LAY OF LAND

Confidentially Yours

Texas-style laws trust polluting companies to police themselves

Let's say you're an environmental inspector for the state of Texas. During a visit to one of the several dozen petrochemical plants along the malodorous Houston Ship Channel, a worker informs you that the company recently released 50,000 pounds of cancer-causing benzene into the gritty Houston air. In some states you might immediately begin an investigation or even seek a search warrant. But in Texas, working under a corporate secrecy law George W. Bush sought and signed as governor in 1995, you might be legally bound to ignore the incident. Under Texas law, if the polluter shows that the details surrounding the benzene leak are included in a secret corporate document known as an "environmental self-audit," the company won't be penalized and doesn't have to explain what really happened-not to regulators or the courts, and certainly not to the public. And if you do something as rash as go to the news media with the information, you could be the one facing penalties.

Welcome to George W. Bush's voluntary-compliance culture, which offers a sobering blueprint for what might be coming on the federal level with the help of appointees such as EPA administrator Christine Todd Whitman and Interior Secretary Gale Norton-both of whom share Bush's faith in industry's ability to regulate itself.

The Texas "audit privilege" law is similar to corporate secrecy legislation in some 25 other states. These laws allow a regulated facility to inspect, or audit, itself for environmental violations. If the company finds a violation, reports it, and says it has cleaned things up, it can receive immunity from civil (but not criminal) penalties. Its employees cannot be forced to testify against the firm in civil actions, and almost all documents pertaining to the audit-including maps, charts, and witness statements-are sealed.

Such laws trace their lineage to a case involving the Coors Brewing Company. In late 1992, Colorado regulators docked the brewery a million dollars for its admitted release of volatile organic compounds. Coors complained that it worked with regulators yet still got bludgeoned. So the company, which two years later settled the case for $237,000, sought the help of then-Colorado attorney general Gale Norton (a former lawyer at the anti-environmental Mountain States Legal Foundation, a group originally funded by Joseph Coors) in getting the state legislature to pass the country's first audit-privilege law.

The Lone Star State's version was greatly influenced by the Texas Chemical Council, whose members have lavished campaign contributions on Bush and Texas legislators. "It's a get-out-of-jail-free card for industry," says Austin environmental attorney Rick Lowerre, who was denied self-audit records from waste-giant Browning-Ferris Industries in a Texas pollution case. The Government Accountability Project, a Washington, D.C., group that aids whistleblowers, calls the Texas law "a legislative gag order no whistleblower could survive."

Audit-privilege supporters say that Texas inspectors were spending too much time on law-abiding companies. "It makes no sense to send umpteen inspectors into the same plants year after year," says Texas Chemical Council attorney R. Kinnan Golemon, who also represents ExxonMobil, Shell, and Celanese. The law's sponsors say that if the company fails to voluntarily report a violation, it can still be subject to fines and prosecution should state inspectors find violations on their own.

But that seems unlikely in Texas. Surprise inspections are uncommon, whistleblowers are intimidated, and Texas's environmental cops are understaffed. The Washington, D.C.-based Environmental Working Group found that during 1998 and 1999 Texas ranked first in failing to regulate major violators of the Clean Water Act. And while proponents argue that audit-privilege laws will encourage companies to report more violations, the National Conference of State Legislatures found that the number of audits were about the same in states with audit-privilege laws as in those without.

Further, many question the honesty of those self-audits. The Houston Press reported last year that Phillips Petroleum has conducted 47 self-inspections under the Texas act, some covering all local, state, and federal environmental laws. At least eight were performed at its massive Pasadena, Texas, plant, which had serious problems in the past (23 workers died and 314 were injured in a 1989 explosion), but the company has yet to report a single violation. The paper also revealed that Elf Atochem North America has notified the Texas Natural Resources and Conservation Commission (TNRCC) nine different times that it would be conducting wide-ranging self-audits of its Houston chemical plant, yet it, too, couldn't find any violations. A few years before the state audit law was passed, the company paid a settlement of $900,000 for more than 50 separate alleged violations of federal hazardous-waste laws.

At least Phillips and Elf Atochem were willing to play the corporate shell game. Remember Texas's infamous "grandfathered" facilities that release more than one-third of all the reported industrial pollution in Texas? Al Gore tried to pillory Bush for allowing these aging power plants and refineries built before the 1971 Texas Clean Air Act to escape strict pollution controls. To "green" his record for the 2000 presidential race, Bush signed a law in 1999 that allowed the grandfathered plants to voluntarily sign up for regulation. As of January 2001, only 42 of 760 eligible plants had applied for a permit.

On the federal level, Republican Texas senator Kay Bailey Hutchison liked her state's approach to environmental enforcement so much she and Senate majority leader Trent Lott (R-Miss.) sponsored federal self-audit bills in 1997 and 1999. Both died on the vine, but similar legislation is certain to be born again under President Bush. Ironically, just as Bush headed to Washington, the Texas legislature seemed to be having second thoughts about its laissez-faire pollution laws. In January a key Republican lawmaker predicted that his colleagues will finally join Democrats in closing the loophole that lets grandfathered plants skirt the law, while other Texas legislators are calling for a reorganization of the industry-biased TNRCC. Texas's dirty secret may be that it's ready to clean up its act.

Wise-Use Movement, R.I.P.?

by Jennifer Hattam

Logging and mining magnates everywhere must have bowed their heads when People for the USA, one of the country's leading "wise-use" groups, bit the dust. Formed in 1988 to combat spotted-owl supporters in the Pacific Northwest, PFUSA (formerly People for the West) shut its doors in January, citing a decline in funding and membership. "The short answer is that we ran out of money," Executive Director Jeff Harris explained in a final column in the group's newsletter, "but behind that reality is the undeniable fact that we were also losing our relevance."

Once the darlings of anti-environmental politicians and big business, the wise-users have fallen out of fashion. (The term "wise use" implies a conservationist ethic, but actually unites promoters of logging, mining, motorized recreation, development, and other damaging uses of public lands.) Early wise-use conferences were supported by Chevron, DuPont, and Boise Cascade, but corporations are now more likely to fund think tanks and public-relations efforts. "At one time, the corporate groups thought they could pump money into 'grassroots' wise-use campaigns and get them to do the dirty work," says Emily Headen, director of the Clearinghouse for Environmental Advocacy and Research (CLEAR). But business interests quickly soured on the wise-use groups' overheated rhetoric (and sometimes aggressive tactics) and pulled their funding.

Still, it's too soon to rejoice. Many of PFUSA's 30,000 members have already aligned themselves with other like-minded organizations, including the BlueRibbon Coalition and Frontiers of Freedom. Moreover, the dissolution of a single group--even an influential one-may not mean much for a "movement" that has never relied on membership numbers for its strength.

"Many of the wise-use groups are centered around one charismatic figure who writes for the local newspaper, sets up a Web site, and comes to all the meetings--yet they promote themselves as citizen-led counterefforts," says Susan Levitz, a Nevada County, California, resident who has tangled with wise-users in her efforts to protect the South Yuba River. "They don't have real members who pay real money; they're not accountable to anyone."

Like his father before him, George W. Bush has provided wise-use advocates a safe harbor within his administration. Interior Secretary Gale Norton's previous employer, the Mountain States Legal Foundation, has given free legal defense to wise-use groups. Another key cabinet member, Agriculture Secretary Ann Veneman, represented the Sierra Nevada Access and Multiple Use Stewardship Coalition in her private law practice. "With Gale Norton in office, the wise-use groups are probably feeling pretty optimistic," says CLEAR's Headen.

But the Bush administration and its supporters in Congress will need more than a few vocal malcontents to roll back conservation achievements like the wild-forest initiative--a policy that prohibits logging and road-building in 58 million acres of national forest. To repeal the policy, Bush would essentially have to repeat the lengthy process the Clinton administration went through to pass it. "That was the largest rule-making process in history: three years, 600 meetings, and 1.6 million comments, 85 percent of which favored full protection of roadless areas," says Sean Cosgrove, the Sierra Club's forest-policy specialist. The public support shown throughout that process will also make Congress wary of challenging the plan. "Most members of Congress know that protection of wilderness areas is supported all across America," Cosgrove says. "They don't want to vote against that." As our elected officials have realized, environmentalists have the numbers to beat back any challenge from the wise-users. We just can't let them outshout us.

"WISE" ADVISORS
Of the 58 people appointed by President Bush to help shape the Interior Department, more than half are industry lobbyists, executives, and consultants, and 12 are active in the anti-environmental "wise-use" movement. The members of this "transition team" make policy recommendations and assist in filling positions at the agency; some may be hired for staff jobs themselves. Prominent wise-users on the team include:

Research provided by the Clearinghouse for Environmental Advocacy and Research. Click here for more information.

Some Bright Ideas Are Better Left Buried

Almost everyone agrees that recycling is a good idea. Even the Nuclear Regulatory Commission has jumped on the bandwagon. Unfortunately, what the NRC wants to recycle glows in the dark.

According to NRC documents, the federal agency is in the process of conducting a "literature search" (not a scientific study) on the pros and cons of recycling and reselling contaminated soil from decommissioned nuclear-weapons and -power plants. The surreal document, called "Human Interaction with Reused Soil" details how more than 2 million articles were culled down to 56, which were then reviewed for clues as to whether recycling radioactive soil is a bright idea. One article that made the cut is titled "Methodology to Estimate the Amount and Particle Size of Soil Ingested by Children: Implications for Exposure at Waste Sites." Nowhere in the NRC document, however, does the reader discover why the idea of recycling contaminated soil is being entertained in the first place.

"It's a semantic shell game," says Diane D'Arrigo of the Nuclear Information and Resource Service. "For economic and liability reasons, the NRC is trying to reclassify contaminated soil so they can disperse it."

Instead of being buried or in some other way permanently separated from "human interaction," the soil from these plants could conceivably end up being sold to homeowners, brick makers, and landscapers, among other unsuspecting consumers. As far-fetched as the idea sounds, the NRC has already managed to reclassify and sell contaminated metals from decommissioned plants--a move that was strongly resisted by organizations like the Steel Manufacturers Association, which uses recycled metals in the manufacturing process.

NRC public-affairs officer Mindi Landau defends her agency's recycling policy, arguing that people are already exposed to naturally occurring background radiation. "Everything has radioactivity," she says. "[The NRC] just has to establish what levels are acceptable."

But John Gofman, the physicist who isolated the first milligram of plutonium from irradiated uranium in 1942, finds the NRC's stand ludicrous. "By any reasonable standard of biomedical proof," says Gofman, "there is no safe dose [of radiation]; just one decaying radioactive atom can produce permanent mutation in a cell's genetic molecules." The United Nations Scientific Committee on the Effects of Atomic Radiation and the British Radiological Society, among others, agree with Gofman.

Landau is unmoved by such claims. "A lot of scientists also say that a small dose of radioactivity is good for you," she responds. "I'm not saying that that's true, but you'll find just as many scientists who disagree with [Gofman's] position. We're not going to react to emotions. People are afraid of radioactivity; they're afraid of anything nuclear. It's just like a built-in emotion. And we're not going to react to that."

The NRC's public-comment period has expired, but there is no statute of limitations on public opposition. To find out what you can do, visit the Nuclear Information and Resource Service or call (202) 328-0002.

Federal Loans Spawn Sprawl

Who's to blame for sprawl? Some of the culprits are easy to spot: Developers build new homes on the outskirts of suburbia; consumers demand a sport-utility vehicle in every garage to get to the Wal-Mart on every block. But the government's role in abetting sprawl isn't always so obvious. According to a recent analysis, its innocuous-seeming commercial loans are ravaging the Washington, D.C., area.

"In a three-year period, the Small Business Administration sank $400 million into D.C.-area loans, mostly for strip malls, mini-marts, and other hallmarks of sprawl," says John Talberth, conservation director for the Forest Conservation Council. The Council and Friends of the Earth sued the federal agency last October, charging that it had not considered the effects of its loans on land-use patterns, as required by the National Environmental Policy Act. (In February, the SBA began meeting with the environmental groups to discuss a settlement agreement.)

The two organizations

People in Bangladesh have developed a keen interest in Shell Oil's decades of environmental destruction and human-rights violations in Africa's Niger Delta. That's because their country is the oil giant's next target. Last year, the Bangladeshi government signed a contract with Shell to begin oil and gas exploration in the Sundarbans, home to the world's largest tiger reserve as well as its largest expanse of mangroves, which buffer the country against cyclones and tidal surges. When urged by Bangladeshi environmentalists to spare the area, Shell's manager for corporate issues suggested that the multinational had learned from its mistakes in Nigeria and that oil and gas development might in fact "offer the best hope for enhancement of such areas." According to Mohammed Ali Ashraf, forest and wildlife campaigner for Friends of the Earth Bangladesh, "Shell knew pretty well that there is no environmental law in Bangladesh [and is] taking every opportunity of the loopholes of our worthless judicial system." For more information, contact the Mangrove Action Project, Earth Island Institute, P.O. Box 1854, Port Angeles, WA 98362-0279; (360) 452-5866; or go to www.earthisland.org/map/index.htm.

PITY THE POOR BOTTLED-WATER DRINKERS: First they're reviled as yuppies, then they learn that their cool, clear quenchers aren't necessarily pure (see "The Hidden Life of Bottled Water," May/June 1999). Now communities from Texas to Maine are boycotting Perrier, charging that overpumping by the bottler (owned by Nestlé) is drying up their springs, disturbing habitat, and allowing salt water to seep into coastal water supplies. For more information, visit www.saveamericaswater.com.

BOLD STROKES

Wave of the Future Ocean breakers along Scotland's coast have just been harnessed to provide a breakthrough technology for generating electricity. The world's first commercial wave-power plant, on the island of Islay, produces electricity for 400 homes and is already being studied by other EU countries. Ironically, wave power is produced not by water but by the air currents that are trapped and then pushed around by the turbulent waters. The Scottish generating facility is 25 yards wide, and though it's not overly beautiful (it looks like a bunker), it's not hideous or polluting, either. The facility cost $1.6 million to build, but representatives from its developer, Wavegen, say they learned a lot-the next one should cost half as much.

Suck It Up Scientists at the University of Florida recently discovered that a common fern found in the southeastern United States and California has the capacity to soak up arsenic from soil without keeling over dead. Pteris vittata, or brake fern, could potentially be used to clean up the poison, which is both naturally occurring in soil and unnaturally present in farm chemicals, wood preservatives, and other products. Once the plant pulls the arsenic from the ground and into its leaves, it can be harvested and safely disposed of. Arsenic, which often leaches into groundwater, threatens many communities in the United States and worldwide. Studies show that people who drink arsenic-contaminated water over long periods run a higher risk of bladder, lung, and skin cancer.

UPDATES

GLOBAL POLLUTANTS, GLOBAL SOLUTION. After three years of negotiations, delegates from 122 nations will meet in May to sign an internationally binding treaty on persistent organic pollutants. The agreement would halt the production and use of these toxic chemicals, which travel easily around the planet and stay in the environment for decades. (Restricted use of DDT to control malaria will be allowed until a safe substitute is developed.) Before the treaty goes into effect, it must be ratified by at least 50 nations; in the United States, that requires congressional approval. (See "Thinking Big," January/February 2000.)

WETLANDS WINS AND WOES. First, the good news: In January, the Clinton administration tightened a loophole that had allowed developers to drain wetlands without a permit. The same week, however, the Supreme Court limited the federal government's power to protect isolated wetlands, those not connected to navigable waters. That's bad news for about 20 percent of the nation's 100 million swampy acres--and for the migratory birds that breed, nest, and feed in them. (See "Why Vote? To Protect Wetlands" September/October 2000.)

SNOWMOBILE BAN STALLED. Almost as soon as the National Park Service announced plans to phase out snowmobile use in parks, Senator Craig Thomas (R-Wyo.) stopped the agency in its tracks. A bill passed last December prevents the NPS from issuing or enforcing final rules on snowmobiles until July 31; a bill Thomas introduced in February would overturn the proposed ban altogether. (See "Lay of the Land," March/April 2001.)

SACRED SITE SAVED. In January, then-secretary of the Interior Bruce Babbitt denied a permit for the Glamis gold mine in the Indian Pass area of southeastern California. The rejection, the first issued to a major mining project on lands covered by the 1872 Mining Law, protects sites sacred to the Quechan Indian Nation. (See "Home Front," March/April 1998.)

Click here for updates on horseshoe crabs, timber policy, and the mountain yellow-legged frog.

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