsibilities inherent in all aspects of the EPA’s mission and in the administrators job. An understanding of these inherent, often dissonant aspects of the EPA’s mission is essential to under— standing- all facets of the EPA’s activities and explaining its behavior. Thus interpreting almost any aspect of EPA policymaking necessarily begins with its basic organization and mandated activities. Improving Environmental Regulation at the EPA An Essential and Arduous Mission Measured by the size of its budget and workforce, the EPA‘is the fed- eral government’s largest regulatory agency. Created by presidentlal order in 1970, the EPA at the beginning of George W. Bush’s second term employed about 18,000 staffwith an annual budget in fiscal year 2005 of approximately $8 billion. By any measure, the scope of its responsibilities and the resulting workload are enormous. A Very Mixed Performance As demonstrated in chapter 1, the nation’s environmental quality has undoubtedly improved, in some cases dramatically, as a consequence of the EPA’s regulatory programs. The quality of this achievement lS often obscured by impatience with the pace of environmental improvementior. by dissatisfaction with the regulatory costs involved, or by lack of apprec1at10n for the scientific and technical difficulties regulation may entail. Still, the luster dims when the agency’s entire regulatory performance is considered. Few EPA programs dependably produce attractive headlines, and bad news is only an official report away. In 2001, for instance, the Government Accountability Office (formerly the General Accounting Office, or GAO) reported the following: ' Water quality information was not available about the condition of more than 90 percent of the nation’s ocean shorelines, 80 percent of its river and stream miles and 60 percent of its lake acreage.3 ' Essential data about human exposure to potentially harmful chemi— cals, which EPA was required to obtain, were available for only 2 per- cent of 476 priority chemicals affected by the Toxic Substances Control Act and for only 13 percent of the 243 pesticides of most concern to EPA agricultural chemical regulators. ' Only about 8 percent of the 3,700 solid waste treatment and storage facilities requiring cleanup by the EPA had completed the work by 1999.4 Additionally, the EPA’s programs are increasingly expensive. Many fac- tors account for the sharply rising regulatory costs, and many programs are not grossly over budget. But the EPA’s program costs seem. to rise relentlessly, and, in politics, appearance often matters as much as reality. The EPA’s Mission: A Dozen Different Directions Almost every environmental problem seems to end in some manner at the EPA’s doorstep. The EPA is Wholly or largely responSIble for.the implementation of thirteen major environmental statutes and portions of several dozen more (Table 8—1). The major laws embrace an extraordi— narily large and technically complex set of programs across the Table 8—1 Major Environmental Laws Administered by the EPA Statute Toxic Substances Control Act Federal Insecticide, Fungicide, and Rodenticide Act Federal Food, Drug, and Cosmetic Act Resource Conservation and Recovery Act Superfund (Comprehensive Environmental Response, Compensation, and Liability Act) Clean Air Act Clean Water Act Safe Drinking Water Act Marine Protection, Research, and Sanctuaries Act Asbestos School Hazard Act Asbestos Hazard Emergency Response Act Emergency Planning and Community Right—to—Know Act Food Qiality Protection Act Provisions Requires that EPA be notified of any new chemical prior to its manufacture and authorizes EPA to regulate production, use, or disposal of a chemical. Authorizes EPA to register all pesticides and specify the terms and’conditions of their use, and to remove unreasonably haz— ardous pesticides from the marketplace. Authorizes EPA in cooperation with FDA to establish tolerance levels for pesticide residues on food and food products. Authorizes EPA to identify hazardous wastes and regulate their generation, transportation, treatment, storage, and disposal. Requires EPA to designate hazardous substances that can present substantial danger and authorizes the cleanup of sites contaminated with such substances. Authorizes EPA to set emission standards to limit the release of hazardous air pollutants. Requires EPA to establish a list of toxic water pollutants and set standards. Requires EPA to set drinking water standards to protect public health from hazardous substances. Regulates ocean dumping of toxic contaminants. Authorizes EPA to provide loans and grants to schools with financial need for abatement of severe asbestos hazards. Requires EPA to establish a comprehensive regulatory frame— work for controlling asbestos hazards in schools. Requires states to develop programs for responding to hazardous chemical releases and requires industries to report on the presence and release of certain hazardous substances. Creates health—based safety standards for pesticide residues in food and adds special safety standard for children and infants. Requires EPA to create program for endocrine testing of new chemicals. Requires consumer right—to—know information about pesticide residues on food. Source: Environmental Protection Agency, Environmental Progress and Challenges: EPA Update (Washington, D.C.: Environmental Protection Agency, 1988), 113; and author. Improving Environmental Regulation at the EPA 173 whole domain of environmental management. This staggering range of responsibility is one major reason the EPA has been chronically over— worked and repeatedly targeted for sweeping organizational reform for more than twenty years. Over the years since the EPA’s creation, Congress has continued to load the agency with an enlarging agenda of ambitious regulatory programs without much guidance about how to establish priorities among major programs or within them when they compete for scarce resources or admin— istrative attention. The result is an incoherent regulatory agenda, com— prising a massive pile of legislative mandates for different regulatory actions, many armed with unachievable deadlines, and leaving the agency without any firm and consistent sense of directions After a searching study of the EPA’s organization and performance in the mid—19905, the National Academy of Public Administration (NAPA) put the blame largely on Congress: The EPA lacks focus, in part, because Congress has passed more than a dozen environmental statutes that drive the agency in a dozen directions, discouraging rational priority—setting or a coherent approach to environ— mental management. The EPA is sometimes ineffective because, in part, Congress has set impossible deadlines and unrealistic expectations, given the Agency’s budget.6 In the absence of an orderly mission statement, the EPA must create priorities according to whatever programs have the largest budgets, have the most demanding deadlines, attract the most politically potent constituencies, or excite the greatest congressional attention. A case in point is the Food Qiality Protection Act (FQPA), passed by Congress in 1996. One signifi— cant portion of the FClPA was a hasty legislative reaction to a surge of national publicity concerning the possible existence of chemicals called ‘endocrine disruptors.’ Some scientists and environmental organizations asserted that these chemicals, widely distributed in pesticide residues and food products, could be potent human carcinogens or might dangerously damage human and animal reproductive systems. Little is known about these substances, but Congress felt compelled to act. The F(lPA ordered the EPA—while continuing its other regulatory responsibilities—to review immediately the relevant scientific literature, identify the chemical com— pounds that should be examined, create the appropriate testing protocols, and report the results to Congress in two years. Because these tasks required a review of scientific literature involving more than 600,000 chemicals and chemical compounds even before the testing protocols could be developed, the EPA’s two—year mandate was a predestined failure.7 Equally unachievable EPA mandates can be found in most other major environmental measures passed by Congress. The continual appearance of imperious deadlines and other kinds of disruptive micromanagement in legislation entrusted to the EPA exemplifies a chronic tension between Congress and the EPA that severely complicates the agency’s mission. [/4 WklltL‘l‘ It Koscnbaum Figure 8—1 EPA Organizational Structure Administrator Deputy Administrator Assistant Administrator - - ' ' ' f Ad . . . Assrstant Administrator Asmmnt Admlmsrmmr or mimstration and for Air and Radiation for Enforcement and Resources Management Compliance Assurance Office of the Chief Office of Office of Financial Officer General Counsel Inspector General Assistant Administrator Assistant Administrator Assistant Administrator for International for Environmental for Prevention, Pesticides, Affairs Information and Toxic Substances Assistant Administrator Assistant Administrator . . . for Research for Solid Waste and ASSIsmnt Admlmsu‘ator and Development Emergency ResponsE for Water Region 2 Region 3 Region 4 Region 5 New York Philadelphia Atlanta Chicago Region 6 Region 7 Region 8 Region 9 Region 10 Dallas Kansas City Denver San Francisco Seattle Source: Environmental Protection Agency, “EPA Organizational Structure," www.cpagov/epahome /organization.htm, February 10, 2005. A Media—Based Organization From its beginning, the most important organizational units in the EPA have been its program offices—usually called media offices. These offices are committed to controlling pollution in a specific medium such as air or water, or to dealing with a specific form of pollution such as pesticides or toxics (Figure 8—1). Each office lives with its own statutory support system: legislatively mandated programs, deadlines, criteria for decisions, and, usually, a steel grip on large portions of its office budget, to which it is entitled by the laws it enforces. Thus the Office of Toxic Substances admin— isters the massive Superfund program, follows the mandated statutory pro— cedures and deadlines in the law, and, in fiscal year 2005, claimed $1.3 billion of the EPA budget earmarked for toxic waste site cleanup. Each of the offices is populated by a variety of professionals: engineers, sc1entists, statisticians, economists, professional planners, managers, Improving l‘ll‘wironmcntal Regulation ut the EPA 175 lawyers, and mathematicians. “Along with this expertise,” observes Thomas McGarity, “comes an entire professional [worldview] that incorporates atti- tudes and biases ranging far beyond specialized knowledge and particular facts”—viewpoints shaped by the specific mission of the program office and focused on that mission’s tasks.8 This tenacious media-based design appeals to Congress, environmentalists, pollution control professionals, and many other influential interests, albeit for different reasons. Each media office, in effect, has its own political and professional constituency. Most important, any proposal to change the EPA’s organizational design will incite appre- hension about the possible damage to existing programs and raises the specter of a bitter political battle over the alternatives. i Creating Regulations: Interpreting the Law Most of the statutes for which the EPA is responsible require the agency to create regulations—administrative rules having the force of law, as if written by Congress—that define details or procedures for implementing pollution control laws. This delegated authority is the grounding of all the regulation writing through which the EPA translates federal environmental laws into specific and detailed statements defining how the laws will be interpreted and applied to control specific pollutants or polluting activities. Most often, this means creating environmental standards for various haz- ardous or toxic pollutants and prescribing what technologies or procedures must be used to control or eliminate them.9 For example, the Clean Air Act (1970), the foundation of national air quality standards, directs the EPA to set permissible levels of air quality for numerous hazardous and toxic substances—major pollutants such as nitrogen oxides, sulfur oxides, and carbon monoxide—at levels that protect public health and create “an adequate margin of safety for the most sensitive populations” such as infants, the elderly, or those with asthma.10 The EPA’s professional staff is expected to determine the specific ambient air quality standard for each of these pollutants, to set the permis— sible emissions levels for these pollutants from each source, and design an enforcement procedure to assure compliance with these standards from each source emitting a regulated pollutant. Congress routinely grants the EPA this delegated authority with each major environmental law assigned to the agency because Congress itself lacks the scientific expertise and resources required to make these complex technical decisions. In the case of the Clean Air Act, for instance, the EPA was largely responsible not only for setting air quality standards for each regulated pollutant but also for identifying which populations should be considered “most sensitive” to specific air pollutants and what “an adequate margin of safety” should be in setting standards. Writing regulations to implement any environmental legislation is likely to be arduous, prolonged, and often contentious. This is particularly true for environmental regulations based on scientific information and judg— ment. As we shall observe in the case of the arsenic and mercury emissions J/o vvuucr n. nosennaum standards, needed scientific data may be insufficient, contradictory, or subject to different interpretation.11 Interests affected by the regulations, such as environmental groups, scientists, corporations, local governments, states, and even other federal agencies, may battle over what scientific evidence is valid or where environmental standards should be set and how they should be enforced. Congress and the White House almost certainly will get involved. All this makes regulatory writing difficult enough without the additional problems created because crucial portions of the laws the EPA is expected to administer may be vague, contradictory, or silent on important matters of interpretation. Thus the EPA’s staff may have to navigate the complexities of legislative language with meager interpretive guidance, sure only of certain contention among stakeholders who stand to gain or lose from the agency’s eventual interpretation. An Edgy Congressional Partnership Congress must necessarily delegate authority to the EPA, but it still treats the agency with almost schizophrenic inconsistency. Congress firmly advocates aggressive environmental protection in all its guises and expects he EPA to enforce vigorously the legislation it creates for that purpose. Leg— 'slators have been quick to protect the agency’s basic structure and programs mm emasculation but unwilling to provide realistic and dependable budget upport for the programs they protect. Congressional frustration with the requent delay in enforcing environmental laws leads to the habitual reliance n extravagant, extraordinarily detailed, and inflexible language in environ— ental law; to the constant mandating of precise deadlines for completing Various programs; and to prescribing in exquisite detail how administrators re to carry out program activities. Impatience with the EPA’s often laggard egulatory pace is further exacerbated when, as observed in chapter 6 ongressional factions—usually Democrats—suspect that the EPA is eliberately weakening the enforcement of environmental regulations when epublicans control the presidency. In another perspective, the EPA often seems to Congress to be an ending source of unwelcome political controversy. With the possible exception of the Internal Revenue Service, few other federal agencies have a ore legislatively troublesome regulatory mission. Thus, from its inception t e EPA’s work has been a matter of intense, unrelenting legislative scrutiny: concern, and criticism. And there are plenty of congressional committees vaflable for the work. The EPA’s programs currently fall within the juris— C'Ction of thirteen congressional committees and thirty—one subcommittees. Obably no other federal agency is exposed to so much congressional over— s'ght. Slo regularly is the EPA a subject of congressional investigations that til recently Congress’s own watchdog agency, the GAO, maintained a rge, permanent branch at EPA headquarters. In short, Congress may be dmirably supportive of the EPA, but in many respects Congress is the most 'sruptive presence in the EPA’s work life. It has been difficult for the agency 0 n Improving Environmental Regulation at the EPA 177 to function with predictable effectiveness in such a volatile political climate agitated by tensions inherent in a system of divided governmental institu— tions and by the highly divisive partisan differences over environmental policy within Congress since 1980.12 Data Deficiencies and Ambiguities The nature of environmental science guarantees technical and political controversy over some of the EPA’s scientific determinations. In particular, when the agency is compelled to make a regulatory decision, the relevant sci— entific data may be fragmentary, inconclusive, or at least contentious.13 For example, data on the extent of human exposure to more than 1,400 chemi— cals considered to pose a threat to human health—and thus potentially sub— ject to EPA regulation—is available for less than 8 percent of the chemicals.14 State water quality reports are commonly haphazard; conse— quently, only about one-third of all US. surface waters have been surveyed for environmental quality.15 Sometimes the data are conflicting, as often hap— pens with estimates of the cancer risk from indoor exposure to numerous chemicals. Moreover, a continually rising tide of ecological research often produces new data indicating that prior policy decisions may have been based on inad- equate information and must be revised. For instance, twenty—five years after the EPA set its original air pollution standards for airborne particulates, a recognized health problem, the agency had to revise the standard, making it more stringent and compliance much more expensive because ongoing sci— entific research demonstrated that the earlier standards were based on insuf- ficient data, though they were the best available at the time. Another abundant source of scientific difficulty is that the effects of many suspected health hazards may not become clearly apparent until ' decades after their risks are first suspected and frequently long after the EPA may be compelled to make decisions about how they should be regu— lated. For instance, more than 25 percent of workers with significant work— place exposure to asbestos have died of lung cancer, but the effects of exposure often did not appear for twenty years or more. The human health risk from many newer industrial or commercial substances also may be latent and slow to appear, yet the EPA may have to decide whether they require regulation long before these consequences are manifest. Given these realities, scientific experts themselves can reach conflicting interpretations about the accuracy and policy implications of scientific data involved in reg- ulatory decisions. “Very high quality, peer reviewed, scientific research arti— cles and reports by highly respected research teams can, and often do, reach differing conclusions and results on substantially the same research,” observes Bruce Alberts, president of the National Research Council. “This is not a weakness of science, of the scientists performing the research. . . . It is simply characteristic of the initial difficulties often encountered in charting the unknown.” 16 1 /25 Walter A. Kosenbaum Regulatory Federalism Chapter 2 illustrated that the essential partnership between the EPA and the state governments, while generally cooperative, is also contentious. States are quick to complain that the EPA is often an intrusive “federal nanny,” interfering excessively and inappropriately when states attempt to adjust federal regulations in response to uniquely local conditions. At the same time, states sometimes complain that the EPA is not aggressive enough in enforcrng federal environmental regulations when the states are adversely affected by pollution. Most of these complaints are generic, inevitable in an environmental regulatory system grounded on federalism yet continually requiring attention and remediation from the EPA and Congress. There has also been a fundamental transformation in the competence of the states as environmental regulators over the past several decades—a polit- ical sea—change to which both the EPA and Congress have been slow to adjust. As state regulatory experience and competence grows, state pressure has increased on Congress and the EPA to promote more collaboration and less command—and—control in working with the states, to demonstrate greater confidence in state regulatory skill, and, in general, to give the states a more assertive voice in the EPA’s management. A Tale of Two Standards: The Battle over Arsenic and Mercury Emissions ' The EPA’s experience with setting environmental standards for mercury air emissions and waterborne arsenic illustrate especially well how contending political forces, differing and complex legislative mandates, competing data 1nterpretations, and delegated authority converge during EPA’s routine responsibilities—in this case, using scientific data to formulate and imple— ment essential toxic substance regulations. Moreover, the narrative raises an 1mportant question often involved in this regulatory work: When is White House involvement in the EPA’s scientific decision making appropriate? Regulating with “Sound Science” To regulate arsenic, mercury emissions, or other substances, the EPA is customarily expected to use a complex array of scientific strategies.17 It must create the relevant database; identify when and where human exposures to the potentially hazardous pollutant may occur; and then determine the appropriate environmental standards, control procedures, and enforcement measures to be adopted. I The EPA has evolved over considerable time a comprehensive organi— zational structure to promote sound scientific research and its appropriate 1ntegration into regulatory policymaking. This structure includes (1) a high— level Scrence Adv1sory Board composed of respected, independent scientific experts drawn from the professions, science, and industry who set standards, Improvmg hn‘vrronmentm Regulation at tn: mm uv periodically review scientific research, and advise the EPA administrative leaders on science issues, (2) a Science Policy Council composed of high— lcvel EPA scientific staff who directly advise the administrator, (3) a carefully developed “peer review policy” to ensure that all outside scientific evaluators of research used in the EPA’s regulatory work (commonly called peer reviewers) are competent and independent in their judgments, and (4) staff specifically trained to monitor and report on the scientific quality of detailed program research in all of the EPA’s program offices such as those regulating air pollution, water pollution, and toxics. In addition to these internal quality controls, the EPA continually receives oversight of its scientific fact finding from numerous committees in both congressional chambers and scrutiny from a multitude of scientific and technical organizations concerned with the 1 professional quality of its work. In reality, most of the EPA’s scientific decision making customarily provokes little public scientific or political controversy—no small matter considering that the agency in a typical year may produce more than eight hundred scientific documents reviewed, or scheduled for review, by external and internal experts. Like other presidents, George W. Bush arrived at the White House with a policy agenda including changes in environmental regulations for which the EPA is responsible. At the time—and, again, like other presidents—Bush also assured the nation after his inauguration that his administration was “strongly supporting science and applying the highest scientific standards in decision— making,” at the EPA and elsewhere in the federal government. However, the arsenic issue arrived in the headlines almost as soon as Bush entered the White House and quickly fixed the idea of “sound science” in the firmament ’of controversies likely to surround Bush and the EPA throughout his White House tenure. Should the Arsenic Standard Be Changed? Arsenic is a widespread environmental element, the twelfth most common in the human body. Created by weathering of rocks, fossil fuel com— bustion, ore smelting, and fabrication and transported mainly by water, long— term exposure to high arsenic levels is associated with increased skin, lung, liver, and bladder cancer risk. Several national surveys of public drinking water systems have found arsenic in 3 to 39 percent of the samples taken, with an average concentration of less than 10 parts per billion (ppb). Arsenic concentrations are generally highest in groundwater but may also reach levels of health concern in surface water. Most people, however, are exposed to arsenic by consumption of seafood.18 New EPA administrator Whitman was outspokenly supportive of the president’s environmental policy agenda and, within a month of her appointment, announced a plan initiated by the White House to withdraw and restudy a regulatory rule, made during the Clinton administration, that updated a sixty—year—old federal standard limiting arsenic in community drinking water systems from 50 ppb to 10 ppb. The Clinton—era proposal, based on the EPA’s delegated authorit , , 'ginally would have y stringent 5 ppb but subsequently adopted the higher limit as more reasonable. Environmentalists, man y public health authorities, and scientists had long pressured the EPA to revise the historic standard (enVironmentalists strongly favored the 5 ppb figure) which the considered dangerously high in light of considerable current ,research 131] particular, the newly proposed standard of 10 ppb had been adopted b .the World Health Organization, which based its decision partially on regom— mendations by the National Academy of Sciences, the federal government’s most prestigigus scientific authority. “Certainly the standard should be less than 50 ppb, Whitman noted in announcing the restudy “but scientific jpcéicatorls are unclEar as to whether the standard needs to go as low as 10 p.... wantto esurethatt ' " supported by the best available silicehirelfi’lilgsmns abOUt arsemc m the mle are The Political Setting. The arsenic issue was firml ' of colliding political forces. The Clinton administratiiincalilagcl1 herdlailreii) rttli: 10 ppb standard on January 18, 2001, just days before President Bush assumed office and despite a congressional decision to extend the deadline for the new standard until June 2001. This last—minute decision an ered many congressmnal Republicans, especially those who had long 0 086% the Clinton standard as too strict and who believed that Clinton anldphis EPA administrator, Carol Browner, had blatantly maneuvered to den th incoming Republican administration an opportunity to evaluate theyissu: itself. Thus congressional Republicans and their allies cheered Whitman’s proposal to review the standard, arguing that President Bush not the Clinton EPA, had followed congressional intentions by insisting that the h ayed until the new administration had assumed office and had t e chance to rev1ew all the relevant scientific evidence. Congressional Democrats, ' ' ests, were an d b what they suspected would be a rollback in the Clinton standard {56$th they had long campaigned. The Natural Resources Defense Council (NRDC) an important enVironmental organization, threatened to draw the federal courts “into the fray by suing the EPA to reverse Whitman’s decision which it called a craven capitulation to the mining industry and other cor orate inter— ests at the expense of the health of millions of Americans.”20 (TVRDC had already used the courts to compel the Clinton administration to hasten its reVised standard.) Critics argued that the Bush administration was caterin to the mining industry, which had long criticized the 10 ppb standard becfuse the industry had contributed more than $5.6 million to the Republidan Par during the 2000 presidential campaign. The American Waterworks Associg tion, representing most of the nation’s 54,000 municipal water systems had reluctantly accepted the 10 ppb standard but also pressured Congress to’pro- y to revise federal drinking water Improving Environmental Regulation at the EPA 181 Mining interests were among the most politically potent of the many organized interests dissatisfied with the Clinton proposal and eager to have it reconsidered. Western mining corporations, whose arsenic wastes would be heavily regulated under the Clinton proposal, were represented by the influential National Mining Association, which charged that the Clinton standard was “a political decision . . . not supported by science.” Western miners had long contended that that they did not create significant arsenic wastes and that most arsenic in western ground and surface water originated naturally. Mining companies had earlier been joined in a lawsuit opposing the Clinton standard by the states of Nebraska and New Mexico (whose offi- cials resisted imposition of standards from Washington), by many smaller community water systems (whose managers believed their costs of compli— ance with the new regulation would be excessive), and by some conservative think tank analysts who rejected the EPA’s scientific justification for the strict standard. ‘ Seiem‘fie Data and Regulatory Dollars. Critics also assailed the scientific justification for the Clinton proposal, noting especially that the EPA’s own Science Advisory Board had been unable to specify a precise safe arsenic threshold, leaving a much wider range of scientifically defensible options than the 10 ppb standard advocated. The Clinton standard was also criti— cized as “prohibitively expensive,” especially for more than three thousand smaller municipal water systems that would have to undertake the most extensive facility upgrading.21 Opponents of the Clinton standard, citing data from several well—respected Washington think tanks, also asserted that the EPA’s calculations had underestimated the real cost of the proposed reg— ulation by more than $20 million and that the same health objectives could be achieved in cheaper ways.22 14 Science Refiree Supports fbe EPA The rapidly escalating public con— troversy resulting from the Bush administration’s proposal to reconsider the arsenic standard seemed to surprise the White House and to disconcert the EPA’s new leadership. The media attention surrounding the issue threatened to produce a prolonged, and possibly distracting, controversy for the admin— istration when its more important policy priorities lay elsewhere. Moreover, the controversy could thrust the EPA’s new administrator into a lengthy, and perhaps politically damaging, conflict with the scientific community at the outset of her tenure while simultaneously creating an internally divisive issue at the EPA. Not least important, the extensive scientific research related to the arsenic standard reviewed by the EPA during the Clinton administration appeared to leave the agency with a range of defensible arsenic standards from which to select. The data did not point conclusively to any single figure; thus the EPA appeared to be well within the limits of its delegated authority in selecting the 10 ppb standard. In short, neither the White House nor the EPA’s critics could achieve a strategic advantage by claimingto have z‘lye single, scientifically defensible number. Vide finanCial assistance to offset part of the estimated $1 billion annual cost to upgrade existing water systems_ Given these circumstances, in March 2001, only weeks after Whitman had announced the EPA’s review of the arsenic standard and after consulta- Wilmer A. Kosenbaum J tion with the White House, the controversy took a new turn. The EPA asked the National Research Council (NRC), the federal government’s most important screntific research organization, to review the most recent scien— tific data to ascertain the best current estimate of risks involved with drinking water with arsenic concentrations between 3 and 20 ppb Althou h the NRC rev1ew committee was not asked to recommend a new standardgco the EPA, the committee report seemed to justify a range of possible stan— dards,'1ncluding the 10 ppb proposed by the Clinton EPA. Moreover the committee also reported that a link could be established between bladdef and lung cancer and exposure to arsenic in drinking water and that the associa— tion was stronger than was revealed by available data only two years earlier The 1:3:port was Widely perceived to validate the Clinton EPA’s arsenic stan; dard. Shortly after the NRC report was released, the White House and EPA administrator Whitman announced that the EPA would adopt the standard as it was originally proposed under Clinton. What Standard for Mercury Emissions? ' The arsenic controversy was the opening chapter'in a narrative of increasingly acrimonious debate between the Bush administration environ— mentalists-and the scientific community over the administration’s involve— ment in SCientific decisions related to policymaking throughout the federal gpvernment.f Despite Whitman’s departure in 2003, the EPA remained a enaipsggsgqie:O;::::tirsputes, as the subsequent conflict over mercury air 77% Mercury Emissions Pronlem. Small amounts of mercury are created naturally in .the environment, but most hazardous exposures come from anthropogenic sources, that is, from human activities. The federal overn- ment now regulates mercury emissions from medical and munici fl waste incmerators, leaving electric power plants, chlorine chemical manufacturin and iron and steel plants recycling automobile parts as the remaining sourcegs of human exposure to mercury. The major unregulated source is the nation’s 1,100 coal-fired electric—generating facilities, which discharge 40 percent of the mercury air emissions in the United States—approximately forty—ei ht tons yearly. Deposited on the ground, often with rain mercury commoil migrates to water bodies. It has contaminated an estimated 12 million acre: of lakes, estuaries, and wetlands, as well as 437,000 miles of streams rivers and coastlines, where it may also cause death or developmental disofders iri fish and other wildlife. Forty—four states have issued warnin s abo t — sumption of mercury—contaminated fish?4 7 g u con All Sides of the mercury issue agree on little more than the im erative to regulate mercury air emissions. Mercury is a potent neurotoxinpthat is espec1ally dangerous to fetuses andigrowing children, in whom it can creat severe developmental and neurological problems. Americans are exposed t: high concentrations of mercury by consuming fish, particularly in the tissue Improving ltnmonmentiu ixcguiauon at me mm m.) of large predators including shark, swordfish, and tuna, where it appears as methyl mercury.” Conflicting Proposals. In December 2003, EPA administrator Michael Leavitt, who had replaced Whitman, released for the first time publicly the EPA’s proposal for the first federal regulations controlling mercury emissions from electric power plants. The proposed new standard represented another Bush administration initiative and departed substantially from an earlier Clinton administration plan, which had never been formally proposed. Like the earlier arsenic controversy, the Bush initiative provoked a critical back— lash among environmentalists and their allies, who argued again that the new EPA standard was based on a flawed interpretation of the relevant scientific data, which many critics asserted was deliberate. Until the late 19905 the EPA considered mercury emissions from elec— tric power plants o\be adequately controlled as a “health hazard” under Sec— tion 112 of the lean Air Act. However, in early 2004 the environmental advocacy group Earthjustice initiated a lawsuit compelling the EPA to reclassify mercury as a neurotoxin and, thus, a “hazardous air pollutant” to be regulated by a different provision of the Clean Air Act, Section 111. The EPA imposed more stringent, and much costlier, controls on mercury emis— sions from electric power plants than would have been required if the emissions had still been classified as a health hazard. In early 2000 the Clinton administration had considered new regulations that the EPA esti— mated could reduce power plant mercury emissions by as much as 90 per— cent if, as it hoped, the best available (but most expensive) technological controls were used.26 These controls could cost the electric power industry between $2 billion and $6 billion annually.” With Bush’s presidential vic— tory in 2000, however, this initiative was abandoned. A critical EPA decision following Bush’s inauguration was to cite sci— entific data that, it asserted, demonstrated airborne mercury was not a “haz— ardous air pollutant,” thereby significantly weakening and delaying the Clinton administration’s earlier regulatory plan. By treating mercury again as a health hazard under the Clean Air Act, the Bush proposal relieved power plants from the requirement to achieve maximum possible mercury control by 2008, which would have been required if the emissions were considered a hazardous air pollutant. Instead, by treating the emissions as simply a health hazard, the Bush plan would not fully implement mercury controls until 2050 and would achieve only an estimated 29—percent reduction in mercury emissions by 2010, although it planned to achieve a 70—percent reduction by 2018. The reclassification also enabled electric power plants to trade mercury emissions rights for several decades (much like sulfur dioxide emissions were already traded to control acid rain under the Clean Air Act) and, in other ways, slowed the implementation of stringent mercury emissions controls throughout the electric power industry.28 Spokespersons for the Bush administration asserted their proposal would enable electric utilities to implement mercury emissions controls less tionally, they cited more than a decade’s :IrlaedIiIrliig to demorhstrate that utilities would have strong incentives to exceed nimum po ution control standards re ' ' - quired for mercur l t 29 ma. Tbebg'onflzcz‘ Emlws. By December 2003 the EPA’s $422112? a Jor pu 1c controversy. The agency had already logged more than 540 000 experience with acid rain emission ' , ering, and technolog— and in O _ . I al economic rivalries terstate conflicts all of which drew into the fray associated advocacy r . . . . gnpjlgps oflrtiatipnal and iplternational importance, as well as partisans of both p01 ica parties. 0 issue however k d i. the renabifity of the S [I I , I , provo C more contention than Cientific data Cited by the EPA ' ' ' ‘ ' O I I . to usti its ‘ I‘CWI‘lIt; ghe Clinton administration proposals. J fy decmon to White Hirszfirndrofl Supprirr Science? Environmentalists asserted that the a agrant y su verted the EPA’s sc' ‘ I ~ . . ' tific resear h b — ating a screntific Justification f mm C y cre I or the EPA proposal th ' . . ' at misstated and misrepresented the relevant sCientific information. To support these indict— men . . . . . can“:E critipls Cited newspaper articles reporting that “EPA veterans an the reca another instance where the agency’s technical experts were cu: out of ‘ - Claim CClleyleloping a major regulatory proposal.” 3° The mercury regulations I .e t ' e critics, confirmed the Bush administration’s pervasive interven: ‘ - . . i on in enVironme t 1 _ tion and ubh v . g n a protec p C POhCy 1“ general, claimed a New York Times editorial.31 influeiZziiZglegas anti Fly/specégzg. Evidence of the Bush administration’s mg C sc1enti c justification for th EPA’ abundant. Several para 6 S proposal was . graphs of the proposed re ulat‘ ' tical to those in a memorandum t ' g Ions were nearly Iden— o the White Hous f ' firm where several former EPA ' ' 6 mm a waShmgton law ' ‘ - air pollution officials W l ‘ tionally enVironmental s k ' ere emp oyed. Addi— . , . p0 espersons pomted t0 num ' ' which White House advisors and ' erous msmnces m . . . agenc1es had “flyspecked” the EPA’ ' — tific report—that is, meticulously edited numerous important and Sfififiln subtle details—so that ' ' the tox1c risks associ ' ' ated With appeared less certain. For example: mercury exposure ‘ An Office of Management and Budg all references to the confirmed health the word confirmed. ° The EPA’ s original statement that “re ' ' . . cent ublished stud shown an assoc1ation between methy p 165 have . 1.] I 1 1. . ,,] 1 been changed to read “It has been hypothesized that there is an asso— et economist apparently altered risks of mercury by eliminating Improving Environmental Regulation at the EPA 185 ciation between methyl-mercury exposure and an increased risk of coronary disease; however, this warrants further study as the new studies currently available present conflicting results.” ' A staff member of the president’s Council on Environmental Qiality deleted EPA statements that children born to women with elevated mercury levels were at increased risk of “adverse health effects.” 32 A Matter cf Interpretation? Undoubtedly, White House editing of the EPA’s original scientific analysis created a much greater element of uncer— tainty to conclusions about the health effects of mercury exposure. EPA administrator Leavitt and his EPA spokespersons were unapologetic. The scientific data relevant to the mercury exposure, they argued, was subject to differing interpretations even among scientific experts, and the Bush EPA had chosen an interpretation with different policy implications that would ultimately produce more economically efficient and timely pollution control than the ClintofixEPA’s approach. In short, the science allowed for different regulatory options and the EPA was exercising its inherent authority to interpret the data and to recommend a policy response. Moreover, although scientific critics of the Bush administration’s mer— cury regulations attracted most of the» media attention, other scientists found the EPA’s interpretation of the mercury data appropriate: Six of ten mem— bers on the National Academy of Sciences panel that prepared the report from which the EPA’s own data were taken asserted that the EPA’s changes “did not introduce inaccuracies” and that “many of the revisions sharpened scientific points being made and that justification could be made for or against other changes.”33 At the same time, many panel members expressed concern because the White House consistently minimized health risks when there would be disagreement. “What they’re saying is not scientifically invalid on its face,” observed one panel member. “Partially, they edited for clarity and relevance from a scientific viewpoint. But there appears to be an emphasis on wordsmithing that is not necessarily dictated by the science.” 34 In brief, for many experts the controversy appeared to involve different s/md— ingr and amp/Jam in the way scientific information was translated into policy proposals rather than sharply conflicting sets of data. From the perspective of most environmentalists and many scientific spokespersons, however, the EPA had failed to protect its scientific decision making from “political interference.” These criticisms were reinforced a few months later, when the respected science advocacy group, Union of Con— cerned Scientists (UCS), issued a widely publicized report, signed by sixty well—know scientists, including twenty Nobel laureates and a former EPA administrator, severely indicting the Bush administration for undermining the integrity of scientific research throughout federal agencies. “There is sig— nificant evidence that the scope and scale of the manipulation, suppression and misrepresentation of science by the Bush administration is unprece— dented,’7 concluded the UCS.35 l in.-. .. v. I‘LIHUIIIMHLIIII A ‘ I . r 1 .. Standafdfiziazizgguggig/gmfijgl he EPA’s proposal for the mercury emissions stance is unlikel to rCh ’ 20-05’ bit the declsion’ regardless 0f its sub— imerfe’rence Wit}? EPKJ’E t. e conflict over the standard or the argument over the EPA’S eventual SClence .t0.rCSt' RCgardless 0f WhiCh Side PreVaiIS in rain to brim the feiciiierclury emiSSion proposal, the opposition is almost cer_ decision forgman era courts'back into the fray by contesting the EPA’s had misinter retgdreasotsv Predlctably Including an assertion that the EPA wry emissioi stamfr gnirepresented the Selentific data related to the mer- mercur ' I . ar .. n the most Significant perspective, however the y emiSSion issue, like the arsenic dispute, involves enduring problems 111 reCOHCIIIHg good SCICIlCC i/Vlill C [)Ulltlcal P] CSSll (5 [CH ill 1116 I AS S n gu' ' Different Conclusions, One Continuing Challenge with scie ' - . . of WhiChqtific competence while OnaVigating conflicting political currents an ract‘ H s nicessary if their dCCiSions are to be scientifically grounded :1 d 1C . n fonseqie: ac ‘ICVtQfiJIlC. the two controversms, however, present contrasting ' . ces in is e ort t0 mana e the ‘ ' . polmcs in the EPAys work. g VOIRUIC lfltfirplay of SC1€HCC and In the case of th ‘ ~ e arsenic standard for drinkin “ T - a ears - , , g Water sound seience” efigfic dtp havg prevailed when the EPAs interpretation of’the relevant sci- a a an Its reSUItmg Cholce Of a regulatory standard were accepted by independent scientific ex I . perts, (reluctantly) by the Bush d i ' ' EPA administrator Whitman. However, the EPA staff Si:eiiilelzlSlttisilst 1:311: rid isolat ' i ‘ emisspoor tq protect its interpretation of the scientific data related to mercur ns rom a politically nuanced restatement created by the Whit: House and more con eni l ' t . . administrator. g a o the preSident and his newly appomted EPA O ' - ever is if}; :Clgalg conclus10n from these otherwise different episodes of it’s SCiea t :11 Will never be able to isolate completely its scientific data The Challélrfge iZCtISionhmaking frpm political pressures or political influence 0 ac ieve a ig standard of “ d ' ” ‘ ‘ ' stm‘ ' . . _ _ goo SClcnce within the c — ints imposed by the political realities of environmental regulation on how— The Pluralistic Politics of Regulation Dis ’ ' ‘ EPA’S mpgpzsl q:eerttihe EPAS science can easin divert awareness that the SCience, the EPA is r1rrga e-y political: Despite its extensive dependence on fonment l 1 o primarily a SCientific research institution or an envi— a consu tant to the White House but rather a governmental agency responsible for inherently political regulatory decisions heavily dependent on science. E ' ’ ' ven if the accuracy of the EPAs sc1entific information itself was improving Environmental Regulation. at the EPA 1137 seldom contested, the data would still provoke political contention and inter— vention by a multitude of political interests who will advance competing claims concerning whether the data justify a specific regulatory proposal in which they have a stake. Thus the EPA’s most routine regulatory decisions will always be satu— rated with political interest, and the agency’s regulatory course will always cross unsettled political seas.36 The EPA implements congressionally man— dated policies. Thus its mission, the specific laws it enforces, and its priori— ties are framed by officials politically accountable for the manner in which they guide the agency and oversee its activities. The EPA’s administrative procedures essential to its legislative mandates are constantly scrutinized by hundreds of advocacy groups of all persuasions with a vested interest in its regulatory policies. And, as we noted earlier, the EPA’s administrators are vested by law and custom with delegated authority. Where freedom of choice exists in environmental regulation, the play of competing political forces is inevitable. . Other federal bureaucracies as well as state and local governments, all with their own prblicy agendas, are equally interested parties to EPA’s regu— latory decision making. For example, immediately following the Bush administration’s proposed mercury regulations, the attorneys general of ten states publicly declared the proposals inadequate and requested the substitu— tion of much stricter controls. , Washington’s political culture nourishes all sorts of folkways that pro— mote the politicizing of the EPA’s regulatory decisions, as well. EPA staff unhappy with the agency’s regulatory decision making, regardless of the issue or the presidency, can frequently feed a public controversy by leaking infor— mation (as they did in the mercury emission controversy) about conflicting scientific evidence or expert disagreements to a sympathetic outside public official, media reporter, or interested advocacy group. Often the Washington media need no assistance in launching a scientific controversy but create their own through investigative journalism. An Inevitable Presidential Presence The president, however, exercises a uniquely intimate and powerful political influence on the EPA because the agency’s mission is an expression of executive authority. The EPA is part of the executive branch of govern— ment and, thus, is primarily responsible to the president. This relationship involves both the EPA’s legal accountability to the president acting in his role of constitutional chief executive and—within broad limits—the agency’s responsiveness to the White House policy agenda when the president acts as the head of government. It doesn’t matter that the EPA is consequently thrust into frequently fierce controversy over the limits of its legal and polit— ical responsibilities to the White House. Nor does it matter that these dual obligations sometimes conflict. That is life at the EPA. That is why admin— istrators rate a prune, not a plum, in some Washington quarters. Mn, 7 van.“ :1. nuucnuuum Because the White House, regardless of the occupant, will be deeply concerned with what happens at the EPA, it is predictable that the presi— dent and his White House staff will be involved with regulatory issues such as the arsenic and mercury standards (see chapter 5). Because the EPA is embedded in the executive branch, presidents also possess many effective constitutional and political means of exerting their influence on the EPA’s decision making.” These resources include the ability to appoint the EPA’s administrator and a multitude of upper— and middle—level managers; to review and modify the agency’s proposed budget; to direct the White House Office of Management and Budget, the most important executive manage— ment agency; to review the EPA’s regulatory and policy initiatives; and much more (see chapter 5). Inevitably, then, the EPA’s administrator and staff continually struggle with balancing conflicting political, scientific, and institutional pressures embedded in the nature of their job. Although the EPA is more often criti- Cized than commended for its work, it is no small accomplishment that it has been able to carry out its regulatory responsibilities with reasonable compe- tence and consistency, often in the most turbulent, unpredictable political settings. Still, the EPA always walks a political tightrope, on which balance is essential and never predictable. Meeting the Challenge In light of the insistent political pressures inseparable from its' mission, and despite the high-profile disputes described previously, EPA professional staff have been able to maintain a credible level of integrity in their acquisi— tion and interpretation of scientific information. Indeed, the arsenic and mercury issues illustrate that important controversies relating to the integrity of the EPA’s science frequently involve how the EPA’s' political leadership chooses to interpret the data, or how it revises scientific documents prepared by the professional staff, rather than about the quality of the EPA’s funda- mental science gathering and analysis itself. Competent scientific decision making depends, however, on continuing the circumstances that sustain it and creating tripwires warning when the integrity of the process may be threatened. These circumstances include the following: ' Ongoing improvement in the EPA’s existing organizational structure for acquisition, review, and critical interpretation of scientific data, including, especially, adequate funding. ' Opportunities for the EPA’s professional staff to provide publicly available interpretations of sc1entific findings associated with regula— tory proposals free of editing by White House officials or appointees at the EPA. Aggressive, independent monitoring of scientific activities by advo— cacy groups and regulatory stakeholders. Improving l‘invironmcntul Regulation at the EPA 189 ' Oversight by respected scientific societies and research lnStltuthIlizte ' Transparency of scientific procedures to the public and appropr media. These are not conclusions for those who like :1th 1politics (Illeat‘,efll:: ‘ ' ' ‘ tics an sc1 ' the ambiguities banishe . o i . . issues cleanly resolved, and _ I 1. makm This le affinity in government po icy g. have a troublesome and durab I . hat attraction can never been eliminated, but at best it caln qe constrains: qu‘tfter ‘ i i ' ’ determinations as itt e as pos51 . olitical values taint sc1entific I . f I(Beorge W Bush departs the White House, another geSidept, regardle: :5 I ' ‘ EP regu atory sc1en ‘ doubtedly be tempted to intervene in _ I 1 party, W111 un h' H se uite defenSIb e. to the W ite ou q well and for reasons that may seem ' I I And there is always a point at which sc1entific ev1dence alpne caéinolt 1:esotlg: ' ' ' ' to e ma e. us ' i d olitical determinations have ' regulatory dec151ons an p d t versml rounded ’ i ' ' ' ' lways be arduous an con ro , EPAS seientific missmn Will a I h litical Interests ' ' ' ' the White House and ot er po , in an ed relationship With 0 ' t includingyCongress And the EPA’S critics themselves $2}! nqt agreiiabo:r . u c u o a ce and politics in E po icym the correct boundary between sc1en I ed . know precisely when the‘agency’s overall performance is balanced prop y J ‘ Postscript In May 2005, Stephen L. Johnson replaced Michael LeaVitt asisEfilAe administrator. Johnson, an EPA staff member for twen‘ily—four {Ziawmle first professional scientist and career employee to hold t at poifiiPqufiverse his appointment was greeted with Widespread approva Emorrilgwfll be able to political constituency, it remains to be seen whether Jo nso still environmentalist criticism of EPA sc1ence policy. Suggested Web Sites U’S' BMW-“63ml Pmiiwi‘m Aifé‘ifis‘miiiifl 2:33:013: :etr: flieful :Ibadicifn2nt library. Best place to start: “Site Map-1:]ational Academy of Sciences (WVEW.HE[§1..Cdltl.) Ling; :Eemggyferggoa: ‘ ' rts an u ica ion . ” :IIZilltaIilfgge‘cviIaiflyeui:filillfliiil::pacie to theI‘D‘Environment” and “Policy sec— tionSIJnion of Concerned Scientists (wwgucsusaorg) i$gifprf1$lrye ' i ' c or an haiilriieIibguhslys(fiftififiiifddggiglifiggfsrfizibf 5:01:23 foicg nonpartisan, science— bawddlffiagsfi Management and Budget (www.whitehouse.gov/omb) The . . . . . ive OMB is the most important White House agency proViding administriigm staff and management for the president and is a major actor on en "a.-. a... I\\qulllllluil“ mental policy issues A ' I ‘ . . n important source of in ' ' ' presrdential policy initiatives. formanon and anally/SIS 0f Natural Resources Defense Council Notes 1.John H. Trattner Th 200 ‘ Press) 2000), 250. e 0 Prune Book (Washington, D.C.: Brookings 2. R “ ' ‘ ljlyIrJr-iond Hernandez, Hitting the Ground Limping,” Institution New York Times, May 6, 2001, 3. U.S. G ’ ' overnment Accountabihty Office (GAO), Major Performance and Accountahil ‘ Changes: Environmental Protec ' tion A My 2001), 16. See also Environmental Document NO. GAO—01—257 (January . t . i g Group, Clean W t R 4- iggdgnziDCu Friends of the Earth, March 2000). a H Kim” cam, (waSh— ment, ChoosingA Sustainahle Future (Washington, D.C.: Island Press 011991136) EMnVirOKF , ; arc . Larldy, M21 C 1{()1)CI1S, 311(1 1116 1 C 1 0 as, lhe 1572UZ7177’ZmE7ZZd F7028 1107’] 14g Asking the g If 0 517 Nx Cl] ( CW 101k 0/ C ' 6 LL707Z 6‘ Z 71 0m 1 07210 712072 . [(1 Ullll/Cl sity Press, 1998); and W lt “ rational Reform,” I a er A. Rosenbaum, The EPA at Risk: Conflicts over Insti- in Environmental Polic 4 h Kraft (Washington DC - C y’ t Cd-y Gd. Norman J. Vig and Michael E 6. NAPA, Setting P " QPICSS’ 1997), 143—167. - _ riorities, Gettin R o .- ' ' " tection Agency (Washington, D.Cg.: fiXPhhhfg Dma‘wnfar we Environmenmz pm— 7 On endocrin ' 8' . e disruptors, see Cent ' ‘ I ' . ' . er for B1oenv1ronme gamer Universmes, Environmental Estrogens' What D nthal Re‘searCh’ Tulane and rleans: Center for Bio . a“ ll eEde enluonlnental IieseaICh’ 7 CCU-re 101 th S Udl () W 10111] C 1.13.1 1:1 dOCIIIlC DISIUPtOIS Slgflflllflfll G0)Z}€7 77771671; I 0/1 c t y . C ments (Washington, D_C.; C t . y DEW/0 — ruptors, 1996); Center for en er for the Smdy 0f EnVlFOflmental Endocrine Di:— Eflkm: State odeeme Pa . 'ronmental Endocrine Di ' Per D C - C sruptors, m t 1 . . .. enter for th S ' gnezri; aoljgdvg::n%g)isruptogs, 21995); and EPA, Endocrine DisreuptthidgchLiaiiiwlgn— , ruar WWW ' 70F FCbruary 10, 2005. y , 004, .epa.gov/scrpoly/oscpendo/edspovefvievsg 8, 111011135 CG 1‘ , d‘LU a 0 * . I” a , 1116 11116 113.1 St1u( tllle ()1 A Rule 1 ak l) 7261 71 temporaiy 11705167711 34 (21.111111 11 1 )1 g C 9. This process, most often in the form of risk analysis , t . is . . . . National Research Councrl, Commission on Life Scien mformanvely described m ces, Committee on the Insti— 10. A useful summary of the Clean Air Act and found in Gary C. Bryner, Blue Skies Implementation, 2nd ed. (Washingtoh 11. On problems associated with data int its important subsequent ame d ~ Green Politics' The Clean Air n mems ls ' Act 0 1990 ,Dc: CQPress, 1995). f and Its erpretation, see National Research Council Risk , esp. chap. 1; Walter A. Rosenbaum “ ’ ' - - . ’ 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. Improving l‘lnvironmcntal Regulation at the EPA 191 ed. Sheldon Kamicniccki, George A. Gonzalez, and Robert O. Vos (Albany: State University of New York Press, 1997), 31— 62. The turbulent history of congressional oversight of the EPA since the mid-1980s is discussed in Richard Lazarus, “The Tragedy of Distrust in the Implementation of Federal Environmental Law,” Law and Contemporary Prohlems 311 (1991): 315—317; Richard A. Harris and Sidney M. Milkis, The Politics of Regulatory Change (New York: Oxford University Press, 1989); Mark Landy, Marc Roberts, and Stephen R. Thomas, The Environmental Protection Agency, chap. 8; Walter A. Rosenbaum, “The EPA at Risk”; Gary Bryner, “Congressional Decisions about Regulatory Reform: The 104th and 105th Congresses,” in Better Environmental Decisions, ed. Ken Sexton, Alfred A. Marcus, K. William Easter, and Timothy D. Burkhardt (Washington, D.C.: Island Press, 1999), 91—112; Rogelio Garcia, “Federal Regulatory Reform Overview,” CRS Issue Brief for Congress, No. IB95035 (May 22, 2001). On problems of data deficiencies and discretionary judgment involved in the EPA’s regulatory responsibilities, see National Research Council, Risk Assessment in the Fed— eral Government, chap. 1; Walter A. Rosenbaum, “Regulation at Risk,” 31—62. GAO, “EPA: Major Challenges and Program Risks,” Report No. GAO/OGC 99—17 (January 1999). GAO, “Water Qiality: Identification and Remediation of Polluted Waters lmpeded by Data Gaps,” Report No. GAO/T—RCED 00—88 (February 2000), 5. Letter of Bruce Alberts to the Executive Office of the President on OMB’s Proposed Bulletin on Peer Review an Information Qiality, www.whitehouse.gov/omb/inforeg/ 2003iq/115.pdf, December/ 12004. A useful review of scientific decision making at the EPA is found in Mark P. Powell, Science at EPA: Information in the Regulatory Process (Washington, D.C.: Resources for the Future, 1999). For a usefully updated technical and medical analysis of environmental arsenic, see Medical News Today, “New Arsenic Drinking Water Standard May Still Be Toxic,” September 26, 2004, www.medicalnewstoday.com/medicalnews.php Pnewsid=14032, February 10, 2005. Basic environmental and toxicological aspects of arsenic are discussed in National Research Council, Division of Earth and Life Sci» ences, Board of Environmental Studies and Toxicology, Committee on Toxicology, Subcommittee to Update the 1999 Arsenic in Drinking Water Report, “Summary,” in Arsenic in Drinking Water: 200] Update (Washington, D.C.: National Academies Press, 2001). A history of the arsenic in drinking water rule can be found at EPA, “Arsenic in Drinking Water,” February 1, 2005, www.epa.gov/safewater/arsenic.html, February 10, 2005. Natural Resources Defense Council, “NRDC Denounces Bush Administration Sus— pension of Arsenic—in—Drinking—Water Protections,” May 22, 2001, www.mrdccrg/ media/pressreleases/O10522a.asp, December 3, 2004; see also Rachel Massey, “Bush Mandates Arsenic in Your Tap Water,” Rachel’s Environment {9’ Health News, 722 (April 12, 2001), 1. U.S. Water News Online, “EPA Proposes Arsenic Water Limits’7 June 2000, www .uswaternews.com/archives/arcpolicy/tepapr06.html, December 3, 2004. See, for example, AEI-Brookings Joint Center for Regulatory Study, Drinkingr Water Standard for Arsenic (Washington, D.C.: AEI—Brookings Joint Center for Regulatory Analysis, 2001); see also Jason K. Burnett and Robert W. Hahn, EPA’sArsenic Rule: The Benefits of the Standard Do Not justify the Costs (Washington, D.C.: AEI- Brookings Joint Center for Regulatory Studies); Robert Raucher, “Arsenic Drinking Water Standards," Report No. RSP 2000—18, September 19, 2000, www.mercatus .org/regulatorystudies/article.php?id=762&, February 10, 2005. National Research Council, “Summary.” 24. For a comprehensive review of scientific and technical issues associated with mercury emissions, see EPA, “Controlling Power Plant Emissions: Overview,” 1.74 vvmrcr A. noscnbaum www.epa.gov/mercury/c0ntrol_cmissions/, December 4, 2004; see also Mark Clayton, “Mercury Rising,” Christian Science Monitor, April 29, 2004, 1. 25. Michael Shore, Out of Control: Close and Close to Home: Mercury Pollution flom Power Plants (Washington, D.C.: Environmental Defense, 2003). 26. For the complete Clinton proposal and its related documents, see EPA, “Electric Utility Steam Generating Units Section 112 Rule Making,” June 14, 2004, www.epa.gov/ttn/atw/combust/utiltoX/utoxpg.html, December 4, 2004. 27. US. Department of Energy, Office of Fossil Energy, “Mercury Emission Control R8CD,” www.fossil.energygov/programs/powersystems/pollutioncontrols/overview_ mercurycontrolshtml, September 19, 2004; Thomas Brown, William O’Dowd, Robert Reuther, and Dennis Smith, Control of Mercury Emissions from Coal—Fired Power Planks/I Preliminary Cost Assessment (Washington, D.C.: US. Department of Energy, Federal Technology Center, undated), www.netl.doe.gov/publications/ proceedings/98/98ps/ps3b-6.pdf 28. For a comprehensive analysis of the Bush proposal, see EPA, “National Emission Standards for Hazardous Air Pollutants for Industrial/Commercial/Industrial Boilers and Process Heaters,” Federal Register 68 (January 13, 2003): 1659—1763; US. Energy Information, “Executive Summary,” in Reducing Emission of Sulfur Dioxide, Oxides and Mercury from Electric Power Plants, .gov/oiaf/servicerpt/mepp/, December 5, 2004. 29. Rachael L. Swarns, “Bush Defends New Environmental Rules, tember 16, 2003, A22; see also Union of Concerned Scientists, in Scientg‘ic Integrity in Policymahing: flu Investigation into th Misuse of Science (Union of Concerned Scientists, 2004). 30. Tom Hamburger and Alan C. Miller, “EPA Let Industr Some Staffers Say,” Los flngeles Times, March 3, 2004, 1 31. Paul Krugman, 2004, A23. 32. Lisa Heinzerling and Rena Steinzor, “Political Intervention: The White House Doc— tors Mercury Conclusions,” April 16, 2004, www.americanprogress.org/site/ pp.asp?c=biJRJ80VF8cb=45899, September 16, 2004. I 33. Jennifer 8. Lee, “White House Minimized the Risks of Mercury in Proposed Rules, Scientists Say, New York Times, April 7, 2004, A16. - 34. Ibid. 35. Union of Concerned Scientists, Scientyic Integrity in Policymahing, 2. 36. For a discussion of the political and economic issues implicit in the EPA’s mission, see J. Clarence Davies and Jan Mazurek, Regulating Pollution: Does the US. System Worh? (Washington, D.C.: Resources for the Future, 1997); Paul Portney and Robert N. Stavins, eds., Puhlic Policies for Environmental Protection, 2nd ed. (Washington, D.C.: Resources for the Future, 2000); Harris and Milkis, The Politics of Regulatory Change; NAPA, Setting Priorities, Getting Results. 37. For a useful political and historical review of the p policy making, see Dennis L. Soden, ed., The Enviro University of New York Press, 1999). Discussions of particularly significant environ- mental presidencies include Barry D. Freedman, Regulation in the Reagan—Bush Era (Pittsburgh: University of Pittsburgh Press, 1995); John C. Whitaker, Striking a Bal— ance: Environmental and Natural Resources Policy in the Nixon—Ford Years (Washington, D.C.: American Enterprise Institute, 1976); and Norman Vig, “Presidential Lead— ership and the Environment,” in Environmental Policy: New Directions for the Twenty— First Century, ed. Norman Vig and Michael E. Kraft (Washington, D.C.: CQPress, 2003), 103“125. Nitrogen October 17, 2001, www.eia.doe ” New York Times, Sep— “Executive Summary,” e Bush Administration’s y Dictate Policy on Mercury, “Editorial Desk: The Mercury Scandal,” New York Times, April 6, resident’s role in environmental nmental Presidency (Albany: State Economics, Incentives, and Environmental Policy A. Myrich Freeman III he environment can be viewed as a resource system that contribuftes to Thurman welfare in a variety of ways. It prov1des the ba51c means 0 Sup— port for all life forms—clean air, clean water, a hospitable climate,han so forth. It is the source of minerals and other raw materials used in t e-pro, duction of food and the goods and services that support modfern sogcietyas1 standard of living. The environment can be used for avariety (i rechrea ion 6 activities such as hiking, fishing, and obserVing wildlife. It is a so t .e. sourc of amenities and esthetic pleasure, providing scenic beauty and inspiring our awe at the wonder of nature. Finally, the environment is the plafie w ere we deposit the wastes from the economic actiVities of production an cornsgrrlrg;e tion. This latter use and thglconverSion of natural CthIrOllIiflCl’léS (:11 mer— intensively managed agricultural ecpsystems and to I‘CSltlljflintla an co cial development give rise to todays enVironmental pro ems. n h d I Cd The environment is a scarce resource. It cannot prov1de a t e fes1r I quantities of all its services at the same time. Greater use of one type 0 envi— ronmental service usually means that less of some other type of serv1cehis available. Thus the use of the environment involves-trade—offs. Increasgig itne life—sustaining or amenity—yielding serv1ces it prov1des may require 1: 111: 0g the use of the environment’s waste—receiving capaCities or cuttingh ac f i— development, and vice versa. Economics is about how to manage t e 2:61:31 ties of people and the ways we use the enVironment to meet our [£1 Hu— needs and wants in the face of scarcity. Env1r0nmental protection an po d tion control are costly activities. We wish to protect the env1ronment 12’s reduce pollution presumably because the value we place on 11:16 enlv1ronénelaC6 life—sustaining and life—enhancing serv1ces is greater. than t e va ue w p on what we must give up to achieve env1ronmental improvemeizit. f th to Devoting more of our scarce resources of labor, capital, an so of; are controlling pollution necessarily means that fewer of these resourc of a available to do other things that we value. Similarly, the ptOtfiFfFlOfll b. t particular environmental resource to preserve amenities or W11: 1 e mini: typically requires reductions in other uses of that resource, sluc Edition mg and timber and paper production. The costs of enVironmenta prg .ml the values of these alternative uses that are forgone and the a or,hcap1 materials, and energy used up in controlling the flow of wastes to t e env1 ronment. 193 ...
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Rosenbaum, Improving Environmental Regulations at the EPA -...

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