As people across the country and around the world watched the tableau of 300,000 West Virginians give up their drinking, cooking and bath water for days on end because an untested toxic chemical was spilled by a company that was co-founded by a twice-convicted felon, the ever-present John Boehner (R-Ohio) had pungent advice for President Barack Obama. “We have enough regulations on the books. And what the administration ought to be doing is actually doing their jobs. Why wasn't this plant inspected since 1991?” he declared. “I am entirely confident that there are ample regulations already on the books to protect the health and safety of the American people. Someone ought to be held accountable here.”
Consistency, of course, is the hobgoblin of small minds and, unfortunately, no member of the media thought to ask Speaker Boehner whether sequestration and other merciless budget cuts might have something to do with the lack of inspections. Or, to put the issue more bluntly: Why won’t anyone in the press ask the Speaker and his ilk whether we get the government we pay for and whether, these days, we aren’t paying—or getting—enough? But fair is fair: John Boehner isn’t the president, and this latest catastrophe happened on President Obama’s watch, along with a string of other, disturbingly similar episodes.
Remember that pitiful picture of the President crouching on a Louisiana beach peering at a tar ball after the BP explosion that killed 11 on the Deepwater Horizon oil rig and spewed 205 million gallons of crude oil into the Gulf of Mexico? How about the President’s firm declaration that he wanted Sasha to be safe when she ate peanut butter for lunch during a salmonella outbreak that tainted 3,900 products, killed nine, and sickened 714? Do you recall the President’s eloquent eulogy at a service for 29 killed by an explosion at Massey Energy’s Upper Big Branch mine in Montcoal, West Virginia, when he pledged his Administration would do everything in its power to protect miners from then on? And, for that matter, remember the President’s relative silence in the wake of reports that the Food and Drug Administration (FDA) had failed to police the New England Compounding Center, which shipped 17,000 vials of meningitis-laced steroids to hospitals and clinics across the country, ultimately killing 64?
Has the Obama Administration done enough to resolve the underlying causes of these tragedies? Or, to put the question in more immediate terms, can we have some confidence that it will soon address the West Virginia situation, plugging the large loophole in the health and safety net that has left officials with only wild guesses about the spill’s toxicity?
In a nutshell: not unless the President starts to own his Administration’s efforts to protect working people, vulnerable consumers, and the environment.
At the moment, a few dozen inspectors check some 3,000 deepwater oil rigs and platforms in the Gulf to make sure we don’t have another disaster; they are as poorly paid as they are badly trained. The regulators in charge of that crucial task report directly to the same cabinet secretary charged with promoting wider—and more dangerous—drilling to end our dependency on foreign oil.
Salmonella in Jensen Bros. cantaloupe and Foster Farm chicken are the latest examples of how federal regulators have lost their grip on a safe food supply. Yet the Obama Administration will reopen the comment period on a new food rule aimed at preventing outbreaks due to processed foods; the rule is already 18 months late according to its statutory deadline, and on top of the delay, the White House substantially weakened the rule by eliminating some of its most effective requirements. Equally disheartening, the FDA has received nothing more than nominal funding increases for implementation of rules growing out of the landmark Food Safety Modernization Act the President signed into law three years ago.
The Mine Safety and Health Administration (MSHA) still has a backlog of 11,000 appeals of significant violations filed by mining companies interested in frustrating agency enforcement. The backlog, which played a major role in giving Massey Energy license to break the law at Upper Big Branch, was already supposed to have been eliminated. Republicans are at the bottom of budget cuts, of course, but the President’s bully pulpit is once again silent.
And patients who take the 40 percent of injections made by compounding pharmacies would be disappointed to know that the President recently signed a new law allowing members of this industry to decide whether they want to be regulated. The FDA protested weakly but it got no backing from the White House.
And what about poor West Virginia, the primary villain fingered by the press? Sure, the state has a not-the-sharpest-tack, even buffoon-ish governor, Earl Ray Tomblin, who toes the anti-regulatory conservative line, most recently advising West Virginians that they needed to make a “personal choice” whether to drink tap water despite its persistent “licorice” smell. But it is the federal government that is responsible for establishing a baseline of public protection, and it has failed miserably here on at least three counts.
First, the chemical— “crude” 4-Methylcyclohexanemethanol or MCHM—used to wash coal, has never been identified as a public health problem, nor has it been tested. Our shocking ignorance is the direct result of a feeble and outmoded federal statute known as the Toxic Substances Control Act. Its shortcomings are no secret, but the Obama Administration seems content to wait out the impasse between environmentalists and the chemical industry, who have diametrically opposed legislative reform proposals on the table and are unlikely to get anywhere fast without the Administration’s intervention.
Second, the Clean Water Act requires that companies control spills of hazardous substances into “surface” waters (rivers, creeks, streams, lakes), but EPA has only issued rules for those that store oil, not chemicals.
Third, reacting to budget cuts, EPA recently announced that it would cut inspections of industrial facilities by 30 percent over the next five years, again without a word of lament from the White House—and those are inspections of companies on the regulatory screen, not those that have slipped through the cracks like West Virginia’s Freedom Industries.
Intransigent opponents of “big” government like John Boehner chalk bad news like the West Virginia spill up to imaginary slothful federal employees. No one can reason with such fanaticism. But the sad truth is that the President has been missing in action during their diatribe, which persists, day after day, week after week. For whatever reason, he is unwilling to articulate a positive vision of why the people need their government, and in particular, the regulatory police who stop companies like Freedom Industries from ruining the drinking water supply of 300,000 people.
It’s past time for the President to make the case for the kind of fundamental safeguards that were so visibly absent in Charleston. Failed government should not be this President’s legacy.
Rena Steinzor, CPR President; Professor of Law, University of Maryland Carey School of Law. Bio.
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