Smithfield Sidetracks Environmental Regulation Debate

Environmental Law & Property Rights Practice Group Newsletter - Volume 2, Issue 1, Spring 1998

May 1, 1998

Becky Norton Dunlop, Jonathan R. Turley, Peter Coppelman

On Thursday, October 16, 1997, at the Federalist Society’s annual National Lawyers Convention in Washington, D.C., the Environmental Law and Property Rights Practice Group presented a break-out session on the topic, "Environmental Regulation: the Federal Government vs. the States," moderated by Judge David Sentelle of the United States Court of Appeals for the District of Columbia Circuit.

The panel might more aptly have been called, "Environmental Regulation in Virginia: Becky Norton Dunlop vs. Jonathan Turley," because it turned largely into a bilateral debate between then-Secretary Dunlop of Virginia, and Professor Turley of George Washington University, over environmental enforcement in Virginia.

The dispute between Ms. Dunlop and Mr. Turley is excerpted below, from the break-out session transcript. It provides both sides of the story about environmental enforcement in Virginia, particularly the controversial Smithfield case.

Becky Norton Dunlop was the Secretary of Natural Resources for the Commonwealth of Virginia. She was responsible for overseeing eight state agencies, including the Departments of Environmental Quality, Conservation, and Recreation, Games and Inland Fisheries, Historic Resources, Virginia Marine Resources Commission, and the Chesapeake Bay Local Assistance Department. Secretary Dunlop also chaired Virginia Governor Allen's Advisory Council on Self-Determination and Federalism. During the 1980s, she was a senior policy official in the Reagan administration. Subsequently, she served as Deputy Under Secretary of the Department of the Interior and as Assistant Secretary of the Interior for Fish, Wildlife, and Parks. She was a Senior Fellow for Environmental Policy for the Citizens for a Sound Economy, and she served on the board of directors of the National Wilderness Institute.

Jonathan Turley is a professor of law at George Washington University, nationally known for his public interest work in the environmental areas, including cases throughout the country on state and federal levels. Some of his cases involved clients such as the citizens in the WBTI hazardous waste incinerator fraud in Ohio, the workers at "Area 51," and the Rocky Flats grand jurors in Colorado. He is executive director of the Environmental Law Advocacy Center, an active national speaker on environmental enforcement, and assisted in the drafting of penalties for corporate environmental violations as a member of, and later reporter of, the Environmental Crimes Advisory Group for the United States Sentencing Commission. Professor Turley has been commissioned by Congress to investigate the environmental crimes section of the Justice Department. He worked with the United Nations to draft an international agreement on environmental crime and has been a member of a number of foreign delegations on environmental issues.

Also participating in the panel, and making a few of the remarks excerpted below, was Peter Coppelman, the Principal Deputy Assistant Attorney General for Environment and Natural Resources of the United States Department of Justice. Mr. Coppelman supervises the general litigation, wildlife and marine resources, policy legislation, and special litigation sections.

Secretary Dunlop: I suspect those of you who follow these issues closely know that Virginia has had some difficulties with the federal Environmental Protection Agency, the National Parks System, the Fish and Wildlife Service, NOAA, and a few other departments that involve themselves in environmental policy. However, let me quickly say that, while problems may have been exacerbated by the team that leads the Clinton administration, difficulties are by no means limited to the Federal Government when it's led by a Democrat administration. We think that these challenges existed prior to the Clinton administration and need to be resolved regardless of who serves as president. I'd like to just share with you some of the challenges that we've had and some of the issues that I think we need to deal with as a nation that's made up of 50 sovereign states.

First of all, with respect to EPA, we in Virginia, under Governor Allen's leadership, have opposed unfunded federal mandates. That has given rise to battles in a number of areas. Mostly notably, for those who live in the northern Virginia area, was our battle against EPA on the issue of centralized testing of automobile emissions.

When we took office in 1994, the Environmental Protection Agency had made it very clear that centralized testing was the only manner in which one could engage in enhanced emissions inspections, which is required under the 1990 Clean Air Act amendments passed by Congress. Well, in northern Virginia, that would have meant 600,000 vehicles annually going through 12 garages. That is a lot of automobiles sitting in very long lines going through 12 sites in an area that is very large. We believed that was wrong for the environment -- that cars sitting in long lines emitting pollutants for many hours while they were waiting to be tested in a garage that could test but not fix the car was rather unwise for the environment. And we knew it was terrible for the consumer and the constituent.

We tried to negotiate with the Environmental Protection Agency. Well they insisted that there was going to be no compromise, and that we were going to do centralized testing. But we continued to negotiate. Then the 1994 election occurred, a new Congress was elected, and EPA became more willing to negotiate with us. In fact, Senator Warner got an amendment attached to a highway bill that said an equivalent form of testing could be utilized. Consequently, we are now instituting a program for enhanced emissions testing, as required by the Federal law passed by the Congress, but it will be able to be done in service stations across the vast area so that people can go and have their vehicle tested in a station and repaired in the same station or in a neighborhood station rather than going to just 12 centralized locations. This was a battle that took three years, and after the three years were over, we had to design the program, get the equipment approved by our general assembly, and we are in the process now of getting that equipment installed in garages so that our program can start in December. We were involved in almost a four-year process for something that we believe was provided by the federal law but not permitted by the regulations of the EPA.

The second battle that we had shortly after we took office was the imposition by the Ozone Transport Commission on northern Virginia of the California low-emission vehicle. The uniqueness of the California car is that it is built to be run on a specially-formulated gasoline that is going to be refined for California and will be much more expensive. This is great if that’s what California wants -- but the Ozone Transport Commission is a creation of the Federal Government and is a regional body made up of un-elected officials who decided they were going to ask EPA to mandate the California low-emission vehicle on the northeast part of the United States and northern Virginia minus the California gasoline. That seemed to us to be a recipe for disaster. The cars probably wouldn't run as well, the cars probably wouldn't run as cleanly, almost assuredly the cars would cost a whole lot more, and the end result would be unhappy consumers and no improvement in environmental quality.

We resisted the Ozone Commission’s initiative. Virginia said if one really is concerned about improving air quality, then urge the automobile manufacturers to work together and develop the technology to come up with a car that will be able to be sold in all 49 states using conventional gasoline. That way, we'll have improved air quality in the northeast and for those of you who worry about spillover, people in Ohio will be driving cleaner cars so that less dirty air will blow into your part of the country.

That battle was fought for about 18 months. EPA did not support that effort and, I might add, neither did many of the environmental commissioners from other northeastern states. For various reasons -- and I'm not sure what they all are -- the Environmental Protection Agency began to see that there were benefits to this 49-state car. Indeed, one senior EPA official has said that one of her greatest accomplishments as assistant administrator was the successful conclusion of an agreement to have a 49-state car, the national low-emission vehicle. Once again, I think you have an instance where Virginia stood pretty lonely against the federal government and maintained that there was a better way, a more economic way to protect the environment.

Finally, let me just say that there are a number of other areas where we have battled with the federal government. Sometimes we have been successful, other times we have not. We have asked the Fish and Wildlife Service not to purchase additional land in Virginia. They have declined to respect that. We have negotiated an agreement, finally, with the Fish and Wildlife Service to allow our citizens access to one of our state parks through a Federal refuge. We think that's appropriate. And we have stood for scientific-based decisions on fisheries questions in the Atlantic States Marine Fisheries Council. These are all areas where Virginians feel very committed to making decisions based on sound science and what's in the best interest of our citizens and our taxpayers.

Professor Turley: There is a problem with our state enforcement, and let's be honest about it. With all respect to Ms. Dunlop -- and we've got lots of differences, and she's a great advocate for her side -- she knows how controversial her policies are. They're not controversial with the administration; they're controversial with business. The Virginia Manufacturing Association has opposed some of her efforts, particularly the firing of dozens of people within her agency. And she has not controlled externalities. I would pose to Ms. Dunlop, who are you protecting ultimately? I know your motivations are good. I know that you have a strong philosophical belief here. But in Virginia, there are significant numbers of people who are in danger of short- and long-term exposure to ozone and the like. There are places like Smithfield, where the Virginia State Government allowed 5,000 violations to occur, everything from fecal coliform to phosphorous, where that company was responsible at times for 50 percent of the flow into a river that had been shut down repeatedly. There were other businesses that needed that river. There were other people living on that river.

. . .

Virginia has not carried out its delegated authority. Ms. Dunlop is a fantastic advocate, but she has been opposed to most enforcement efforts, and the Clinton administration has threatened to take back delegated authority from Virginia, and they should. You see, delegated authority is a contract, a contract made by Virginia to enforce its provisions. You may disagree with those provisions, you may even disagree with what they're all about, but you're a contracting party, and you have to fulfill it.

But we actually agree on a number of things, and one is that we should minimize regulation wherever possible and rely on the market. I don't think regulation is efficient. I think if you have extra regulation, it is costly and unnecessary. Second, we believe in a need to control externalities that pollution causes, not necessarily through criminal prosecution but through forces of enforcement. But you have to enforce, because someone bears those externalities. And if a company cannot internalize its externalities from pollution, if it cannot produce a product and control its cost, we want that company to go out of business. We want to favor a company who can control pollution. And what we have to do is try to be fairer about what externalities need to be internalized. And finally and most importantly, we need to be uniform. You see, while Ms. Dunlop has a great deal of concern about businesses in Virginia, I have a lot of concern about businesses in other states as well. There are states that are complying with their delegation contracts, and the businesses in those states are carrying tough regulatory burdens when Virginia businesses are off the hook.

Audience Member: Ms. Dunlop, what is your response?

Secretary Dunlop: Let me say that in Virginia we are engaged actively in enforcement. Regarding the Smithfield case, the consent agreement that was agreed to with Smithfield was done in 1991. That was before I took office, Professor. And the Environmental Protection Agency was deeply involved in this agreement. When I took office in 1994, no one called me up, sent me a letter, or came to see me, saying that this was non-enforcement. There was silence -- and silence from the federal government until they filed suit.

Now, as to what we did in the Allen administration on the enforcement front in 1994, we reviewed the consent order, and we determined they are about to stop the pollution. Virginia, of course, as many of you might know, filed its own lawsuit on the civil side. We also did all of the research necessary to provide to the criminal attorneys the case information that was necessary to successfully prosecute and put in jail the employee who had been engaging in falsifying records and not running the plant properly. So, I would argue that our administration worked hand in glove with the Environmental Protection Agency to make sure that the river was no longer being polluted.

. . .

Mr. Coppelman: First of all, Congressional testimony on the Smithfield case addressed all of Ms. Dunlop’s points. From October 1991 to June 1997, Smithfield committed the 5,000 violations. The Feds prosecuted Smithfield criminally, not Virginia.

Virginia filed the case after the Feds informed it that they were going to file a case. In fact, when Virginia filed the case without warning, the Commonwealth received objections from the Feds, because it was a violation of understandings between state and Federal cooperation.

Secretary Dunlop: Well, let me say, as you well can see, this is an ongoing battle between the EPA and Virginia. Virginia provided the necessary information for the federal criminal suit. The information for the federal government's civil suit also came from our Department of Environmental Quality in Virginia. The DEQ in Virginia cannot engage in prosecution. We don't have any control over the Attorney General's office and the lawyers who are prosecuting the case. We can only provide the information. The criminal case was turned over to the Commonwealth's Attorney in Virginia, who turned it over to the U.S. Attorney. That was successfully prosecuted. DEQ employees who provided the information were present at the trial and testified.

With respect to the civil case, we turned the information over to the Attorney General's office, who prepared the case. They filed the case and told me that they were ready to file the case. They didn't say they were filing this case because they had been notified that the Federal Government was going to file a case.