Picture this An official from the Sundquist administration is playing a game of Jeopardy. It’s the final round, the category is “The Environment,” and the answer to the question is “Reducing enforcement practices and simplifying permitting processes.” The state official wouldn’t have any problem. He could ding the red buzzer and question proudly, “How is Tennessee state government meeting the current administration’s goals of reducing bureaucracy and easing burdensome regulations?”
The state official would go home with the prize money. In the audience there would be applause, but Tennessee’s environmentalists would be squirming in their seats. Surely, they would think, there is another way to answer this question. Surely, they would murmur, these people can’t be acting so much like, well, Republicans.
It’s hard for any outsiderenvironmentalist or otherwiseto get a grip on everything that’s gone on during the Sundquist administration in relation to the environment. But a good chunk of what is known raises questions about the fate of Tennessee’s natural resources. Midway through Don Sundquist’s four-year administration, as far as environmentalists are concerned, the news has not been good. In repeated instances during the past two years, the state has mishandled egregious environmental violations. Of late, it is also becoming clear that state government has given itself special treatment when it comes to enforcing environmental regulations. Internal memos from the Tennessee Department of the Environment and Conservation (TDEC) make it clear that state agencies have been permitted to engage in enviroment-threatening activities that would not be tolerated if they were private industries or private property owners. The Sundquist administration has had its good moments, as far as some environmentalists are concerned, but those positive instances have been overshadowed by a more ominous and disturbing string of events.
Some environmentalists say they would like to give state government and the Sundquist administration the benefit of the doubt when it comes to environmental issues. But some, such as Alan Jones, executive director of the Tennessee Environmental Council (TEC), one of the state’s leading environmental advocacy/governmental watchdog groups, are finding it harder and harder to say good things about the Sundquist administration’s environmental track record.
Jones says he is “worried about a series of issues related to how TDEC enforces environmental laws.” He concedes that the instances in question are “just anecdotes,” but he adds that “the anecdotes are piling up.” When the list of anecdotes grows long enough, Jones says, isolated occurrences begin to form a pattern. When it comes to the environment, this administration’s pattern of behavior has more than its share of fiascoes. If that pattern says anything about the future, environmentalists like Jones can be pretty certain that things aren’t looking good.
From the very beginning, Sundquist had to know that his administration would have a tough time making friends among enviromentalists. At least on the national level, the Republican Party has traditionally had a reputation for being less than favorable to green causes, especially when they require public spending or when they run up against private enterprise. Before being elected governor in 1994, Sundquist had spent most of his political life in the U.S. Congress, where GOP legislators were sometimes known for their organized opposition to high-profile environmental programs aimed at protecting endangered species or preserving the nation’s forests.
Meanwhile, Democrats are perceived as being far more friendly to the environment. On more than one occasion, President Bill Clinton has made points with environmentalists by keeping the Republican wolf from the door. At one point, he threw a wrench into a GOP proposal to make drastic cuts in funding for the nation’s leading environmental regulator, the U.S. Environmental Protection Agency.
So, even before their first day in office, Sundquist and his administration were doomed to close scrutiny from the green forces. They are probably, in fact, more closely watched than a Democratic adminstration ever would be. Still, in episode after episode, critics say, the Sundquist administration has screwed up. Sundquist’s first major foul-up occured last April, when it appeared that he was taking sides in the ongoing battle between economic development and conservation of the environment. Clearly, it appeared, Sundquist was taking business’ side.
He raised environmentalists’ hackles when he reneged on the state’s agreement to share information with the U.S. Interior Department about companies seeking new air-pollution permits that would have an impact on the Smoky Mountains. By pulling back on the agreement, Sundquist caused a statewide furor, and he damaged Tennessee's relationship with the federal government. In an attempt to undo the damage, Sundquist said he would try to cut another deal with the Interior Department.
Meanwhile, environmental officials with other state and federal agencies say the administration has repeatedly dropped the ball when it comes to penalizing polluters. One U.S. Fish and Wildlife Agency official, Cookeville biologist Tim Merritt, recently told the Wall Street Journal, “We’ve had several projects in recent months where we felt like the state should have issued a notice of violation, and they did not.” Such notices, called NOVs, establish deadlines for correcting problems and outline the fines violators must pay.
In recent months, the administration has been charged with behavior that, according to environmentalists, would look suspect no matter what political party was in power. They point to instances that simply look like the misuse of power.
One example: In late August higher-ups at TDEC circulated an internal memo explaining that the department would start easing up on NOVs to the Tennessee Department of Transportation (TDOT). Such inter-departmental courtesy might not seem so shocking, were it not for the fact that TDOT is the biggest environmental offender in the state. TDEC was prescribing special treatment for TDOT. Environmentalists and good-government advocates have been incensed by news of the memoand not only because it apparently allows TDOT to get away with violations for which other offenders would be fined. They were also upset by the surface arrogance of the memo’s tone.
Issued jointly by TDEC Deputy Commissioner Wayne Scharber and Water Pollution Control Director Paul Davis, the memo states, “This department and the Tennessee Department of Transportation have agreed to a new strategy to help resolve apparent permit violations at an elevated level in each organization.” The memo then explains that any proposed TDOT notices of violation are to be referred to one conservation department official, who will then be responsible for arranging meetings at which the NOVs will be discussed.
The memo reads exactly like the kind of document consumers and private industries fear is being circulated among state officials. The TDEC memo provides assurances that “there is no agreement between departments concerning whether a notice of violation will or will not be issued.” But it also states that “it is expected that immediate attention by management of both departments to identified problems will reduce the need for the issuance of NOVs .”
Environmentalists say they don’t want to jump to conclusions about the exact meaning of the Scharber-Davis memo, but they say its apparent intent is disturbing. Whatever the motivation for the memo being circulated, it certainly doesn’t bode well for the green team’s cause.
According to Ann Murray, executive director of the Tennessee Conservation League, “Road building has a greater environmental impact of any other industry in Tennessee.” To make matters worse, Murray says, TDOT is “the single biggest violator in the state of Tennessee when it comes to environmental regulations.” When it comes to enforcing those regulations, Murray maintains that the transportation department should be treated just like anybody else. “They either violated a regulation or they didn’t,” she says. “Let’s change the law if we need to. But let’s don’t have this perception of favoritism within our state government.”
State records show that TDOT is called on the carpet for environmental violations more often than any other state department and more often than any single private industry. In less than a year, TDOT has received more than 30 NOVs . A recent list of projects for which TDOT obtained permits, and then received violation notices, shows that many of those violations have gone uncorrected.
TEC’s Jones concedes that it’s understandable that state agencies would want to give each other special considerations. “Does it make sense for TDEC to go fining TDOT?” he asks rhetorically. “I think you’ve got to be concerned about what message you send to the public.”
On the other hand, he argues that special enforcement policies are “a problem. I think that there should be a balanced enforcement policy. As the chief environmental protector, the state has to have a very clear policy that destruction of resources will not be tolerated. If you have any other message, it sends a bad message to the community.” Jones says he understands why state agencies are willing to take the risk of violating environmental regulations: “Right now, it’s easier to ask forgiveness than to ask permission.”
But state officials say it’s not fair to judge TDEC and TDOT merely by their bad publicity. TDOT is, essentially, the biggest developer in the state; that means that, almost inevitably, the transportation department’s violations will outnumber those of private businesses. The sheer number and scope of TDOT’s projects increase the likelihood of mistakes. What’s more, state officials point to statistics that indicate that the state has made progress on environmental issues.
Rick Sinclair, an assistant commissioner with TDEC, notes that “two years ago, 65 percent of Tennessee streams could be called unpolluted.” Today, he says, that number is up to 74 percent. At the same time, Sinclair admits that the improved percentage is “not all because of our actions.” In recent years, the state has been able to test streams it didn’t test before.
TDEC Commissioner Justin Wilson was tapped by Sundquist to lead the Environment and Conservation Department earlier this year, filling the position left vacant by former Commissioner Don Dills. Wilson seems to have many of the right credentials for the job. He is a former chairman of the Metro Board of Health, and he practiced law at a local firm that has a sizable environmental practice. He is also the son of well-known Republican fund-raiser David K. “Pat” Wilson. Justin Wilson has a reputation for playing by the rules, but he is staunch in his support of the Republican Party.
According to Wilson, the anger over the TDEC/TDOT memo is simply the result of a misunderstanding. “The whole thing is wrong,” he says. “The purpose is to avoid violations in the first place. You measure success not by your failures but by your progress.”
Wilson expresses no dismay at TDOT’s infractions. “There’s no question whatsoever that, in building highways across the state, there are problems,” he says. “TDOT is massive. It has problems all across the state. They need fair and consistent treatment.”
Environmentalists are still waiting to see how the TDEC-TDOT relationship sorts out. At the same time, they are beginning to ask questions about yet another internal memo, circulated at TDEC on the same day that the Scharber-Davis memo was issued. That second memo, which calls for TDEC to establish a simpler permitting process, seems innocuous enough at first glance. Upon giving the memo a second glance, however, environmentalists are beginning to ask some probing questions.
According to the second memo, also issued by Scharber, “The number-one priority initiative of the department is to simplify the permit and approval processes we use in providing environmental protection.” Perhaps the memo is simply a call for better managment, but environmentalists question whether a “simpler” permit process also means a less thorough one. And they don’t like the fact that, in the same memo, Scharber suggests that TDEC delegate to counties and cities some of the power for issuing certain construction permits. In some cases, the memo directs, department heads should “establish a mechanism for [permit] approvals to be issued by local government.” The memo provides some reassurance by stating that TDEC would only allow such permit approvals in cases in which the consequences of environmental damage are modest.
That sort of suggestion makes environmentalists uneasy, because local governments are the very entities most willing to risk damaging the environment if it encourages the recruitment of business and industry.
Sinclair defends his department’s efforts to “streamline” the permitting process. The effort, he says, is a progressive move, not a wholesale sellout to industries regulated by TDEC. According to Sinclair, seven other states are now looking at “Total Quality Management” as a means of consolidating the permitting process and making state government more customer-friendly.
“Right now, there are 52 different permits, licenses, and approvals within our department. We’re just trying to make sure they’re all needed,” Sinclair says. “Some of them might be there just to generate a fee. The ideal is that you could get permits for every aspect of your project in one place.” Some states, like California, he says, have “one-stop shops.”
Wilson says that, even though TDEC’s critics may be sniffing around for trouble, his department’s streamlining efforts are intended to make government more responsive to the taxpayers. “Government does not have to be your enemy,” Wilson says emphatically. “The people of Tennessee are entitled to know what the rules are. They’re entitled to have a responsive government and prompt, common-sense permitting.”
As part of its streamlining plan, TDEC has appointed an external review committee to determine whether all of the department’s permits and licenses are really needed. TEC’s Alan Jones serves on that committee.
“I think, in general, simplifying the process is a good idea,” Jones says. “It’s not something we oppose. If there’s a way to simplify the paperwork, the complexity of the process, and still protect the environment, I think that’s something we support.” Still, Jones insists that “what we really ought to be after is how to improve the permit process,” no matter what it takes.
Jones and others also want to ensure that enforcement doesn’t take a backseat to more efficient permitting. Jones suggests that Wilson “will say very strongly that they’re two separate issues. He’ll say, ‘If you’re talking about enforcement, let’s talk about that, but don’t let that interfere with simplification of the permitting process.’ ”
While environmentalists are analyzing TDEC’s internal memos, the federal Environmental Protection Agency is investigating Tennessee to determine whether state officials knowingly allowed violations to occur during construction of a golf course at Chickasaw State Park, located in Lt. Gov. John Wilder’s state senate district.
Over the summer, the Chickasaw case grew into a political nightmare for the Sundquist administration. State officials had decided not to take action against the contractor for construction of the golf courses, even though the developer had bulldozed, filled in, and otherwise tampered with precious natural wetlands.
State officials admitted that they intervened to keep one of TDEC’s own wildlife biologists from issuing an NOV after she discovered the wetlands damage during an inspection of the golf course construction. Instead of simply issuing the NOV to the contractor, Golf Services Inc. of Houston, Commissioner Wilson met with the contractors to straighten out the situation.
Politically, the situation did not look good. Wilder, a powerful state official and an ally of Sundquist, had lobbied the state for years to fund the golf course, designed by golf pro Jack Nicklaus for the state park in southwest Tennessee. It’s unclear whether Wilder had any influence on the decision not to issue a notice of violation to Golf Services, but eyebrows were raised by the state’s decision to give the contractor what seemed like special treatment.
Eventually, when construction of the golf course was halted, it wasn’t the state that sent down the order. Instead, the U.S. Corps of Engineers stepped in to issue a cease-and-desist order against Golf Services, which, at least for the time being, has halted construction. The EPA is now looking closely at the project; the investigation could result in some embarrassing fines against the state. While construction of the golf course is on hold, Wilson says, the state has been working to mitigate the damage done.
According to Eva Long, an EPA enforcement officer from Atlanta who is working on the case, the feds hope to determine “the events that led up to the commencement of the work. The Clean Water Act, which is what was violated, is a strict liability statute. The question we have to get the answer to is, ‘Who was responsible for authorizing the work?’ ”
Long says the EPA has requested that the state provide the information necessary to pursue the investigation. As of last week, the state had not furnished that information to the EPA.
“We’re still waiting,” says Long. “But overall, since we’ve taken over the case, [state officials] have cooperated quite well. In fact, they said they were doing their own investigation into determining what happened. They wanted us to be aware of that.”
Depending on what the EPA finds, the state could be fined for its violations, a punishment that, financially at least, would be nothing more than a slap on the wrist. A potential fine might be in the $25,000 range, not exactly financial ruination for a state government whose annual operating budget is $13 billion. But the simple fact that the state would be fined at all would be an embarrassing blot on its environmental record, Long says.
Wilson says, in hindsight, that he may have handled the Chickasaw situation differently. “Had I imagined how political the issue would have become, I would have acted differently.” But Wilson takes personal responsibility for his reaction. “I said at the time, and I’ll say it now, that I acted the best I knew how under the circumstances.”
Meanwhile, environmentalists argue that construction of a golf course at the state park is a project that never should have happened anywayand not just because of the endangered wetlands. “We don’t think our state parkswhere people can do what they want, from hiking, camping, and fishing to bird watchingshould be used to make way for golf courses,” says Mike Butler, technical advisor and wildlife biologist with the Tennessee Conservation League. “There’s only one thing you can do on a golf course.”
Even if TDEC does streamline its permitting process, the department’s permit-related problems will not be over. Increasingly, the department finds itself at odds with the other state and federal agencies that review and make comments on project applications in Tennessee.
The case of Earl Bailey, a hard-nosed Waverly, Tenn., farmer, is a perfect example. Bailey’s case, which was recently highlighted in The Tennessean, is a good example of the intrastate disagreements that can arise over what should and should not be permitted and what is and is not environmentally damaging.
Bailey, 68 and retired from military service, owns 200 acres in Humphreys County. He shares the property with ducks, geese, horses, cows, and at least one dog. Bailey says he would like to do just what he’s always done: He wants to build gravel levees on either side of a creek that runs through his property. He says that building those gravel barriers and straightening the curves in Spring Creek will help ease the flooding on his land, which is located in a floodplain.
But Bailey’s levees would have an environmental impact that reaches far beyond his property line. Bailey’s plan would upset the water quality of the creeka waterway owned by all Tennesseans. His levees might ease up the flooding on his own property, but they could create more severe flooding downstream, since they would make the water travel faster there.
Bailey began his work on the creek, reshaping its banks and hauling in huge piles of gravel, about five years ago. At that time he had received a permit from TDEC’s division of Water Pollution Control. Now he wants to renew his permit, and he doesn’t understand why his request is such a big deal. He knows that other property owners have done the same thing. Meanwhile, surrounding landowners are waiting to begin similar projects, and others have completed projects that environmentalists say never should have been permitted in the first place.
The Tennessee Wildlife Resources Agency (TWRA), whose interests are to protect wildlife habitats and resources, strongly opposes Bailey’s project. Agency officials have notified the division of Water Pollution Control of their position. Environmentalists and TWRA officials say that, if Bailey’s project is approved, seven or eight other similar applications in Humphreys County probably will be approved too. Those projects, they say, would wreak havoc on the county’s streams and flooding system. Even worse, they would establish a precedent for TDEC’s future decisions on small-stream projects.
TWRA says that Bailey causes real problems when he moves gravel from the streambeds up to line its banks. The streams become unstable, water quality is damaged, and the removal of trees and other plant life heats up the water, making it unhealthy. What’s more, EPA has said that Bailey’s plan doesn’t really offer any real flood control, nor does it offer a long-term solution to the problem, since gravel tends to wash away.
At this point, state officials have determined that Bailey’s project is just large enough to fall under the jurisdiction of the U.S. Corps of Engineers, which is reviewing the application. The farmer met with a group of officials from the state and federal government last week to offer his opinions about what he should be allowed to do.
Starting with a briefing in Bailey’s small country kitchen, they took a tour of sites nearby where Bailey and other local landowners say flooding is a potential problem. As of yet, no decision has been made.
The environmental record of Sundquist’s administration is not entirely bad. In fact, after two years in office, Sundquist has supported a few projects that have earned praise from environmentalists.
Sundquist has implemented the West Tennessee Tributaries Project, a program aimed at restoring rivers to natural boundaries and providing adjoining landowners with natural drainage for valuable bottomland forest property. The project was begun under Gov. Ned McWherter’s administration, but Sundquist is seeing it through.
Last month, as part of the Tributaries Project, the federal Corps of Engineers approved two such state projects. Approval of those projects means that there is an end in sight for an ongoing controversy among farmers, other landowners, and environmental interests.
“These projects promote the growth of bottom land hardwoods and restore fish and wildlife habitat,” Sundquist said at the time of the announcement. “That is beneficial to landowners all along the river. Equally important, these projects decrease the impact of flooding in this area.”
The West Tennessee Tributaries Project is necessary because of work that was done on Tennessee streams shortly after the turn of the century. At that time, streams were straightened. Years later, it became clear that the straightened rivers were causing drainage problems, resulting in the loss of bottom land and fish and wildlife habitats. “When I became governor,” Sundquist said, “I knew this project would be critical to this area.”
Mike Butler of the Tennessee Conservation League says the Tributaries Project has become a national model and that it is only fair to credit Sundquist with following through with the work McWherter began. “McWherter said, ‘Fix it,’ and Sundquist went to bat.”
Just last week the Sundquist administration announced a partnership project with the Tennessee Environmental Council. The “XL Project Proposal” will allow companies to concentrate on the cleanup of emergency spills. Currently, the focus is on reporting the spills, which are governed by at least 26 different regulations.
If approved by the EPA, the project would shorten the amount of time required to contact regulatory agencies in the event of an emergency contamination spill. It would replace the current reporting process with a one-call reporting system and a universal toll-free phone number.
The EPA has encouraged state governments, private business, and environmental groups to come up with just this sort of innovative alternative to existing regulations, and the federal agency is expected to approve the innovations nationwide.
Environmentalists like the Conservation League’s Butler also credit the Sundquist administration with being open to listening to the facts, even if state officials don’t always act on the environmentalists’ complaints or agree with the green point of view. Butler says TDEC’s Wilson has a solid reputation as an environmentalist, even though there has been controversy during his short tenure. “Commissioner Wilson is partisan,” Butler says, “but if you give him a factual argument, he will not ignore what’s laid out in front of him.”
Wilson says he likes that assessment well enough. “My perception is that [the environmentalists] know they can get a straight answer from me,” he says. “They might not always agree with me, and that’s fine.”
Two years into the game, the Sundquist administration’s environmental track record has stirred up repeated controversies. The administration’s ecology-related policies have earned little positive press, and it is easy to portray them as standard GOP operating procedure. Perhaps the challenge in the final half of the administration will be to reverse the perception that the Republican ideology is one that resists regulations at all costs, even the cost of our natural resources. For the moment, Wilson is making no apologies. “I make no denials about being a Republican,” he says. “We want government to be more responsive, and that’s what we’re trying to do.” Unfortunately, Wilson has to convince a lot of people about his good intentionsnot just the people regulated by the state but the people who regulate Tennessee too. In government, that’s how the system works.
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