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American Bar Association/Environment Section, Washington D.C.


OCTOBER 9, 2003


Good morning, everyone. It’s always a pleasure to meet with this distinguished group of environmental lawyers. Many of you have been personal friends and colleagues of mine for years, and I’m delighted at this opportunity to renew old acquaintances.

As you know, my career path took a sudden and unexpected turn a few months ago, when I was named Acting Administrator of EPA. To say the least, my new job has been an eye-opening experience, with the kind of thrills that you remember for a lifetime. A few weeks ago I was invited to fly on Air Force One and discuss clean air issues with the President. No matter what you might think of the President’s policies, there’s no doubt that Air Force One is one very cool plane. That’s one flight I’ll never forget.

Then ten days ago I was interviewed by the Weather Channel about EPA’s new Air Quality Initiative on particulates. As a result my husband, who’s a weather channel junkie, now views me in a whole new, more positive light.

There are lots of other perks, too, like getting the color copy of all briefing materials. And one of the biggest perks of all for an Acting Administrator: instead of being invited to sit on ABA panels at the annual fall meeting, you get to give the keynote address. For all these reasons and more, I’ve enjoyed my new job at EPA immensely...most of the time.

But as you can imagine, there are some down sides to the job. Not the least of which is the kind of public attacks to which EPA is subjected almost daily, attacks whose tone and tenor have deteriorated from what was typical during EPA’s earlier years. I believe that the lack of civility, the lack of substance, and the emotional partisanship of our public debates over environmental policy will ultimately impair EPA’s effectiveness as a public health agency, no matter who is in charge.

Through its 33-year history, EPA’s actions more often than not have been controversial and subject to public debate. Whether it’s requiring catalysts on cars or cleaning up Times Beach or banning Alar, EPA’s decisions are based on science that usually is incomplete and to some degree uncertain. At the same time, our decisions often impose hundreds of millions of dollars, or more, in costs that must be borne by businesses and consumers.

So it’s not surprising when the relative merits of our decisions are strenuously debated by environmental organizations, or business interests, or state and local governments. It’s not surprising when our policies are criticized in the media or on Capitol Hill. That kind of substantive debate doesn’t bother me. It comes with the territory.

In fact, measured, thoughtful debate over the relative merits of environmental policies is the crucible in which they are refined and improved. I believe EPA is a better Agency because our actions are thoroughly reviewed and sometimes rebutted in the arena of public opinion. In the marketplace of ideas, competition is healthy, and necessary.

But during the past several months I have been struck, and troubled, by the tone and tenor of the national environmental debate. It has been marked by an unusual degree of rancor, stridency, naked political partisanship, and an occasional disregard for factual accuracy. Time after time our actions are challenged not on their merits, but for the alleged motives underlying them.

I believe this kind of public acrimony and name-calling does not bode well for the future of environmental policy, or EPA. In the short term, it does nothing to improve public understanding of critically important, and often complex, environmental issues. It rarely leads to improvements in the policies themselves.

And in the long term it will undermine EPA’s credibility in the eyes of the public, no matter which party is in the White House. Without non-partisan credibility, without the trust and confidence of the American people, EPA’s ability to protect public health and the environment will be eroded. And that would be a loss very difficult to recover.

Let me give you three recent examples that illustrate my point. All three have been in the news a lot, and all have been marked by strident, emotional disagreements with EPA’s actions. In all three cases, the substantive policy questions underlying them have been largely overlooked. And sometimes the facts are at odds with the emotion.

First is EPA’s public pronouncements on air quality in the days immediately following the attacks on the World Trade Center. For the past several months, we have been sharply criticized for assuring the public that Manhattan’s air quality at the time was not an imminent danger to human health. Some argue that we gave those assurances before we had the benefit of complete air quality data.

At the time of the World Trade Center cleanup, as well as the anthrax cleanup of the Hart Senate Office Building, I was head of the EPA office that had emergency response and cleanup responsibilities. I saw first hand how EPA’s employees, despite the chaos, confusion, and uncertainty, did their absolute best to serve the American people under the worst possible circumstances. When we were asked about air quality in Manhattan, we answered with our best professional judgment using the limited data available. Our overriding concern at the time was to gather information as comprehensively as possible, validate it as well as possible, and inform the public as quickly as possible. During that terrifying and chaotic time, to have withheld data, no matter how limited, would only have added to public fears.

Now, years later, we are accused of lying to the public and thereby endangering public health. Environmental organizations are running newspaper ads making false assertions about what we actually said at the time. One politician has been quoted saying the EPA was probably going to cause more deaths in Manhattan than the terrorists. These kinds of self-serving statements do long-term damage to EPA’s credibility, damage that will still be felt during Administrations to come.

By the way, air quality monitoring since 9/11 has shown that our best judgement at the time was in fact accurate. Except for those first few terrifying hours after the buildings collapsed, air quality did NOT pose an imminent threat to public health, except for those working right at Ground Zero. And that’s exactly what we said at the time. At no time did we attempt to conceal data or distort data.

I must say that I am personally very proud of the way EPA employees handled themselves during those pressure-packed days. In times of national emergency, in times of chaos and confusion, I am convinced that government agencies should speak quickly, using their best judgment. When people are clamoring for information immediately, we have a responsibility to use our best judgment immediately. And that’s exactly what EPA did.

Could EPA have performed better on 9/11 and the days following? Of course. But the accusation that we deliberately misled the people of Manhattan, that we endangered public health for political advantage, has no basis in fact. What possible political advantage could we have gained by lying or by withholding information?

By smearing the Administration in charge of EPA at the time, our second-guessers unwittingly do long-term damage to EPA itself. They undermine the credibility of an Agency whose most important resource is its credibility.

The second example I want to mention is New Source Review. NSR is an issue that probably everyone in this room understands, because we’re all environmental lawyers. We all have an opinion about it, and lots of those opinions clash, at least judging by the number of NSR court cases that have been running for years. At the same time, NSR is an issue that almost NO ONE understands who isn’t an environmental lawyer steeped in the history and acane facts of the Clean Air Act.

In my mind, this is a recipe for disaster: a complex environmental issue that lawyers litigate endlessly and that the public learns about through the prism of non-profits that presume to act in the public interest. Those organizations have it easy, since they don’t have to balance COMPETING public interests like EPA does. When one side of an issue is defined as the “public interest”, then EPA – and the American people – lose out in the long run.

EPA recently announced a new policy on New Source Review, and we were pounded mercilessly in the press, not just for the substance of the issue, but for the motives that were allegedly behind them. Environmental protections were being rolled back, it was said, and tens of thousands of people would be endangered as EPA allowed coal-fired powerplants to escape their legal obligations. Because of EPA’s decision, air quality – and human health – would get decidedly worse. People were asked to believe that EPA cared more about utility profits than human health.

Those accusations were irresponsible, inflammatory, and completely false.
Once again, a complex public policy issue worthy of serious public debate was shunted aside in favor of a shrill, partisan attack on the heart of EPA’s credibility.

Let’s look at some facts. During the past decade or more, as utilities were allegedly avoiding their responsibilities under the NSR provisions of the Clean Air Act, utility emissions of sulfur dioxide, nitrogen oxides, and particulates declined steadily. Why? Because other sections of the law, particularly the acid rain provisions, were working, and working well, to control power plant emissions.

Today, compared with 1990 when the last Clean Air Act amendments were enacted, sulfur dioxide emissions from coal-fired powerplants are down 35 percent, nitrogen oxide emissions are down 26 percent, and particulate emissions are down 28 percent. Over this same period, coal-fired powerplants increased their generation of electricity by almost 20 percent. In other words, over the past decade coal-fired powerplants have steadily increased their electricity output while steadily reducing pollution.

I’m also willing to make a wager about the future. Even with our NSR decision in place, I predict that utility emissions will continue to decline for the next several decades. Despite this alleged “rollback” of NSR rules, I’m confident other provisions of the Clean Air Act will continue our 30-year history of gradually improving air quality.

So why did we clarify New Source Review? For the same reason that environmental lawyers, and nobody else, understands it. Under the old rules, it was way too complicated, and subject to widely differing interpretations by dueling lawyers. Our critics are right about one thing: we DID want to help the utilities. We wanted to give them more clarity, more certainty in their decisions to upgrade or modernize their powerplants. The old NSR rule stood in the way of higher efficiency and better service to American consumers. In short, our NSR decision was meant to simplify utility compliance with the law, and I believe EPA has a responsibility to simplify compliance every chance we get.

That is not to say that our NSR decision is beyond debate. But the contention that we have endangered public health in order to fatten the coffers of utilities does more damage to EPA as an institution than it does to the Administration that changed the rule.

The final example I want to mention is Superfund. Superfund is near and dear to my heart, because I’m still the AA for Superfund as well as Acting Administrator. For the last few years Superfund has been subject to a steady drumbeat of accusations. It has been argued, for example, that this Administration doesn’t care about the abandoned waste sites in America’s neighborhoods, because the number of Superfund sites completed each year has been lower than usual since this Administration took office. Some people have claimed that Superfund is running out of money because the Administration has not worked to reauthorize the Superfund tax, and that will lead to even fewer sites being cleaned up in the future. We’ve been accused of abandoning the “polluter pays” principle because the tax has lapsed. Once again, the underlying – and sometimes explicit – message is: EPA cares more about protecting industry profits than cleaning up contamination.

If ever there was an environmental issue worthy of extensive public debate, it’s Superfund. Over a year ago I asked one of EPA’s independent advisory groups to a look at some of Superfund’s more difficult problems – like megasites – and give us their best advice on how to solve them.

But the inflammatory charges against Superfund that the public is exposed to rarely touch on issues of real substance. Because they are meant to score political points, public understanding of the issues suffers.

Annual Superfund completions are down somewhat over the last few years, not because this Administration cares less, but because a handful of very large, complex sites is eating up a larger percentage of Superfund’s annual budget than ever before. That means fewer, but more expensive, cleanups are underway, and fewer are completed each year. But the work is holding steady, and the commitment is holding steady.

The accusation that EPA is spending less on Superfund because the trust fund is running out of money is simply false. The Superfund budget is appropriated every year by the Congress, and over the past decade the annual budget has been fairly consistent year to year. Even if the Superfund tax were reinstated tomorrow, that money would not flow directly to EPA. We would not automatically have more to spend on Superfund. We still would have to wait for our annual appropriation.

The underlying question here, the question of the Superfund tax, is worthy of national debate. Whether the tax should be reinstated is a legitimate policy question that honorable people can disagree over. But let’s not forget that tax policy is under the jurisdiction of the Treasury Department, not EPA. So this particular accusation has nothing to do with EPA.

The third prevalent attack on Superfund, most recently displayed in a cartoon in the Washington Post, is that EPA is letting polluters off the hook because the Superfund tax lapsed. But today at EPA the “polluter pays” principle is alive and well at Superfund sites across the country. Over the past two years the amount of money collected from responsible parties, and the percentage of cleanups being paid for by responsible parties, is right in line with the Agency’s record over the past decade.

One of these days I’ll be returning to my old office and my old job as we all welcome a new Administrator to EPA. In a year or two, my short tour of duty at the top of EPA will barely be remembered. I remind myself of that every day, because it says something important about EPA, and the role the Agency plays in our public life.

EPA Administrators come and go, but the Agency remains. Its mission endures. If we want the Agency to succeed in its mission over the long term, the national debate over environmental policy must be conducted with civility and respect for the substance of the issues, no matter which party is in office. Honorable people can disagree, but we must keep our disagreements honorable. We owe that to the American people. We owe that to EPA.

Thank you.