On Thursday, October 16, 1997, at the Federalist Societys
annual National Lawyers Convention in Washington, D.C., the Environmental
Law and Property Rights Practice Group presented a break-out session
on the topic, "Environmental Regulation: the Federal Government
vs. the States," moderated by Judge David Sentelle of the United
States Court of Appeals for the District of Columbia Circuit.
The panel might more aptly have been called, "Environmental
Regulation in Virginia: Becky Norton Dunlop vs. Jonathan Turley,"
because it turned largely into a bilateral debate between then-Secretary
Dunlop of Virginia, and Professor Turley of George Washington University,
over environmental enforcement in Virginia.
The dispute between Ms. Dunlop and Mr. Turley is excerpted below,
from the break-out session transcript. It provides both sides of
the story about environmental enforcement in Virginia, particularly
the controversial Smithfield case.
Becky Norton Dunlop was the Secretary of Natural Resources for
the Commonwealth of Virginia. She was responsible for overseeing
eight state agencies, including the Departments of Environmental
Quality, Conservation, and Recreation, Games and Inland Fisheries,
Historic Resources, Virginia Marine Resources Commission, and the
Chesapeake Bay Local Assistance Department. Secretary Dunlop also
chaired Virginia Governor Allen's Advisory Council on Self-Determination
and Federalism. During the 1980s, she was a senior policy official
in the Reagan administration. Subsequently, she served as Deputy
Under Secretary of the Department of the Interior and as Assistant
Secretary of the Interior for Fish, Wildlife, and Parks. She was
a Senior Fellow for Environmental Policy for the Citizens for a
Sound Economy, and she served on the board of directors of the National
Wilderness Institute.
Jonathan Turley is a professor of law at George Washington University,
nationally known for his public interest work in the environmental
areas, including cases throughout the country on state and federal
levels. Some of his cases involved clients such as the citizens
in the WBTI hazardous waste incinerator fraud in Ohio, the workers
at "Area 51," and the Rocky Flats grand jurors in Colorado.
He is executive director of the Environmental Law Advocacy Center,
an active national speaker on environmental enforcement, and assisted
in the drafting of penalties for corporate environmental violations
as a member of, and later reporter of, the Environmental Crimes
Advisory Group for the United States Sentencing Commission. Professor
Turley has been commissioned by Congress to investigate the environmental
crimes section of the Justice Department. He worked with the United
Nations to draft an international agreement on environmental crime
and has been a member of a number of foreign delegations on environmental
issues.
Also participating in the panel, and making a few of the remarks
excerpted below, was Peter Coppelman, the Principal Deputy Assistant
Attorney General for Environment and Natural Resources of the United
States Department of Justice. Mr. Coppelman supervises the general
litigation, wildlife and marine resources, policy legislation, and
special litigation sections.
Secretary Dunlop: I suspect
those of you who follow these issues closely know that Virginia
has had some difficulties with the federal Environmental Protection
Agency, the National Parks System, the Fish and Wildlife Service,
NOAA, and a few other departments that involve themselves in environmental
policy. However, let me quickly say that, while problems may have
been exacerbated by the team that leads the Clinton administration,
difficulties are by no means limited to the Federal Government when
it's led by a Democrat administration. We think that these challenges
existed prior to the Clinton administration and need to be resolved
regardless of who serves as president. I'd like to just share with
you some of the challenges that we've had and some of the issues
that I think we need to deal with as a nation that's made up of
50 sovereign states.
First of all, with respect to EPA, we in Virginia, under Governor
Allen's leadership, have opposed unfunded federal mandates. That
has given rise to battles in a number of areas. Mostly notably,
for those who live in the northern Virginia area, was our battle
against EPA on the issue of centralized testing of automobile emissions.
When we took office in 1994, the Environmental Protection Agency
had made it very clear that centralized testing was the only manner
in which one could engage in enhanced emissions inspections, which
is required under the 1990 Clean Air Act amendments passed by Congress.
Well, in northern Virginia, that would have meant 600,000 vehicles
annually going through 12 garages. That is a lot of automobiles
sitting in very long lines going through 12 sites in an area that
is very large. We believed that was wrong for the environment --
that cars sitting in long lines emitting pollutants for many hours
while they were waiting to be tested in a garage that could test
but not fix the car was rather unwise for the environment. And we
knew it was terrible for the consumer and the constituent.
We tried to negotiate with the Environmental Protection Agency.
Well they insisted that there was going to be no compromise, and
that we were going to do centralized testing. But we continued to
negotiate. Then the 1994 election occurred, a new Congress was elected,
and EPA became more willing to negotiate with us. In fact, Senator
Warner got an amendment attached to a highway bill that said an
equivalent form of testing could be utilized. Consequently, we are
now instituting a program for enhanced emissions testing, as required
by the Federal law passed by the Congress, but it will be able to
be done in service stations across the vast area so that people
can go and have their vehicle tested in a station and repaired in
the same station or in a neighborhood station rather than going
to just 12 centralized locations. This was a battle that took three
years, and after the three years were over, we had to design the
program, get the equipment approved by our general assembly, and
we are in the process now of getting that equipment installed in
garages so that our program can start in December. We were involved
in almost a four-year process for something that we believe was
provided by the federal law but not permitted by the regulations
of the EPA.
The second battle that we had shortly after we took office was
the imposition by the Ozone Transport Commission on northern Virginia
of the California low-emission vehicle. The uniqueness of the California
car is that it is built to be run on a specially-formulated gasoline
that is going to be refined for California and will be much more
expensive. This is great if thats what California wants --
but the Ozone Transport Commission is a creation of the Federal
Government and is a regional body made up of un-elected officials
who decided they were going to ask EPA to mandate the California
low-emission vehicle on the northeast part of the United States
and northern Virginia minus the California gasoline. That seemed
to us to be a recipe for disaster. The cars probably wouldn't run
as well, the cars probably wouldn't run as cleanly, almost assuredly
the cars would cost a whole lot more, and the end result would be
unhappy consumers and no improvement in environmental quality.
We resisted the Ozone Commissions initiative. Virginia said
if one really is concerned about improving air quality, then urge
the automobile manufacturers to work together and develop the technology
to come up with a car that will be able to be sold in all 49 states
using conventional gasoline. That way, we'll have improved air quality
in the northeast and for those of you who worry about spillover,
people in Ohio will be driving cleaner cars so that less dirty air
will blow into your part of the country.
That battle was fought for about 18 months. EPA did not support
that effort and, I might add, neither did many of the environmental
commissioners from other northeastern states. For various reasons
-- and I'm not sure what they all are -- the Environmental Protection
Agency began to see that there were benefits to this 49-state car.
Indeed, one senior EPA official has said that one of her greatest
accomplishments as assistant administrator was the successful conclusion
of an agreement to have a 49-state car, the national low-emission
vehicle. Once again, I think you have an instance where Virginia
stood pretty lonely against the federal government and maintained
that there was a better way, a more economic way to protect the
environment.
Finally, let me just say that there are a number of other areas
where we have battled with the federal government. Sometimes we
have been successful, other times we have not. We have asked the
Fish and Wildlife Service not to purchase additional land in Virginia.
They have declined to respect that. We have negotiated an agreement,
finally, with the Fish and Wildlife Service to allow our citizens
access to one of our state parks through a Federal refuge. We think
that's appropriate. And we have stood for scientific-based decisions
on fisheries questions in the Atlantic States Marine Fisheries Council.
These are all areas where Virginians feel very committed to making
decisions based on sound science and what's in the best interest
of our citizens and our taxpayers.
Professor Turley: There
is a problem with our state enforcement, and let's be honest about
it. With all respect to Ms. Dunlop -- and we've got lots of differences,
and she's a great advocate for her side -- she knows how controversial
her policies are. They're not controversial with the administration;
they're controversial with business. The Virginia Manufacturing
Association has opposed some of her efforts, particularly the firing
of dozens of people within her agency. And she has not controlled
externalities. I would pose to Ms. Dunlop, who are you protecting
ultimately? I know your motivations are good. I know that you have
a strong philosophical belief here. But in Virginia, there are significant
numbers of people who are in danger of short- and long-term exposure
to ozone and the like. There are places like Smithfield, where the
Virginia State Government allowed 5,000 violations to occur, everything
from fecal coliform to phosphorous, where that company was responsible
at times for 50 percent of the flow into a river that had been shut
down repeatedly. There were other businesses that needed that river.
There were other people living on that river.
. . .
Virginia has not carried out its delegated authority. Ms. Dunlop
is a fantastic advocate, but she has been opposed to most enforcement
efforts, and the Clinton administration has threatened to take back
delegated authority from Virginia, and they should. You see, delegated
authority is a contract, a contract made by Virginia to enforce
its provisions. You may disagree with those provisions, you may
even disagree with what they're all about, but you're a contracting
party, and you have to fulfill it.
But we actually agree on a number of things, and one is that we
should minimize regulation wherever possible and rely on the market.
I don't think regulation is efficient. I think if you have extra
regulation, it is costly and unnecessary. Second, we believe in
a need to control externalities that pollution causes, not necessarily
through criminal prosecution but through forces of enforcement.
But you have to enforce, because someone bears those externalities.
And if a company cannot internalize its externalities from pollution,
if it cannot produce a product and control its cost, we want that
company to go out of business. We want to favor a company who can
control pollution. And what we have to do is try to be fairer about
what externalities need to be internalized. And finally and most
importantly, we need to be uniform. You see, while Ms. Dunlop has
a great deal of concern about businesses in Virginia, I have a lot
of concern about businesses in other states as well. There are states
that are complying with their delegation contracts, and the businesses
in those states are carrying tough regulatory burdens when Virginia
businesses are off the hook.
Audience Member: Ms. Dunlop,
what is your response?
Secretary Dunlop: Let me
say that in Virginia we are engaged actively in enforcement. Regarding
the Smithfield case, the consent agreement that was agreed to with
Smithfield was done in 1991. That was before I took office, Professor.
And the Environmental Protection Agency was deeply involved in this
agreement. When I took office in 1994, no one called me up, sent
me a letter, or came to see me, saying that this was non-enforcement.
There was silence -- and silence from the federal government until
they filed suit.
Now, as to what we did in the Allen administration on the enforcement
front in 1994, we reviewed the consent order, and we determined
they are about to stop the pollution. Virginia, of course, as many
of you might know, filed its own lawsuit on the civil side. We also
did all of the research necessary to provide to the criminal attorneys
the case information that was necessary to successfully prosecute
and put in jail the employee who had been engaging in falsifying
records and not running the plant properly. So, I would argue that
our administration worked hand in glove with the Environmental Protection
Agency to make sure that the river was no longer being polluted.
. . .
Mr. Coppelman: First of
all, Congressional testimony on the Smithfield case addressed all
of Ms. Dunlops points. From October 1991 to June 1997, Smithfield
committed the 5,000 violations. The Feds prosecuted Smithfield criminally,
not Virginia.
Virginia filed the case after the Feds informed it that they were
going to file a case. In fact, when Virginia filed the case without
warning, the Commonwealth received objections from the Feds, because
it was a violation of understandings between state and Federal cooperation.
Secretary Dunlop: Well, let me say, as you well can see, this is
an ongoing battle between the EPA and Virginia. Virginia provided
the necessary information for the federal criminal suit. The information
for the federal government's civil suit also came from our Department
of Environmental Quality in Virginia. The DEQ in Virginia cannot
engage in prosecution. We don't have any control over the Attorney
General's office and the lawyers who are prosecuting the case. We
can only provide the information. The criminal case was turned over
to the Commonwealth's Attorney in Virginia, who turned it over to
the U.S. Attorney. That was successfully prosecuted. DEQ employees
who provided the information were present at the trial and testified.
With respect to the civil case, we turned the information over
to the Attorney General's office, who prepared the case. They filed
the case and told me that they were ready to file the case. They
didn't say they were filing this case because they had been notified
that the Federal Government was going to file a case.
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