Rachel's Democracy & Health News #922  [Printer-friendly version]
August 30, 2007


[Rachel's introduction: Unfortunately, every suggestion in this
satiric essay is based on actual events and practices. You can't make
this stuff up.]

By Carolyn Raffensperger

Avoiding enforcement of environmental laws is a political game. The
goal of this game is to guarantee that whales, children's health,
icebergs and oak savannahs always lose by making sure that nothing,
absolutely nothing, interferes with economic growth. The way you win
is by guaranteeing that the fate of the Earth is left to the market,
not public will, administrative agencies or the courts, which only
muck up the pure forces of the economy.

If you want to join the smoke-filled back room and play the game, your
job is to avoid any pro-environmental decision made by government. You
too can gamble away our future. Here is the playbook... and the loaded

1) Pass complex, ambiguous legislation so the implementing agency is
free to interpret it as requiring no changes in business as usual.

2) Have the President attach a signing statement that says he won't
enforce the statute.

3) Establish the burden of proof so that it rests on the public and
government to demonstrate harm with absolute certainty before allowing
the agency to regulate.

4) Take decades to draft the regulations.

5) Before the draft regulations are published in the Federal Register,
hold closed door sessions with the regulated industry (preferably with
the Vice President so you can claim executive privilege). Obtain
administration promises that the regulations won't impinge on

6) Challenge the underlying science and refer it to the National
Academy of Sciences for a prolonged study.

7) Make sure that all health and safety information sent to the agency
is designated confidential business information so the public can be
denied access to the data.

8) Require that regulators account for economic factors, minimizing
public health and environmental issues. This way, the Office of
Management and Budget (OMB) and the White House can use their
oversight powers under Executive Order No. 12866 to water down

9) Have the Department of Justice write a legal memo that nullifies
the parts of the regulation that impact industry.

10) Defer finalization of the regulations while industry sues... and

11) Use the Data Quality Act to obtain and challenge the data and
methods of any government-funded study.

12) Peer review all agency science using experts in the field (read
"experts" as "employed by industry"). Disqualify any nonprofit or
academic scientists who might be biased toward the environment or
public health.

13) Lay off agency staff because of budget cuts.

14) Require the states to draft their own regulations and then turn
the program over to the states. (Go back to #3 and repeat through the
state government.)

15) Delay enforcement while the agency and States harmonize
regulations and enforcement.

16) Argue that the community (usually poor, people of color and/or
rural) must have the jobs and that enforcement will take those jobs
away. Swift-boat the opposition and make it look like the pro-
environmental people are outsider radicals who don't understand the
necessity of jobs rather than mothers and fathers who are concerned
about the health of their children.

17) Set aside any regulation that interferes with the military or any
industry that is tied to the military.

18) Make compliance with the regulation voluntary.

19) Hire too few inspectors to do the job.

20) Deny inspectors access to the site because it is under the
jurisdiction of the states.

21) Refuse to fine industry for violations, and give them decades to
rectify their mistakes in a way that best fits their business plan.

22) Fire any inspector for exceeding their authority if they cite or
fine industry.

23) Express extreme surprise when (choose one) the bridge fails, the
mine collapses, the ship hits a rock and spills millions of gallons of
petroleum in a pristine area, or the levies break.

24) Blame the problem on illegal aliens, alcohol, insubordinate or
lazy inspectors.

25) Promise to fix the problem.

26) Get a Presidential promise to veto anything that would impinge on
national security or business.

27) Rage against the party in power for refusing to fix the problem.

28) Get conflicting science on the "cause" of the disaster.

29) Hold a Congressional hearing on the disaster with the appropriate
weeping victims and if possible, a movie or rock star. (Bono is your
first choice for a rock star because both political parties like him.)

30) Repeat #1-29.

A similar strategy applies to enforcement by the courts.

1) Prevent citizen suit provisions in legislation and ensure that
there are no fee-shifting provisions so plaintiffs have to pay for

2) Get the court to deny standing.

3) Challenge all evidence in a pre-trial hearing and have it thrown
out on Daubert grounds. Do not let the case go to trial, especially
before a jury.

4) Hire scientists to perform misleading studies that will "prove"
that industrial activities aren't harmful and publish their results in
peer-reviewed journals. Don't disclose authorial financial conflicts
of interest.

5) Prevent reviewing courts from granting deference to agency findings
so the court can freely apply "science" principles to any adverse
agency findings.

6) Have the court issue subpoenas to plaintiffs' scientists demanding
personal information about participants in research so we can
"interview" the participants as well. (Get all their bad habits on
record so you can prove their illness was their own fault rather than
industry practice.)

7) Coordinate a media strategy as pioneered by the tobacco industry.
Manufacture uncertainty in the public's mind.

8) Stack the American Law Institute with friends from industry and
guarantee that the Restatements of the law favor business.

9) Take judges on junkets to Hawaii. As you play golf, brief them on
sound science and cost benefit analysis.

10) Fund the election of judges who rule your way. Throw out judges
who rule against you.

11) If you can settle, make sure all court records are sealed so the
next plaintiff has to spend tons of money getting the same

12) If you lose, go back to Congress or the states and demand tort

If you win, you get 50 million dollars in bonus points that you can
use to:

1) Endow a chair at your favorite university to make sure all future
research validates your position;

2) Buy more lobbyists for Congress;

3) Support the political candidates of your choice.

Good work! Ready for Round 2? The same rules apply. Roll the dice.


Carolyn Raffensperger is executive director of the Science &
Environmental Health Network (SEHN).

An earlier version of this essay appeared in the Environmental Law
Institute's newsletter, The Environmental Forum, Sep.-Oct, 2007, pg.