Environmental Protection in the United States: A Right, a Privilege, or Politics?

Human Rights Dialogue 2.11 (Spring 2004): Environmental Rights

April 20, 2004

The concept of environmental justice in the United States has historically related to the need to redress the disproportionate effects of pollution on low-income and minority communities. However, today the problems associated with mounting pollution—in our air, water, and land—go far beyond these communities, affecting virtually every part of the country.

Since the first Earth Day in 1970, a growing political and cultural consensus in the United States has supported environmental protection even in the absence of a formally recognized constitutional right to a clean environment. According to a 2003 national poll, 75 percent support greater enforcement of our environmental laws, and over 75 percent support stronger emissions standards for business and industry. Pollsters report that the public expects their leaders to share this basic value—and that environmental policies should not put the public’s health at risk.

Nonetheless, the Bush administration and its congressional allies have led a systematic effort to undermine the country’s keystone environmental and public health protections, as well as the protection of national parks and public lands. Clearly, the interests of industry take a far higher priority within national leadership than do the rights of the American people to a healthy environment—which raises the question of whether we can afford to subject the protection of our communities and our planet to the whims of politics. While these anti-environmental efforts are unprecedented in their scope, I will focus on just three issues: the administration’s assault on the Clean Air Act, its relaxed enforcement of environmental laws, and its de-funding and slowdown of toxic waste cleanups.

Assault on the Clean Air Act

As many as 60,000 Americans die prematurely each year as a result of exposure to fine particulate pollution. More than 130 million Americans—almost half the population—are exposed to unhealthy levels of air pollution. Power plant emissions in particular are linked to a host of pediatric health problems, from asthma attacks and slowed neurological growth to stunted lung development and neonatal death.

In the face of these realities, the administration has nonetheless partnered with industry lobbyists to begin a vast rollback of Clean Air Act protections. In early 2002, the administration proposed the passage of its “Clear Skies Initiative,” which would amend the Clean Air Act requirements. Although President Bush claims this initiative will reduce air pollution, according to the government’s own numbers it would actually result in an increase in emissions of harmful air toxins: nitrogen oxide, sulfur dioxide, and mercury. Additionally, it fails to take steps to regulate and limit carbon dioxide pollution, the prime cause of global warming.

The Clean Air Act requires power plants to make deep reductions in their output of soot-forming sulfur dioxide (SO2) and smog-forming nitrogen oxide (NOx) within this decade in order to meet public health standards. The “Clear Skies Initiative” allows more than one-and-a-half times as much NOx and more than twice as much SO2 for nearly a decade longer (2010-18) than the current law allows. As dangerous as these pollutants are, perhaps the greatest threat to the right to health is the direct and growing risk of exposure to mercury, a neurological poison that can cause birth defects. Twelve percent of American women of childbearing age have mercury levels in excess of what is considered safe by the Environmental Protection Agency (EPA). Prenatal exposure to methyl mercury can cause adverse developmental and cognitive effects in children even at low doses that do not harm the mother. Indeed, the EPA announced in early 2004 that more than one child in six could be at risk of developmental disabilities, twice the previous estimate.

Incredibly, the administration’s initiative would allow power plants, the main source of mercury emissions in the air, to emit more than five times as much mercury pollution for a decade longer (2008-18) than currently allowed— ignoring a 1998 court order that requires the EPA to establish by December 15, 2003, how it will cut mercury pollution by greater levels than required by the Clean Air Act. In December 2003, while the administration was working to allow more leeway for mercury pollution, the Food and Drug Administration reiterated its 2001 warning to women of childbearing age to avoid consuming certain fish such as shark, swordfish, king mackerel, and tilefish due to mercury contamination. At that time, 44 states had advisories in effect for mercury in non-commercial fish and 17 states had statewide advisories in effect. Nine states had statewide advisories for mercury in their coastal waters.

Superfund: No Funds?

One in every four Americans lives within four miles of a toxic waste site—an area contaminated by chemicals that can cause cancer, reproductive diseases, and other serious health problems for nearby communities. To protect public health and the environment, Congress passed the Superfund law in 1980. The law requires polluters to pay for their contamination of land, and establishes a trust fund to clean up properties where the polluting company cannot pay or be identified. Taxes on corporations that have historically generated the most toxic waste—such as oil and chemical companies—endowed the fund. The legal authorization for the fund expired under the Clinton administration, which pursued its reauthorization from Congress to ensure full funding. The Bush administration, however, has not pursued its reauthorization, instead choosing to shift the cost of toxic waste cleanup to the taxpaying public. As a result, the fund is running out, and the rate of site cleanups has been cut in half since the Bush administration came into office.

Furthermore, the administration has proposed to exempt military bases and the defense industry from much of their liability for toxic waste cleanup on the grounds that such exemptions are needed for proper training and military readiness. Toxic byproducts of military uses can have potentially devastating health effects. For example, perchlorate, an ingredient in rocket and missile fuel found at many defense related sites, has contaminated drinking water in at least 20 states. In addition, studies from 2003 suggest that much of the nation’s lettuce supply might be contaminated through contact with perchlorate in irrigation water. Perchlorate is a powerful thyroid toxin that interferes with normal thyroid function and may cause cancer.

Nonenforcement of Environmental Laws

The Environmental Protection Agency plays a vital inspection and enforcement role for the country’s basic public health and environmental protections. EPA enforcement agents pursue some of the nation’s worst polluters, those who defy environmental controls and recklessly harm the air, water, and land. Yet the Bush administration has taken the environmental cop off the beat by diverting funds, mismanaging limited resources, and sending a signal to polluters that enforcement is not a priority. In his first budget, Bush proposed to cut $25 million from the agency’s operating budget and 270 EPA enforcement jobs. Although Congress blocked those budget cuts, the administration was still able to reduce enforcement staff by 210 positions, or nearly by half. Consequently, enforcement activities have declined: EPA personnel conducted 13 percent fewer inspections in fiscal year 2002 than in 2000.

The funding shortage at EPA is so severe that an EPA manager ordered agents to surrender either their cell phones or satellite text pagers, despite acknowledging in the order that field investigators “need both to do their job effectively and, most importantly, safely.” One supervisor commented to a journalist, “I am struggling with dwindling resources in an attempt to keep...the investigation of environmental crimes alive within my area of responsibility.”

What Can Be Done?

Even before the current administration’s anti-environmental policies, politics and public pressure failed to protect the health and environment of the country’s low income and minority communities, who are often located in close proximity to polluting facilities, and who are disproportionately harmed by pollution. Local officials frequently claim that the pollution is worth the job creation; and those who are harmed have little power and few resources to challenge these decisions. Indeed, often they are willing to make what they understand to be a necessary trade-off of health risks for jobs.

The Bush administration’s approach to environmental justice issues is only deepening the disproportionate impact on these communities. Indeed, the EPA’s Inspector General reported that the Bush administration has reinterpreted an Executive Order calling for special attention to the affects on minority communities to instead apply to everyone. The Inspector General’s office chastised the Bush administration, saying that the EPA mandate already aims to protect everyone, but that the Executive Order (issued in 1994 by President Clinton) was intended to bring necessary focus on these most hard hit communities. Thus, the administration delivers a double blow to environmental justice: creating a greater health risk for all Americans by undermining the Clean Air Act, and stripping away protections for our most vulnerable communities.

Those who advocate a constitutional right to a healthy environment seek to use the country’s highest law to place environmental protection above political pressure, to ensure that the rights to health and a healthy environment are formally incorporated into the concept of due process—in short, to live up to the Declaration of Independence’s unalienable rights, including life, liberty and the pursuit of happiness. Such an effort—whether through the courts or an explicit amendment—could galvanize a movement in support of the protection of the environment. It is a noble fight, but one that faces significant hurdles in the current political climate.

In the meantime, we rely on politics, public pressure, and engagement to protect our environment. To that end, my organization, Environment2004, aims to reach out to voters to inform them of the ongoing attacks on our environment, while also making the link between environmental protection and such broader issues as quality of life, children’s health, and job opportunities.