It's Even Worse Than You Think

by David Cay Johnston

  Those figures are in 2006 dollars.

  That is a return of $35 of benefits for each dollar spent on compliance, using the middle estimate. Who wouldn’t buy an investment with those kinds of returns? The answer would be Trump and Pruitt. Viewed from the narrow perspective of a corporate financial statement, any cost reduces profits as measured by generally accepted accounting principles.

  Those financial accounting principles don’t count asthma, lung cancer, heart disease, and premature death caused by pollution. All costs, however, must be accounted for on the universal ledger. Someone pays, because all costs, as well as benefits, must be accounted for somewhere, somehow. There is no free lunch, especially not for a society that lets polluters have their way with our air and water.

  What research shows is that costs go up a little and benefits go up a lot more when polluters must clean up after themselves as best as current technology allows.

  Many EPA career officials would have been happy to explain this and much more to Pruitt and his team of politicals, but that was not how they operated. Pruitt did not come by to introduce himself to Betsy Southerland and her staff. Pruitt worked through the political appointees he brought along, whose numbers the career staff believed were larger than in previous administrations, not that anyone in the headquarters suite was sharing such information with them.

  Career employees soon realized that on the rare occasions when the political appointees working under Pruitt wanted to speak with them, the sessions had a fixed formula. The appointees always came in pairs or larger groups; they did not take notes; they asked questions only to clarify the meaning of technical terms in engineering and biosciences. They never said what was motivating the meetings and especially not what the industries regulated by EPA were discussing with Pruitt and his staff.

  Southerland was in the same room with Pruitt only twice, on July 14 and 21 of 2017. She had a half-dozen staff people with her and Pruitt had almost as many politicals.

  For weeks Southerland’s staff of environmental engineers and scientists had prepared exhaustive reports requested by Pruitt’s team detailing the damage done by toxic waste from coal-fired power plants and how EPA could address remediation.

  For more than a century, electric utilities had used a simple and low-cost technique to dispose of the ash left behind after burning coal, a toxic mix laced with arsenic, lead, mercury, selenium, and other metals and chemicals that no one wants in their drinking water. They soaked the ash until it became a liquid and let the slurry flow downhill to ponds, many of them built on or near riverbanks. Continual flows of new slurry resulted in pools of toxic liquid that, should a dike or pipe break, could flow into streams and rivers, as happened with Duke Energy.

  A Duke Energy slurry pond failed in 2014, sending thirty thousand tons of toxic sludge down the Dan River that separates North Carolina and Virginia, killing fish and other wildlife and rendering the river water unsafe to drink even after treatment. Duke had thirty-two other coal ash ponds, every one of which would cause the same problems if its dikes failed. And Duke was just one company in a vast industry of coal-burning power plants across the nation that did not clean up its toxic waste, billing electricity customers for the cost of cleaning up but instead storing the waste.

  Duke paid a fine of $6 million, but penalties never come close to covering the costs of spills, including any lives shortened of people who develop cancer or other illnesses as a result. Paying the fines is a lot cheaper than covering the costs of drying out the toxic waste, which would eliminate most of the risk of damage to human health and the environment from coal ash sludge getting into drinking water, groundwater, and surface water.

  Six years earlier, a similar toxic spill occurred at a federal government–owned Tennessee Valley Authority coal ash pond near the Emory River at Kingston, Tennessee. The six years of cleanup cost almost $1.2 billion.

  Southerland and her team set out to protect people from similar incidents, which research showed would be likely since the ponds were aging. “These ponds were a technology available in the early 1900s,” Southerland said. “We now live in the 21st century and we told the utilities you can definitely afford to treat those wastes.”

  And, after all, the way utility regulation works, the companies would just ask state utility rate boards to let them add those costs to the monthly bills sent customers, either by including them in the total cost of supplying power or adding a surcharge specifying the cost. The shareholders would pay nothing. Indeed, for utilities whose rates are set based on a financial return on the amount of money they have invested, cleaning up polluted ponds adds to profits.

  To prevent more slurry pond disasters a rule was formally put in place in the fall of 2016 directing the cleanup of these toxic wastes over eight years. But shortly after taking office Trump said he would end the rule, and in fall 2017 the EPA was in the formal process of repealing it.

  * * *

  In her farewell address to about 120 EPA clean water staff, Southerland expressed her frustration at Pruitt’s actions to undo various regulations, including the slurry pond rules, and her fear of what they will mean for public health and safety and the environment. She was especially troubled that Pruitt showed no balance, always taking the side of polluters.

  Southerland worried that the costs of cleaning up toxic messes would continue to be shifted from those who make them to everyone else, creating not just environmental pollution, but economic pollution as well. That concern grew out of Pruitt’s efforts to get rid of the rule that puts the legal duty on polluters to pay for the damage they cause.

  “Abandonment of the polluter-pays principle that underlies all environmental statutes and regulations,” she said, will mean polluters must contend not with the federal government, but also “the states, tribes and local government.” They are much more likely to fall sway to corporate influence than Washington, at least before Trump.

  “The best case for our children and grandchildren is that they will pay the polluters’ bills through increased state taxes, new user fees, and higher water and sewer bills,” Southerland warned. “The worst case is that they will have to live with increased public health and safety risks and a degraded environment.”

  She pointed out how cost cutting on the margin often leads to much greater costs later. She cited New Orleans’s concrete water barrier walls that were not sunk deeply enough into the Louisiana mud to withstand the pressure of rising water. When they tilted in 2005, the waters from Hurricane Katrina flooded the lower parts of the city.

  “Today the environmental field is suffering from the temporary triumph of myth over truth,” Southerland said. She added that there is no war on coal, no economic crisis caused by environmental regulations, and no doubt that human activities were causing climate change.

  Southerland ended her farewell on an optimistic note. She said in years to come she fully expected that Congress and the courts would “eventually restore all the environmental protections repealed by this administration because the majority of the American people recognize that this protection of public health and safety is right and it is just.”

  For that to happen, however, voters would need to elect lawmakers and presidents who share her concerns and are not, like Pruitt, determined to act solely in the interests of the energy industries and other polluters.

  Go FOIA Yourself

  The EPA, like other administrative agencies reporting to the Trump White House, has shut off informal and much formal communications with journalists who are the primary means by which most people learn information. Even scientists are alerted to new and significant developments from news reports more than from technical journals—or were, until the Trump administration began stopping the flow of information.

  Dan Ross, a racehorse jockey before he took up the much less dangerous trade of reporting on the environment and worker safety, noticed a change soon after Trump took office. Like other journalists, Ross had found the Obama era agencies cautious in
dealing with journalists. But as a Los Angeles–based writer for the website FairWarning, which tracks safety issues, Ross said he managed to arrange background interviews when needed.

  “Before Trump, the EPA people were kind of helpful and they would respond to emails and I could reach out to have a tentative relationship—because they wanted accurate information in news articles they would reach out directly and be helpful,” Ross told me. “Since Trump has come to power sometimes the press office won’t even respond when asked for comments. Sometimes they come up with a stock answer. . . . If I reach out to any officials in the agency I get sent straight back to a media spokesperson. It just feels like there are a lot of frightened rabbits in there.”

  That concern grew when Ross started asking the EPA about tons of rubbish riddled with PCBs burning in Tennessee. There are more than a hundred types of PCBs, short for chemicals known as polychlorinated biphenyls.

  PCBs were once widely used as insulators by electric utilities. PCBs cause skin eruptions called chloracne, but they can also cause liver and nervous system damage, lesions in the eyes, damage to sex organs, and when ingested by pregnant women can result in babies with reduced intelligence and health problems that may not be immediately obvious. PCBs are also carcinogens, chemicals believed to cause cancers. They have strong similarities to dioxins, a group of toxic compounds used in the Vietnam War era as jungle defoliants and commonly called Agent Orange.

  Ross had two simple questions for the EPA. Did its Region 4 have responsibility for the rubbish and its PCB-laced smoke? And what was being done? Not only did Ross learn nothing, but he said the EPA “spokesperson seemed terrified. He won’t even say if there is a case ongoing or not. That’s absolutely ludicrous.”

  Ludicrous it is, but it is also the norm for many journalists trying to get answers out of federal agency spokespeople in the Trump era. Some agencies are more cooperative than others, with EPA among those that hold the tightest grip on information. Canned emailed responses that avoid the core question, or anodyne answers that say nothing instead of giving details and policy positions, have become the new EPA standard under Administrator Scott Pruitt.

  There has been another benefit to polluters since Trump took office. New criminal investigations of polluters have dropped sharply. The Obama administration initiated on average 254 criminal cases per year in its last five years. That rate dropped to 170 new investigations in Obama’s last year because he bought into an industry plan that was supposed to persuade polluters to self-report the way airlines and pilots do. Under Trump, the rate at which new cases were opened indicates that just 80 cases will be initiated in Fiscal 2017, less than a third of Obama’s five-year average.

  Fewer new cases mean that in the years ahead, convictions will fall sharply. And that in turns means a likely increase in flagrant violation of clean air, water, and other antipollution laws because of the principle on which most federal law enforcement is based. Local police declare that they intend to catch every bandit, drug dealer, killer, and rapist they can. This is known as specific deterrence. Their aim is to catch the perpetrators and lock them up. Uncle Sam follows a different approach, known as general deterrence. The idea is that pursuing and punishing a few high-profile cases scares many people who might otherwise break the law into behaving. The theory is of no value when it comes to crimes of passion, but general deterrence can be effective in calculated crimes, especially pollution cases, where the underlying offense is based on polluting for profit.

  An essential element of general deterrence is prison time. Those corporate executives willing to flout the law will do so if the only penalty is monetary since their employers generally cough up the cash. But the prospect of ten years in prison, even at a minimum security prison with dormitory-like accommodations, introduces a different calculus.

  For general deterrence to work, though, there must be enough criminal investigators, enough cases initiated, enough indictments returned, and enough convictions resulting in lengthy prison sentences to create a culture of compliance. General deterrence is based on fear, and that requires an expectation that if you do the crime you will do the time.

  By summer 2017, EPA was down to only 147 criminal investigators, far below the 200 positions Congress required in the 1990 Pollution Prosecution Act. Buyouts were being offered to experienced agents, whose practical knowledge of the law, policy, and standards of proof required to win convictions generally makes them the most effective in developing cases for prosecutors.

  To Jeff Ruch, a former prosecutor and whistle-blower attorney who runs Public Employees for Environmental Responsibility, the concern was not so much with today as with the long run. “This evaporation of criminal enforcement is snowballing in that fewer agents generate fewer cases leading to ever-fewer convictions down the road. The spigot sustaining complex corporate anti-pollution prosecutions—which take years from genesis to fruition—is being turned off at the source.”

  While Ruch saw general deterrence failing and Ross got nowhere in his reporting, a host on Fox did somewhat better. Pruitt avoided reporters, especially those known to ask hard questions. But in April 2017 he agreed to appear on Trump-friendly Fox News. Host Chris Wallace got right down to it, noting that Trump had just signed an executive order aimed at undoing the Clean Power Plan put in place in the last year of the Obama administration. Because of the Clean Power Plan, Wallace noted, by the year 2030, Americans could expect 90,000 fewer asthma attacks a year, 300,000 fewer missed work or school days, and 3,600 fewer premature deaths each year.

  “Without the Clean Power Plan, how are you going to prevent those terrible things?” Wallace asked.

  Not expecting a hardball question on Fox, Pruitt tried to evade it. “The president’s keeping his promise to deal with that overreach,” he said. “It doesn’t mean that clean air and clear water is not going to be the focus in the future. We’re just going to do it right within the consistency of the framework that Congress has passed.”

  Wallace was not having it. “But sir, you’re giving me a regulatory answer, a political answer. You’re not giving me health answer,” he said, dragging Pruitt back to the health issue.

  Wallace kept at Pruitt throughout the live television interview. What about the 166 million Americans, half the population, who breathe unclean air? The thousands of children who develop asthma? The many who die prematurely because of pollutants such as micro dust particles from coal-burning electric power plants?

  Pruitt stuck to his rhetorical safe zone of alleged “regulatory overreach,” noting that American emissions of carbon dioxide were back at pre-1994 levels. Pruitt did not mention that the major reason for this was Obama era regulations that he had just characterized as “regulatory overreach.” Nor did Pruitt mention that as Oklahoma’s attorney general he filed lawsuits to block those regulations.

  Pruitt defended Trump’s withdrawal from the Paris climate accord, which set voluntary standards for reducing greenhouse gases, with an argument based on geopolitical boundaries, something Mother Earth pays no attention to as her breezy outer layer warms. “Paris represents a bad deal for this country,” Pruitt said. “We frontloaded our costs. China and India backloaded theirs. That caused a contraction in our economy.”

  That last point is a Trumpian alternative fact, in Trump adviser Kellyanne Conway’s memorable phrase. The U.S. economy last contracted in June 2009. At the time Pruitt spoke, the economy had been expanding for almost eight years, the stock market had more than tripled, and millions of jobs had been added, many in energy industries.

  Pruitt’s responses show how Trump and the energy industries seek to frame the debate about the environment and regulating polluters to minimize the damage from industrial processes. Pruitt talked in abstract terms. He employed fifty-cent words and ideas that policy wonks debate among themselves, not the nickel words and ideas that resonate with most people. “Regulatory overreach” and “frontloaded costs” and “contraction in our economy” cloud the issues in
abstract obfuscation.

  Framing questions as Wallace did clears the rhetorical air.

  Avoiding the word health at the Environmental Protection Agency has been a hallmark of the Trump administration. When it comes to the EPA, the administration also treads lightly with the words benefits and economics. There are sound reasons in propaganda and rhetoric to avoid these words and focus on alleged “regulatory overreach.”

  Legal scholars have noted that in trials, the advocates who define the terms and take the lead in educating the jury or the judge usually win because they focus the arguments in a way favorable to their interests. The same holds true in civic debate.

  If pollution is discussed in terms of sickening and killing people for profit, public opinion will sway in the direction of requiring companies to clean up after their operations rather than dumping toxins into the air and water. But if the discussion is framed in terms of bureaucracies handicapping enterprise, especially with claims that the jobs of honest hardworking people like coal miners are being needlessly destroyed, it becomes much easier to give aid and comfort to the polluters because people do not recognize them as an enemy of their well-being and that of their children, grandchildren, and other loved ones.

  Similarly, the Trump White House referred to the effects of carbon dioxide from burning coal, the dirtiest of all fossil fuels, as “social costs.”

  Framing environmental issues in terms of people’s health changes the debate. Make the debate about children sickened for life by water in the schoolyard fountain, adults gasping for air, and people dying sooner than they otherwise would, and regulation becomes an issue of the quality of life and of premature death. Framing regulation of energy companies in terms of corporations taking responsibility for cleaning up the messes they make resonates with most people. Then throwing in the economics, especially when environmental regulations show huge benefits that far outweigh the costs, adds sensible logic.