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Protecting Whistleblowers since 1977

Massive Polluting in Waterways Not Illegal

Dylan Blaylock, March 01, 2010

This front page piece from the NYT details how recent decisions by the Supreme Court have severely damaged efforts to hold corporations accountable for dumping toxic chemicals and other serious pollutants into America’s waterways. As a result of the decisions, major polluters are declaring that the laws no longer apply to them, the EPA has scaled back investigations on a mass scale, and millions of American’s drinking water quality is at risk.

Some eyebrow-raising admissions from the article:

“We are, in essence, shutting down our Clean Water programs in some states,” said Douglas F. Mundrick, an E.P.A. lawyer in Atlanta. “This is a huge step backward. When companies figure out the cops can’t operate, they start remembering how much cheaper it is to just dump stuff in a nearby creek.”

Furthermore, from a New York state water official: “There are whole watersheds that feed into New York’s drinking water supply that are, as of now, unprotected.”

The problematic decisions resulted from clean water laws qualifying protected waterways as “navigable” – which means that, by some interpretations, “waterways that are entirely within one state, creeks that sometimes go dry, and lakes unconnected to larger water systems” are not covered, and corporations can dump as much nasty stuff as they want into them.

In total, 117 million Americans are at risk, because their drinking water comes from sources currently immune from protections.

You’d think there would be a simple fix, and there basically is – The Clean Water Restoration Act, which would remove the “navigable” qualification and give the EPA back some teeth. Of course, well-funded lobbyists are doing their best to stall the bill and drum up falsities:

“If you erase the word ‘navigable’ from the law, it erases any limitation on the federal government’s reach,” said Mr. Parrish of the American Farm Bureau Federation. “It could be a gutter, a roadside ditch or a rain puddle. But under the new law, the government gets control over it.”

Legislators say these statements are misleading and intended to create panic.

“These claims just aren’t true,” said Senator Benjamin L. Cardin, Democrat of Maryland.

Of course the claims aren’t true. Does anyone actually believe that government could spend any sort of time on gutters or puddles? With the bureaucracy set up the way it is? The argument is bogus. The AFBF, by the way, is a noted climate-change skepticism organization.

And for the icing on the cake:

“Cases now are lost because the company is discharging into a stream that flows into a river, rather than the river itself,” said David M. Uhlmann, a law professor at the University of Michigan who led the environmental crimes section of the Justice Department during the last administration.

In 2007, for instance, after a pipe manufacturer in Alabama, a division of McWane Inc., was convicted and fined millions of dollars for dumping oil, lead, zinc and other chemicals into a large creek, an appellate court overturned that conviction and fine, ruling that the Supreme Court precedent exempted the waterway from the Clean Water Act. The company eventually settled by agreeing to pay a smaller amount and submit to probation.

That’s just plain terrible. Lastly, think about the effect this has on potential whistleblowers that want to expose to the public what chemicals they could potentially be drinking. They wouldn’t really be whistleblowers anymore, because the actions are technically legal, right? The greater the number of loopholes that exist for corporations to legally get away with obvious wrongdoing, the more corporate whistleblowers will feel less inclined to come forward – because they’ll assume no real change can be enacted from their disclosures.

Congress should fix the problem. And quickly.

GAP discussed the state of American water in a previous episode of Whistle Where You Work, which featured representatives from American Rivers, and Food & Water Watch.