An Orwellian Proposal from Illinois Polluters

You would be reasonable in assuming that the core function of a government agency called the Pollution Control Board should be, well, controlling pollution.  Your assumption would be doubly reasonable since that is pretty much what the Illinois Pollution Control Board’s authorizing statute says.   Consistent with the statute, the Board’s mission statement defines its purpose as, “To restore, protect, and enhance the environment for all Illinois citizens.” 

That purpose, though, just doesn’t sit right with the state’s polluters.  The Illinois Environmental Regulatory Group (IERG), a lobbying organization that represents the polluting industries regulated by the Board, wants it changed.  IERG – whose members include among others oil companies, coal plant owners, and chemical manufacturers – is lobbying hard to pass a bill in the Illinois General Assembly, Senate Bill (SB) 3414, that would change the Board’s mission to include not just protecting the public, but protecting polluting industries’ bottom line.  Specifically, SB3414 would amend the Board’s emergency rulemaking authorization – the one that allows the Board issue expedited regulations to address a threat to “public interest, safety, or welfare” – by redefining a threat to the public interest to include any “significant economic harm or hardship” to a polluter.   That’s right. A polluter, not the public.

Think about that for a moment.  Right now, the starting point for any Board regulatory action is an environmental problem.  The Board considers proposals for new regulations that are aimed at fixing an environmental problem with an environmental solution – crafting new pollution control standards or requirements aimed at better protecting the public from environmental threats.  What IERG is proposing is changing that starting point.  Under SB3414, the Board would additionally be authorized to consider regulatory proposals aimed at addressing economic problems – that is, to deal with the supposed “threat” of “economic harm or hardship” to polluters from complying with existing laws protecting the public.  And the way to fix the “threat” of high pollution control costs is to get rid of the controls themselves.  So the long and short of it is, IERG wants to be able to go to the Pollution Control Board, complain about the high cost of regulations requiring them to curb their pollution, and ask the Board to get rid of the regulations.

It’s a transparently Orwellian move, really.  Simply take inconvenient words embodying public well-being (“public interest, safety or welfare”) and redefine them to mean exactly the opposite (“significant economic harm or hardship”) in order to get what you want.  Freedom is slavery, people.

What’s less transparent is exactly why IERG thinks this is even necessary.  The Board is already required by law to go way out of its way to consider the economic effect of its pollution control regulations before putting them into effect.  Specifically, the law requires that the Board make a finding that proposed regulations are “economically reasonable” before putting them into effect.  And in aid of that determination, the Board is required to request a study from the Illinois Department of Commerce and Economic Opportunity  – the agency with expertise in that kind of analysis – to specifically assess the effect of any proposed rules on employment levels, commercial productivity, small businesses, and the overall economy. 

These provisions are certainly more than sufficient to protect the regulated community’s economic interests.  IERG’s real problem, perhaps, is that it is still sore about having lost a litigation battle before the Board last year in which it had argued in a petition for the same expanded interpretation of “public interest, safety or welfare” that it is now asking for in SB3414.  The Board subsequently resolved the issue that IERG had been trying to address in the petition.  It seems, though, that IERG will not be satisfied until it vindicates its loss by attacking the provision used against it.  A rather crybaby response, when you get right down to it.

But whatever the motive, promoters’ efforts to pitch the proposed bill as simply a means to ensure consideration of economic factors in environmental decisionmaking are way off the mark.  The Board is already required to consider economics in its decisionmaking about solving environmental problems.  What SB3414 does is to authorize the Board to try to solve economic problems rather than environmental ones.  To understand just how nonsensical and counterproductive such a shift would be, think of it like this.  The Pollution Control Board’s purpose, and hence the sort of expertise its members are required to have, is to protect health – kind of like your doctor’s.  And in protecting your health, your doctor will sometimes appropriately bring into the discussion the cost of various courses of action – as does the Board.  But how much sense would it make to pass a law requiring that your doctor not just consider the cost of your treatment, but manage your financial planning?  It’s not what your doctor is trained for, or there to do.

Like asking your doctor to do your taxes, asking the Pollution Control Board to directly act to fix economic problems is a recipe for trouble.  Passage of this legislation would open the door for polluters to propose all manner of regulatory rollbacks to the Board.  If the Board’s purpose were broadened to encompass protecting the financial well-being of the polluters it regulates, then Katy bar the door.  Any “emergency” proposal to weaken environmental regulations deemed to cost too much would be fair game.

What is more, experience has shown that the regulated community are masters at exaggerating the cost of compliance.  It’s been going on ever since the auto industry assured all of us in the 1970s that requiring catalytic converters would be impossibly costly and lead to the downfall of civilization, or something like that.  Most recently, the Chicago Tribune reported that after the Metropolitan Water Reclamation District spent years bitterly contesting proposed Board regulations requiring disinfection of its sewage as being too costly, the cost mysteriously dropped to 14% of the previously-claimed pricetag after the Board went ahead and promulgated the regulations and new District leadership changed course to embrace disinfection.  Regulatory costs are very readily manipulated by the industries subject to them, and are simply not a reliable starting point for the regulatory process.

IERG may be unhappy at losing its case in front of the Board.  But we can hope that the General Assembly will not let sore losers do fundamental damage to our state’s environmental regulatory system.  NRDC is urging members of the Illinois General Assembly to oppose SB 3414, and any other legislation that would underwrite polluters’ costs at the expense of public health.