Crimes Against Nature Read online

  After the president’s letter, the press wrote Whitman’s political obituary, proclaiming her irrelevant. Some articles called for her resignation. The NRDC’s political expert Greg Wetstone commented that Whitman “suffered the most immediate and visible loss of clout ever for a cabinet officer.”

  28 Even her fellow cabinet members openly joked about her diminished stature. “That’s what Colin Powell had been calling me at cabinet meetings, the wind dummy,” Whitman explained to a journalist. “It’s a military term for when you are over the landing zone and you don’t know what the winds are. You push the dummy out the door and see what happens to it.”

  29

  Whitman was demoralized but she wasn’t about to step down. The Kyoto incident taught her a tough lesson: Industry was calling the shots, and if she didn’t want to look like a feeble scold at a frat house orgy, she needed to toe the industry line. Within a week of the CO2 fiasco, she found an opportunity to genuflect to industry and its Wise Use allies.

  On March 20, 2001, Whitman quietly announced that the EPA would suspend a Clinton-era rule reducing the allowable amount of arsenic in public water supplies. Bush officials complained that the arsenic rule was a draconian standard that was hastily devised at the last minute by Clinton’s people. While it’s true that the arsenic rule wasn’t finalized until the early days of January 2001, the rule was the result of years of wrangling between scientists, health experts, industry, and the public.

  Several studies, including six by the National Academy of Sciences (NAS), indicate that arsenic is a potent carcinogen. Bush’s problem, of course, is that much of the arsenic in our drinking water is the result of mining activities. And in 2000 the mining industry had shoveled $5.6 million into Republican Party campaign chests, with Bush receiving the lion’s share of it.

  30 He had also narrowly lost New Mexico, a big mining state, and the White House wanted to curry favor with the powerful mining interests there.

  Whitman, aware that arsenic isn’t exactly a crowd pleaser, faxed her press release to the New Mexico media and almost no one else. “They were hoping to avoid publicity,” says Erik Olson, a lead attorney for the NRDC’s public health program. The ploy backfired. Olson learned of the decision and immediately called the New York Times. “It’s a huge deal,” Olson told the Times. “This decision will force millions of Americans to continue to drink arsenic-laced water. A lot of people are going to die from arsenic-related cancers and other diseases if they weaken or delay this thing.” The story made the front page of the national edition and kicked off a flurry of press and public outrage.

  31

  Everyone from Leno and Letterman to a legion of cartoonists had fodder for the joke of the week. A cartoon by Mike Luckovich in the Atlanta Journal-Constitution had Bush telling Cheney, “I want arsenic in the water classified as a vegetable.” Doonesbury had an empty cowboy hat explaining why the White House suspended the arsenic rules. “Fuzzy science, that’s why. We need good strong science, good science is where our wings take dreams.” Another panel had the Stetson explaining, “So, until we’ve really studied the polluted drinking water, I favor a voluntary approach.” Question: “To cleaning it up?” Stetson: “No, to drinking it.”

  Meanwhile, 57,000 citizens and public interest organizations flooded the EPA and the White House with comments opposing the rollback of the arsenic rule.

  32

  Fearing voter backlash in 2002, congressional Republicans were trampling one another to distance themselves from the president. The Republican-led House voted 218 to 189 in late July to block Bush and Whitman’s initiative.

  33 “They were getting calls in their own districts, and nobody really wanted to drink arsenic,” said Olson.

  34

  Then came the biggest blow of all: Citing, among other things, Bush’s environmental policies, Senator James Jeffords of Vermont defected from the Republican Party, tipping the balance of power in the Senate to the Democrats. In his subsequent book The Right Man: The Surprise Presidency of George W. Bush, the president’s speechwriter David Frum called the arsenic decision “the worst blooper of the first year.”

  35 Bush later publicly acknowledged that the rollback was a political mistake. Whitman called it “a dumb decision — politically, really dumb.”

  36

  But Whitman justified the arsenic rollback, saying she wanted to verify the science behind Clinton’s standard. She promised she would follow the science and quickly announced that she would convene two economic reviews of the standard, and yet another scientific study by the NAS (the seventh!).

  37 The economic studies verified that Clinton’s rule was fiscally sound. The NAS study was released on the evening of September 10. It was apparently not at all what Whitman had hoped: The NAS found that the EPA had underestimated the cancer risks of arsenic by about tenfold.

  38 Whitman, who had pledged that her EPA would follow the science, was now faced with the prospect of dropping the standards even lower than the Clinton administration had suggested.

  The next morning, the NAS study was a top story in the Washington Post.

  39 The New York Times ran a 1,000-word article.

  40 Olson was on his way to a D.C. press conference, happily considering the irony that the NRDC might get a lower arsenic standard from Bush than from Clinton.

  Just before he arrived, American Airlines Flight 77 crashed into the Pentagon. The press conference was canceled, Washington shut down that day, and a new era in American history began. On Halloween 2001, Whitman quietly closed the comment period on arsenic before it was completed and announced that the EPA would not change the Clinton standard after all.

  41 “The issue had become an albatross for Bush and 9/11 gave them a way to get out,” Olson recalls. “I don’t think anyone ever read the new NAS study. Everybody just forgot about it.”

  42

  The EPA gave industry five years to implement the ruling. The new standard will not take effect until 2006.

  43

  Along with Bush’s refusal to regulate CO2, arsenic was a misstep that telegraphed where the administration was headed on the environment. Bush and his posse “came in with guns blazing, saying they wanted to repeal regulations, but they learned some hard political lessons quickly,” says Reese Rushing, a policy analyst for OMB Watch.

  44 They realized that the public cares deeply about environmental issues and that any open attempt to dismantle those protections would cause a backlash, particularly among women, a key voter group.

  They wouldn’t make the same mistake again. The anti-environmental agenda would not change, but the tactics would. The Bush White House had learned the value of stealth.

  Cost-Benefit Paralysis

  One of the most moving moments in my 20 years of environmental advocacy occurred at a December 2000 press conference in Raleigh, North Carolina. I had come to announce a Waterkeeper Alliance lawsuit against Smithfield Foods, whose industrial factory farms are polluting the waterways of North Carolina. I was standing at a podium in a large conference room overflowing with local press, when people I hadn’t expected to see started filing in. They were black, white, men, women — tough and weather-beaten farmers, many in overalls, who had driven from all over the state to thank my Waterkeeper colleagues and me for standing up to an industry that had bullied them for years. Many came from families who had occupied the same piece of land for generations. Among them was 75-year-old Julian Savage from Bladen County, whose family had been in the area practically since the American Revolution. As I started to speak about the rural communities and once pristine waterways of eastern North Carolina, and how they have been ruined by industrial pollution, I was astonished to see tears flowing down so many wrinkled faces.

  One of the greatest sources of frustration to America’s family farmers is public indifference to the cataclysmic struggle between traditional farmers and the industrial meat moguls. The farmers I faced that night had seen firsthand how meat barons bully vuln
erable communities, trample their rights, and threaten their economic security. They understood better than anyone else that the consolidation of American food production by a tiny cabal of multinationals with no demonstrated loyalty to our nation or its laws threatens our food, our health, our culture — indeed, our very democracy.

  The only hope these farmers had left was the American justice system. Over the years we have helped organize a national coalition of family farmers, fishermen, environmental and animal rights groups, religious and civic organizations, American Indians, and food safety advocates who are now fighting the hog industry in 34 states. I’m a specialist in this kind of litigation, which is why I ended up in Raleigh that day.

  A year later, we finally had cause to celebrate. A Reagan-appointed federal judge ruled that the big factory farms were violating the Resource Conservation and Recovery Act (RCRA) and illegally operating without Clean Water Act permits. The legal decision sent a shock wave through the industry. But a few months after the ruling, the Bush administration intervened by issuing new regulations — written in concert with the industrial meat multinationals — that significantly weakened our lawsuit and ensured that hog factories would continue polluting rural communities across the United States indefinitely.

  The demise of our case is a classic example of the White House’s stealth strategy to dismantle America’s environmental laws. Had the new rules run the gauntlet of public scrutiny, there would have been a howl of protest. Keeping the anti-environment maneuvers quiet was essential. And there was no better person to mastermind this strategy than John Graham, the director of the Office of Information and Regulatory Affairs (OIRA), an obscure agency inside the Office of Management and Budget.

  Practically unknown outside the Beltway, OIRA’s power is unmatched among federal agencies. Its official charter is to review every economically significant regulation proposed by the federal government and report the fiscal impacts to the White House. Federal departments and agencies develop these new regulations through an open process, guided by expert advice and mandatory public comment. Typically this takes six or seven years. Then, at the end of this highly democratic process, these regulations disappear into OIRA — only to emerge dramatically altered or not at all.

  OIRA may be the most antidemocratic institution in government. It operates in secrecy. Congress created OIRA in 1980, but the agency reviews proposed regulations under an executive order, so most of its deliberations and records are inaccessible to the public.

  1 Its decisions can profoundly affect the nation’s health, safety, and environmental safeguards — unimpeded by public debate or accountability. OIRA’s role depends largely on the White House. Under President Clinton, OIRA had a light touch. But in May 2001, President Bush nominated John Graham to head up the agency. The nomination horrified the environmental community. As the founder and director of an industry-funded think tank, the Harvard Center for Risk Analysis (HCRA), Graham has a long track record of ideological scorn for the public welfare. He is a favored guru of the Wise Use coalition and has been associated with several Wise Use think tanks and front groups, including the Mercatus Center, the Advancement of Sound Science Coalition, and the American Enterprise Institute.

  2 He was also on the board of the American Council on Science and Health, which employs so-called tobacco science to defend a range of dangerous industry practices.

  3 Among its media releases: “Why the National Toxicology Program Cancer List Does More Harm Than Good,” “The Fuzzy Science Behind Clean-Air Rules,” “Evidence Lacking That PCB Levels Harm Health,” and, my personal favorite, “At Christmas Dinner, Let Us Be Thankful for Pesticides and Safe Food.”

  4

  Graham earned his stripes with his Wise Use allies by becoming the dark soothsayer in the occult art of cost-benefit analysis, a relatively new science that attempts to compare the costs of a proposed new law against its benefits to society. The first and most important environmental law, NEPA, requires that every government agency assess the costs and benefits of its actions and publish them in an environmental impact statement. But Graham takes this concept to extremes — reducing each cost and benefit to a number and then using a formula to determine public policy.

  Even at its best, cost-benefit analysis has enormous potential for bias and distortion, allowing people like Graham to support almost any preordained conclusion. Graham’s critics, including his academic colleagues, accuse him of routinely using discredited calculations and crooked methodologies to issue antiregulatory studies and pronouncements. “Figures don’t lie,” as the saying goes, “but liars figure.” Graham, for example, often uses industries’ own cost estimates, despite reams of studies showing that these numbers are grossly inflated.

  5 His formulas almost always add up to the same thing: Industry wins, the public loses.

  The usefulness of cost-benefit analysis is especially limited when it comes to environmental regulations. Cost-benefit analysis cannot possibly put monetary amounts on all the values of a healthy ecosystem. On the Hudson River I’ve seen the power industry use mathematical formulas to justify massive fish kills by measuring the value of the fish by the price of a fillet in a local grocery store. Since many species aren’t fish that we typically eat, their destruction by the billions is valued at zero.

  Such formulas also cannot calculate the way our community character is enriched by our environment. They cannot place a value on the Hudson River’s 350-year-old commercial fishery, for example, which connects our children to their colonial and Algonquin heritages. Nor can they measure the aesthetic or spiritual dimensions of an unspoiled river. Patriotism, love of country, the sight of a bald eagle, the experience of a child catching fish, wading in the river and feeling the clean mud between her toes — all these things are connected to a wholesome environment. How do you put a value on human life, an unspoiled ecosystem, an unimpaired brain, and robust health without being subjective? OIRA’s formulas mostly ignore the fact that human beings have other appetites besides money, and that if we don’t fill them, we will never become the kind of beings our Maker intended. It’s absurd to believe that one can reduce these things to numbers that are plugged into algorithms to dictate rational public policy.

  Nor can cost-benefit analysis weigh the violation of basic human rights that are associated with environmental injury. The PCBs that we all now carry in our bodies, courtesy of Monsanto, General Electric, and Westinghouse, may or may not cause injury to a particular person. But each of us has the right to be free of that chemical trespass. My own PCB levels measure 1.83 parts per billion — well above average. No one has the right to put these chemicals in my body — or steal the air from my children’s lungs — no matter how much they may profit by doing so.

  John Graham’s influence derives mainly from his exploitation of the Harvard name, which endows him with the gravitas and credibility that has eluded his fellow antiregulatory junk-science sorcerers. After publishing a risk-assessment study of automobile air bags in the early 1980s, he landed a job as an assistant professor in Harvard’s School of Public Health, and soon big polluters found that they had a friend at Harvard.

  6 “It turns out he was for sale,” recalls Karl Kelsey, one of Graham’s Harvard colleagues. Graham was so successful at using Harvard’s name to push a corporate agenda that a deluge of industry money began flowing in. He launched the Harvard Center for Risk Analysis in 1989 and served as its director until 2001.

  7 “It’s horrifying,” recalls Kelsey. “The man created this economic center that was funded up the wazoo, and you know, industry has been trying for years to buy out Harvard, and Graham was the first guy who would do it.” Dean Harvey Fineberg pushed to grant Graham tenure and “the faculty had to go along,” says Kelsey. When Graham was nominated to OIRA, Kelsey refused to sign a letter to the Senate by several of his colleagues opposing his confirmation. But after seeing the damage Graham has done to federal science since his appointment, Kelsey now regrets not having co
me forward earlier.

  8

  The conflicts of interest at the HCRA are mind-boggling. From the start the center was funded by big polluters and trade associations representing the oil, chemical, auto, drug, agribusiness, and mining sectors with gripes against government regulations. They currently include Monsanto, Dow Chemical, E.I. DuPont, Exxon, General Electric, Union Carbide, Boise Cascade, the American Petroleum Institute, and the American Chemistry Council.

  9 The HCRA’s Advisory Council includes executives from DuPont as well as David Sigman, chief attorney for environmental affairs at Exxon Chemical Americas.

  10 High-ranking officers from American Electric Power, the National Association of Manufacturers, Eastman Chemical, and Tenneco, Inc., sit on the HCRA’s Executive Council.