Attorneys Paul Wallach and Robert Sussman, two of Washington's most prominent environmental attorneys, predicted that enforcement activities at the U.S. Environmental Protection Agency (EPA) will soon be carried on very differently now that George W. Bush assumed the role of presidency.
Wallach and Sussman made the prediction during a media briefing at the Washington Legal Foundation, a conservative organization founded in the mid-1970s to "defend and promote the principles of free enterprise and individual rights."
Wallach expects that EPA administrator Christine Todd Whitman will be "much more balanced" in her approach to regulatory enforcement activities than was Carol Browner, who ran the agency for nearly eight years in the Clinton/Gore administration.
In order to bring about a much needed balanced approach, Wallach believes that Whitman must be willing to expunge the numerically based "bean counting" philosophy that guided activities within the EPA's Office of Enforcement and Compliance Assurance (OECA) during the Browner years.
The "pressure for [enforcement] numbers" that was so prevalent at EPA during the Clinton administration, Wallach said, blurred the lines between enforcement activities and policy initiatives.
Statistics documenting civil and criminal enforcement proceedings are measures that "should not be relied on anymore" to gauge the effectiveness of the agency, Wallach said.
Just one day before President George W. Bush was sworn into office, the EPA released data on its major enforcement and compliance assurance activities for fiscal year 2000.
The EPA took more than 6,000 environmental enforcement actions during the last year of the Clinton administration, the most in the 30-year history of the agency.
In that 12-month period, the EPA leveled nearly $225 million in civil and criminal penalties, a figure that the agency said reflected its "high priority" of correcting the "most serious health and environmental violations" committed by "major corporations with multiple facilities throughout the United States."
Wallach argued that the numbers mean nothing, saying that "every bean is not equal" in terms of illustrating the effectiveness, or the lack thereof, of the EPA's environmental enforcement program. He said that in order to change the flawed system, Whitman and the Bush administration will have to develop some "legitimate measures" to gauge progress at the EPA.
Wallach called on the EPA to expand its use of self-audit programs, which generally are designed to give polluters qualified immunity from criminal prosecution and civil penalties if they voluntarily disclose their environmental violations to federal or state regulatory officials.
Some 430 companies took advantage of EPA self-audit incentive programs in fiscal year 2000, disclosing potential violations at nearly 2,200 facilities, according to EPA records.
Many environmental advocacy groups are highly critical of self-audit laws, saying they are ineffective, and keep crucial health related information from the unsuspecting public.
Wallach dismissed those criticisms, saying that the new administration should not be "accused of dropping environmental protection" by developing sound and effective self-audit programs.
Sussman said that the Bush team "is going to create substantial unhappiness regardless of what they do," because the administration is saddled with a host of problems that stem from the implementation of the EPA's New Source Review (NSR) initiative.
The Bush administration is in the process of reviewing many of the environmental settlement actions that were taken in the waning months of the Clinton administration.
A similar exercise is taking place on Capitol Hill, where several Republican Congressional leaders have vowed to scrutinize and even undo some of the environmental regulations enacted during the previous administration.