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Toxic Loopholes
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  • 2 b/w illus.
  • Page extent: 288 pages
  • Size: 228 x 152 mm
  • Weight: 0.54 kg

Library of Congress

  • Dewey number: 344.73/046
  • Dewey version: 22
  • LC Classification: KF3775 .C65 2010
  • LC Subject headings:
    • Environmental law--United States

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 (ISBN-13: 9780521760850)

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Toxic Loopholes
Cambridge University Press
9780521760850 - Toxic Loopholes - Failures and Future Prospects for Environmental Law - By Craig Collins, Ph.D.
Excerpt

Introduction    Crime Without Punishment

Common criminals – such as burglars, drug dealers, kidnappers and bank robbers – frequently find themselves behind bars for their crimes. But one group of lawbreakers – corporate polluters – rarely see the inside of a prison cell, although their crimes pose a greater threat to American lives, health and property than all the rest. Why? Because unlike ordinary criminals, mega-polluters have the wealth and political clout to elect the following:

  • Presidents who appoint polluter-friendly administrators to head up the country’s pollution control agencies;

  • District attorneys who rarely prosecute them for their crimes;

  • Sympathetic judges who give them little more than “a slap on the wrist”; and

  • Lawmakers who will craft loopholes to make most of their offenses legal.

These powerful polluters routinely disgorge deadly toxins into our air, water and land. Every year their poisons kill more Americans than all murderers combined.1 Yet these corporate criminals are seldom prosecuted, rarely fined and almost never jailed.

For example:

  • Air pollution claims at least 70,000 American lives annually – as many as breast and prostate cancer combined – 30,000 more than all traffic fatalities and 54,000 more than all homicides.2

  • Based on EPA data, every year between 5,500 and 9,000 Americans have their lives shortened by air pollution from power plants that the Department of Justice has taken to court for violating the Clean Air


    Act. These plants trigger between 107,000 and 170,000 asthma attacks annually.3

  • Yet, according to the EPA’s own records, dozens of the country’s biggest corporate air polluters – including Ford, General Motors, Shell and Exxon – habitually violate the Clean Air Act by spewing tons of toxins into the air without paying a single penny in fines.4

After teaching environmental law for nearly two decades, I have come to realize that there are some serious omissions in the available textbooks on this subject. Generally, environmental law texts do a fine job of presenting the major federal environmental statutes. Some do a decent job of describing the nature and seriousness of the environmental problems these laws are meant to address. However, even the best texts rarely focus on the actual enforcement and effectiveness of our environmental laws, and none have carefully addressed the questions:
  • How well are our major environmental laws working?

  • What prevents them from achieving their stated goals?

These two questions cannot be answered without exposing the reader to the seamy backstage drama of influence peddling, double-dealing, institutional corruption and public deception that undermines our environmental laws and endangers the health of the people and the planet they are supposed to protect. Yet even the best texts either ignore this pernicious political drama or minimize its insidious impact by sanitizing it under the innocuous label of “policy-making.”

To improve our country’s environmental law enforcement system, these two questions must be answered. In addition, these questions raise an even more vexing question regarding the possible futility of fundamentally “improving” this system. Can any government, even one as wealthy and powerful as the United States, hope to bring our fossil fuel-powered, growth- and profit-driven, increasingly globalized economy into a sustainable, healthy relationship with the people, creatures and ecosystems of our planet?

As we examine each of the major environmental statutes in the following chapters, the astute reader will notice an emerging pattern. All of these laws are under constant assault – directly and indirectly, openly and covertly – by the most powerful polluters they attempt to regulate. This ambush begins “in the womb,” when these embryonic laws are still bills passing through Congress. Here, before they were born, even our most promising environmental bills were deformed and crippled by toxic loopholes created by politicians seeking to please the powerful polluting industries that lavish them with favors and fund their campaigns.


Once born, these weakened laws are rendered into even weaker rules and regulations by a government agency whose mission of environmental protection is seriously compromised by its illicit relationship with the very polluting industries that lobbied against these laws in Congress. Industry lawyers intensively lobby the EPA to further dilute and delay the rule-making process. Often, they receive a sympathetic hearing from EPA officials who hope to one day become high-paid executives for the very polluting firms they now regulate. This “revolving door” has become so incestuous that some environmental groups have had to specialize in suing the EPA to secure court-imposed deadlines that will force the agency to promulgate and enforce its own regulations. Yet, despite this legal pressure to uphold the law, the EPA’s history of enforcement remains shamefully defective.

Success in the courts requires a judicial system not predisposed to favor corporate property rights over environmental protection. Unfortunately, because property law has a long and prominent place in American jurisprudence and environmental laws are relatively new, it has been a steep uphill battle to persuade judges to take environmental laws seriously. To make matters worse, because most states elect their judges, candidates for the bench often find themselves taking large campaign contributions from the same polluting firms they face in court. In fact, many of the worst polluters have made it part of their overall strategy to gain as much influence over the courts as possible to avoid taking responsibility for their crimes. In the words of one pro-business lobbyist:

The business community woke up in the late 1980s and realized that there are three legs to the government stool – the executive branch, the judicial branch and the legislative branch. We were playing quite well for over a decade in two of those three and decided that the judicial branch are the arbitrators of the final interpretation of all rules and regulations that are passed by the legislature. Consequently, from ‘89 to the present, [we] got involved in statewide appellate court races, most of those being supreme court races . . . the whole idea . . . is it’s easier to lobby your friends than your enemies.5

The arduous process of environmental lawmaking, enforcement and adjudication could be dramatically improved by a presidential administration seriously committed to cracking down on criminal polluters and protecting our natural resources. A president of this caliber could champion a green legislative agenda, steadfastly oppose efforts to insert toxic loopholes, increase the budget of the EPA, eliminate its “revolving door” with industry and appoint agency chiefs and federal judges committed to strictly enforcing our environmental laws. But this has never been the case. Those presidents who have advocated mildly pro-environmental policies have found themselves pilloried by the corporate media, industry and their political rivals as big government liberals whose anti-business policies will ruin the economy. Thus, no
administration – no matter how green its rhetoric – has ever made environmental protection a top priority.

Given the relatively low level of public knowledge, concern and activism around the environment, it would be political suicide for any president to directly confront the nation’s major polluters. Only large numbers of active, concerned citizens can combat the power of money to pollute democracy. Without this broad base of organized popular support, the ultimate fate of any dedicated green politician is media invisibility coupled with ridicule and character assassination by his or her well-heeled adversaries.

This brings us back to the two questions consistently ignored by environmental policy and law texts. To transform public ignorance and apathy into the kind of citizen movement necessary to make politicians crack down on this mounting toxic crime wave, these two questions must be confronted:

  • How well are our major environmental laws working?

  • What prevents them from achieving their stated goals?

It is not the intent of this book to examine the effectiveness of every environmental statute on the books. Instead, attention will be focused on the central flaws in our nation’s most renowned air, water, toxic control and hazardous waste cleanup statutes and the EPA’s nominal record of enforcement. Because the EPA is not the only government agency charged with environmental protection, one chapter will examine the Department of Interior’s effort to implement the Endangered Species Act. In doing so, it will become obvious that the nation’s failure to protect the environment cannot be attributed to the EPA alone. Global environmental protection will be examined in Chapter 7. By comparing the international community’s successful ratification of an ozone treaty with the faltering effort to craft an effective climate agreement, this chapter highlights the three major obstacles to negotiating environmental treaties and assesses the veracity of four rival theories of global cooperation.

Finally, the conclusion assesses the prospects for using laws and international treaties to achieve environmental protection and ecological sustainability within the confines of a factious domestic and global political economy dedicated to maximize economic growth and national power.

1 In a typical year, more than 10,000 murders are committed in the United States. In 2001, 15,980 Americans were murdered. Air pollution alone claims about 70,000 American lives annually. International Encyclopedia of Justice Studies: Chapter 4Survey of Criminal Justice. http://www.iejs.com/Survey_of_CJ/CH04.htm. Fischlowitz-Roberts, Bernie. Air Pollution Fatalities Now Exceed Traffic Fatalities by 3 to 1, Earth Policy Institute (September 17, 2002). http://www.earth-policy.org/Updates/Update17.htm.

2 Fischlowitz-Roberts, Bernie (September 17, 2002).

3 Clean Air Task Force. The Power to Kill: Death & Disease from Power Plants Charged with Violating the Clean Air Act (July 2001). http://cta.policy.net/proactive/newsroom/release.vtml?id=20720.

4 Coequyt, John, Richard Wiles, & Christopher Campbell. Above the Law: How the Government Lets Major Air Polluters off the Hook. (Environmental Working Group: May 1999).

5 Frontline. “Justice for Sale.” (PBS: November 23, 1999). Read Bill Moyers’ interview with Bill Cook, President of Pennsylvanians for Effective Government, a business lobby that raises money for judicial candidates. http://www.pbs.org/wgbh/pages/frontline/shows/justice/etc/script.html, http://www.pbs.org/wgbh/pages/frontline/shows/justice/interviews/cook.html.




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