[CPEO-MEF] 8149 survives: What's next?

[Lenny Siegel <lsiegel@cpeo.org>]

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Congress has gone home for the holidays, and as far as I can tell, the
effort to repeal section 8149 of the fiscal year 2000 Defense
Appropriations Act was unsuccessful. Opponents of the provision promise
to try again next year. Section 8149 requires specific Congressional
approval before the Defense Department pays any state or federal
environmental fines or penalties.

Since news of 8149 surfaced in October, CPEO tried to inform our readers
and stimulate debate on the subject. However, since it is our policy not
to engage in direct legislative advocacy, I did not fully express my
concerns about the legislation. Now that Congress is in recess, I feel
more comfortable addressing the issues that 8149 raises.

First, any time Congress takes an action that is perceived to weaken
environmental regulation at military facilities, it sends a shock wave
through the entire federal government. Installation-level officials at
regulated agencies - that is, polluters - are less likely to seek funds
for environmental projects, and state and federal regulators are less
willing to force the issue. For this reason alone - that is, regardless
of the exact practical impact of the offending measure - it's important
for stakeholders to react quickly, loudly, and persistently. If rules
are weakened or budgets are cut and no one screams, it merely invites
another round of anti-environmental legislation.

Even though the opponents of 8149 were unsuccessful legislatively, they
raised such a storm that "anti-environment" forces in Congress are not
likely to attempt similar actions in the near future. In fact,
"pro-environment" forces are poised to continue to fight next year. And
military officials are less likely to flaunt regulators because they
know that 8149 is likely to go away within a year - if opponents keep up
the pressure. In this regard, therefore, the opposition was successful.

Second, I was never convinced that 8149 would have little or no impact.
I don't think Senator Stevens, its author, felt so. While some military
installations voluntarily comply with or even exceed environmental
requirements, others do not. Focused on their military missions, short
of funds, and/or reluctant to accept outside control, they resist
demands from regulatory agencies. At such facilities, there is a
constant tug-of-war between the military and regulators. Section 8149,
by requiring Congressional approval for environmental fines, just pulled
the rope in the direction away from environmental protection. The chance
that Congress might deny payment and the built-in delay simply raised
more obstacles to environmental compliance at reluctant facilities.

Section 8149, by promoting direct Congressional oversight of
environmental fines, blurs the separation of powers among the branches
of government. I won't say it's unique, but reviewing specific fines is
a quasi-judicial function, not a policy or legislative role. (I have the
same reaction to TV shows where viewers are asked to second-guess
juries, based upon broadcast information.) It isn't the job of
Congressional committees to determine whether any specific fine,
penalty, or order should be implemented.

Third, I am willing to review the role that fines and penalties play in
environmental compliance at federal facilities. As a threat hanging over
the head of a non-compliant installation, fines and penalties are an
important enforcement tool. However, once levied, they lose their impact
and simply divert funds from one account to another. In the case of
federally imposed fines, they may divert money from accounts that
support environmental projects to the U.S. general fund. (I would
appreciate hearing from anyone who knows more about this.)

This may be overcome now by diverting the penalties to local
supplemental environmental projects, but Section 8149 didn't allow
those, either. Still, where it is impractical or impolitic to set up
such a project, the money may be "lost."

I suggest, therefore, legislation to broaden the concept of supplemental
projects. I believe it would be possible, by statute, to set up a fund
to receive federal environmental fines and penalties assessed against
federal agencies. That money could be allocated to supplemental
environmental projects, similar to those now being established, but at a
different time or place. Money wouldn't be thrown back to the general
fund. Important projects, heretofore ineligible for support, could be
implemented.

This approach would solve a relatively simply problem, but it would not
"throw the baby out with the bathwater" - as section 8149 appears to do.

***

It's important for public stakeholders to respond emphatically to
undesirable actions in Washington, such as the insertion of Section 8149
into law and the cutback, earlier this year, in base closure cleanup
funding. But none of the networks that unite community activists around
such issues have a continuing legislative focus, and none of the DC
offices of national environmental organizations consistently deal with
military environmental issues. There is a large constituency of
restoration advisory board members and others in the field who would
take part in legislative campaigns, but there is no one to mobilize them
and target their efforts.

I would like to hear from people how that vacuum might be filled. Might
one of the networks or environmental groups become more involved? Should
CPEO create a legislative advocacy structure, independent of our
research/information projects? How could such an effort be funded?

In the absence of a more organized, dedicated effort, we can expect more
"8149s" in the future.

Lenny
-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/968-1126
lsiegel@cpeo.org
http://www.cpeo.org



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