This is the resignation letter of Eric V. Schaeffer, Director of EPA's
Office of Regulatory Enforcement
February 27, 2002
Christine Whitman
Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Dear Ms. Whitman:
I resign today from the Environmental Protection Agency after twelve
years of service, the last five as Director of the Office of Regulatory
Enforcement. I am grateful for the opportunities I have been given, and
leave with a deep admiration for the men and women of EPA who dedicate
their
lives to protecting the environment and the public health. Their faith in
the Agencyıs mission is an inspiring example to those who still believe
that
government should stand for the public interest.
But I cannot leave without sharing my frustration about the fate of our
enforcement actions against power companies that have violated the Clean
Air
Act. Between November of 1999 and December of 2000, EPA filed lawsuits
against 9 power companies for expanding their plants, without obtaining New
Source Review permits and the up to date pollution controls required by
law.
The companies named in our lawsuits emit an incredible 5.0 million tons of
sulfur dioxide every year (a quarter of the emissions in the entire
country)
as well as 2 million tons of nitrogen oxide.
As the scale of pollution from these coal-fired smokestacks is immense,
so is the damage to public health. Data supplied to the Senate Environment
Committee by EPA last year estimate the annual health bill from 7 million
tons of SO2 and NO2: more than 10,800 premature deaths; at least 5,400
incidents of chronic bronchitis; more than 5,100 hospital emergency visits;
and over 1.5 million lost work days. Add to that severe damage to our
natural resources, as acid rain attacks soils and plants, and deposits
nitrogen in the Chesapeake Bay and other critical bodies of water.
Fifteen months ago, it looked as though our lawsuits were going to
shrink these dismal statistics, when EPA publicly announced agreements with
Cinergy and Vepco to reduce Sox and Nox emissions by a combined 750,000
tons
per year. Settlements already lodged with two other companies TECO and
PSE&G will eventually take another quarter million tons of Nox and
Sox out of the air annually. If we get similar results from the 9
companies
with filed complaints, we are on track to reduce both pollutants by a
combined 4.8 million tons per year. And that does not count the hundreds
of
thousands of additional tons that can be obtained from other companies with
whom we have been negotiating.
Yet today, we seem about to snatch defeat from the jaws of victory. We
are in the 9th month of a "90 day review" to reexamine the law, and
fighting
a White House that seems determined to weaken the rules we are trying to
enforce. It is hard to know which is worse, the endless delay or the
repeated leaks by energy industry lobbyists of draft rule changes that
would
undermine lawsuits already filed. At their heart, these proposals would
turn narrow exemptions into larger loopholes that would allow old
"grandfathered" plants to be continually rebuilt (and emissions to
increase)
without modern pollution controls.
Our negotiating position is weakened further by the Administrationıs
budget proposal to cut the civil enforcement program by more than 200 staff
positions below the 2001 level. Already, we are unable to fill key staff
positions, not only in air enforcement, but in other critical programs, and
the proposed budget cuts would leave us desperately short of the resources
needed to deal with the large, sophisticated corporate defendants we face.
And it is completely unrealistic to expect underfunded state environmental
programs, facing their own budget cuts, to take up the slack.
It is no longer possible to pretend that the ongoing debate with the
White House and Department of Energy is not effecting our ability to
negotiate settlements. Cinergy and Vepco have refused to sign the consent
decrees they agreed to 15 months ago, hedging their bets while waiting for
the Administrationıs Clean Air Act reform proposals. Other companies with
whom we were close to settlement have walked away from the table. The
momentum we obtained with agreements announced earlier has stopped, and we
have filed no new lawsuits against utility companies since this
Administration took office. We obviously cannot settle cases with
defendants who think we are still rewriting the law.
The arguments against sustaining our enforcement actions donıt hold up
to scrutiny.
Were the complaints filed by the U.S. government based on conflicting
or
changing interpretations? The Justice Department doesnıt think so. Its
review of our enforcement actions found EPAıs interpretation of the law to
be reasonable and consistent. While the Justice Department has gamely
insisted it will continue to prosecute existing cases, the confusion over
where EPA is going with New Source Review has made settlement almost
impossible, and protracted litigation inevitable.
What about the energy crisis? It stubbornly refuses to materialize, as
experts predict a glut of power plants in some areas of the U.S. In any
case, our settlements are flexible enough to provide for cleaner air while
protecting consumers from rate shock.
The relative costs and benefits? EPAıs regulatory impact analyses,
reviewed by OMB, quantify health and environmental benefits of $7,300 per
ton of SO2 reduced at a cost of less than $1,000 per ton. These cases
should be supported by anyone who thinks cost-benefit analysis is a serious
tool for decision-making, not a political game.
Is the law too complicated to understand? Most of the projects our
cases targeted involved big expansion projects that pushed emission
increases many times over the limits allowed by law.
Should we try to fix the problem by passing a new law? Assuming the
Administrationıs bill survives a legislative odyssey in todayıs evenly
divided Congress, it will send us right back where we started with new
rules
to write, which will then be delayed by industry challenges, and with fewer
emissions reductions than we can get by enforcing todayıs law.
I believe you share the concerns I have expressed, and wish you well
in
your efforts to persuade the Administration to put our enforcement actions
back on course. Teddy Roosevelt, a Republican and our greatest
environmental President, said, "Compliance with the law is demanded as a
right, not asked as a favor." By showing that powerful utility interests
are not exempt from that principle, you will prove to EPAıs staff that
their
faith in the Agencyıs mission is not in vain. And you will leave the
American public with an environmental victory that will be felt for
generations to come.
Sincerely,
Eric V. Schaeffer, Director
Office of Regulatory Enforcement
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