The Climate in Emergency

A weekly blog on science, news, and ideas related to climate change


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The Environmental Protection Agency

This week I set out to write an article about what the EPA (Environmental Protection Agency) does. As often happens, I had discovered that I knew much less than I thought I should about an important topic, and set out to fix the problem and share the results with you.

Once I started looking online, though, I very quickly found out that there are LOTS of articles on what the EPA does, not least being the one on the EPA’s own website. Would mine be superfluous? Not necessarily. The EPA site did not answer a lot of my questions, being quite general in tone. The Wikipedia article has a lot more detail, but Wikipedia is not a reputable source in a scholarly sense. The summary on Scientific American redirects to  website called quickanddirtytips.com, and while it seems to be well-written, the name is hardly reassuring. I wasn’t really sure where to go to get information without simply repeating EPA’s own content.

So I did as I often do, when I hit an impasse; I called my mother.

My mother, Kass Sheedy, happens to be a former contractor with extensive experience working with the EPA. She headed the clean-up of a lot of Federal Superfund sites, including several Cold War era Air Force bases. She spoke to EPA personnel often for many years.

So, here is what she said. I’ve written this article so as to largely avoid repeating information easily found on the EPA’s site. I recommend reading that, also.

What the EPA Does

Congress passes environmental laws, such as the Clean Water Act. These laws are typically short and simple, essentially stating objectives, such as “the air shall be clean.” You can look up the actual text of the Clean Water Act and other legislation online fairly easily. The EPA then implements those laws.

Implementation begins with writing regulations and guidance. Regulations define, for example what “clean” means with respect to water, listing maximum allowable levels of various contaminants, and list necessary permits for various regulated activities relating to the law. Guidance documents specify how to apply to those permits, what documents need to be sent in, what kind of monitoring needs to be done. These regulations and guidance documents are subject to a lengthy review process, including public comment periods.

These documents are written at EPA Headquarters, but enforcement is handled by nine regional offices.

If you are cleaning up a Superfund site, or if you are a polluter in need of regulation, it is your responsibility to contact the EPA’s regional office. A project officer will then act as your liaison, answering questions, touring your site, and so forth. If you fail to contact the EPA–if, for example, your pipeline leaks and you fail to report it and initiate a clean up, or if you fail to apply for a necessary permit in the first place, the EPA can come looking for you. It has enforcement officers who are full-fledged police, able to enforce any Federal law, environmental or otherwise. EPA personnel can inspect sites, ask to see necessary documentation, conduct investigations, and patrol for evidence of possible violations. Since some environmental lapses count as felonies, other law enforcement agencies could also get involved in the case.

In practice, because the EPA is chronically under-funded, it relies on tips from the public, especially from citizen watchdog groups, to identify most violations. The EPA also has national enforcement initiatives, which bring added resources to bear on a particular type of problem for  period of three years.

If someone is found to be in violation, the regional office will issue a consent decree, which is a document stating the nature of the problem, any necessary corrective action, and a timeline for that action. Failure to meet that timeline could result in fines or jail time, depending on the nature of the problem.

What the EPA Doesn’t Do

In theory, the EPA is responsible for implementing and enforcing US Federal environmental law, as well as for conducting related scientific research and helping to educate the public about environmental matters. In practice, there are many activities that fall under the above categories where the EPA isn’t in charge.

First, the EPA often acts in partnership with state, local, or non-government groups of various kinds, and it offers grants for various kinds of scientific research and pro-environment work. All of this is explained clearly on their website, and seems fairly straight-forward. Simple case of getting more bang for the limited buck through cooperation.

Where it gets complicated is that there are various other agencies and entities with environmental responsibility, and who does what turns out to be hard to predict or explain.

Begin with the fact that Indian* lands are not under the EPA’s jurisdiction at all, but instead have their own environmental regulations and their own enforcement authorities. These may invite the EPA in to help, if they want additional expertise. Or, a problem may come under joint jurisdiction–an oil spill half on and half off a reservation, for example–and require one of several types of cooperative agreement.

Second, states are free to pass their own environmental legislation, enacted by their own state-level agencies, and there are several different ways the two bodies of regulations can interact.

States may not maintain less-stringent environmental regulations that the Federal government does. Or, rather, they can, but it won’t make any difference because entities doing business in the state must still follow the Federal regulations. The state may not prevent the EPA from maintaining its standard.

States are, however, quite free to maintain an equal or higher standard. California often does, for example. When such disparities occur, the state law doesn’t automatically eclipse the Federal; the EPA could continue enforcing its own regulations alongside the state, meaning that everyone would have to apply for two sets of permits and fill out two sets of documentation. More often, the EPA will either delegate authority to the state–although there are some authorities the EPA is not allowed to delegate–or the Federal and state authorities will sign some form of cooperative agreement, sharing responsibility.

Local authorities can also have environmental regulations, to some extent, again requiring cooperative agreements or delegation.

It is important to recognize that the EPA never gives up authority on environmental issues, only delegates it or shares it, and always retains the right to take it back when necessary–unless it didn’t have the authority to begin with.

The EPA is not the only Federal entity in charge of aspects of environmental protection. Its website lists the Department of Energy, which is in charge of radioactive waste, as an example of one of the others. There are others. In some cases, these assignments may also be the result of delegation. Generally, responsibility rests where it does because that is where the enabling legislation put it. “Enabling legislation” being the initial law, passed by Congress, which the regulations and guidance enacts. There appears to be no simple way to guess which Federal entity is going to be responsible for what without looking up the relevant law.

Or just ask the EPA. They do answer public questions. Contact them through their website.

Why the EPA Is not a Problem

In practice, environmental regulations can be complicated. It doesn’t help that in this realm of human endeavor, enabling legislation, required permits, review processes, legal agreements, and organizations all tend to be referred to by acronym. My mother, when she is talking shop, sometimes comes up with sentences in which every noun is an acronym. I have some sympathy with the phrase “regulatory burden,” and I can well imagine that self-regulation would be simpler and easier.

But by and large, self-regulation doesn’t happen. Assertions to the contrary should be seen for the con-jobs they are.

There are exceptions. I have a friend who found himself in the bizarre position of having to fight the Endangered Species Act as a conservation scientist. The way the law was being enacted actually encouraged ranchers to kill endangered animals that they otherwise would have happily coexisted with. But the anecdote differs from self-regulation scenarios in one important way; the Endangered Species Act was not a response to the activity of those ranchers, whereas we have pollution controls because people polluted.

Seem in terms of narrow self-interest, fossil fuel companies want to pollute. So do several other kinds of companies. Pollution is an intrinsic part of the activity that earns them money, and anything that reduces pollution also reduces profit. There are ways to soften the blow, but the conflict is real; the good of the many is at odds with the needs of the few in these cases. The “burden” of regulation is not incidental to environmental protection, it is fundamental to it, which is why environmental legislation exists in the first place–to protect the public against those who have an interest in harming us, and to do it in a fair and measured way.

If these people were going to regulate themselves, they would have done it a long time ago, and we would not be in this mess that we are now. When industry groups and their allies ask for relief from regulation, be very clear; what they want is the freedom to damage your world so they can make a buck.

Don’t let anyone tell you different.

 

 

 

  • “Indian” meaning Native American, a much more straight-forward term, but not only does the Federal government often seem to prefer “Indian,” but so do many of the Indians themselves, hence, the American Indian Museum in Washington.