Public pays for administratrion of attrition

When the Bush administration’s environmental record continuously comes under fire, it is generally accused of cronyism, representing the epitome of lobbied power in the Washington. Like many aspects in life, events that seem apparent aren’t so clear cut, but the results here seem to remain the same.

Since coming into office, the president has replaced many career federal administrators in the agencies and key posts that deal with the environment and conservation. Almost all the major environmental rules are being incrementally reshaped by the president, some of which have proven to be highly successful over the years, to carry out his energy and economic stimulation policies.

We have seen such examples as the Toxic Release Inventory, New Source Review, Particulate Matter Standards, the Isolated Waters and the Utility Mercury rules from the Environmental Protection Agency, the Surface, Hard-Rock, Metallic, and Mountain-top Mining rules from the Bureau of Land Management, et al., either revised or amended to further industry interests. To the political layperson, the list seems almost endless, and too cumbersome to have a personal impact. Sadly, this is the way many top level rule makers would have it.

The agencies still have to play by the rules nonetheless, particularly, by having to follow the Administrative Procedure Act of 1946 (APA), 5 U.S.C.A. ?? 501 et seq., when it seeks to implement or change important federal rules. The APA dictates that federal regulations are based on public participation that encourages sound reason and science.

Many years ago, Sen. Pat McCarran called the APA, “a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated,” by federal government agencies. The success of the APA is unparalleled in U.S. administrative history. For the past five years we have seen many rules, although blatantly mawkish concerning our environment, follow the procedural safeguards that guarantee legitimacy in our representative democracy.

Once a rule is proposed, interests groups will submit comments, testify at hearings, and notify their elected officials of their concerns. In most cases now, public input isn’t incorporated into the decision-making, for very few rules are reconsidered. We read increasingly how industry is playing a larger role in influencing and even drafting prospective rule language that they will benefit from once in place. Industry will also flood the agencies with supporting comments of its own to minimize and invalidate what most experts believe will be the effects on the environment. Some of these have been incorporated verbatim into rule language.

There are examples of career administrators resigning in protest over the way some of these rules have been promulgated. The inspector general for the EPA went so far as to publish a lengthy scorching report over industry’s involvement in the development of the Utility Mercury Rule. As long as the APA isn’t violated though, legitimacy controls the process.

Opponents to these proposed rules are usually left to fight outside the APA process, implementing their own opposition movements, raising money, introducing new data, building constituencies, pleading through the media, and ultimately heading to court in many cases. The courts generally will uphold any rule that isn’t capricious and arbitrary. Senators and representatives from both parties in potentially affected states have been joining in and questioning the illogic and corrupted process used to promulgate these rules.

Right now, the Northeast states are involved in three different lawsuits against the EPA over major Clean Air Act rules. As long as the rule addresses the problem though, courts will neither consider the benefactors, nor the burdens placed on our environment.

No agency administrator will come right out and say that they’ve proposed a rule that will spend years in litigation. Some forethought though dictates any rule may be challenged, and if it meets court scrutiny, the mission has been accomplished. If not, then this litigation will provide industry with years to respond and most importantly, benefit and profit from this administrative delay. We should all start really asking ourselves, “What’s the real goal of any proposed rule coming out of this current administration?”

Even after his eight years are up, many of Bush’s policy rules will linger in the courts, so industry will still have its safety net to better plan. Most significantly, the APA process is being tainted by economic agendas, and sadly but not surprisingly, is still providing an aura of legitimacy. Congress can only address this issue by re-legislating each individual rule, or subject, which is unlikely until we have a legislative branch that cares.

Public participation is now viewed as nothing more than political bickering, especially to the agencies and industry, and all they need to do is whether the storm.

Ultimately, the American public pays for this administration of attrition.

Eric H. Nicolar is an environmental consultant from Bradley.