When people ask me about the seeming success of our work recently to reduce emissions from ESCO, I am reminded of some of the first advice I received from a DC consultant: “Get a good lawyer.” Of all the arcane knowledge I have had to master to navigate this work in advocating for less toxic industrial emissions in the air around my children’s school, the most important has been understanding the legal framework of how air pollution is regulated. The first most basic lesson is: regulating pollution is a legal process. The polluters know that, which is why companies spend a lot of money to have attorney’s manage their compliance obligations. The state knows it, as they live by the mandates of federal law, which in Oregon’s case, due to draconian cuts over the last few decades, ensures that federal obligations, ie: the bare minimum of regulatory protections, eat up nearly all of the agency budget to implement, thus ensuring they will never have sufficient discretionary funds to address broader concerns.
Unfortunately, it is the neighboring communities and citizens who are the last to know, and even if they do, rarely possess the resources to provide basic legal representation. Which leaves them at a severe disadvantage, most often not even comprehending how little impact their well orchestrated efforts afford them.
With this in mind, I found myself wondering: What if there was a Miranda Rights for citizens when it came to participation in the regulation of air polluters? I imagined citizens would have this statement read aloud before any public hearing on an air emitters permit, requiring a verbal “yes” response, or signature to signify understanding:
You have a right to speak, though we prefer you remain silent. Anything you say or do can and will be held against you, as it will marginalize your voice and make you look ridiculous as contrasted to the rational voice of business and regulators. You have the right to speak to an attorney, and you will, but that attorney will work for the polluter. If you cannot afford an attorney, the state will provide legal council to the regulatory authority to assure them there is nothing more that can be done on your behalf. Do you understand these rights as they have been provided to you in the most garbled legalize within the 40+ pages of the polluter’s permit or buried in the labrynth of the state and federal regulatory websites?
Then I imagined that the federal law (EPCRA) that provides for the citizen right-to-know what toxic pollution they are exposed to, should be expanded to include language to inform and avoid misconceptions about what “rights” citizen’s have to engage in the public due process afforded them:
1. You have a right to a public hearing and the right to speak publicly about your concerns.
2. You have a right to know that this is a legal proceeding, and the state is only obligated legally to provide the opportunity for you to speak. The state has no legal obligation, authority, or other incentive to act on what you say, no matter how compelling your concerns.
3. You have a right to know that the state agency is legally represented in its obligations to federal pollution regulation laws by the Department of Justice, which therefore cannot act in the public interest, as their client is the state regulatory agency.
4. You have a right to know that the polluter has the best paid attorney (s) in the room.
5. You have a right to know that other than some vague ideal agreed to by the Congressional consensus that created the Clean Air Act and the 1990 Amendments, regulation of polluters is not driven by health based standards and an understanding of where the bottom threshold is where air pollution, in all its aggregate synergistic magic, does harm to the human body. Air pollution regulation is driven by the economic feasibility of demonstrated technology.
6. And, you have the right to know, there is a huge gap between those last two points. You and I, and our children, live in that gap.