The Governor's "Trust Me" Approach to Clean Water
This week Governor Inslee announced the much anticipated fish consumption rules and allowable cancer rate used to set clean water standards. By estimating how much fish people eat and the cancer risk from eating fish exposed to water pollution, the state determines how clean the water in the Puget Sound and elsewhere must be.
The rule itself won’t be available until the end of September, so it is impossible to make a specific critique, but there are a number of considerations after listening to his press conference. Here they are, in no particular order.
- The Governor argued this will improve human health, but made an inaccurate claim. He said increasing standards would double cancer protection for everyone, claiming “we’re doubling that protection not only for people who eat a lot of fish, we’re doubling the protection for people who don’t eat a lot of fish.” That is simply false. It would be like claiming that reducing the UV power in tanning beds would reduce cancer rates for tanners and non-tanners equally.
Indeed, the logic of setting the fish consumption standard is to address the higher potential cancer risks of those who eat a great deal of fish. Saying the protection doubles for everyone is to say that consumption rates don’t matter at all. What, then, is the point of having a consumption rate at all? The reason politicians say things like this is that they want to claim everyone benefits, when in fact, everyone pays and few will benefit.
- The Governor repeatedly said the rule will be “consistent with the further growth of our economy.” But he also admitted several times that “there will have to be water control systems that people will make investments in,” and this “will demand more of local government and industry.” Clearly, there is a tradeoff. He may believe that tradeoff is worth it, but pretending there is not one is not being straightforward about the decision he made.
He was pressed several times on the cost of the rules and although he said “we’ve looked at this very closely” he didn’t say what the cost will be. He went even further, saying “we have looked in intimate detail at the real world implementation of this rule. We’ve engaged the state experts for ways to meet these rules.” Hopefully he will release all of that research so the costs can be assessed.
- He chided those worried about the rule saying, “no one is in a position to make a justified criticism about the rule because until 10 minutes ago we didn’t have a rule.” Just moments later, however, he said that the time for discussion was over saying, “The time for consideration is past now, and I’ve spent a year and a half looking at this.” When asked if he would adjust the rule based on feedback, he made it clear that he wouldn’t change the rule, noting “I don’t see any reason why that would change.” He seems to say that no criticism is allowed before the rule was released and that no criticism will be considered after the rule is released.
- The Governor also asks for essentially unlimited regulatory authority, telling the press such authority is acceptable because “we have demonstrated good judgment” when using regulatory discretion, although he didn’t give an example. Frankly, I can think of more than a few times when discretion has been used in extremely poor and destructive ways. Here’s one small, but egregious example. The Oso landslide is a big example of government using discretion to build where it was inappropriate.
He says that his plan will include “variances” which allow state agencies to decide when to enforce rules and when to ignore them. This is a response to the concern that the new standards cannot be met with current technology (a point he acknowledged). To soothe that concern, he says if agencies decide a company or local government can’t meet the rules, they will be given a pass. That, however, is a completely unpredictable approach and has more to do with the lobbying skill of a company than the scientific validity of the decision. Different regulators may look at the same risk and make different judgments about how to regulate it.
This approach is far removed from the notion of democratically accountable government. Because it is unclear how the rule will be applied, no advance judgment can be made about potential costs, unintended consequences and other problems. When the rule is implemented on a case-by-case basis, the horse has already left the barn, leaving the courts as the only recourse. Essentially, we have to adopt the rule to see what’s in it and legislators are left on the sideline.
There is an additional concern. Even if regulators give local governments and others a pass, environmental groups may decide to sue, eliminating the value of the promised variances.
- The Governor also wants to dramatically expand the range of bureaucratic discretion, saying “Washington needs to reach beyond the confines” of the Clean Water Act. He wants to give regulators the power to “ban known toxics where safer alternatives are available.” That judgment, however, is subject to wide interpretation. Again, it gives wide latitude to decisions made based on personal choice, not science.
- Finally, one key part of the Governor’s proposal is extremely unclear. The Governor mentioned he wanted legislation allowing the state to regulate toxics that are “upstream” in the commerce stream. He specifically mentioned PCBs that recycling companies in Washington have to deal with when receiving paper from other states. When pressed on how this would happen, the Governor could not explain what this meant.
This is unlikely to mean anything since addressing this problem is a federal issue, not a state issue. Washington’s rules can’t reach “upstream” environmental impacts from other states or countries. Promising to help companies deal with this problem, without the ability to say what this actually means in the real world is likely to be an empty promise, leaving Washington companies entirely responsible for meeting the higher mandates.
At the end of the press conference, we are left with a fairly concrete understanding of the new restrictions. The Governor’s promises about how to deal with those regulations – variances, limiting the “upstream” supply, potential costs – on the other hand, are speculative at best.