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November 9, 1999, Tuesday
National Desk
ON THE RECORD: Governor Bush and the Environment; Bush Approach to Pollution: Preference for Self-Policing
By JIM YARDLEY
Early this summer, with political pressure mounting to address his state's severe air pollution problems, Gov. George W. Bush signed a law he regards as the gold star of his green resume: A program to regulate outdated industrial plants that are among the heaviest polluters in Texas. For Mr. Bush, who began his career in the oil fields of West Texas, the program meant confronting the oil, gas and chemical industries that are among his most generous contributors. With the law, Mr. Bush now boasts that he is the first Texas governor ''to ever have brought industry together and said, 'Get into compliance.' ''
What he actually did was a little different, and it offers insight into Mr. Bush's operating style on environmental issues, a style widely praised by business but heavily criticized by environmental groups.Although state regulators had been considering mandatory restrictions on polluters, state documents indicate that Mr. Bush thought the approach should be voluntary and essentially asked industry leaders to draft such a proposal, which they did in private meetings with state officials two years ago. No environmental groups or other public interest groups were invited, and they only learned about the meetings early this year.
In any assessment of Mr. Bush's environmental record, the unmistakable subtext is the governor's relationship with business and industrial leaders. As an advocate of limited government, Mr. Bush believes that lawsuits and regulations are not the best way to achieve clean air and water. Instead, his aides say, Mr. Bush has pursued a cooperative approach that emphasizes voluntary solutions instead of government mandates.
But with Mr. Bush leading the Republican presidential race, environmentalists are criticizing his closeness to the industries regulated by his administration in Texas. Campaign records indicate that the companies that helped draft the new pollution law have since donated nearly $1 million to Mr. Bush's presidential campaign.
In addition, environmentalists say the law, which allows companies to comply voluntarily with state permit requirements, is weak and riddled with loopholes. They say other laws and policy changes during Mr. Bush's tenure have had the accumulated effect of weakening state oversight of industry.
''It's an environmental policy being run by business and industry and their friends in the regulatory agency,'' said Ken Kramer, director of the Lone Star chapter of the Sierra Club. ''That means there will be very little scrutiny.''
Unlike his father, former President George Bush, who declared himself ''the environmental president,'' the younger Mr. Bush has not emphasized environmental issues since he became governor in 1995, despite the fact that Texas ranks as one of the most polluted states in the country.
In his presidential campaign, the governor has yet to articulate an environmental policy, as he has on issues like education and health.
His critics say the environment hardly registers on Mr. Bush's political radar; his admirers say Mr. Bush is not hostile to the environment but merely reflects the conservative politics of Texas.
''Texas is not California,'' said Andrew Sansom, the executive director of the Texas Department of Parks and Wildlife. ''There's no groundswell of support for environmental issues.''
Even many Democrats say there are limits to what can be accomplished in Texas. The biggest environmental victory this year came when the Legislature passed a deregulation bill that required outdated utilities to cut pollution. The author of the bill, State Representative Steven Wolens, a Democrat from Dallas, praises Mr. Bush for endorsing it.
By comparison, Mr. Wolens characterized the voluntary law championed by Mr. Bush as ''a lot of sweet talk with no teeth in it.'' Still, he said, ''it's better than having no bill.''
The Problem
Air Quality Problems All Across Texas
Many people, including federal regulators, say Texas can no longer afford any apathy toward its environment. The problems of automobile exhaust and industrial pollution have created severe air quality problems.
Overall, nearly half of the state's 19 million people live in areas that have failed to meet federal standards for ozone, which is linked to lung damage and is a primary ingredient in smog.
This year, the state's largest city, Houston, was expected to pass Los Angeles as the nation's smog leader. And the state's second-largest metropolitan area, Dallas-Fort Worth, has been downgraded by the United States Environmental Protection Agency from ''moderate'' to ''serious'' for its high levels of ozone. In March, the state failed to meet a deadline to submit a complete plan to the E.P.A. detailing how Dallas-Fort Worth would reduce ozone levels. Two months later, the E.P.A. threatened to suspend federal highway money if a plan was not developed by next year.
Pollution is not new to Texas, a heavily industrial state, which might explain why most Texans do not seem to blame Mr. Bush for the air problems. The governor has even boasted that air quality had improved during his tenure. ''You've got to ask the question, 'Is the air cleaner since I became governor?' '' Mr. Bush said in the spring. ''And the answer is yes.''
Such blanket statements are not easily proved, particularly since pollution can be measured in different ways. Compared with two decades ago, when industry operated with fewer restrictions, air quality has generally improved in Texas. Hundreds of pollutants like benzene, ammonia and chlorine were once the primary measuring stick for air quality. Linked to cancer as well as neurological and developmental problems, these toxic pollutants have declined in Texas since the late 1980's, though the state still leads the nation in such toxic emissions.
Environmentalists, however, attribute the reductions to federal initiatives and laws passed under Mr. Bush's predecessor as governor, Ann Richards, a point that Mr. Bush's aides do not dispute. Aides point out that Texas leads the nation in the reduction of toxic pollutants; however, environmentalists say that is misleading.
An analysis shows that reduction rates were higher under Ms. Richards, whose administration received mixed reviews from environmental groups.
Today, attention is focused on ozone pollution, which is formed from nitrogen oxide and volatile organic compounds that are emitted by gasoline stations, automobiles and smokestacks. In recent months, the severe ozone problems in Houston and Dallas-Fort Worth have led to increased criticism of Mr. Bush and his appointees by newspaper editorial writers as well as environmentalists.
Without question, Texas has endured one of the worst ozone summers on record. So far this year, the state has registered the 24 worst smog readings in the country, including a reading in Houston on Oct. 7 that registered at twice the maximum level allowed by national health standards.
The Meetings
Industry Gathers To Draft Legislation
For nearly three decades, the problem of air pollution in Texas attracted limited attention. The state passed a Clean Air Act in 1971, but the law did not require existing industries to obtain permits. Eventually, the law's supporters reasoned, these ''grand-fathered'' industries would become obsolete and shut down.
But by late 1996, as the E.P.A. pressured state and local officials to clean up the air, state officials began to realize that more than a third of Texas's industrial air pollution was coming from outdated smokestacks operating without permits. Overall, almost half of the state's 1,648 industrial plants enjoyed some sort of exemption.
In December 1996, Ralph Marquez, Mr. Bush's first appointee to the Texas Natural Resources Conservation Commission, met with industry representatives. Minutes of the meetings indicate that state officials were considering a plan to force the outdated plants to upgrade pollution equipment and reduce emissions.
On Jan. 14, 1997, however, John Howard, the governor's environmental policy director, wrote a memo to Mr. Bush. ''Industry has expressed concern that the T.N.R.C.C. is moving too quickly and may rashly seek legislation this session,'' he wrote.
Instead, Mr. Howard recommended that the governor support a proposal to create a public task force that would prepare a voluntary plan that could be presented in the 1999 Legislature. This idea became a reality on Sept. 10, 1997, when Mr. Bush announced the Clean Air Responsibility Enterprise Committee, which included business leaders and environmentalists.
But eight months before the public committee was formed, industry executives, state regulators and on some occasions, Mr. Howard, had already begun holding a series of private meetings. In fact, on June 19, 1997, Ansel L. Condray, the president of Exxon, and Victor G. Beghini, the president of Marathon Oil, presented a proposal to petrochemical executives. Their plan did not require companies to meet state pollution standards, but instead made the program voluntary, allowing a grace period for companies that choose to take part.
In a memorandum circulated at the meeting, the two executives noted that Mr. Bush had asked them to draft a proposal. Aides to Mr. Bush say the meetings were nothing more than ''preliminary fact-finding'' that is common in developing legislation. But at least one participant on June 19 found the meeting unusual.
''It was a very strange meeting to me in that the approach of the presenters was pretty much like, 'This is the way it's going to be -- do you want to get on board or not?' '' one of the participants, Jim E. Kennedy, an engineer with the DuPont Company, wrote in an e-mail message the next day to other chemical industry executives.
''Clearly, the 'insiders' from oil and gas believe that the governor's office will 'persuade' the T.N.R.C.C. to accept whatever program is developed between the industry group and the governor's office,'' Mr. Kennedy added. He concluded: ''The concept paper has no 'meat' with respect to actual emissions reductions. One of the leaders actually stated that emissions reductions was not a primary driver for the program.''
The Kennedy e-mail message was included in documents that became public early this summer after an Austin-based environmentalist, Peter Altman, filed an open records request.
''Nobody in the environmental community knew these meetings were going on to shape policy, and no one was invited to participate,'' said Mr. Altman, executive director of Sustainable Energy & Economic Development Coalition.
The law was passed this year by the Legislature, and though it did undergo some changes, it resembles the proposal pitched by industry in the private meetings. Environmentalists tried, but largely failed, to strengthen the law.
State officials say the law will allow them to regulate companies that had operated for decades without pollution permits. But Mr. Altman and other environmentalists complain that the law is weak, does not establish goals for reducing emissions and will not significantly cut pollution.
E.P.A. officials confirmed that reductions in the law will not allow the state to meet federal ozone standards.
Robin Schneider, executive director of Public Research Works, a nonprofit, environmental research and education organization, said the companies that attended the meetings were among Mr. Bush's most reliable and generous contributors. Analyzing Mr. Bush's presidential campaign contributions between March and June, Ms. Schneider traced at least $973,000 to employees or family members of the companies attending the meetings, or to lawyers and lobbyists that represent the companies.
The same analysis showed that Mr. Beghini, who retired last month as Marathon Oil president, gave the maximum $1,000 contribution, as did his wife. At least nine of Mr. Bush's ''pioneers'' -- people who have pledged to raise at least $100,000 for his campaign -- are connected to the companies.
''We think business executives know to invest in the Bush campaign for pollution friendly policies,'' Ms. Schneider said. ''They're hoping he will be making air pollution policies at the national level.''
Mr. Marquez, however, said environmentalists wrongly believed that government must have an adversarial relationship with industry. ''Texas has always worked with the regulated community in coming up with solutions,'' said Mr. Marquez, who attended several of the 1997 meetings.
Scott McClellan, a Bush campaign spokesman, said the governor did not make decisions based on campaign contributions but on ''what is best for Texas.'' He also said that Mr. Kennedy's characterization of the June 19 meeting ''was not accurate.'' Mr. Kennedy could not be reached for comment. Exxon officials declined to comment, but a Marathon Oil spokesman said his company frequently met with state and local officials to discuss policy.
For his part, Mr. Bush considers the law a significant accomplishment.
''I'm the person who initiated the discussions, I'm the person who asked industry to get into compliance, and they did,'' Mr. Bush said. No other Texas governor, he noted, had addressed the issue.
The Agenda
Government Working With Business
In an interview last month, Mr. Bush said the best way to achieve clean air and water was ''to work with local jurisdictions using market-based solutions and not try to sue our way or regulate our way to clean air and clean water.''
In outlining Mr. Bush's environmental beliefs, his aides say he has tried to balance the needs of industry with the need for clean air and water.
While campaigning for president, Mr. Bush has taken a few environmental positions, notably his opposition to an agreement signed in Kyoto, Japan, that establishes emission targets for industrial nations. In the past he has criticized federal regulation, particularly when he regards it as too intrusive; in his 1994 campaign for governor, he lashed out against the Endangered Species Act as overly intrusive on landowners.
Environmentalists say Mr. Bush has eroded environmental protections since becoming governor in 1995. During the 1995 legislative session, Mr. Bush and lawmakers overturned a law signed by Ms. Richard that required vehicles to undergo emissions tests.
In 1995, Mr. Bush signed a law that allows companies to audit themselves for environmental violations. If a company found any violations, the law allowed it to report the violations without fear of fine or penalty as long as the company presented a cleanup plan. Nor would the violation be made public.
''From our experience,'' Mr. Marquez said, ''things we are seeing reported are things our inspectors might never have found.''
Critics described the law as a ''stay out of jail'' card for polluters. Ms. Schneider of Public Research Works noted that the same industry groups who supported the law also contributed more than $4 million to Mr. Bush's gubernatorial campaigns.
Nelly Rocha, special counsel to the E.P.A.'s regional administrator in Dallas, called the audit privilege law in Texas one of the most generous to industry of its kind. When the E.P.A. protested to Texas officials, the law was amended in 1997 to, among other things, remove the criminal immunity.
But Ms. Rocha said the law still ''is probably one of the most liberal laws in our viewpoint.'' Mr. Rocha said federal regulators oppose all state laws that provide privilege immunity to polluting companies. State officials say that 1,057 companies have conducted self-audits since the law went into effect and 260 of them disclosed some type of violation.
In 1995, Mr. Bush also reshaped the three-member state environmental regulatory commission by first appointing Mr. Marquez, a former employee of Monsanto Chemical. Currently, all three commissioners have industry connections.
The state commission, in turn, has established what environmentalists consider to be a business-friendly tone. For years, Texas has boasted a statute that allows citizens to challenge pollution permits through a process much like a court trial. Such hearings are rare, but citizen groups have used the procedure to stop unwanted projects. Most recently, a planned nuclear waste dump in West Texas was blocked, in part, because of opposition from a hearing. The new commission, however, has reduced the number of hearings to 8 in 1998 from 25 in 1996, statistics show; in 4 cases, state courts have overturned the commission's refusal to hold a hearing.
The same commission approved a policy change that forbade surprise inspections of industries. The commission eventually backed down after heavy criticism, though surprise inspections are still considered rare.
''We've cut out public oversight and public participation, and we're adding greater pollution to our water and our land,'' said Richard W. Lowerre, an Austin environmental lawyer.
There is no doubt that environmental issues will nag at Texas as Mr. Bush campaigns for president. State and local officials are preparing an ozone reduction plan for Dallas-Fort Worth.
In Houston, where the planning is further along, the city is facing potentially draconian changes: huge cuts in industrial pollution, a suspension of heavy construction projects during morning hours and more stringent emissions testing for automobiles.
Last week, as rush hour commuters in Houston drove along a clogged street, a small band of protesters waved placards: ''We finally beat L.A.,'' one sign read. ''Houston No. 1 in air pollution.''
Organizations mentioned in this article:
Related Terms:
Environment; Election Issues; Presidential Election of 2000; Biographical Information; Regulation and Deregulation of Industry; Suits and Litigation; Finances; Law and Legislation
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