Part 7: Obliti Privatorum, Publica Curate

Enforcement comes from regulation, regulation from politics.

When Donald Trump took office in January 2017, he worked promptly to dismantle the Clean Water Rule and many other environmental protections.

His first pick for EPA administrator was Scott Pruitt, former attorney general of Oklahoma. In his former role, Pruitt frequently had sued the EPA to attempt to block all new environmental protections. The Guardian published an expose detailing his more than 7,500 emails with fossil fuel interests, including the Koch brothers and one of the Koch’s lobbying arms, the American Legislative Exchange Council.101 According to The New York Times, he led 14 different challenges of EPA rules. In 13 of those 14 challenges, campaign contributors of Pruitt’s joined as co-parties.102 One such challenge was to the Clean Water Rule, submitted by Murray Energy Corporation against the EPA, with Pruitt as a state petitioner.103

Amidst a litany of corruption investigations, Pruitt resigned from the post in July 2018.104,105 In his place, Trump appointed Andrew Wheeler. Wheeler accepted the position, leaving his job as a lobbyist for law firm Faegre Baker Daniels, where his best-paying client was that aforementioned Murray Energy Corporation.106


EPA Administrator Andrew Wheeler. Francis Chung/E&E News107

In September 2019, Wheeler’s EPA announced that it was repealing the Clean Water Rule.108 The repeal was temporarily delayed by a multitude of lawsuits from environmental advocacy organizations, but it was made official on January 23, 2020.109 The repeal was of course just one example of Trump’s EPA’s onslaught against environmental protections.

More recently, Wheeler has leveraged the COVID-19 crisis with impunity. In a March 2020 announcement, the EPA announced the first of its unsolicited economic relief measures for businesses to sidestep environmental regulation—

E.P.A. is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from COVID -19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements. This temporary policy is designed to provide enforcement discretion under the current, extraordinary conditions, while ensuring facility operations continue to protect human health and the environment.110

Many of Wheeler’s water regulation rollbacks have been largely justified under the guise of shifting the authority to regulate environmental resources from the federal to the state level, joining the ranks of many historical figures on the right side of history with that reasoning.[a]

In contrast to the conclusions enumerated in the Clean Water Rule, the EPA under Trump has cited the connectedness of water bodies as the justification to deregulate environmental protections at the federal level. For example, in a November 2019 rule, the EPA determined that—

The known boundaries of contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty. Further, as noted previously, [the Superfund National Priority List] does not assign liability to any party or to the owner of any specific property.111

This 'Who could be sure?' perspective, that EPA’s function is to enforce only congressionally enacted protections—as weak as they are—conflicts with what has historically been the “liability at any cost” standard of CERCLA. Labor attorney Martha Clarke explained the shift in a 2017 report for the Northwestern Law Review—

By imposing a much higher standard of intent, courts are actively subverting the original intention of CERCLA to avoid liability loopholes based on difficult-to-prove, subjective criteria. One of the animating factors behind the major environmental statutes was the need to develop causes of action that would serve as effective stand-ins for the common law causes of action that courts had previously relied upon in the environmental context… One of the main challenges of using common law causes of action was establishing causation between the harm and the defendant’s conduct…Given the complicated nature of environmental contamination, direct causation is difficult to prove and often depends on the amorphous notions of ‘fault’ and ‘state of mind’ that were difficult to quantify and could be easily manipulated by the parties.112

As covered in part 2, it took many years to identify and quantify the extent of the public health crisis that resulted from the Love Canal disaster—many years beyond the initial litigation that resulted from the disaster. For example, it was not until July of 1982 that the state of New York and the EPA determined that dioxin was found in the canal at concentrations 100,000 times the level known to kill laboratory animals.23 Only a year after that, Occidental Chemical settled with the majority of Love Canal’s residents impacted by the pollution for an average payment of $14,250 per resident. How quantifiable could the injuries to the residents have been at the time of the settlement?

There were legislative protections promptly enacted by Congress after this spate of environmental disasters—just not the legislative protections for individuals.

Non-Confrontational Voluntary Compliance

CERCLA was signed into law by Jimmy Carter on December 11, 1980. But the dissenting arguments for the environmental protections were rhetorically impactful, as they hinged upon mischaracterized—but politically artful—portrayals of how the legislation should be enforced. For example, in 1980, the indelible Texas representative Ron Paul rebuked the polluted communities’ residents for even seeking damages—not the polluters themselves for polluting.

His reasoning was sound if given cursory critical thought: free markets are self-regulating, those who are injured by the presence of toxic chemicals should have left at the first hint of their presence, and it was a burden to society for ‘taxpayer’ dollars to go towards the state investing any resources into holding polluters accountable. Paul rationalized—

Yes, there is always danger in a free society. There is always danger everywhere, but the egalitarians insist that we have perfect safety, perfect remuneration, and perfect redistribution or wealth. This is the ultimate goal of the egalitarians. Yes, it is an accepted fact that for the past 50 years we have assumed that it is a proper function of Government to spread the fruits of labor by acts of the Government and at the discretion of the politicians. But must we go to the next step and assume that we will share the penalties as well? I believe sincerely that we should hold individuals responsible for all their acts…

The real issue we are dealing with in this legislation is whether or not we as individuals are responsible for our acts. Passage of this bill would clearly indicate that we as a legislative body do not accept the notion of self-responsibility, and that innocent people should pay a penalty for the negligence of others…

No one can deny that danger exists with toxic waste just as it exists with thousands of other things we deal with daily in modern America. It is obvious that life and life's activities are never without danger. The goal, no matter how well intended, of perfect protection from all potential danger is an illusion. It is doomed to frustrate the egalitarians even more than the utopian goal of equitable distribution of wealth by force of the state-they also eagerly seek…

The absence of a clear understanding of individual responsibility is apparent in our judicial system as well today. Our sociological judges are ‘soft’ on criminals, giving minimal sentence to vicious criminals because they have been ‘victims of an unfair society’ and are not responsible for their acts. Since society hurt them, society must pay…

Were our courts allowed to function under the common, tort law, any suits that might arise could be settled equitably and quickly. It is not the judicial system, but the regulatory system that has been imposed by both State and Federal governments, that is slow and complex. Were this system abolished, the judicial system could function properly. Bypassing our judicial system and leaving the regulatory system intact is the precise opposite of what should be done.

The Love Canal episode demonstrates so well how government-the City of Niagara Falls and the Niagara Falls Board of Education-creates a problem and then how that problem is compounded by the hysteria of an EPA pseudo-scientist. Government is the problem, not the solution, and the sooner we learn this the better off the country will be. The same ethical standards which insist that the fruits of one's labor be shared forcefully and arbitrarily at the command of the State accept, quite consistently, the notion of ‘spreading the pain’ of paying for personal injury or property damage to everyone ‘equally.' 113

This inspirational portrayal of rugged individualism against all else jived well with recurring American villains Charles and David Koch[b], who deemed Ron Paul the first president of their lobbying arm, Citizens for a Sound Economy (today Americans for Prosperity) within three years of that speech.114

Paul would linger as a monger of dumbfounding takes on environmental regulation for decades to come.

CERCLA was signed into law by Jimmy Carter in December of 1980. The responsibility of its implementation, though, was in the hands of his successor, Ronald Reagan, who took office the very next month. Inaugurated in January of 1981, Reagan abolished the Water Resources Council, eliminated funding for federal participation in river basin commissions, and cut back appropriations to the water-resources research institutes—all in his first year.115 For good measure, Reagan would also remove the solar panels that had been installed on the White House roof during the Carter presidency.

Reagan’s presidency standardized what is now routine practice in republican presidential politics—appointing career advocates for industry deregulation to helm the respective agencies which serve to enforce the regulations of those same regulations. Regarding Reagan’s implementation of the Superfund legislation, economist Harold Barnett writes in Toxic Wastes—

Top positions at the EPA remained unfilled during the first three months of the Reagan term. Those eventually selected to administer EPA and to implement the Superfund program were chosen for their ideological conformity with Reagan administration views of deregulation. Ann Gorsuch [mother of supreme court justice Neil Gorsuch], chosen as EPA administrator, was a lawyer from Colorado with no Washington experience and little substantive experience with environmental issues. As a former Colorado state legislator, she fiercely opposed regulating hazardous waste disposal.60

EPA Administrator Ann Gorsuch’s changes to the Superfund cleanup process heavily favored polluters, as documented in a 1982 report by the House of Representatives’ subcommittee tasked with oversight of federal hazardous waste enforcement—

The Subcommittee observes that this dramatic decline in enforcement litigation is basically attributable to two factors:

1.     EPA’s continual reorganization of its enforcement program since mid-1981, which has resulted in uncertainty and confusion and has adversely impacted employee morale and efficiency

2.     An Enforcement philosophy that emphasizes ‘non-confrontational voluntary compliance’ with environmental statutes and regulations.60

The report concluded that—

Without a strong enforcement policy, backed up by an aggressive program, no one can reasonably believe that EPA’s rhetoric urging “voluntary compliance” will cause many generators, haulers, and disposers of hazardous waste to adhere to the letter of the law. Instead, the improper land filling and indiscriminate disposal of toxic substances will continue to threaten our neighborhoods and contaminate our water supplies.116

Gorsuch’s dismantlement of environmental protections before they had even been fully implemented was not limited to Superfund protections.

The Resource Conservation and Recovery Act (RCRA) was signed into law in 1976, prior to Reagan’s presidency. The intent, according to the initial law, was to — 

Provide technical and financial assistance for the development of management plans and facilities for the recovery of energy and other resources from discarded materials and for the safe disposal of discarded materials, and to regulate the management of hazardous waste.117

This law, however, needed to be expanded in the Hazardous and Solid Waste Amendments of 1984. The amendment was passed under the guise of a need to expand the government’s ability to minimize the future dumping of environmental wastes. Its true intent, however, was to hamper the active, willful botching of the original law’s implementation under Gorsuch’s leadership. Kent Portney, Director of the Institute for Science, Technology and Public Policy at Texas A&M, writes in his 1992 book, Controversial Issues in Environmental Policy: Science vs. Economics vs. Politics, that Gorsuch’s efforts in her post were to effectively serve as an impediment to the regulation —

In terms of actual implementation of RCRA, it was not long before the EPA under Ann Gorsuch began to retreat from what little regulatory effort had already been accomplished. For example, in mid-1981, Gorsuch notified [US Office of Management and Budget] that the EPA would essentially suspend the rules already issued governing existing incinerators and surface hazardous waste storage impoundment areas.

In late 1981, the EPA announced that it would defer or eliminate already-issued financial responsibility regulations. In early 1982, the EPA postponed record-keeping and reporting requirements, eliminated the required assessment of groundwater around areas found to be contaminated by hazardous wastes, and removed the ban on landfill disposal of containerized liquid hazardous wastes… Enforcement of existing regulations was minimal, and the EPA often did nothing to try to ensure that hazardous waste facilities were operated according to permits.118

Individuals’ rights remain today a potent weapon in the modern Republican platform’s nuanced argument against environmental regulations. Specifically, the government’s authority to regulate private land has been readjudicated time and again.

Environmental sociologist Denis Salles’ analysis disects this rhetorical device—

The principle of ‘individual responsibility’, which consists in ‘accounting for your actions before others’ can be adapted in many ways, be it as a legal responsibility exerting normative constraint, as an economic mechanism, as a moral imperative,119 or as a governance mechanism.120 Specifically within the framework of public environmental action, the individual, in its multiple roles of user, citizen, and consumer is placed in a situation where he can expect his choices, decisions and actions to contribute in a tangible way to the resolution of a collective problem.

As a result, however, the individual becomes responsible and accountable before society of the norms to the establishment of which he has explicitly been associated. This tendency to substitute self-regulation to authority and bureaucratic regulation, while granting individuals larger autonomy of action and decision, leads to placing responsibility for their actions on the social actors. The idea is to have individuals assume the consequences of their choices, even though those choices may be limited by structural constraints.121

Reagan-era individualistic discourse framed environmentalism as an infringement of individuals' rights to property, and a threat to one’s income via regulatory pressures imposed upon their employer. Today’s G.O.P. cuts to the chase and simply denies the existence of ecological threats. But irrespective of ideology, individual liberties are made shared by flowing water and groundwater, which connect individual properties to other municipal land parcels, communal drinking water, and neighboring watersheds.[c]

Surely this incompatibility of conservative values with scientific consensus would present a clear opportunity for a strong counter from the Democratic opposition. This would, however, require a rejection of the individualist, market-centric premise of said values, and an acknowledgement that ecosystems' being on the brink of irreversible damage is a variable that simply does not afford the time needed for incremental reform. But while Republicans have done away with the rhetorical nuances on the environmental issue, Democrats’ modern Neoliberal platform has leaned into them.

[a] For deeper exploration of this issue, see Other Rights Revolution (Decker), Unlikely Environmentalist (Milazzo), Republican Reversal (Turner and Isenberg)

[b] Two recommended works on the Koch’s far-reaching influence on popular American discourse are Jane Mayer’s The Koch Brothers’ Covert Ops ( and Christopher Leanord’s Kochland.

 [c] In other areas of the country where Native American reservations are located, it is commonplace to find the presence of toxic levels of wastes in water that flows through tribal lands. If the residents in the communities within these lands leave the land to seek cleaner environments, they risk losing reservation land permanently. Dorceta Taylor covers this problem in depth in Toxic Communties.

Part 8: Facta, non verba