Is It Good News?

[Editor’s Note:  Guest commentary is welcome on PHILLIPSBILLBOARD.  Bob Harris grew up in Charleston, WV and sent the piece below following our post about the EPA Administrator’s planned departure.  Harris is based in Washington with extensive Capitol Hill experience.  He is a principal in the firm of Nutter & Harris.]

Is it good news?  Yes and no.  While Administrator Jackson has been an aggressive leader with an aggressive environmental agenda, the Agency still must implement the laws as written and that means that the Courts will enforce the laws no matter who is the Administrator.

Much of the action taken by EPA during Ms. Jackson tenure was taken in response to decisions and orders from the courts.  Congress has shirked responsibility for decades now in reviewing and rewriting the basic environmental statues under which EPA operates — Clean Air Act, Clean Water Act, Resource Conservation and Recovery (RCRA), Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Superfund) and Safe Drinking Water Act.  By and large, our national environment laws were written two or three decades ago, reflecting an economy where America competed mostly at home, not abroad, and when politics was less partisan.

The politics of pollution was more regional in nature than partisan.  Now, like all politics, the environment is seen more through the prism of partisanship and struggles between Democrats and Republicans.

No matter who is President the laws must and will be implemented.  Suits will be filed in courts throughout the country — and EPA will be forced to implement whatever the court decides.  And, the courts often will defer to EPA’s scientific knowledge and regulatory authority.

When administrations change party, what does change is the negotiation between litigant parties and the EPA.  Many “negotiated settlements” are negotiated under one administration with the environmental community or under another with the regulated community.

EPA is the “environmental protection agency,” it purpose for being — established under a Republican President and his Administration — is to protect the environment.  It is not charged with determining cost effective regulation, the least expensive path forward; it is charged with implementing the US environmental statutes.

I was once told by a good friend on the Senate Environment Committee — under John Chafee’s leadership — “Bob, this is the environment committee.”  Those of us who represent business and industry and the regulated communities need to remember that very thought.  We are dealing with people whose job is to do something different than what believe to be the best interests of our side.

If we approach the environment under those terms, respecting the legitimate role of the other side, we will have better results.  Much like everything else today, we want our side to win everything and the other side to get nothing.

I am old enough to remember Charleston (and Wheeling and Pittsburgh and more) when the Kanawha River was merely a place to dump our wastes.  The multitude of chemical plants in the greater Charleston area simply dumped whatever the waste was, in whatever color it flowed, into the river.  And, the river’s role was simply to dilute and carry products up and down the river.  Weren’t all of our rivers much the same?

The Clean Water Act set up a process to clean up our rivers and streams — to make our rivers “fishable and swimmable.”  That has been accomplished — and America is a better place today because of that.

The heavy air pollution that stagnated the Kanawha Valley when I was a child is gone today — except under the most extreme circumstances.  The Ohio River Valley and others throughout the state have a skyline of tall stacks that disperse pollutants above the valley walls — unfortunately carrying whatever pollutant being released to another state and another region.

What can be said about the Clean Water Act can be said about all of our environmental statutes.  We are better off today than we were 15, 20 or 40 years ago.  This year we celebrated the 40th Anniversary of the Clean Water Act; in 2010 we celebrated the 40th Anniversary of the Clean Air Act.  And, even as I work to help my clients shape environmental responses and advocate policy responses under these two and other statutes, I enthusiastically celebrate everything we have accomplished.

Are there still problems — sure!!  Are there better and most cost effective ways to meet these challenges — sure!!  We must roll up our sleeves and command our leaders to do what Jennings Randolph did all those years he chaired the Environment and Public Works Committee — work with others from other regions, with other divergent interests to find a middle ground and put together programs that work.

West Virginia is well positioned to play a leading role in a new debate on the environment and energy policies…especially as they come together in today’s modern economy.  It is time to have it!!

Senator Rockefeller chairs an important Senate Committee (the Commerce Committee) and is a senior member of the Finance Committee, which jurisdiction over tax policies); Senator Manchin sits on the powerful Energy & Natural Resources Committee and he will have an important voice in setting energy policies for the next 4 years of the Obama Administration.  On the House, the States senior leader, Nick Rahall is the ranking member of the Transportation and Infrastructure Committee which has jurisdiction over all US waters, the Clean Water Act and transportation policies.  Shelly Capito is now a Senate candidate, but she still serves on the Transportation and Infrastructure Committee where she has moved up the ladder in seniority.  David McKinley brings business experience and engineering expertise to the powerful Energy & Commerce Committee, which has broad jurisdiction over the Clean Air Act, RCRA and Superfund and the Department of Energy and energy policy.

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