Rachel's Democracy & Health News #922 [Printer-friendly version] August 30, 2007 THE ENFORCEMENT GAME [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 dice. 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 business. 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 regulations. 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 appeals. 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 litigation. 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 information. 12) If you lose, go back to Congress or the states and demand tort reform. 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. 20.