In his dark masterpiece The Trial, Franz Kafka depicted a surreal universe in which the legal system has abandoned any principles of fairness or justice and instead operates chaotically, according to a set of inscrutable rules. The story of Josef K.’s arrest on unspecified charges and his path through a perverse, uncaring jurisprudence has become such a famous indictment of nightmarish bureaucracy that it’s given us the adjective Kafkaesque to describe systems in which humanity, compassion, and even basic logic have been tossed out the window.
So I wonder what Kafka would have made of the latest bit of news about recent doings at the U.S. Environmental Protection Agency. Last week, the New York Times revealed that the EPA has been quietly planning to weaken Americans’ ability to fight back against polluting industries that have set up shop in their neighborhoods. According to the article, which was reported with the aid of anonymous sources (presumably from within the agency), the EPA intends to do away with rules—set up 27 years ago under the administration of George H. W. Bush—that allow individuals or their advocates to challenge pollution permits issued to factories, power plants, and other facilities that spew or leach poison into their communities.
That’s bad enough, but here’s the creepy, Kafkaesque twist: Under the new scheme, only one side—the people who don’t want polluters befouling their air, water, and soil—would be prevented from going before the agency’s Environmental Appeals Board (EAB) and making their case. But the polluters themselves? They would still be welcome to appeal to the board for greater leniency and more pollution permits. You can almost picture the emails that EPA officials have been sending corporate polluters in recent months: Stop by anytime! The wait should be much shorter once all those folks complaining about “safety” and “public health” are no longer clogging up the board’s docket.
Environmental legal experts are appropriately aghast. Interviewed by the Times, Harvard Law School professor Richard Lazarus deemed the whole idea “outrageous” and noted that the new rule would prove most harmful to poor people and people of color, who are far more likely to live near polluting sites than are members of wealthier, whiter communities. Indeed, the idea is so outrageous that it apparently made one industry lawyer, who earns his living defending coal-burning power plants, temporarily forget his talking points. “It seems a bit odd to have an asymmetric appeals process,” he admitted to a Times reporter—no doubt earning the ire of his clients, who would almost certainly prefer to maintain the illusion that there’s nothing odd about the situation whatsoever.
If you look at the list of cases brought before the EAB since 1992, you definitely notice a pattern: In fights between corporate interests and distressed plaintiffs, the board frequently sides with the former over the latter. But for many people without the economic wherewithal to hire a team of attorneys to represent them in a lawsuit, taking their case before the board might be the only option. The Times cites the story of an unemployed former teacher from Michigan who appealed a 2018 permit given to a company that wanted to revive an inoperative oil well in his neighborhood by injecting it with water—putting the local drinking-water supply in jeopardy. In taking a second look at the EPA’s decision to grant the permit, the board concluded that the agency hadn’t done enough to address the concerns of the community, many members of which are economically disadvantaged. In April the permit was remanded.
The Kafkaesque rule change is still in the draft stage, but the EPA is expected to formally announce it soon—an action that would automatically trigger a public-comment period that could last anywhere from 60 to 90 days. Those who support the rule will argue that citizen-led appeals are nothing more than delay tactics—last-ditch efforts to stall the inevitable. But even if the Environmental Appeals Board sides with corporations 99 out of 100 times, it still wouldn’t justify depriving individuals of the ability to appear before the board and express their misgivings about the effect of industrial activity on their communities.
The EPA, in its core mission statement, touts its dedication to “protecting human health” by “providing clean and safe air, water, and land for all Americans” (emphasis mine). For those words to mean something—for them to mean anything—the agency must back them up with good-faith efforts to give all Americans a say in how it conducts its business. Our government should be taking its administrative cues from authors like Thomas Jefferson, Teddy Roosevelt, and Barack Obama. Save Kafka for the classroom.
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