A Fine Mess
By Christi Daugherty
JULY 20, 1998: Records show that the slide began under the most recent administration of former Gov. Edwin Edwards (1992-96) and continues under Foster. According to figures released by the U.S. Environmental Protection Agency, Louisiana industries released 8 million more pounds of toxins during Foster's first year in office than they did the previous year.
Moreover, Louisiana was one of only a handful of states to see pollution increases that year. By comparison, toxic releases in Texas during 1996 fell by more than 11 percent -- more than 35 million pounds -- compared to 1995.
Even worse, Louisiana, which bills itself as the "Sportsman's Paradise," currently ranks first in the nation in water pollution. Virtually all of the state's waterways -- from the lakes around the state Capitol to rural bayous -- have been polluted for more than two decades.
Nevertheless, penalties and fines against environmental outlaws have declined from a high of $4.4 million in 1989 to slightly more than $700,000 in 1997, according to a study conducted by the Tulane Environmental Law Clinic.
Environmentalists recently received distressing news from other quarters as well:
Environmentalists say there is ample evidence that the "bad old days" are back.
Public officials and the chemical industry disagree. State administrators say the increasing pollution is actually a good sign because it reflects increased production for industry. The Louisiana Chemical Association has said that not all toxins reported by EPA are really hazardous and that people should not be concerned. LCA leaders and officials with the state Department of Environmental Quality say Louisiana is doing all it can to control pollution.
Asked if he was satisfied with how the state is handling its pollution problem, Foster said, "Yes, I am."
But reports by EPA's inspector general and a recent finding by a special master assigned to a lawsuit involving DEQ say the state has vast room for improvement in controlling industrial pollution. And environmentalists say that under Foster's administration, the struggle to clean up the state has become harder than ever.
To hear Foster tell it, there isn't much more the state can do to cut emissions.
"As long as we have that type of industry, we're going to have some emissions," the governor said. He compared emissions to car crashes on the highway. "If you have lots of cars on the highway, you've got more auto accidents, which are not desirable. Everything is proportionate."
Continuing Foster's analogy, however, his administration has written a lot fewer "tickets" when those "accidents" occur at Louisiana plants. In essence, penalties and fines have become the exception rather than the rule. In 1997, DEQ penalized only 4 percent of alleged violators -- the lowest ratio in the 10 years for which records are available and the smallest amount ever collected by DEQ in one year since 1988.
Under Foster, the total amount of penalties has fallen by more than 44 percent since the most recent Edwards administration. But DEQ Secretary Dale Givens said the drop is actually part of the state's plan to encourage industry to cooperate with state and federal regulations. The state doesn't want to bully its corporate citizens, Givens said.
Penalties have dropped because business is cooperating with state government more than it has in years past, he said. "There are several different ways that you can measure enforcement, and what we're really trying to achieve is compliance. If you have more compliance, then logically you would not have as many penalties."
Under that industry-friendly system, DEQ inspectors who find a violation ask the company to correct the problem. If the company complies, no fine is assessed, Givens said.
"We feel that where we can, if we can get immediate compliance, we have accomplished the goal faster than if in all cases we simply went the order route," he said.
Under the state's old "order route" system, which EPA encourages, DEQ issued a written directive to correct the problem and often fined the company for having the situation occur in the first place.
Industry hated that system, said Bettsie Baker, director of public affairs with the Louisiana Chemical Association. Foster's system is much more acceptable to the group. "Right now, our members feel better about being in Louisiana than they have in the last 20 years," Baker said.
EPA's inspector general is not as fond of Foster's system as the LCA. In a 1996 report on enforcement in this region, the inspector general criticized DEQ's drop in penalties.
The report found Louisiana does not study how much money a company is saving by violating pollution laws and thus cannot fine the company by at least that amount, as the EPA recommends. "Penalties lacking an economic-benefit component are not effective, since it may be less expensive for a company to violate the law than to comply with it," the report stated. "Also, recovering the economic benefit for a violation serves as a deterrent to companies that may contemplate violating the law."
Based on that policy, EPA believes in dealing harshly with violators when necessary, said Dr. Warren Layne, director of toxic inventory regulation for EPA's Region Six.
"Last year, we fined a single facility in Corpus Christi, Texas -- Koch Refining -- over half a million dollars for just one plant," Layne said. "This year, we just finished an agreement with a facility in Oklahoma for well over half a million in fines and penalties."
Former DEQ Secretary Paul Templet said he had good results following EPA's recommended policies. "The reason fines went up under Governor Roemer was because we began enforcing the law," Templet said. "There had been little enforcement in the state prior to that."
Records show that as fines went up, the state's pollution went down. Under Roemer, regulated toxic emissions in the state fell by more than 50 percent from previous years. From 1988 to 1995, overall toxic emissions in Louisiana fell by more than 70 percent.
But in 1996, that trend ended.
Templet blames lack of enforcement during both Edwards' last term and Foster's first. When Templet took over DEQ in the late 1980s, he said, field agents told him that enforcement of environmental rules under Edwards had been so lax that when they wrote up violations at chemical plants, the workers laughed at them.
Without fines as enforcement, Templet said, the system falls apart because industry cannot be expected to police itself.
"Without enforcement, there's no level playing field," he said. "If there's no enforcement, those not playing by the rules get away scot-free, while those that do play by the rules are penalized for spending the money."
Bob Kuehn, director of the Tulane Environmental Law Clinic, calls the state's policies "all carrot and no stick."
"Governor Foster says if companies are violating the law, the state will hammer them," Kuehn said. "Where's the hammer? At most, it's a fly swatter."
Environmentalists point to a little-noticed court case as an indication of just how little DEQ has done to clean up the state's polluted waters.
Since 1980, Louisiana has been required by the federal Clean Water Act to determine the extent of pollution in local waters and calculate just how much local pollutants would have to be cut in order to reduce the toxins to acceptable levels.
Eighteen years ago, that was considered a first step to cleaning up the state's waterways -- but DEQ never did it. Of the 255 waterways the agency was ordered to analyze, it has completed work on only 17.
In 1996, environmental groups filed suit in federal court to force EPA to take over Louisiana's standards-setting process. Not wanting to be saddled with work the state should be doing, the agency fought the lawsuit. Several weeks ago, a court-appointed "special master" sided with environmentalists. U.S. District Judge Mary Ann Lemmon now must decide whether to accept the special master's report.
If she does, it would mark the first time EPA has ever been forced to take over a state's duties in setting what are known as "total maximum daily load" (or TMDL) limits, said EPA spokesman David Bary.
The move would be a blow to the state's credibility but would be a big victory for local environmentalists.
"I think the special master's recommendation essentially says DEQ hasn't been doing it's job," said Mary Lee Orr, director of the Louisiana Environmental Action Network. "This state isn't the sportsman's paradise anymore -- it's the sportsman's nightmare."
DEQ's Givens said Louisiana isn't the only state that has struggled with the federal water rules. He bristled at the suggestion that the special master's report was a slap in the face to his agency.
The state has worked on the problem, he said. About the time the lawsuit was filed in 1996, for instance, DEQ requested state funding for 37 new positions to study the total load problem.
"I think we're a leader at this point in work on TMDL, and I'm extremely proud of the amount of pollution reduction we've achieved to date," Givens said.
EPA's Layne said the federal government has made great strides over the last two decades in controlling the country's chemical industry. At this point, he said, the battle to control pollution is mostly a local one. "The public has to get involved by asking questions, demanding to know what industry is doing in their community and standing up for themselves," he said.
For the past decade, underprivileged residents in Louisiana used the Tulane Environmental Law Clinic for those purposes. The clinic worked to educate the working poor about their rights and accepted cases against industry when asking questions wasn't enough. But in the epic battle over the state's environmental policies, the recent decision by the state Supreme Court to restrict the clinic was a Waterloo for environmentalists.
When the high court's decision was announced last month, many environmentalists were moved to tears. On local television news programs, Tulane's Kuehn was at a loss for words and looked as if he had taken a physical blow. Chief Justice Pascal Calogero, meanwhile, immediately left on vacation and was not available for questions about the ruling.
Although the environmental clinic accepts only select cases in which clients cannot afford a private attorney, the new rules restrict student lawyers further. Now the students may only represent indigent clients as defined by federal guidelines -- individuals making less than $10,000 annually. Clinics also may not represent local affiliates of national organizations.
The court's new rules -- the most restrictive in the nation -- essentially moved most legal assistance out of the grasp of the state's working poor, who make up the vast majority of those affected by industry.
Foster, who has been an outspoken critic of the clinic, welcomed the decision enthusiastically. He told reporters the court had "finally reined in those outlaws" at Tulane.
Tulane became a target for Foster after it effectively stopped the Shintech corporation from building the second largest PVC plant in the world in St. James Parish. The clinic received a ferocious response from the state's business community as well as state government.
Foster fought vigorously on behalf of the chemical company, urging businesses and Tulane alumni to withhold donations and characterizing the school's law faculty as "radical." After receiving a formal complaint about the clinic from business groups -- who said Tulane's work hindered economic development -- the high court eventually launched a nine-month investigation.
Working on behalf of parish residents, the clinic contested virtually everything about the facility, including its state-approved permits, the process for issuing those permits and the decision to put the plant in a neighborhood that is mostly black and in a parish that is among the state's most polluted.
In the midst of the heated Shintech debate late last year, Foster publicly suggested that if the residents had to pay for legal representation, they would not have been so successful. At the time, the governor's statement seemed little more than yet another example of his typically "politically incorrect" rhetoric. Now, however, it has become the law of the land.
"I don't think there's any question that the attack on the clinic through the court is an attempt to mute the voices of those who disagree with his environmental policies," Kuehn said.
African-American groups also were outraged that the new rules require organizations working with the clinic to submit their membership lists to the courts along with income information about each member. Many feared such lists could be used to punish members of the organizations, some of whom may work for industry.
State Rep. Avery Alexander urged statewide protests and sent a sharply worded letter to Chief Justice Calogero. In the letter, Alexander compared the court's move to notorious decisions made by the Louisiana Supreme Court in Jim Crow days.
The changes, he wrote, "are the most vicious attack on the rights of working people to organize since your predecessors on this court upheld the White Citizens Councils' use of the 1924 Fuqua Act in the 1950s that required making public the membership lists of the NAACP chapters in Louisiana."
Meanwhile, the clinic may no longer represent its biggest client -- the Louisiana Environmental Action Network -- in any new cases (existing litigation may continue). LEAN's Orr feels the system has failed.
"This is a system that citizens feel allows polluters to continue to pollute and almost makes it nothing more than the cost of doing business -- and that's scary," Orr said.
Environmentalists say more than just the state's enforcement policies have changed under Foster. So, too, has Louisiana's attitude toward the environment and those who would protect it.
Certainly there is no love lost between Foster and environmentalists. He has publicly called them "wackos" and "nuts," among other epithets.
In addition, DEQ has begun to let those with environmental agendas know they're not welcome, said Orr. For instance, in the midst of the Shintech battle, the state suddenly began charging a "copying fee" when asked for public documents. Costs can quickly add up for underprivileged people seeking DEQ documents, which can be hundreds of pages long.
"I think the citizens who visit DEQ feel they've gone back a decade," Orr said. "They feel the information is not easily accessible, and they feel the enforcement is not there."
In addition, the governor's public attacks are shocking to environmentalists, who feel they play a critical role in helping achieve a balance between business interests and the well-being of the state's air and water.
When asked about name-calling, Foster said he doesn't think all environmentalists are "kooks," just some of them. "I don't think that's a fair question," he said. "If you're talking about the people who just like to run around and take causes and have no education in what they're talking about, yes, I have a problem with them."
Those who are "really serious and really care," he says, are better received by the state.
Monique Harden, a member of the New Orleans environmental legal defense group Earth Justice, says Foster considers environmentalists the enemy.
"I think it's important to note that we have no local environmental protection from the government in the state of Louisiana anymore," Harden said. "The citizens are doing it themselves, through lawsuits and efforts to shame the state into taking some sort of action."
Harden added that state officials just don't seem to understand why people would not want a Shintech or a Grand Bois in their community.
The LCA's Baker counters that environmentalists are exaggerating. Even if pollution is up, she says, it should be viewed in perspective.
"These chemicals are measured in parts per billion," Baker said. "Do you know how small that is? I compare it to one person in all of China."
Improved technology has made most plants markedly safer and less polluting than two decades ago, Baker added. "You'll be exposed to more toxins in a nail salon than in most chemical plants."
A SAMPLING OF GOV. FOSTER'S OPINIONS ON THE ENVIRONMENT.
"I'm going to look differently at Tulane from the perspective of having major
tax breaks if what they're going to do is support a bunch of vigilantes out
there who can make their own law."
-- interview with WLPB, July 10, 1997
"We are working to try to bring business in Louisiana, and our only enemy is
the federal government through its Environmental Protection Agency."
-- The Times-Picayune, March 1, 1998
"Greenpeace and a bunch of cuckoo operatives were hanging off the Capitol.
They are a bunch of kooks."
-- The Times-Picayune, March 1, 1998
"This (the Tulane clinic) is just a bunch of weird guys that don't like
development that are loose."
-- WWL-TV, June 3, 1998
"The court is finally tightening up on that bunch of outlaws trying to shut
-- Baton Rouge Advocate, June 18, 1998
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