FULL COURT PRESS: The Property Rights Backlash
Stunned by the advent of a pro-environment administration in Washington, the anti-environment, pro-property-rights lobby came roaring back in 1994 to score significant victories for their cause in Congress, state legislatures and especially in the courts.
Coalescing around radio talk shows, sympathetic state governments and the so-called "Wise-Use" movement, organizing with the desperation born of finding themselves out of the Washington loop for the first time in over a decade, property-rights advocates and their allies in industry insisted that environmental stewardship and economic prosperity are mutually exclusive -- and left no doubt about their choice.
A favorite theme of their onslaught has become the notion that any government regulation that decreases the potential value of a piece of property amounts to confiscation -- a "taking" in the meaning of the Fifth Amendment to the U.S. Constitution -- for which the owner should be compensated. They introduced in the Congress -- and in the legislatures of 28 states -- bills that would require such compensation.
They persuaded five states to pass watered-down versions of the legislation, while 23 others declined or delayed action. While they failed to win Congressional passage of their so-called "property owners' bill of rights," they did manage to block the proposed elevation of the Environmental Protection Agency to cabinet status, delay re-authorization of the Endangered Species Act (which was due in 1993), and prevent authorization of the U.S. Biological Survey, an essential component of Interior Secretary Bruce Babbitt's reorganization of the Interior Department.
Much more ominous were the favorable decisions won by property-rights advocates in the nation's courts. One, handed down by the U.S. Supreme Court, had wide application but little effect. The other ruling, by a federal appeals court, had enormous implications for environmental regulation but limited application.
The Supreme Court ruled in that the city of Tigard, Oregon, erred when it required Florence Dolan, in return for a permit to expand her business, to turn over to the city ten per cent of her 1.67-acre lot for a storm-drainage ditch and a bike path. The Court held that there should have been "rough proportionality" between the impact of the business expansion and the concessions required. It was up to the government either to demonstrate that proportionality, or to compensate the owner for the land taken. The ruling encouraged property-rights advocates, but because it concerned an actual transfer of land to the government it fell far short of establishing a right to compensation for any negative impact of government regulation.
Environmentalists were stunned, however, when a federal appeals court in Washington, D.C., re-interpreted the part of the Endangered Species Act that forbids owners of private land from causing "harm" to endangered species. The appeals court held that Congress meant by that only "direct application of force to the animal," and not habitat destruction. Under that ruling, observed National Wildlife President Jay D. Hair, "a landowner could completely drain a lake without 'harming' any of the fish that die." Since the ruling contradicted those of other federal appeals courts in similar cases, it will have little effect until a higher court rules on the issue.
Despite the backlash (and a multitude of other distractions and crises), the administration pressed on with what the Portland Oregonian described as "nothing short of a revolution" in natural-resource policy. The fundamental change, defined by the newspaper as a drive "to replace politically driven deals with resource-management decisions that are validated by science and general community consensus," moved forward, if sometimes glacially, on all environmental fronts in 1994.
The North American bald eagle --- a powerful and popular embodiment of the plight of endangered species and symbol of the very spirit of America -- was declared by the U.S. Fish and Wildlife Service in 1994 to be endangered no longer. Thus was declared victory in a three-decade battle that began in 1963 with only 417 breeding pairs known to exist in the contiguous United States. By 1993, 4,016 breeding pairs and thousands of juveniles had been counted, and biologists decided it could be removed from the endangered list (except in three southwestern states) and placed on the second-echelon "threatened" list (everywhere but in Alaska, where it has always flourished). The change "should be hailed as an important milestone," said Michael Bean of the Environmental Defense Fund, "not only for the eagle, but also for the Endangered Species Act."
Bean and other conservationists hoped that the recovery of the high-profile eagle would galvanize support for reauthorization of the Endangered Species Act [ESA], which was due in 1993. But opponents managed to delay Congressional action well beyond its 1994 schedule [CK STATUS AT LAST MINUTE], insisting that the economic costs of preserving little-known species are too high and the benefits to society too meager. They discounted the bald eagle's recovery by insisting that it was not the ESA, but the unrelated banning of hunting eagles in 1963, and of the use of the pesticide DDT in 1967, that had saved the bird.
The Endangered Species Act was passed in 1973 to "provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved." Since then, 3,500 species have been nominated for protection, but only 600 species actually have been listed as threatened or endangered and the required recovery plans have been written for only half of those listed. Such plans frequently end up in court, either because property owners think they go too far or because environmentalists think they do not go far enough. The plan for the recovery of the grizzly bear in the Western U.S., for example, announced late in 1993, brought immediate threats of lawsuits from two coalitions of environmental groups.
Supporters of the ESA moved in Congress in 1994 to extend and strengthen the law -- for example, by setting deadlines for deciding whether or not to list nominated species, and doubling the $55-million budget for administering the law. But property-rights advocates introduced legislation designed to limit the Act's effectiveness, by requiring the federal government to compensate landowners for obeying the law, and by forbidding citizen lawsuits under ESA -- against anyone but the federal government.
As the tumult over property rights threatened to delay action on the ESA for yet another year, Interior Secretary Babbitt pointed out that of 118,000 projects reviewed in the past 20 years for conflicts with the ESA, only 33 had been rejected. Nevertheless, he announced in June a new set of guidelines for administering the act. Henceforward, he said, the U.S. Fish and Wildlife Service would be more considerate of human and economic costs of preserving species.
Babbitt ordered that the drafting of future recovery plans involve more interested parties at the state and local level, and that the plans be subjected to independent scientific analysis. Future plans will have to be completed within 30 months of the listing of a species (the original act set no deadline) and property owners will have to be notified promptly about required and prohibited actions.
While environmentalists worried and industry groups doubted, Fish and Wildlife Service director Mollie Beattie enunciated the new approach: "The service regards every listing as a failure of us all to apply the kind of long-term, careful thinking about natural resources that they require for both good stewardship and a sustainable economy."
The cause of preserving endangered species, and thus maintaining biodiversity, has been difficult to defend against the ridicule heaped on expensive efforts to save such little known species as, for example, Dicerandra frutescens, a tiny, mint-like plant found only in a spot in central Florida. But scientists in 1994 offered new, concrete evidence of the benefits of biodiversity.
Cornell University biologist Thomas Eissner discovered in the rare and disappearing Dicerandra frutescens a compound much needed by our technologically-advanced world: a powerful new insect repellent. And a seven-year study of Minnesota prairie grasslands showed that the more diversity found in a plot, the less it was damaged by drought and the faster it recovered. Diversity, said Dr. David Tilman of the University of Minnesota, is "nature's insurance policy against catastrophes."
There was no encouraging news, however, for frogs and similar amphibians, whose precipitous decline has been alarming scientists for five years. Unable to attribute the decline to a single cause, biologists have been blaming a medley of assaults. among them habitat destruction, water pollution and acid rain. This year they added to the list increased ultraviolet radiation, a probable consequence of the thinning ozone layer in the stratosphere.
Oregon State University biologist Andrew R. Blaustein announced in March the results of a study of the effects of ultraviolet radiation on the egg masses of three amphibian species of the Pacific Northwest. When eggs of the Western toad and the Cascades frog, both of which are in decline, were shielded from UV radiation, the percentage of eggs that hatched went from the usual 50-60 per cent to 70-85 per cent. A third species, the Pacific Tree frog, enjoyed a nearly 100-per-cent hatching rate whether the eggs were shaded or not. Unlike the other two species, the tree frog produces an enzyme that repairs UV radiation damage, and is not in decline.
One happy footnote: Dr. Rudi Mattoni of the University of California at Los Angeles was the last person to see a Palos Verdes blue butterfly, which was declared extinct in 1983 after a bitter battle over destruction of its habitat for a baseball field in Rancho Palos Verdes. Last March, while surveying insects on some Navy-owned land in nearby San Pedro, Mattoni stumbled on 200 of the butterflies. Said Mattoni, who immediately launched a captive-breeding program to re-establish the species, "it was a real resurrection for Easter."
"Air quality improved for millions of Americans last year," said Garbage magazine in its spring 1994 issue, "but that wasn't considered news-worthy by most of the nation's major media outlets." Citing the Environmental Protection Agency's latest annual report, the magazine said the number of people living in areas not complying with the federal ozone standard had gone down by 37 per cent in 1992, to 54 million people -- "the lowest level in 20 years." Only two newspapers reported the good news, complained Garbage, "most news editors judged the story a snooze."
Is the good news under-reported? After all, under the federal Clean Air Act of 1970, emissions of hydrocarbons -- a major component of smog -- by new cars have been cut by 90 per cent. The accumulation of greenhouse gases, the ones implicated in the theory of global warming, and of the compounds that are blamed for attacking the upper-level ozone layer that protects the earth from harmful ultraviolet radiation, have slowed dramatically. The latest EPA report on the release of toxic chemicals into the air by industry shows a 9.4 per cent improvement in 1992 over 1991, an overall reduction of 35 per cent since 1988. Does the good news overshadow the bad? In practical terms, are the further improvements in air quality required by federal law not worth the daunting costs?
It depends on where you look, and what you count. In the summer of 1994, 24 years after the Clean Air Act held out the promise of healthy air for everyone, as U.S. News and World Report observed, "1 out of 4 Americans is still gasping for breath when lung-crippling smog reaches its summer peak." The Los Angeles area, classified as "extremely polluted," suffers the worst smog in the country, while seven other cities and their suburbs -- New York, Chicago, Houston, Milwaukee, Baltimore, Philadelphia and San Diego -- are "severely" polluted. According to the American Lung Association, almost 23 million Americans still face a "deadly health threat" from high concentrations of particulates -- soot and acidic aerosols -- in the air they breath.
Overall, according to a ten-year study of air pollution in national parks completed in 1994, air quality seems to be improving west of the Mississippi but still deteriorating in the east. Researchers at the University of California at Davis found that visible pollution, primarily caused by sulfate emissions, was often eight times worse in the two eastern parks studied than in ten western parks. Virginia's Shenandoah National Park, for example, frequently experienced worse summer smog than did Los Angeles.
In 1990, the Congress and the Bush administration decided that the bad news about air pollution -- 100 cities had never complied with the 1970 Clean Air Act -- so outweighed the good that drastic action was necessary. With the goal of eliminating smog by early in the next century, they set stiff new standards for reducing air pollution and tough new penalties for failure to meet them. Under those provisions, when a state misses a compliance deadline, it sets in motion a sequence of mandatory sanctions leading to eventual cutoff of federal highway funds and a moratorium on business growth. Yet four years later, 10 states had not filed plans that were due in November of 1992, and half the states required to file plans in November 1993 had not responded.
A primary focus of the 1990 amendments was automobile emissions, still implicated in half of all air pollution. The legislation mandated a further 15 per cent reduction in hydrocarbon emissions by 1996, followed by annual reductions of three per cent in both hydrocarbons and nitrogen compounds. To make sure the targets are met, the amendments required 22 states to initiate more stringent inspection and maintenance programs for automobile emissions by January 1, 1995.
According to the EPA, better emissions testing could reduce smog emissions up to 25 per cent. Current gas-station tests used by most states sample hydrocarbons and carbon monoxide emitted by an idling engine, but do not measure nitrogen compounds and do not replicate normal driving conditions. The EPA is insisting on better-equipped testing centers that do not benefit financially by making the repairs they find necessary. Most states, protesting the inconvenience and cost of the new centers, were not even close to compliance as the deadline neared.
While the sanctions mandated by the 1990 amendments had not yet kicked in, California was given a detailed look at the potential consequences of continued non-compliance. Environmentalists sued the state for failing to meet the deadlines in the 1977 version of the Clean Air Act, and the court ordered the EPA to do what the law required -- step in and impose a plan to bring the state into compliance.
The EPA issued in February a 2,700-page summary of 100 measures required to bring healthful air to Los Angeles and its four surrounding counties by the year 2010. The plan is a wide-ranging set of pollution fees and standards imposed not just on automobiles and industry, but on airlines, shipping lines, and railroads -- previously immune to state environmental restrictions because only the federal government has the power to regulate them.
"What you have here for the first time," said EPA western regional administrator Felicia Marcus, "is an overall comprehensive picture of what it will take to give California clean air." It is also, according to one former public official in the area, "a wake-up call to areas of the country that thought they could fudge or delay in meeting the goals of the federal Clean Air Act." Another cost of failing to solve the problem was identified by Texaco executive Bill Tell. "If air quality is not improved in a cost effective way," he predicted, "you are going to see an exodus of jobs" from smog-plagued cities.
In another measure mandated the 1990 Clean Air Act amendments, whose implementation was delayed and then forced by a lawsuit, the EPA in March issued its Chemical Manufacturing Rule. The rule requires 370 chemical plants in 38 states to achieve, within three years, the emissions levels of the cleanest U.S. plants in operation. The expected result -- a 90-per-cent reduction in emissions of toxic chemicals to the air.
The scientists who reported good news about greenhouse gases -- that their accumulation had slowed -- found ample reason to think the slowdown was temporary. Indeed, the U.S. Energy Department reported that carbon emissions from fossil fuels, which had declined steadily since 1990, jumped by 32 million metric tons in 1993.
The protective, upper-atmosphere ozone layer during the winter of 1993-94 was totally destroyed between the altitudes of 8.4 and 11.8 miles over an area of nine million square miles centered on Antarctica. At the South Pole in October, instruments recorded the lowest ozone level ever recorded anywhere in the world.
And for the first time, scientists confirmed that harmful ultraviolet radiation reaching the ground in North America is increasing in a manner consistent with observed weakening of the ozone layer. Critics of the ozone theory had contended that any increase in radiation penetrating the stratosphere would be filtered by clouds and airborne pollution. But between 1989 and 1993 in Toronto, Ontario, the study showed, harmful radiation reaching the ground increased by 6.7 per cent a year in summer (when the ozone layer is at its thickest) and 35 per cent a year in winter (when the layer shrinks).
Just as the latest version of the federal Clean Air Act promises clean air within the decade -- as previous versions have been doing for two decades -- so the Clean Water Act of 1972 established a goal of "fishable and swimmable" water by 1983. Ten years past that deadline, as a spokesperson for the environmental group Lake Erie Alliance put it, "we aren't even close."
Some things have changed for the better. Ohio's Cuyahoga River, which became the symbol for the horrors of unrestrained pollution when it caught fire in 1969, today could be a symbol for the harmony of environmental protection and economic growth; it is so clean and attractive it has fostered an economic boom of restaurants, shops and tour boats along its banks in Cleveland. Lake Erie, into which the Cuyahoga flows, was once declared dead, but today is described by the Lake Erie Alliance as "one of the most biologically productive lakes in the world."
Yet as the Congress took up the reauthorization of the Clean Water Act in 1994, it was told by the EPA that in America "30 per cent of rivers, 42 per cent of lakes, and 32 per cent of estuaries surveyed continue to be degraded, mainly by silt and nutrients from farm and urban runoff, combined sewer overflows and municipal sewage." Despite expenditures of $260 billion on sewage treatment plants, the remain substandard in 1,100 cities, and according to a National Research Council report, "the chemistry of our streams has improved only slightly." The Cuyahoga, for example, will no longer burn, but is still seriously polluted.
The reauthorization faced daunting political opponents. Property-rights advocates resisted any measure designed to staunch the loss of wetlands, essential adjuncts to healthy lakes and rivers. State governments fought bitterly the imposition of any more unfunded mandates -- requirements imposed by the federal government without the money to pay for them. And the Farm Bureau Federation deployed its lobbying artillery to defend agriculture from controls of chemical- and nutrient-rich farm runoff, which along with stormwater runoff from city streets accounts for half of all pollutants in U.S. surface waters, according to the EPA.
There were provisions in the 1972 Act for dealing with runoff, but for two decades the EPA has concentrated on sewage treatment rather than runoff prevention. Shifting that emphasis will not be easy. As president Kevin Coyle of the environmental group American Rivers put it, "to address non-point-source pollution you have to deal with land-use issues. That's a little different from telling a factory it can't dump stuff in the rivers."
The Clean Water Act revisions offered by the Clinton administration proposed as a first step that farmers and ranchers inventory what they are putting on their land, so that they can calculate what is likely to be washing off it. Then it would be left to the farmers, under state supervision, to create plans to bring their operations into compliance with federal standards. And the administration offered more latitude to the states in dealing with storm-water runoff.
In a case decided May 31, the U.S. Supreme Court resolved a longstanding dispute over whether the provisions of the Clean Water Act extend to water quantity -- not mentioned in the legislation -- in addition to water quality. When the state of Washington required, as a condition of granting a permit to build a hydroelectric power dam, that a minimum flow be maintained in the affected river, the utility sued, claiming the state had authority only over what was discharged into the water.
Justice Sandra Day O'Connor, writing for the 7-2 majority of the court, said the attempt to separate the issues of water quantity and quality was an "artificial distinction." The legislation, she wrote, was intended to protect "the physical and biological integrity of water," and it was clear to her that "a sufficient lowering of quantity in a body of water could destroy all of its designated uses."
The issues of unfunded mandates and property rights became significant in the reauthorization of another piece of legislation, the Safe Drinking Water Act, that technically expired in 1991. States and localities regard the federal standards for drinking water as the most expensive of all federal regulations. However, several recent incidents of contamination of municipal water supplies -- in Milwaukee, New York City, Racine, Wisconsin and Washington D.C. -- illustrated the cost of not meeting safe standards. "There are 200,000 public water systems in the U.S. today," according to Erik Olson of the Natural Resources Defense Council, "a substantial percentage of which are basket cases that cannot even meet the most basic microbiological standards." Still, in the face of protests that small communities simply cannot afford to meet stringent water regulations, the Clinton administration agreed to exempt some systems, ease restrictions on others and provide a billion-dollar-a-year revolving fund to help others. EPA administrator Carol Browner saw it as " an important step in the right direction," but the Sierra Club pronounced it to be the equivalent of loosing "a plague on the American public."
An amendment offered by Senate Republican leader Robert Dole instructed every government agency to conduct a separate analysis of any measure that would confiscate, or affect the value of, private property.
According to EPA's annual survey of toxic releases in 1992, released in the spring of 1994, overall toxic waste released to the environment declined for the fourth consecutive year. However, its figures showed a 12 per cent increase in toxic discharge to surface waters.
A General Accounting Office report raised questions about existing controls on toxic releases to water, which are often cited as one of EPA's successes. In a study of 236 companies with permits to discharge toxic chemicals, the GAO found that 77 per cent of the chemicals actually discharged were not listed on the permits. While the chemicals discharged were not on the EPA's list of 126 priority pollutants, they were, said the GAO, "recognized as human health risks."
While other indexes of water quality yield good news and bad news, where the health of fish is concerned the news is unrelievedly bad. According to an Environmental Defense Fund report, America's freshwater fish and shellfish are the country's most endangered forms of wildlife. In reaching that sobering conclusion, the report cited stunning individual declines -- of two-thirds of all fish species in the Illinois River, one-half of the mussel species in Muscle Shoals, 96 per cent of the hickory shad in the Chesapeake Bay.
The situation is no better in coastal waters. Much of Cape Cod, America's oldest fishery, have been declared off limits to fishermen because of the scarcity of cod, haddock and flounder. The breeding population of Atlantic bluefin tuna has plummeted 95 per cent since 1975, as has that of northern cod on the Grand Banks, where the Canadian government's ban on cod fishing has put nearly 30,000 fishermen out of work.
The jobs of another 20,000 New England fishermen are imperiled by the decline of their groundfish catch from 780,000 metric tons in 1965 to 25,000 tons in 1993. In 1994, the Commerce Department imposed strict catch limits, then authorized $30 million in emergency aid to the depressed industry. Clam and oyster catches are running about one-half their former abundance.
While the declines in coastal fish can for the most part be ascribed to overfishing, pollution and dams play a major role in the plight of northwest salmon runs. Nine of the ten major species of West-coast salmon face extinction, according to a Wilderness Society survey. "Decades of excessive logging and overgrazing on Federal lands, urbanization and other development in the region," says Society president Karen Sheldon, "have ruined fish habitat and helped push many salmon stocks to the brink of extinction."
The year began with environmentalists and U.S. oilmen worried about the same thing -- low oil prices. As the year began, the average cost of crude oil continued to drop despite high demand during a cold winter, limited reserve capacity among members of the Organization of Oil Exporting Countries (OPEC) and the continuing absence from the market of any oil from Iraq. In January, crude oil was selling at a five-year low of $12 per barrel. OPEC, which once virtually dictated world oil prices by manipulating supply, failed in two attempts to persuade its members to cut production by a measly two per cent.
Environmentalists were dismayed because cheap oil meant a continuing lack of economic incentives to develop or switch to alternative energy sources. Average gasoline prices at the pump fell to $1.06 per gallon of regular in January, obliterating the effect of the minuscule energy tax imposed in October to encourage conservation and efficiency.
U.S. oilmen were unhappy with the low prices because 15 per cent of the 6.6 million barrels per day they are capable of producing has to come from 460,000 lowproducing, highly expensive stripper wells. According to a trade group representing the owners of such wells,Mark: the full ID of the spokesperson, if you dare to use it, is Gigi Lazenby, president of the National Stripper Well Association. And bearer of the world's most misunderstood business card. TL "fifty percent are uneconomic right now," and 50,000 of them were expected to cease production in 1994. It would take oil prices of about $18 per barrel to keep stripper wells in production, and by mid-year, after inching upward in the face of increasing demand, they were still well short of $17 per barrel. Low enough, observed Ed Rothschild of Citizen Action, to keep people "hooked on oil."
Yet alternate energy sources made impressive gains in 1994 despite bargain-basement oil prices. Electric utilities continued to burn much less oil than they used to, because of air-pollution restraints. They and other industries capable of switching fuels "used to turn on a penny," says Charlotte LeGates of the Natural Gas Supply Association. But this year they tended to stay with cleaner natural gas even when oil would have been cheaper.
The solar-energy industry experienced remarkable growth during the year, of a magnitude expected to occur only after oil prices skyrocketed enough to make solar economics look good by comparison. But electric utilities trying to avoid building expensive plants while controlling pollution have been transformed from solar power's main competitors to its best customers. Late in 1993, a consortium of 68 electric utilities, serving 40 per cent of the country's consumers of electricity, announced their intention to buy $500 million worth of solar panels.
The deal works well for both sides. The utilities hope to keep rates low while replacing the capacity of aging generators. And in fulfilling the contract the U.S. solar industry, says Scott Sklar of its trade association, will "double its manufacturing capacity and acquire new capital to ramp up new production."
That means still lower solar prices in the near future. Photovoltaic cells in the 1960s cost about $500 a watt; one type of panel came on the market in 1993 for less that $4 per watt, and another, being developed by a partnership between Texas Instruments and Southern California Edison, was expected to sell for about $2.50 per watt in late 1994. At $2.00, the residential cost of solar power will be about the same as the current California average of 12 cents per kilowatt hour.
Another boost for alternate energy sources came when the Clinton administration ordered federal agencies to reduce their energy consumption by 30 per cent (of 1985 levels) in ten years. A 14-page executive order issued in March mandated the use of high-efficiency fluorescent lights, better water-management practices and renewable energy sources. Officials estimated that the measures could cut $1 billion per year from the federal government's $11-billion annual energy bill.
Energy Secretary Hazel O'Leary said her department is taking the lead in demonstrating the savings; she said, for example, that high-efficiency lighting in department headquarters cut the light bill by 60 per cent in one year. Another department official observed that switching from ordinary to energy-saving computers, that partially shut down when not being used, could save the government $125 million a year.
Measures to bring the White House in line with the energy-reduction program, from efficient lighting to a super-efficient refrigerator in the kitchen, were made part of the public tour of the facility. "We want the White House to be a showcase for environmental technologies that are good investment for the pocketbook and the planet," said Cathy Zoi, deputy director of the Office on Environmental Policy.
Citing another example of traditional animosity converted to partnership, O'Leary said local electric-utility companies are eager to help bear the costs of converting government buildings to high-efficiency lighting: "Utilities know that it is in their long-term interest to help save energy. They are waiting in line to work with us in fulfilling this plan."
Another government initiative concerning a source of energy was not so harmonious. The 1990 Clean Air Act amendments permitted the EPA to mandate the addition of oxygenates -- additives that raise oxygen content and lower emissions that cause smog -- to gasoline sold in the country's nine most polluted cities. Two such additives, ethanol and methanol, are widely available, and the Congress told the EPA to decide which one was better.
The decision pitted two of the country's most powerful industries against each other. Agribusiness makes ethanol from corn, and argues its virtues as a home-grown, renewable fuel whose use would improve environmental quality, farm income and energy security. The oil industry, which makes methanol from natural gas, counters that its product is cheaper and even better for the environment.
Many environmentalists sided with the oil industry on this issue. The non-profit American Council for an Energy Efficient Economy, which took no stand on the choice of additives, pointed out that growing corn for ethanol requires cultivation, fertilizing, and drying, all high-energy practices that generate significant pollution. A rule favoring ethanol, said the Sierra Club, would have "no environmental benefits."
Despite such misgivings, the EPA ruled in July that at least 30 per cent of the additives used must come from ethanol.
The best efforts of the Clinton administration to end years of deadlock between the Northwest timber industry and the endangered northern spotted owl succeeded in little more than moving the issue back into court in 1994. The deal proposed in 1993 to end the conflict would permit limited logging of old-growth timber while preserving almost all of the owl's habitat. It was the administration's first attempt to replace species-specific recovery plans with ecosystem management as the basis for preservation of natural resources. The plan took into account the little-noted fact that 40 of the 1500 species that share the owl's habitat are also endangered or threatened. As well, it was the first practical test of the president's determination to find consensus among proponents of environmental protection and economic growth.
But neither ecosystems nor consensus thrives in courtrooms. Not until June did a federal judge lift a three-year-old injunction that prohibited all logging on federal lands in the Northwest pending development of a reasonable plan to protect the owl, as federal law required. The action allowed national forest managers to begin preparing timber sales that met the criteria of the new plan.
But by that time, environmentalists had filed five lawsuits, the timber industry two, to prevent implementation of the plan. The environmentalists insist that the spotted owl is, as one conference of biologists reported in February, "approaching the extinction threshold," and may not be able to survive "any additional habitat loss." The timber industry maintains that President Clinton broke his promise to protect jobs in the Northwest. Although one of its legal challenges, based on alleged violations of open meeting laws during the preparation of the new preservation plan, was rebuffed, the industry continued to seek higher logging levels in court and in Congress.
Meanwhile, the National Association of Home Builders declared a different kind of crisis. It insisted that measures to protect the spotted owl were responsible for high timber prices (which crested at $510 per thousand board feet of framing lumber as the year began) and shortages (an estimated 58 billion board feet of supply to meet a 64-billion-board-foot demand). The Wilderness Society, however, concluded that the spike in prices had more to do with severe winter weather that curtailed logging over wide areas, accentuating temporary inventory shortages in the face of increasing homebuilding activity. By mid-year, prices had dropped back to $375.
While acrimony persisted between loggers and preservationists, elsewhere in the Northwest there emerged hope for a new alliance of ecology and economics. A conference in Portland, Oregon, highlighted the growing economic importance to the region of the sustainable harvest of forest resources other than timber. These products include mushrooms, huckleberries, and decorative items -- ferns, grasses, pine cones and boughs -- used by florists and wreath-makers. Researchers told the conference that these sustainable forest products already contribute $151 million per year to the Northwest economy, and provide 17,000 jobs.
Across the continent, stewards of one of the country's other major forest areas worked to find consensus on its management before encountering the kind of deadlock that has for years gripped the Northwest. The 26-million-acre Northern Forest, decimated at the turn of the century by commercial logging, now flourishes from Maine to New York state. In 1988, Congress created the Northern Forest Lands Council -- comprised of representatives of the U.S. Forest Service and four Northeastern states -- to study the forest and the economy based on it, and recommend measures to protect both.
The Council found that the forest supports an annual payroll of more than $3 billion, principally in logging, paper manufacturing and tourism, which alone employs more than 100,000 people. After considering the needs and desires of the landowners who hold 85 per cent of the forest, the 250 species of wildlife that inhabit it and the 70 million people who live within an eight-hour drive of it, the Council recommended 33 incentives and regulations to balance the needs while sustaining the forest. Predictably, every measure generated controversy among competing interests, but all sides seemed determined to avoid what Interior Secretary Babbitt would call another train wreck. "If we can't agree," said Kelly Short of the Appalachian Club, "we're all doomed."
In the country's other major forest area, the Southeast, the EPA moved in 1994 to close a loophole in environmental law that has contributed to the destruction of millions of acres of wetlands. The Clean Water Act requires the preservation of the country's remaining 100 million acres of wetlands, one third of which are located in the Southeast. But the Act permits "normal" forestry practices in wetlands. For years the timber industry has considered clearing, draining and replanting wetlands as normal. According to the Environmental Defense Fund, loggers destroyed 100,000 acres of wetland every year for ten years. This February, the EPA specifically prohibited such practices.
During 1994, the U.S. Forest Service intensified its struggle to transform itself, as ordered by the Clinton administration, from a timber-selling agency to one that manages ecosystems. Such a change proved wrenching for an agency with 30,000 employees and a 90-year tradition.
For decades, the operations of individual forests have been funded according to how much lumber they sold. One regional administrator, asked to estimate his next budget for assistant secretary of agriculture Jim Lyons, responded not in dollars but in board feet. To facilitate sales, the Forest Service has built 370,000 miles of logging roads, a network eight times the size of the Interstate Highway system, frequently at costs that far exceeded the value of the timber sold as a consequence.
"The Forest Service was once the conservation leader in the U.S. and the world," says its new chief, Jack Ward Thomas (the first wildlife biologist to hold the job). "It needs to get back to its roots." One example of the change in priorities: In 1994 the Olympia National Forest did not sell a log, but had a budget of nearly $3 million to spend on watershed studies and restoration.
All institutions resist change, and many Forest Service employees did so, according to Lyons, "strenuously." In April, the government offered $25,000 bonuses to engineers, foresters and timber-sale planners who took early retirement. Within one week the offer had to be withdrawn after 2,300 people retired.
The Agriculture Department's Soil Conservation Service reported at mid-year that it was well on the way to reducing erosion on 140 million acres of the country's most erodible farmland, from the 1985 estimated average of 17.5 tons per acre to six tons per acre. Farmers with highly erodible cropland had to have conservation plans in place by the end of 1994 to retain their eligibility for federal farm subsidies and programs. The SCS reported in May that 92 per cent of these plans were on schedule.
A side benefit of the Conservation Reserve Program was revealed by a census of breeding birds in four north-central states. It found that 16 species of birds, many of which have been in decline for 25 years, nesting in greater density on reserve lands than on cropland.
Other appraisals of the reserve program were less sanguine. Wind and water erosion continue to destroy an estimated three billion tons of topsoil each year, at a cost calculated by the World Resources Institute at $10 billion. And according to a study of soil and water quality by the National Research Council, "current estimates of damage from erosion understate the true extent of soil degradation." Dr. Sandra Batie of Michigan State University, who chaired the study, called the problem urgent: "Soil resources are no less important to our environment than air and water."
And an internal audit by the Agriculture Department's Inspector General raised questions about the effectiveness of the Conservation Reserve Program. The report says that the program's rules were relaxed in response to pressure from farm groups, with the result that many producers continued to receive benefits "even though erosion reductions were not achieved."
Ironically, farmers in nine midwestern states along the Missouri and Mississippi Rivers struggled during 1994 not with erosion but sedimentation -- millions of tons of sand left on their cropland by the flood waters of 1993. In Missouri alone, 500,000 acres of river-bottom land was covered by a blanket of sand that in some places was ten feet deep. As a Missouri SCS official put it, "the river turned the best farmland in the world into a giant sandbox."
The problem was made worse by a levee system that contained and accelerated the flood waters, which as a consequence picked up a great deal of sediment before they finally broke through their constraints. Ironically, the Congress in 1944, at the beginning of its flood control efforts along the Missouri River, had recommended that levees be placed some 2,000 feet back from the river, in order to dissipate the energy of flood waters. Farmers, and later the U.S. Army Corps of Engineers, ignored the recommendation and placed the levees as close to the river's edge as possible. As a consequence, the damage that resulted when the levees eventually failed was far worse than it might have been.
In May of 1994, a committee of Federal experts recommended that the levees be moved back, according to the original recommendations. But the Corps of Engineers and other federal agencies continued to repair the levees in place.
On another front, however, the federal government moved toward change. As part of a flood-relief package approved late in 1993, $138 million was offered to help move homes and businesses away from flood plains. By mid-year, more than 40 towns had asked for help in relocating some properties, and two -- Valmeyer, Illinois and Chelsea, Iowa -- had elected to move entirely. "It used to be that we managed the river and let people go where they want to," said Mayor Rodney Horrigan of Chelsea, whose town had been inundated 15 times in 25 years. "Now we are trying to manage the people and let the river go where it wants to."
Interior Secretary Bruce Babbitt spent much of 1994 launching a third try to reform the management of federally owned grazing lands in the West. Bargain-basement fees of $1.86 per month per animal unit (a cow and calf or equivalent) have encouraged overgrazing on much of the 270 million acres of publicly owned western rangeland.
A National Wildlife Federation study released in June concluded that the resulting degradation of habitat has driven scores of wildlife species closer to extinction. The study found that practices permitted by the U.S. Forest Service and the Bureau of Land Management had done significant harm to 76 fish and wildlife species that are either protected or candidates for protection under the Endangered Species Act.
After two earlier attempts at reform were beaten back by western legislators, Babbitt compromised. He proposed a top fee of $3.96 per unit instead of $4.28, and included discounts for environmentally sound management. And he proposed creating regional advisory councils with representatives of ranchers, environmentalists and other public-land users to regulate the grazing lands in their area according to broad federal guidelines. His proposal would bring "significant reforms to the management of our public lands," said Babbitt, "with substantially greater input from Westerners." But Jay D. Hair, president of the National Wildlife Federation, saw the new proposal as "a major retreat for this administration. The old politics of the West is winning."
And four powerful Democratic members of Congress, all allies of the Clinton administration on environmental issues, said they were "deeply troubled" by what they saw as a capitulation to the livestock industry and a betrayal of Babbitt's promises of full reform. They threatened to withdraw their support not only for the grazing program, but for Babbitt's struggle to revise the law regulating mining on public lands.
Under that law, signed by President Ulysses S. Grant in 1872, Babbitt was forced in 1994 to transfer ownership of 2,000 acres of federal land in Nevada, site of an estimated $10 billion worth of gold deposits, to a Canadian mining firm for a total purchase price of $10,000. It was, complained Babbitt, "the biggest gold heist since the days of Butch Cassidy."
With more than 600 more such claims pending, and an estimated $1.2 billion worth of hardrock minerals being taken every year from land similarly claimed from the federal government, Congress deadlocked over a replacement law. The House passed a bill, favored by Babbitt, that would retain public ownership of the land, charge miners a royalty of eight per cent of gross revenues, and require environmental restoration of mining sites. The mining industry preferred a Senate measure that imposed only a two per cent royalty, retained the present land-claim system, and required no restoration of the site.
There are about 400,000 abandoned mines on federal property. "A significant number" of them, according to EPA director Carol Browner, are leaching cyanide, arsenic, cadmium and lead into nearby water. More than 50 of them are on the list of Superfund sites, and estimates of the cleanup costs range from $33 billion to $77 billion dollars. "The 1872 law heaps fiscal injury upon environmental insult," according to Philip Hocker of the Mineral Policy Center. "It has got to go."
QUALITY OF LIFE
Assaulted by a cacophony of voices that promoted economic growth at any cost and discounted a myriad of scientific warnings about grave and growing damage being done by humans to the earth's natural systems, Americans moved fretfully in 1994 toward a new stage of environmental awareness.
It was easy to hate, and difficult to defend, the black clouds belching from smokestacks and oily effluent gushing from sewage discharges that three decades ago fostered the beginning of the environmental movement in America. It was more difficult to understand and come to grips with the subtler threat of the slower-acting carcinogens that provided healthy profits to those who used them in commerce while sickening untold thousands of people.
Now, while studies continually show how much remains to be done to control both visible and carcinogenic forms of pollution, come warnings of a third, potentially even more ominous class of pollutants. Far from visible, they are found in traces so small as to be virtually unmeasurable, and act so slowly their full impact may not be known for generations. Instead of poisoning or causing cancer, these compounds imitate the natural hormones of living bodies well enough to take over, then sabotage, the many functions that hormones control. Accumulating implacably over months and years in exposed individuals -- over generations in exposed populations -- and as they move up the food chain, these substances eventually and irreversibly do vast harm, especially to the immune, reproductive and endocrine systems, especially in the young and drastically in the unborn.
The harm these compounds do is extremely difficult for scientists to measure or prove, and for non-scientists to comprehend; it cannot be explained in 30-second TV sound bites. Because the substances are enormously useful, present in all manner of profitable household and industrial products, every shred of evidence of their virulence is countered by massive public-relations campaigns of denial.
A prominent example is chlorine, one of the most useful substances in everyday life. It whitens the clothes we wear and the paper we type on; purifies the water we drink and swim in; helps refrigerate our clothes and cars; plays a major role in the manufacture of pharmaceutical, pesticides, herbicides and plastic pipe. But when chlorine and carbon combine, they can form some of the most persistent and toxic substances on earth: CFCs, implicated in the destruction of the ozone layer; PCBs, DDT and Dioxin, increasingly linked not only to cancer, but to disastrous hormonal and immunological changes in wildlife and humans.
The threat to wildlife was documented this year by the U.S.-Canadian International Joint Commission, which reported that of 42 compounds known to be afflicting the reproductive or hormone systems of living things in on and near the Lakes -- infertile eggs, deformed offspring, birds abandoning their young, fish swimming upside-down -- more than half "contain chlorine as an essential ingredient." In one Florida lake, 75 per cent of the eggs laid by alligators exposed to a DDT spill are infertile.
The threat to humans is emerging more slowly and less conclusively. Various studies have linked chlorine-based chemicals to a worldwide decline by 50 per cent in sperms counts; to an increase of breast cancer and endometriosis in women, as well as in testicular cancer among men. In January, the National Institutes of Health devoted a full conference to the threat to humans of the ersatz hormones.
The same month, as part of the rewrite of the Clean Water Act, the Clinton administration proposed a "national strategy for substituting, reducing or prohibiting the use of chlorine and chlorinated compounds." The Chlorine Chemistry Council responded with charges that critics of their products were not using "a sound-science approach to decision-making," and were threatening 1.3 million American jobs and were attacking "one of the most significant public-health advances of the 20th Century."
Although impatient, sometimes angry, with such complex claims and counterclaims about the dangers in their air, water, food and households, Americans held firm in their concern for the environment and their desire to return it to health. The Harvard Center for Risk Analysis reported in January that 66 percent of Americans interviewed for a public opinion survey agreed that "the government is not doing enough to protect people from environmental pollution." But 83 percent said they wanted the government to identify the most serious environmental problems, and 94 percent said they wanted to know the estimated costs and benefits of any new environmental regulation.
While unease about the environment characterized affluent Americans, among minorities and the poor the emotion was closer to rage. Their concern was not just environmental pollution, but environmental racism -- the clear pattern of locating the worst pollution sources and the most hazardous-waste sites in the poorest communities with the highest proportion of minorities. A study by the United Church of Christ found that as the percentage of minorities living in a community rises, so does the likelihood that a hazardous waste site or landfill will be found in that community.
In response to a rising call for environmental justice, the Clinton administration agreed to investigate the possibility that the siting of hazardous waste plants in minority communities in Louisiana and Mississippi violated the residents' civil rights. "It's clear," said EPA administrator Carol Browner, "that low-income and minority communities have been asked to bear a disproportionate burden of this country's industrial lifestyle. We have got to incorporate environmental justice concerns into everything we do." An executive order from President Clinton to all federal agencies in February made that concern a national policy.
The public desire for an accounting of costs and benefits reflected in the Harvard poll is a reflection not only of the baffling array of environmental hazards but of the countless claims of polluting industries that correcting their problems will cost too much money and eliminate too many jobs. In 1994, the Commerce Department initiated a form of accounting that might not be to the liking of such industries. It is a recalculation of the country's total output of goods and services that treats natural resources as assets, and subtracts the value of the resources consumed from the so-called gross domestic product. In addition, the new approach will eventually take into account the costs of pollution. The green accounting focussed on minerals in 1994, will move on to renewable surface resources in 1995 and to pollution costs in 1996. When complete, the project should give a better picture of the sustainability of the country's economic activity -- a dollars-and-cents measure of its true quality of life.