Crimes Against Nature

by Kennedy, Jr. Robert F.

5 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.

  6

  “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.

  7 Air pollution kills an estimated 435 people a year in the city.

  8 “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.”

  9

  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.

  10 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 (CO2), 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.

  11 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.”

  12

  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.”

  13

  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.”

  14 Bush’s third appointment was a cattleman named John Baker, former official of the Texas Farm Bureau, a sworn enemy of pesticide regulations.

  15

  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.

  16

  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.

  17 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.

  18 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.

  19 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.

  20

  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.

  21 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.

  These grandfathered polluters now create havoc for communities all over Texas. For example, some 30 miles from Dallas is the town of Midlothian, known as the “Cement Capital of America.” The largest operator is the TXI Corporation, whose emission control systems date back to 1972. The plant is powered by a generator that burns hazardous waste trucked in by other companies, a double-your-money idea that eliminates the need for natural gas to fire TXI’s kilns. The company’s own testing has revealed smokestacks belching out carcinogens at levels far in excess of EPA standards.

  22 According to a 1997 report in the Dallas Observer, “scientists don’t even have names for some of the substances coming out of TXI’s stacks.”

  23 Midlothian residents have long complained of a variety of health problems, and a 1996 report by the Texas Department of Health noted that Down’s syndrome is unusually prevalent in babies born in the area.

  24

 
Fully one-third of the state’s air pollution — 903,800 tons a year by the end of the 1990s — was issuing from these grandfathered smokestacks.

  25 These plants emit as much nitrogen oxide as 18 million cars.

  26 One company, Alcoa, Inc., North America’s largest aluminum smelter, was responsible for more than 100,000 tons of toxic emissions at one of its plants in 1997. Neighboring Milam County residents maintain that the air around Alcoa’s smelter is so acidic that it eats the galvanized coating off barbed-wire fences. Neil Carman of the Sierra Club compares the situation to getting caught driving without a license, but happily finding that speed limits don’t apply to you: “You just say, ‘Well, I’m grandfathered, officer,’ and the reply is, ‘Have a good day, just don’t kill too many people.’ ”

  27

  By the 1990s, the Clinton administration’s EPA had these Texas polluters in its crosshairs. This put Bush in a tight spot. In order to get the EPA off his back, he needed to put some kind of state regulations in place. Trouble was, many of the top polluters were his prime financial backers. Between 1993 and 1998 Alcoa, Exxon, Shell, Amoco, Enron, Dow Chemical, and others poured $1.5 million into the Bush campaign coffers.

  28

  After privately conferring with these corporate backers, Bush pushed through two landmark laws, the 1995 Texas Audit Privilege and Immunity Law, and the 1999 Voluntary Emissions Reduction Permit Program. Rather like the fox guarding the henhouse, the laws allow companies to monitor their own pollution, report their violations to the government, and promise to clean up. There would be no fines, no public disclosure, no government follow-up. Imagine a world where criminals could stay out of jail simply by confessing their crime to a state agency and promising to do better in the future. That’s the law Bush came up with to cope with some of the most polluted air on Earth.

  The outcome of these two laws does not bode well for the rest of America. In the summer of 2000, in a news item that received little national attention, the University of Texas released the results of its $20 million Texas Air Quality Study. The study revealed that Houston’s industries had been vastly underreporting the magnitude of their emissions. Scientists found it hard to believe the instrument readings from aircraft measuring industrial plumes. The various chemicals were 6 to 15 times higher than what the Houston Ship Channel’s factories had been reporting to state and federal agencies. Some chemicals were at levels 100 times higher.

  29 In 2001, the TNRCC’s draft report to the Texas legislature conceded that Governor Bush’s plan had so far resulted in zero reductions in air pollution.

  This was hardly news to most Texans. Back in October 1999, in the Houston suburb of Deer Park, high school athletes exercising outside experienced severe coughing fits and difficulty breathing in the midst of one of the worst smog episodes on record. Furious parents demanded that the state notify schools to protect students from outdoor exertion during severe air pollution episodes.

  30 According to the Texas chapter of Public Employees for Environmental Responsibility (PEER), more than 290 schools were located within a two-mile radius of a “grandfathered” polluter.

  31 So much for No Child Left Behind.

  Yet Bush no doubt considers his air pollution laws wildly successful. The CEOs of at least nine of Texas’s grandfathered polluters ponied up a minimum $100,000 pledge to become “Bush Pioneers” in support of their pal’s bid for the White House. Alcoa’s law firm, Vinson & Elkins, was also a top contributor. So was another litigator, Baker & Botts, the law firm of James Baker, who would guide Bush’s legal fight in Florida after the disputed 2000 election. The Baker & Botts client list included eight of the grandfathered polluters.

  32 “Pollution policy in Texas has become a cash-and-carry operation,” observes Erin Rogers, coordinator of Texas’s PEER office. “If you have the cash, you can carry on as you like.”

  33

  When George W. Bush became president, he brought his environment- for- sale agenda with him, along with many of his Texas cronies. At the top of the list, of course, was Vice President Dick Cheney, CEO of the world’s second-largest oil-drilling services company, Texas-based Halliburton. The Energy Department’s transition team, also headed by Cheney, included three Bush Pioneers from Texas, one of whom was Enron’s former chairman and CEO Kenneth Lay. To run the Commerce Department, Bush tapped another oilman from Midland, Don Evans. Karl Rove, then a right-wing Texas political consultant with long-term ties to the Bush family, became his chief political adviser. Tom DeLay was already on Capitol Hill. DeLay, the onetime Houston pest exterminator turned House whip, once referred to the EPA as “the Gestapo of government.”

  34 This core group would in turn bring along their own friends of industry, such as Paul O’Neill, former CEO of Alcoa, whom Bush tapped to run the U.S. Treasury Department.

  A Charge to Keep, George W. Bush’s 253-page book on his pre-presidential life and times, contains a single sentence on air and water pollution.

  35 That’s one more sentence than he devoted to the environment in his 2004 State of the Union speech. But as we’ll soon see, the environment has remained very much on his mind — with the lessons he learned in Texas serving as his guide.

  Back to the Dark Ages

  The fact is, it’s always been illegal to pollute. The protection of the shared environment has been one of government’s most fundamental roles since constitutions were devised. Ancient Rome’s Code of Justinian guaranteed to all citizens the use of the “public trust,” or commons — those shared resources that cannot be reduced to private property, including the air, flowing water, public lands, wandering animals, fisheries, wetlands, and aquifers.

  Throughout Western history the first acts of tyrants have invariably included efforts to deliver the public trust assets into private hands. When Roman law broke down in Europe during the Dark Ages, feudal kings began to privatize the commons. The legendary outlaw Robin Hood became a potent symbol of defiance against King John’s efforts to reserve England’s deer and wildlife for the privileged classes. When King John attempted to sell off the country’s fisheries and to erect navigational tolls on the Thames, the public rose up and confronted him at Runnymede in 1215, forcing him to sign the Magna Carta, which includes provisions guaranteeing the rights of free access to fisheries and waters. In thirteenth-century England it was a capital offense to burn coal in London, and violators were executed for the crime.

  1

  These public trust rights to unspoiled air, water, and wildlife passed to the people of the United States following the American Revolution. Everyone had the right to use the commons, but never so as to injure its use and enjoyment by others. Until 1870, a factory releasing even small amounts of smoke onto public or private property was operating illegally, and courts had no option but to forbid the activity. As late as 1913, the U.S. Supreme Court declared that it was “inconceivable that public trust assets could slip into private hands.”

  Beginning in the Gilded Age, however, when the corporate robber barons captured the political and judicial systems, those rights were stolen from the American people. Judges and legislators, who were either corrupted or convinced of the merits of unfettered industrial development, began to dilute the public right to be free from pollution. As the Industrial Revolution transitioned into the postwar industrial boom, Americans found themselves paying a high price for the resulting pollution. The wake-up call came in the late 1960s, when Lake Erie was declared dead, Cleveland’s Cuyahoga River caught fire, and radioactive strontium 90 was found in mothers’ breast milk across North America and in even the most remote corners of the globe.

  As a boy I was conscious of these events. I wasn’t allowed to swim in the Hudson, the Potomac, or the Charles Rivers. I remember dusting our home daily for soot from the black smoke that billowed from stacks around Washington, D.C. I was aware that thousands of Americans died each year during smog events. I never saw herons, ospreys, and bald eagles. Pesticides had mostly extinguished their mid
-Atlantic populations and were doing the same to our songbirds. But I do remember the Eastern Anatum peregrine falcons that used to nest on the old post office building on Pennsylvania Avenue in Washington. They were the most beautiful of all the peregrine subspecies — salmon pink with a white coverlet over their cere — and they could reach speeds of over 240 miles per hour. They were the fastest birds in the world. As a young falconer, I loved to watch their vertical stoops to pick pigeons from the air in front of the White House. It’s a sight my children will never see, because that bird went extinct in 1963, the same year my uncle Jack died. They were poisoned out of existence by DDT — a million years of evolution sacrificed to ignorance and greed in the blink of an eye.

  On Earth Day in 1970, the accumulation of such insults drove 20 million Americans to the streets in the largest public demonstrations in U.S. history. Motivated by that stunning display of grassroots power, Republicans and Democrats, working together, created the Environmental Protection Agency and passed 28 major laws over the next 10 years to protect our air, water, endangered species, wetlands, food safety, and public lands.