The untold story of how the Bush administration defeated the kind of regulation that would have strengthened federal oversight for the plant that blew up.
That was President Obama in his second Texas speaking engagement on Thursday. First, he was in Dallas to muster some nice words about the legacy of President Bush at the dedication of the Bush Library. Then he traveled to Waco for the memorial for the victims of the West Fertilizer Company.
These two speaking engagements are not just geographically related. There’s a thread that runs through an amazing, and I think until now, untold story of the Bush administration, and how it went about defeating the kind of regulation that would have strengthened federal oversight for the plant that blew up.
We pieced together this story. Here’s what happened: in the wake of 9/11, there was tremendous concern about the vulnerability of chemical plants, including plants that stored fertilizer. The EPA knew that these chemical plants posed a legitimate risk to the lives of hundreds of thousands of people. The vulnerability of chemical plants made headlines across the country.
Two Bush administration officials, Christine Todd Whitman, who was head of the Environmental Protection Agency at the time and Tom Ridge, who was head of Secretary of Homeland Security, came up with a plan to deal with the vulnerability. Whitman believed that the EPA was already empowered to expand her agency’s oversight of chemical plants under a section of the Clean Air Act and she and Ridge worked out a deal to do so.
That’s until the son-in-law of former Vice President Dick Cheney walked into the room, a guy by the name Phillip Perry, who was at the time the general counsel of the White House Office of Management and Budget. And he made it clear that the Bush administration was not going to support granting regulatory authority over chemical security to the EPA. According to reports, Perry claimed that their proposal was tantamount to overreach, and that they would need Congress to specifically authorize it.
So, Christine Todd Whitman and Tom Ridge figured that the obvious thing to do was to go up to the Hill, and ask Congress for the authority necessary. But as Whitman writes in her book, “It’s My Party Too: The Battle for the Heart of the GOP and the Future of America”:
“Although both Tom and I agreed such legislation was necessary, strong congressional opposition–led by some Republicans on the Senate Environment and Public Works Committee and the House Energy and Commerce Committee–to giving EPA even the modest additional statutory authority made it difficult to secure administration support for a meaningful bill.”
Basically, the Bush administration from above, pulled support for that bill because the chemical industry doesn’t want to be regulated by the EPA. Fast forward a few years, to 2007, and Phil Perry–again, Dick Cheney’s son-in-law–is now over at the Department of Homeland Security as the department’s general counsel. And what he manages to do, in an uncontroversial bill, in an appropriations rider, is slip in industry-friendly language into the bill that moves the task of regulating chemical plants from the Environmental Protection Agency to the Department of Homeland Security. But DHS is given none of the tools it would need to actually do that. The Washington Monthly wrote this back in 2007:
“Perry reworked the language and helped to get it added to the spending bill in a conference committee. Under the new amendment, the DHS would have nominal authority to regulate the chemical industry but also have its hands tied where required.”
Let’s recap: The Bush administration’s own cabinet secretaries come up with a plan to regulate these chemical plants. It’s stymied by Phil Perry once. The Bush administration sides with the chemical industry when it’s brought before Congress. And then, basically in a backroom maneuver, Perry does the chemical industry’s bidding by moving the oversight of this from the EPA, which the chemical industry hates, to DHS, which the chemical industry thinks they can more easily manipulate.
Now, fast-forward six years. The West Fertilizer company is storing more than 13-hundred times the amount of ammonium nitrate that would normally trigger safety oversight by DHS. And it does appear now, that not only did DHS literally have no idea that the West Fertilizer company was storing ammonium nitrate. But according to Congressman Bennie Thompson, a Democrat from Mississippi, DHS did not even know the plant existed until it blew up.
Now here’s what makes this all the more incredible. In 2006, when a bill was introduced in the Senate to make chemical plants safer, a bill that was blocked by Republicans, the young Senator who introduced that bill was now-President Obama.
Given that the Bush-backed bill moving oversight of big places storing fertilizer from EPA to DHS is law of the land, and Republicans in Congress aren’t going to change it, the administration has been considering recently granting the EPA the original authority that Christine Todd Whitman wanted. The chemical industry lobby hates this. So in February, 10 Republicans and one Democrat teamed-up with a bunch of chemical industry groups to fight this tooth and nail. Here’s a letter from the groups to members of Congress. It reads in part:
“We have concerns about EPA’s arbitrary application of the General Duty Clause as well as the potential for future expansion of the General Duty Clause to regulate the security of chemical facilities.”