Crimes Against Nature (2 page)

The mercury and the pollutants that cause acid rain and provoke most asthma attacks come mainly from the smokestacks of a handful of outmoded coal-burning power plants. These discharges are illegal under the Clean Air Act. But President Bush recently sheltered these plants from civil and criminal prosecution, and then excused them from complying with the act. Amazingly, his administration is instead relying on a cleanup schedule written by polluters for polluters that will leave the United States with contaminated air, poisoned water and fish, and sickened children for generations. The energy industry, by the way, gave $48 million to President Bush and his party during the 2000 campaign, and have ponied up another $58 million since. They are now reaping billions of dollars in regulatory relief. But generations of Americans will pay that campaign debt with poor health and diminished lives

Furthermore, the addiction to fossil fuels so encouraged by White House policies has squandered our Treasury, entangled us in foreign wars, diminished our international prestige, made us a target for terrorist attacks, and increased our reliance on petty Middle Eastern dictators who despise democracy and are hated by their own people.

Several of my own lawsuits have been derailed by George W. Bush and friends. As he began his presidency, I was involved in litigation against the factory-pork industry, which is one of the largest sources of air and water pollution in the United States. Industrial farms illegally dump millions of tons of untreated fecal and toxic waste onto the land and into the air and water. Factory farms have contaminated hundreds of miles of waterways, put tens of thousands of family farmers and fishermen out of work, killed billions of fish, sickened consumers, and subjected millions of farm animals to unspeakable cruelty.

On behalf of several farm and fishing groups, we sued one of the largest hog conglomerates, Smithfield Foods, and won a decision that suggested that almost all large factory farms were violating the Clean Water Act. Then the Bush administration ordered the EPA to halt its own Clean Air Act investigations and weakened the Clean Water rules, neutralizing my lawsuits and allowing the industry to continue polluting indefinitely.

For 20 years, as attorney for Hudson Riverkeeper, I’ve worked with commercial and recreational fishermen and river-front communities to force General Electric to clean up the polychlorinated biphenyls that the company has dumped into the river for decades. These PCBs have put hundreds of commercial fishermen out of work, dried up the river’s barge traffic (because the shipping channels are too toxic to dredge), contaminated waterfront towns, and infected virtually every person in the Hudson Valley. (My own PCB levels are double the national average!) In February 2002, we finally forced the EPA to sign the long-awaited order requiring the company to dredge the river and recover its PCBs. But our celebration was short-lived.

In October 2003, after President Bush failed to renew an environmental tax on oil and chemical companies, Superfund went bankrupt. With no money in the fund, the EPA has lost its leverage to force General Electric to act. The EPA’s principal leverage over recalcitrant polluters was Superfund’s treble damages provision, which allows the agency to use the fund to clean up the site and then charge the polluter three times its costs. “I do not believe that the Hudson will ever be cleaned up by General Electric, except under threat of the treble damages provision, and that no longer exists,” says Janet MacGillivray, the EPA’s former assistant regional counsel. “The company has already avoided responsibility for thirty years. Without that leverage, General Electric could conceivably litigate this case for decades.”
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Without that cleanup, the Hudson, according to the best federal science, will be polluted for my lifetime and that of my children, its fish unsafe to eat for the next century. Thanks to President Bush’s decision, one out of every four Americans lives within a few miles of a Superfund site that may never be cleaned up.

The fishermen, farmers, and other working people whom I represent are by and large traditional Republicans who live by Teddy Roosevelt’s precept: “The nation behaves well if it treats the natural resources as assets which it must turn over to the next generation increased, and not impaired, in value.”
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Without exception, these people see the current administration as the greatest threat not just to their livelihoods but to their values, their sense of community, and their idea of what it means to be American. Why, they ask, is the president allowing coal, oil, power, chemical, and automotive companies to fix the game?

A
s you fly over the Houston Ship Channel at twilight, thousands of flares seem to ignite in the approaching darkness. Smokestacks from more than a hundred massive chemical factories, oil refineries, and power plants have suddenly become steel towers of light and fire. From the air, it’s not hard to understand why some call this area the “golden triangle.” This concentration of industry, which includes a 3,000-acre ExxonMobil facility — the planet’s largest oil refinery — generates enough wealth for its owners to make the Texas economy bigger than the gross domestic product of most nations.
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It is a different scene on the ground. There the twilight flares rumble, the ground shakes, the air hisses. Plumes of black smoke belch upward and acrid odors permeate the atmosphere. The smell of money, some call it. But from this earthly vantage point — especially for low-income residents living downwind in eastern Harris County — it is less a golden triangle than a scene out of Dante’s
Inferno.

The ubiquitous highway signs warning “Don’t Mess With Texas,” haven’t deterred the state’s polluters one bit. Here are some basic facts about the Lone Star State: According to the Texas Commission on Environmental Quality, fully one-quarter of Texas’s streams and rivers are so polluted that they do not meet standards set for recreational use.
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Half of the state’s 20 million people reside in areas where the smog pollution surpasses federal limits.
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In 1999, Houston overtook Los Angeles as America’s smoggiest city. Texas also ranked first in toxic releases to the environment, first in total toxic air emissions from industrial facilities, first in toxic chemical accidents, and first in cancer-causing pollution.
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Also in 1999, 15 of the nation’s 30 highest smog readings were all taken in Texas.
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Every major urban area — Houston, Dallas, San Antonio, Austin, El Paso, and Longview — either failed to meet the EPA’s minimum air quality standards, or was on the verge of failing.
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“The level of damage to human health is extraordinary,” says Tom Smith, director of the Texas office of Public Citizen, a consumer advocacy organization. He cites a recent mayoral study estimating annual pollution-related health care costs of between $2.9 and $3.1 billion in the Houston metropolitan area alone.
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Air pollution kills an estimated 435 people a year in the city.
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“We lead the nation in childhood asthma,” says Lanell Anderson, a resident of Clear Lake, a town south of Houston that’s surrounded by chemical plants. “We lead the nation in childhood cancer…. Our cup runneth over.”
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Texas has long been one of the most polluted states in the country, but rather than remedy the situation, George W. Bush set out to destroy virtually all attempts to clean up the state’s tainted air, water, and land. During his six-year reign as governor, from 1994 to 2000, Texas dropped to number 49 in spending on the environment.
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Under his watch, Texas had the worst pollution record in the United States. It sent the most toxic chemicals and carcinogens into the air. It had the highest emissions of carbon dioxide (CO
₂
), accounting for at least 10 percent of the national total. It had the most chemical spills and Clean Water Act violations, and produced the largest volume of hazardous waste.
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As
New York Times
columnist Bob Herbert put it shortly before Bush received the Republican nomination in 2000, “Mr. Bush’s relationship to the environment is roughly that of a doctor to a patient — when the doctor’s name is Kevorkian.”
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The anti-environment agenda of today’s White House was honed and perfected during Bush’s gubernatorial years. It was in Texas that he developed the tactics and policies that guide his autocratic leadership today: closed-door meetings with industry insiders who are among his biggest campaign contributors; reliance on pseudo-scientific “studies” by right-wing think tanks; emasculation of regulations that cut into industry profits; citizens muzzled in debates that affect their communities.

Soon after becoming governor, Bush declared tort reform an “emergency issue” and appointed judges who made it all but impossible for Texans to bring class action lawsuits against polluters. In 1995 he pushed through the Private Real Property Rights Preservation Act, a radical “takings” bill that would make taxpayers pay polluters’ cost of complying with pollution laws. According to this view, corporations should be able to do what they want with their private property; if the state cuts into their profits by forcing them to adopt pollution-control measures, the state (i.e., the public) should pay. This perverse doctrine reverses a millennium of western property law that holds that owners can use their property as they please, but never in a way that diminishes their neighbors’ property or the public trust properties like air and water. Leading the charge for this radical new approach was right-wing private-property advocate Marshall Kuykendall, who complained at a public forum that the last time the federal government took our property without compensation is “when Lincoln freed the slaves.”
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In another foreshadowing of his presidency, Bush installed a pro-industry troika to run the state’s environmental agency, the Texas Natural Resources Conservation Commission. Bush selected Barry McBee, a lawyer with a host of oil-industry clients, to chair the TNRCC. At his previous position at the Texas Department of Agriculture, farm labor and environmental groups accused McBee of helping to dismantle a program that kept farmworkers out of fields that were still “hot” after pesticide applications. The second appointee was Ralph Marquez, a former Monsanto executive and lobbyist for the Texas Chemical Council. Marquez quashed a plan to issue health warnings to Houston residents on high-smog days and later testified before a congressional committee that ozone “is a relatively benign pollutant.”
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Bush’s third appointment was a cattleman named John Baker, former official of the Texas Farm Bureau, a sworn enemy of pesticide regulations.
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The new TNRCC came to be known by the moniker “Train Wreck.” Until this new regime was in place, all Texas citizens had the right to challenge pollution permits required by companies for their waste disposal. This right is one of the few recourses that regular folks have to protect their health, homes, and communities from the ravages of pollution. The new TNRCC soon eliminated this policy, as well as the long-standing practice of making surprise inspections of industrial plants. It discovered loopholes in all kinds of federal and state environmental regulations. On Halloween 1995, for example, the TNRCC announced Texas’s plan to revise the Ozone National Ambient Air Quality Standards, an EPA directive that requires states to monitor for unsafe levels of ozone. The TNRCC decided it would mathematically average ozone pollution across large areas, in hopes that, in the words of Neil Carman, a former agency staffer, it could make “exceedances disappear by massaging the high numbers.” Carman is now Clean Air Director for the Lone Star chapter of the Sierra Club.
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Slashing the TNRCC’s budget by 20 percent, Bush ensured that the commission couldn’t possibly fulfill its duty as the state’s environmental watchdog. Texas virtually ceased monitoring water quality after Bush’s election, for example, despite the fact that Texas had far more facilities discharging into waterways than any other state.
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The Environmental Working Group, a national nonprofit research organization, reported that Texas also had the worst record in the country for inspecting companies that violated the Clean Water Act.
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Indeed, so little money was spent on protecting waterways that “almost nothing is known about the quality of 25,000 out of 40,000 miles of the state’s permanent rivers and streams,” according to the
Texas Environmental Almanac
in 1995. Even when the TNRCC did know of toxic water, it often failed to disclose its findings to the public. When the commission learned of high mercury levels in the Rio Grande River near Laredo, for example, it refused to inform residents.
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In 1999, the Natural Resources Defense Council named Texas as one of six “beach bum” states for a second consecutive year — because the state had no monitoring system designed to alert swimmers to potential pollution-related health risks.
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But it is Governor Bush’s record on air pollution that is most appalling. When the Texas Clean Air Act of 1971 became law, more than 1,000 industrial facilities were “grandfathered,” or exempted from the new pollution regulations. The idea was that these grandfathered plants would eventually either modernize or become obsolete and close down. This was wishful thinking at best: In reality, companies that didn’t have to spend money on pollution control had a competitive edge over their regulated competitors.
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And with little incentive to modernize, they didn’t. While their competitors had to apply for a permit to pollute, running the gauntlet of public comment and government scrutiny, grandfathered companies just kept their outdated plants up and running.