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Published in Summer 2006
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Public interest groups, government agencies spar over environmental solutions
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By Ron Orol
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| Oil refineries in violation of EPA standards in the United States prompted officials to reexamine their enforcement practices.
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When the Environmental Protection Agency started cataloging violations at oil refineries in the United States six years ago, agency officials discovered they had a problem—too many abuses across the board by every major company in the industry.
“If we took action at one facility it would have meant we had made a conscious decision not to take action with other violators at other facilities,” explains Walker Smith, director of EPA’s Office of Civil Enforcement.
To avoid the appearance of picking winners and losers among environmental violators in a system that would likely take years of litigation, the agency decided to embrace a targeted, cooperative approach by choosing a few key violations prevalent at all refineries and pressing them to make changes. The result: annual emission reductions of 235,000 tonnes per year of sulfur dioxide and 83,000 tonnes of nitrogen oxides, as well as $63 million in penalties. Plus, oil companies that had settled with the EPA without litigation began cooperating and sharing compliance approaches. “More cooperation, less discovery,” she says.
The EPA’s targeted approach to refinery violations is just one example of a mixed bag of new strategies for practical environmental protection debated by agency
officials and citizen groups—often with conflicting
perspectives about the state of the environment and
what to do about it—at a two-day CEC environmental issues workshop in Washington, DC, this past January.
At the conference, Smith and other representatives from the United States joined officials from Canada and Mexico in offering up new compliance programs, cross-border cooperation strategies and approaches consumers can take to influence environmental solutions. To round
out the event, lawyers from the three NAFTA counties debated failures and successes over the past decade
of enforcement efforts.
A successful initiative embraced in Canada takes the form of intelligence gathering. David Aggett, director for the Environmental Enforcement Division at Environment Canada, says the agency recently hired intelligence officers to identify problem areas before they become overwhelming. The new unit, which was added to the agency’s cadre of investigators and inspectors over the past couple years, has offices based across Canada that collect environmental information and complete risk assessments for hazardous sectors such as the chemical industry.
“The job of our intelligence staff is to predict future events based on environmental trends,” Aggett says.
Mexico’s environmental enforcement agency, Procuraduría Federal de Protección al Ambiente, or Profepa, is taking a new look at how it will go about encouraging small business environmental compliance. “The agency is making it a priority to measure and determine what these businesses, which represent roughly 90 percent of Mexico’s companies, can handle,” says Profepa legal director Mauricio Limón.
“We are working to increase productivity and environmental sustainability at the same time,” he adds.
Limón also expects a new law passed by the Mexican government last year to help environmental regulators in their quest for access to information. The recently passed “Transparency and Access to Information Act” is expected to make more information available to the public, says Limón. “Even though it has broader implications, environmental regulators are encouraged that they can use it as well.”
Environmental advocates can also approach the newly formed Federal Institute for Access to Public Information in Mexico City, which is made up of independent citizens who oversee implementation of the statute. The institute has programs in place to educate citizens and public servants about their new right to access information and Limón expects environmental groups to quickly get up to speed on it.
“The resolution of this panel cannot be appealed,” he says.
In addition to regulators, consumer groups at the workshop offered their own approaches to finding environmental solutions, sometimes working with relevant agencies in Canada, Mexico and the United States, and other times pressing those commissions or ministries to take action. In most cases, the citizen groups participating in the workshop argued that government regulators are generally not going far enough with their efforts.
Bruce Nilles, senior Midwest representative of the Sierra Club, points out that consumer advocates have the power to launch citizen suits against environmental violators, but face huge obstacles.
“Citizen groups have limited resources and generally do not have the people power, research capability and can’t take action like the US government,” Nilles says.
As an example, Nilles points out that the EPA commenced an investigation into six Chicago-area coal power plants in the late-1990s that the Sierra Club alleged had caused 315 premature deaths and 21,500 asthma attacks. Subsequently, the investigation was terminated without releasing the data they collected, he says.
“We’ve been battling the EPA to produce that information,” Nilles says. “The Sierra Club and most concerned citizens do not have the resources to develop that kind of research about pollution sources in the Chicago area.”
Nilles adds that after the EPA halted the coal plant investigation it cited Chicago-based Blommer Chocolate Co. for violating air pollution limits. The agency’s decision to take action against Blommer, while not addressing what he says is similar, but more severe pollution at the coal-fired power plants, has raised Nilles’ ire. “Why is it that these coal plants do not have to comply with the same rules as the chocolate factory?” Nilles asks.
The Sierra Club would like to see legislation that would require the EPA to make compliance investigation information public for consumer groups to consider if that regulator elects to forgo any prosecution or enforcement action, he adds.
Without the help of government regulators, consumer groups hoping to initiate suits against environment violators must watch out for “SLAPP” suits, or Strategic Lawsuits Against Public Participation. These corporate suits are intended to counter or discourage any initiatives by interested individuals, and are difficult to fend off because citizen groups do not have the budget to battle them, Nilles adds.
But citizen officials from all three countries agreed that a good strategy for pursuing environmental regulatory compliance is by opening up a dialogue with corporations they suspect are either violating rules or are damaging the environment outright.
Paul Muldoon, executive director at the environmental advocacy law firm Canadian Environmental Law Association in Toronto, says the first step he takes in any sort of environmental reform activity is to approach the corporation and see if some sort of solution can be reached without engaging in litigation. But if cooperation is not an option, there are still other options to purse before filing a law suit, he adds. If the citizen believes the company is disobeying environmental laws, Muldoon recommends then taking steps to try and convince the relevant government regulator to investigate and intervene.
“In Canada, having Environment Canada launch an investigation, even if nothing comes of it, is useful because we can use it as a basis for our own subsequent citizen suit,” says Muldoon.
In the United States, concerned citizens have a wide variety of different approaches to get involved in environmental protection, says David Markell, environmental law professor at Florida State University in Tallahassee, Florida. Markell conceded that citizen groups have an uphill and often expensive battle, but nevertheless identified 11 such tactics individuals can pursue. An obvious approach is for disgruntled groups to file federal or state suits against a suspected violator, he says.
But other strategies could work too, such as participating in a government investigation or regulatory settlement negotiations, Markell notes. Citizen groups concerned that a particular regulator is taking inadequate action could file a suit against federal or state governments, although Markell says the odds of prevailing are extremely low.
An individual can petition the EPA to withdraw a state’s authority to operate a particular ineffectual environmental program. A consumer group could also reach out to the media to put public pressure on the issue.
“There are many tools for citizens to participate in the environmental compliance and enforcement arena,” Markell says.
When all else fails, a concerned citizen can petition the CEC, alleging that a federal government is failing to effectively enforce its environmental law. After reviewing the proposal, CEC officials could decide to produce an investigative report, called a “factual record,” that could assist the individual or group advance its claims.
In Mexico, Fernando Montes de Oca Domínguez, of the public interest institute Instituto Mexicano de Derecho Forestal-Ambiental (Mexican Institute of Forest-Environmental Right—Imdefac), stresses the need for citizens to be better informed as a first step towards environmental reform in the country. One way to reach this goal of improved public awareness of environmental issues is through conferences, he says.
“There is a need for citizens to get better information about environmental issues,” he says.
In addition to greater public information, Domínguez says he hopes Mexican environmental regulators will improve efforts to reward companies that have embraced prevention.
“We need to promote science and technology that can solve practical problems,” he says.
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