Politics tainted green: EPA uses enforcement as partisan political weapon

By David Ridenour
web posted October 1998

The Environmental Protection Agency seems to be more concerned about partisan politics these days than protecting the environment.

A case in point is its recent prosecution of Virginia-based Smithfield Foods, Inc., the major employer in a small town best known as the home of Smithfield hams.

Last year, the EPA brought a $125 million suit against Smithfield alleging that the company had dumped excessive amounts of waste into the Pagan River, a tributary that flows into the Chesapeake Bay. Smithfield eventually was ordered by a U.S. District Court judge to pay $12.6 million in fines, just 10 per cent of what the EPA had sought. An appeal is pending. Both the process by which this fine was imposed and the timing of the suit, however, suggest that the EPA's legal action had more to do with politics than environmental protection.

The EPA's complaint against Smithfield Foods centered on allegations the company had exceeded its permit limits for discharging phosphorous and nitrogen into the Pagan River. Smithfield never disputed the charge, but noted it had written permission from the Commonwealth of Virginia to exceed those limits under a quid pro quo arrangement with state officials.

Indeed, it did. Democratic Governor Douglas Wilder signed a consent order in 1991 permitting Smithfield to continue disposing of its waste above permitted limits until a sewer line could be constructed connecting the company's plants to a public waste treatment facility near Hampton, 17 miles away. In return, Smithfield forked over several million dollars to build the new sewer line. The agreement seemed like a "win-win" resolution for the state, for the company, for taxpayers and above all for the environment.

The Pagan River may not yet be 100 per cent pure, but it is measurably cleaner than it was a few years ago and getting cleaner with each passing day. The Wilder Administration entered into the consent agreement in part to end a suit by Smithfield challenging new phosphorous limits imposed in 1988 that the company contended were beyond the ability of current technology to meet. The Commonwealth of Virginia believed it had the authority to negotiate such a deal because the federal EPA signed an agreement in 1975 giving Virginia primary responsibility for enforcing the Clean Water Act within its borders. What's more, the EPA was well aware of the consent agreement when it was enacted in 1991 but raised no objection to it until 1997, which just happened to be an election year in Virginia.

Republican State Attorney General James Gilmore, the state official responsible for prosecuting environmental violators, was running against Democrat Don Beyer for governor, and the Clinton Administration wanted to pin a "scarlet letter" to Gilmore¹s lapel. Creating a public perception that Virginia was soft on environmental violators would sabotage Gilmore¹s election chances, it reasoned.

Unfortunately, such blatant politicking by the EPA is not confined to the Smithfield case. A recent report written by Dr. Bonner Cohen for the National Wilderness Institute documents a clear pattern of political abuse at the EPA. Among the report¹s findings:

• In March, 1995, EPA Acting Assistant Administrator Gary Foley asked the director of the EPA's lab in Atlanta to urge other EPA employees to call House members they knew personally and urge them to vote against a bill that would cut EPA funding. Such lobbying by government officials during business hours is a clear violation of the Anti-Lobbying Act of 1940.
• Since 1995, the EPA has handled requests for "detailees" in a partisan political manner. Detailees are EPA employees who are routinely loaned to congressional offices needing technical assistance. During that period, all four requests made by Democrats for new detailees have been approved while all three requests from Republicans have been rejected.
• Over the past several years, top EPA officials have redirected some half-million dollars in federal funds earmarked for Chesapeake Bay clean-up efforts away from a state and local government advisory council to a non-profit organization entirely under EPA's control. There's little doubt that the shift in funding is aimed at circumventing state and local government authority over Bay policy, clearly a misuse of federal funds and a jarring conflict of interest.

With all these political activities, one wonders how effective and, indeed, how just the EPA can be in carrying out its principal mission of safeguarding the environment. Apparently, the nation's top environmental enforcers now need some policing of their own. Congressional oversight committees should take the hint and get their own cops back on the beat.

Courtesy of the The National Center for Public Policy Research.