Eric V. Schaeffer, EPA Director, Office of Regulatory Enforcement resigns
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February 27, 2002
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
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
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
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.
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
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
Were the complaints filed by the U.S. government based on conflicting
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,
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
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.
Eric V. Schaeffer, Director
Office of Regulatory Enforcement
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