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by Kim Todd
As governor of Texas, George W. Bush crafted a pollution control plan based on voluntary compliance where "grandfathered" plants - those built before 1971 and therefore exempt from Clean Air Act standards - would voluntarily reduce emissions.
One year after the plan was launched, emissions from grandfathered plants had been reduced by less than one half of 1 percent.
At a meeting of the Western Governors' Association, Ken Kramer, director of the Lone Star (Texas) Chapter, summed up the results this way: "Governor (Bush) has emphasized public relations over actual results…. He has used the popular concept of voluntarism to make it appear that the problem will be taken care of by business leaders themselves without government action, when indeed that is not the case."
Now president, Bush is not the only fan of letting polluting industries police themselves.
In her Senate confirmation hearing, U.S. Environmental Protection Agency Chief Christine Todd Whitman promised, "We will offer the carrot when appropriate, and always preserve the stick of enforcement."
But in practice, the carrot of voluntary compliance with environmental laws has often proved to be large and sweet, and the stick nothing more than a brittle twig.
Voluntary compliance and self-audit laws first started to appear in the late 1980s. Currently, 42 states use some form of voluntary compliance or self-audits as part of their enforcement plan. With strong advocates in the White House and government agencies, the ideas are likely to take a larger role on the federal stage.
The laws often contain one or more of several elements: Under some regulations, companies can volunteer to draft their own pollution control or toxic waste site clean-up plans and receive a permit based on these promises. Self-audit and audit-privilege provisions allow a company to conduct its own evaluation of pollution problems and receive immunity from fines or legal action, in exchange for reporting these to the state and vowing to fix them. As part of the immunity, companies often are permitted to shield information uncovered in the audit from the public.
But while these laws seem attractive, particularly to corporations and politicians who cater to them, there's a hitch in relying on them for pollution control, according to Ed Hopkins, director of the Club's Environmental Quality Program.
"Evidence shows they don't work," he said. "A lot of people think it means the companies will comply with the law and then go further on their own, but what they don't realize is that the companies aren't even meeting minimum standards."
In many cases, if the state political climate is hostile to environmental protections, voluntary compliance often becomes the only means of pollution control. Enforcement budgets are slashed and agencies get cozy with the industries they regulate, according to Marilyn Wall, Ohio Chapter Conservation Chair, who has spent years trying to get the Ohio EPA to go after polluters.
"The agency considers the polluting industry to be its customer, rather than the environment or public health," she said. "When citizens complain, agencies consider them the problem instead of the polluting industry."
Secretary of the Interior Gale Norton's record on this is clear. The Club's Rocky Mountain (Colorado) Chapter watched as Norton, state attorney general from 1991 to 1999, advocated self-audits and cut the environmental budget by a third. She turned a blind eye to many polluters, leaving defense of the Clean Air Act and the Clean Water Act in the hands of local citizens and the federal EPA, according to Bill Myers, air quality activist for the chapter.
"Most of the enforcement work under Norton for eight years as attorney general was a result of Sierra Club lawsuits," Myers said.
A case in point is the suit the Sierra Club brought against the Hayden Power Plant in 1993. The citizen suit, decided in the Club's favor, brought pollution-reduction technology to the plant and $4 million in penalties, half of which went to land conservation. Prior to the Club stepping in, despite almost 20,000 violations of the Clean Air Act at the site over five years, the state hadn't done anything.
The worst part of voluntary compliance and self-audits are the secrecy provisions folded into them, according to Wall.
Citizen suits like the one against the power plant in Colorado require information. And with the help of a compliant state agency and a sweeping audit-privilege rule, companies can hide almost anything they want by declaring it a trade secret or claiming it was unearthed as the result of a self-audit. This robs the public of the information it needs to hold the company accountable, Wall said.
"What you can't do when you have secrecy is enforce the law yourself. Without disclosure and without enforcement, the laws are meaningless," she added.
With the new administration, Hopkins is worried that the federal government's ability to step in will also be curtailed as voluntary compliance becomes more accepted and the carrot grows bigger at the expense of the stick.
In order to keep their neighborhoods clean and try to stem the spread of voluntary compliance, Hopkins urged activists to do all they can to document company violations and lack of enforcement by agencies, then expose them to the media and their members of Congress. The more people who know about the failure of voluntary compliance, the better.
"We have to keep telling the public that despite nice sounding rhetoric, letting polluters police themselves doesn't work. These laws don't provide incentives. They provide loopholes," he said.
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