=======================Electronic Edition========================
RACHEL’S HAZARDOUS WASTE NEWS #251
—September 18, 1991—
News and resources for environmental justice.
——
Environmental Research Foundation
P.O. Box 5036, Annapolis, MD 21403
Fax (410) 263-8944; Internet: erf@igc.apc.org
==========
The Back issues and Index
are available
here.
The official RACHEL archive is here.
It’s updated constantly.
To subscribe, send E-mail to rachel-
weekly-
request@world.std.com
with the single word SUBSCRIBE in the message. It’s free.
===Previous Issue==========================================Next Issue===
A SECRET GOVERNMENT WITHIN
Government regulations used to be made through an open process.
Congress would pass a law saying something should be done; for
example, in the Clean Air Act, Congress said some toxic air
pollutants should be controlled. In response to the law, an
agency (such as U.S. Environmental Protection Agency [EPA])
published a proposed regulation. Anyone who wanted to could send
a comment. If the proposed regulation would have large effects on
the public, the agency might hold a series of public hearings
around the country. After the public comments were all in, the
agency mulled them over, reached a decision, and published a
final regulation.
That’s how it used to work. Ronald Reagan began changing this
process almost immediately. Mr. Reagan had been in office less
than a month when he issued Executive Order 12291 which said no
agency could issue either proposed or final regulations without
getting approval from the Office of Management and Budget (OMB).
OMB was required to apply “cost benefit” analysis to proposed
regulations–if the benefits didn’t exceed the costs, the
regulations were chucked. In any case, only the least-cost
regulations could be adopted, even if other proposals would
provide greater benefits.
In January 1985, Mr. Reagan issued Executive Order 12498 saying
government agencies had to have OMB approval before even
collecting information, through a study or a survey, that might
potentially lead to regulation in the future. Where Executive
Order 12291 allowed OMB to hold up any regulatory process then
under way, Executive Order 12498 allowed OMB to interfere in any
regulatory process even before it got started.
In this manner, the Executive Branch of government (the President
and his men) could prevent the legislative branch (the Congress)
from accomplishing much. Congress can say, “The law will be such
and such” but now OMB can say to any agency, “You cannot make a
regulation we don’t like–no matter what Congress says.” Congress
of course has the power to force an agency to pass a particular
rule, but if Congress has to pass a law creating every regulation
that every agency is supposed to make, Congress will be mired in
details and will accomplish even less than it does now.
In 1989 President Bush created the Council on Competitiveness and
appointed Vice-President J. Danforth Quayle to head it. The
Council is another way for the Executive to prevent unwanted
regulations.
Under Mr. Quayle’s keen eye, the Council has come to concern
itself with almost every controversial health, safety and
environmental regulation. For example, this summer the Quayle
Council played a critical role reversing the nation’s wetlands
protection policy, opening an estimated 30 million acres of
wetlands to destruction by developers. In recent months the
Council has been key in derailing certain Clean Air Act
regulations to control toxic emissions; in preventing the
adoption of strict rules to protect workers from cancer-causing,
formaldehyde; and in preventing operators of municipal solid
waste incinerators from having to recycle 25% of the garbage
delivered to their incinerator door.
Unlike OMB, which is somewhat accountable to the public, the
Quayle Council works almost entirely in secret. It is not
possible even to learn who works for the Council or who attends
its meetings. Freedom of Information Act requests for simple
matters–such as the name, background and education of Council
staff members–have been denied on the basis of “executive
privilege.” The deliberations of the Council are not public, its
budget is not public, and the Council ordinarily publishes no
rationale for any actions it takes. The rules by which the
Council operates are not available anywhere. This makes a court
challenge to any Council actions difficult or impossible.
Yet the Quayle Council has great authority. The Council can
“pull” any regulation being considered by any government agency
and can pressure the agency to change it. Since many cabinet
officials sit on the Council (though exactly which ones are
members is not public information), it has clout throughout the
federal bureaucracy.
March 22, 1991, Vice-President Quayle issued a memo announcing
the Council’s range of authority. The memo said the following
items are subject to regulatory review by the Council: “strategy
statements, guidelines, policy manuals, grant and loan
procedures, Advanced Notices of Proposed Rulemaking, press
releases, and other documents announcing or implementing
regulatory policy that affects the public.”
Last March a Congressional committee asked Mr. Quayle to send a
Council representative to a public hearing. Mr. Quayle not only
declined to send anyone, but his Council also refused to answer
written questions about the Council’s membership and the rules
that govern its actions. “Apparently, the Council is not in any
way constrained by the guidelines that are supposed to govern the
process of issuing regulations,” Congressman Henry Waxman
concluded.
The Council’s work is very persuasive. For example, EPA had
proposed that “fuel cleaning” be part of “best available control
technology” for municipal incinerators. Coal-burning power plants
can offer “fuel cleaning” (meaning chemical removal of sulfur) as
an alternative to expensive scrubbers to remove sulfur from smoke
stack emissions. By analogy, EPA was urging “fuel cleaning” as a
way to reducing toxic emissions from incinerators–they were
trying to require incinerator operators to recycle 25% of the
garbage that arrive at the incinerator door. The Quayle Council
jumped on that idea with both feet, and the idea promptly died.
The Quayle Council often pokes into issues that depend upon
scientific and medical expertise, but so far as any public
records show, the Council employs no scientists and no
physicians. Take the matter of wetlands protection. Wetlands are
complex ecosystems that are often highly productive (swamps, for
example, are often teeming with life), and are often essential in
the chain of being. For example, frogs and other amphibians need
land that is wet sometimes and dry others, and the loss of
wetlands of contributing to the loss of amphibians worldwide,
fraying the web of life itself (see RHWN #246). President Bush
made a campaign pledge that there would be “no net loss of
wetlands” during his term of office. But in summer of 1991,
pressure from developers convinced Mr. Bush to change his
policies, and the Quayle Council swung into action to take care
of the situation. For several months, scientists within EPA
argued for a particular definition of a wetland, aiming to
preserve the essential character of wetlands for those creatures
that depend upon them. EPA wanted to define a wetland as any land
that’s got standing water on it seven days a year. Mr. Quayle’s
Council wanted standing water 30 days a year as the definition.
In the end, Mr. Quayle made what must have seemed to him a little
joke: “How about if we say when it’s wet, it’s wet?” as a
possible definition for what constitutes a wetland–and EPA
accepted a definition (standing water 15 days a year and 21 days
of surface saturation a year) that will ultimately allow the
destruction of some 30 million acres of wetlands. Three key EPA
scientists resigned in protest.
The new Clean Air Act has weak provisions controlling toxic air
emissions. The Quayle Council has tried to make them even weaker.
The Council has inserted language into EPA’s proposed rules that
would allow polluters to re-write their own permits, giving
themselves leeway to dump additional toxins into the air. Under
Council proposals, the public would not have to be notified as
companies re-wrote their own permits, the EPA itself would not
even be asked for comment, and neighboring states would have no
say. Under the proposed rule changes, polluters re-writing their
own permits would only have to notify their state government, and
state government would have seven days to file an objection;
otherwise the re-written permit would go into effect. David
Hawkins, senior attorney for Natural Resources Defense Council
(NRDC) says the Quayle Council’s revisions “Would turn a program
intended to protect the people from pollution into a program
designed to protect polluters from the people.”
EPA had proposed to prevent lead-acid automobile batteries from
being burned in municipal solid waste incinerators because lead
is already a major public health problem (see RHWN #213 and #214)
poisoning children in rural and urban areas alike. Municipal
incinerators are the largest source of lead emissions into the
environment. However, the Quayle Council snuffed EPA’s proposal,
so it’s legal once again to incinerate automobile batteries.
The Quayle Council keeps no public records of who it talks to for
advice, but Vice-President Quayle says he consults most often
with business leaders who can tell him better than economists
“how the clock is ticking.” Allan Hubbard, executive director of
the Quayle Council, says, “When they feel like they are being
treated unfairly, [industry groups] come to us.” The Council is
clearly a secret government within our government. It gets the
President’s dirty work done quietly, forcefully and without any
of those pesky trimmings of democracy.
GET: Christine Triano and Nancy Watzman, ALL THE VICE-PRESIDENT’S
MEN (Washington, DC: OMB Watch and Public Citizen’s Congress
Watch, 1991); $10 from: OMB Watch, 1731 Connecticut Ave., NW,
Washington, DC 20009; phone (202) 234-8494.
–Peter Montague, Ph.D.
Descriptor terms: epa; omb; council on competitiveness;
vice-president j danforth quayle; ronald reagan; george bush; omb
watch; public citizen; policies; federal; wetlands; clean air act;