[CPEO-MEF] More about Section 342

[Lenny Siegel <lsiegel@cpeo.org>]

Section 342, the Fiscal Year 2001 Senate Defense Authorization bill's
prohibition on the payment of environmental fines without Congressional
approval, differs in some respects from Section 8149, the similar
provision enacted in the Fiscal Year 2000 Defense Appropriations Act.

First, as a policy provision in the Authorization act, the language, it
appears, would become permanent law. Environmental fines and penalties,
under a variety or statutes, whether imposed by state or federal
environmental regulators, would be subject to environmental review
indefinitely.

Second, the prohibition is written to cover fines over $1.5 million or
any fine or penalty "based on the application of economic benefit
criteria or size-of-business criteria." That is, any use of the economic
benefit approach will trigger Congressional intervention.

I am not familiar yet with the precise meaning of "size-of-business" in
this context, but "Economic benefit criteria" refers to the practice of
levying penalties based upon the money that a polluter has saved by
violating environmental laws - particularly when such savings give the
polluter a competitive advantage.

The Senate Armed Services Committee, in its report on the bill, says,
"The terms economic benefit and 'size of business' suggest market-based
activities, not government functions subject to congressional
appropriations." It adds, "The committee is not aware that the DOD has
competitors." 

Sources within EPA point out, on the other hand, that regulators apply
economic benefit criteria to non-profit organizations and state and
local governments. They also note that military organizations do in fact
compete with the private sector in the provision of services - power
generation, waste disposal, etc. - to military installations.

Even if such competition were less common, military installations are
indeed run as profit centers. That's generally a good thing. But when
the public, military personnel and their families, and the environment
are forced to absorb the consequences of illegal cost-saving measures
(pollution), it makes sense for regulators to make the installation pay.
Otherwise, commanders may choose to live with a fine because of the net
cost savings.

According to the Senate committee, this language, like Section 8149 last
year, grows directly from Senatorial displeasure at U.S. EPA's attempts
to penalize Fort Wainwright, a large Army base in Alaska, for continuing
violations of the Clean Air Act. Of course, it casts a much wider net,
but it is written to apply only to Defense Department installations,
giving them a form of immunity not available to other federal
facilities, as well as non-federal polluters.

EPA staff have prepared an explanation of its actions at Fort
Wainwright, and the Committee report contains a defense of the Army. I
don't have a position, and I've decided not to disseminate the details
of the case, because it should be resolved through the regulatory
process, not in the court of public opinion. (Arguing the details of
such a case reminds me of the practice of TV infotainment shows asking
viewers to vote on the guilt or innocence of an accused murdered based
upon snippets of televised evidence and legal information.)
Unfortunately, the proposed law could put Congress in the same position,
adjudicating a regulatory action that belongs in the other branches of
government.

Lenny Siegel
-- 


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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