The People's Agents: Rewarding Polluters with a Plaque on the Wall

by Rena Steinzor

April 14, 2009

Say you live in an urban neighborhood where crime is worrisome but not overwhelming. The police are chronically understaffed, with no money to walk the beat, and instead depend on what we might call a “deterrence-based enforcement system” – making high-profile arrests, prosecuting the worst violators, and relying on the resulting publicity to frighten others from taking up a life of crime. Now suppose a group of trade associations representing local “businesses,” that is to say drug dealers and thieves, marches on the police station demanding a gentler approach. Instead of making arrests, the police form a little club that offers conveniently scheduled workshops on how to comply with the law. And any club member that asserts an intention to try to be a better person – yard-long rap sheet notwithstanding – is invited to an award ceremony, and given a plaque for their wall along with a walk on their next couple of deals on the corner.

Sound like one of Tony Soprano’s feverish dreams?

In fact, this scenario describes, metaphorically, the Environmental Protection Agency’s (EPA) “Performance Track” program, which was recently and deservedly put on hold by newly appointed EPA Administrator Lisa Jackson.

Designed and launched at the end of the Clinton Administration, and then continued by President Bush, the program offered its 548 members wall plaques commending their good environmental citizenship, along with actual exemptions from regulatory requirements. But many of these honorees were companies with demonstrably bad environmental records – having committed more than 100 violations of EPA rules and paid millions of dollars in fines.

The Philadelphia Inquirer blew the whistle on the escapade in a story headlined, “Green Club an EPA charade.”

The story was part of a series published in December describing in depressing detail how Bush political appointees twisted EPA’s mission and weakened its resolve. In a piece on Performance Track, the Inquirer quoted what Sherry Neidich, a resident of a neighborhood adjoining the mercury-spewing Olin chlor-akali plant in Charleston, Tennessee, said upon learning that Olin had become a member of Performance Track, “The EPA is a toothless dog. What right does someone have to ruin my river? To poison our playground?” (An aside for trackers of right-wing foundations: Yes, it’s the same Olin family that created the now defunct John M. Olin Foundation.)

The Olin plant relies on a technology so out of date that it has not been used in a plant constructed anywhere in this country for 35 years. The technology uses hundreds of tons of pure mercury to manufacture chlorine, spilling large quantities of the deadly stuff into nearby air and water. EPA regulations are a weak embarrassment, and instead of relying on them, citizen groups around the plants have been organizing campaigns to drive them out of business. They’ve been successful with respect to two plants, but seven continue in operation.

The story would be yet another sorry example of misguided Bush environmental policy and bureaucratic ineptitude were it not for a significant trend in public policy circles to blunt deterrence-based enforcement in favor of a so-called “incentives-based” approach. Conservative Republicans and their industry allies have long attacked “excessive” environmental regulations. They argue that the regulations are so complicated and laced with booby traps that the person who needs the most help and attention from the regulator is not potential victims of pollution but rather the polluters themselves. They demand that EPA provide companies with resource-intensive “compliance counseling,” so they can somehow make their way through the legal maze. From there, it is a short step to rewarding companies on the basis that they demand to be rewarded, without stopping to consider their actual record on keeping their practices clean. Rather than scare drug dealers off the corners, we’ll make them more civilized by bringing them into a special club.

In one particularly noteworthy exchange in The Philadelphia Inquirer article, University of Pennsylvania Professor Cary Coglianese criticizes Performance Track’s method of selecting participants because the program welcomes companies with serious violations at one plant if they have a second plant that’s doing a decent job. Remarkably, Bush-era EPA Administrator Stephen Johnson disagreed, saying that corporations are like families: “Say you have two boys. One of your boys does an outstanding job and the other boy messes up. Is your family a problem or is your one son a problem?” So we should think of major polluters as families – how touching! – and not hold the company accountable if only one of its “children” breaks the law. In fact, we should give the company an official government award that they can use to market their polluting products as green.

Before Lisa Jackson was appointed as Administrator of EPA, she served as New Jersey Gov. Jon Corzine’s chief of staff, and before that she was head of the New Jersey Department of Environmental Protection. The state was repeatedly importuned to join the Performance Track program. “For a long time,” she said last October, “they tried to pressure us to partner and we said no. I think it’s just one of those window-dressing programs that has little value.”

Well, Jackson made the right decision to back-burner Performance Track. It remains to be seen whether she will be able to do the even more difficult, but absolutely essential, jobs of putting EPA cops back on the street to investigate environmental law-breaking, and to call polluting punks and scofflaws to account.

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Also from Rena Steinzor

Rena Steinzor is a Professor of Law at the University of Maryland Francis King Carey School of Law, and a past president of the Center for Progressive Reform. She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

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