No sign of action from Congress
During his 2008 presidential campaign, Barack Obama promised to restore the Superfund to its previous strength by resurrecting a tax on the oil and chemical industries. The Environmental Protection Agency (EPA) says that a lack of funds has hampered its ability to conduct environmental cleanups around the country. In a June 2010 letter to Congress, the EPA took the unusual move of lobbying for the tax's reinstatement.
So how much progress has there been on Obama's Superfund promise?
First some background. Superfund is the nickname given to the Comprehensive Environmental Response, Compensation and Liability Act of 1980. This legislation empowered the EPA to force polluters to clean up toxic sites they had created. It also addressed the problem of "orphaned sites." These are polluted areas for which no responsible party can be found or which were created by a company that no longer exists. Such sites make up approximately half of the almost 1,300 toxic locations across the United States.
The federal government financed cleanups of orphaned sites with the tax on the chemical and oil industries. Revenue from this tax went into a trust fund that the EPA could use to clean up the sites. Within five years of implementation, the tax had generated $1.6 billion. By 1996, the fund had more than doubled to $3.8 billion.
Congress allowed this tax to expire in 1995. By 2003, the Superfund's coffers were empty. As a result, orphaned site cleanups are now financed through taxpayer dollars. The loss of industry tax revenues led to a decline in performance. In 1999, for example, the EPA cleaned up 89 orphaned sites. By 2009, the number dropped to 19.
An attempt was made with the American Recovery and Reinvestment Act of 2009 to breathe life into the moribund program. The economic stimulus allocated $600 million to Superfund for the cleanup of orphaned sites. Yet, President Obama's promise was to require polluters to pay. Only Congress has the power to impose such a tax.
Since 1995, several legislators have tried and failed to reinstate the tax. Notable among them is Sen. Frank Lautenberg, D-N.J. Lautenberg is chairman of the Senate Subcommittee on Superfund, Toxics and Environmental Health, which oversees the Superfund.
On March 2, 2011, Lautenberg introduced the Polluter Pays Restoration Act. Similar bills were introduced in the House of Representatives by Rep. Frank Pallone, D-N.J., and Rep. Earl Blumenauer, D-Ore. But the legislation has never made it past committees.
We talked with Ed Hopkins, director of the Sierra Club's Environmental Quality Program, about the likelihood of the tax being reinstated during Obama's term. Hopkins said he didn't feel that the tax's passage was likely given both Congress's past reluctance and its current political makeup. David Jenkins, Vice President for Government and Political Affairs of the conservative pro-conservation group Republicans for Environmental Protection, expressed a similar sentiment. "Based on the President's track record so far, and the libertarian dominated House Republican caucus's aversion to any kind of fee or tax, I think it is unlikely that this issue gets addressed during the remainder of Obama's term,” said Jenkins in an e-mail interview.
We came to the same conclusion based on our research. Even if Sen. Lautenberg's bill makes it through committee, the chances of it facing a Republican filibuster are high. Moreover, the deck is stacked against any tax bill surviving a vote in the Republican-controlled House of Representatives, where many members oppose tax increases for any reason. Given these realities we find it improbable that President Obama will succeed in reinstating this tax during his first term in office. We rate this promise as Broken.
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), full text, as amended.
Environmental Protection Agency, news release, June 21, 2010.
Environmental Protection Angency website, CERCLA overview.
Bill Summary & Status, 112th Congress, S.461
Bill Summary & Status, 111th Congress, S.3164
Sen. Frank Lautenberg, press release, "Lautenberg Introduces Legislation to Ensure Polluters Pay to Clean Up Toxic Sites”, March 2, 2011.
Sen. Frank Lautenberg, press release, "Lautenberg Introduces Legislation to Ensure Polluters Pay to Clean Up Toxic Sites”, March 25, 2010.
E-mail interview with Caley Gray of Sen. Lautenberg's office, June 27, 2011.
Interview with Ed Hopkins of the Sierra Club, June 29, 2011
E-mail interview with David Jenkins of Republicans for Environmental Protection, June 29, 2011.
The Washington Post, "Obama, EPA to push for restoration of Superfund tax on oil, chemical companies”, June 21, 2010.
The New York Times, "Without Superfund Tax, Stimulus Aids Cleanups”, April 25, 2009.
NPR, "As Tax Expires, EPA Struggles to Clean Up Superfund Sites,” August 6, 2010.
Lawmakers offer bills to revive tax that benefits Superfund
During the presidential campaign, Barack Obama promised to "restore the strength of the Superfund program by requiring polluters to pay for the cleanup of contaminated sites they created."
He was referring to a provision of the original Superfund law that lapsed at the end of 1995. That provision enabled the government to levy taxes on oil and chemical companies as well as a special tax on corporate profits. The funds were used to pay for the cleanup of "orphan sites" for which no responsible party could be found to foot the cleanup bill. Such sites account for roughly 30 percent of all Superfund sites. The disappearence of the tax has hobbled the federal government's ability to clean up orphan sites and made the program heavily reliant on taxpayer dollars to pay its costs.
Opposition by congressional Republicans, President George W. Bush and the industries affected scuttled numerous attempts to reinstate the tax during the past decade. Now, at least two bills have been introduced in the House that would accomplish Obama's promise.
Rep. Frank Pallone, D-N.J. -- a high-ranking member of the influential House Energy and Commerce Committee and a representative of the state with the largest number of Superfund sites -- has introduced the Superfund Polluter Pays Act (H.R. 832), while Rep. Earl Blumenauer, D-Ore., has introduced a bill, H.R. 564, that varies slightly. Both have been referred to House committees for further review but have not advanced beyond that.
In the Senate, Pallone's fellow New Jersey Democrat, Frank Lautenberg, has said that he would also introduce legislation to do the same thing. In the previous Congress, Obama signed on to Lautenberg's Superfund bill, which died in committee.
Meanwhile, the Obama administration, in its fiscal year 2010 budget, proposed reinstating the tax and said it would generate $17.2 billion between fiscal year 2011 and fiscal year 2019. The administration said it would not levy the tax until 2011, when it expects the economy to have recovered from its current recession.
The expected opposition by Republicans and by industries hit by the tax will pose severe obstacles for implementing this promise, and the current economic troubles only make the challenge harder. But the idea is moving forward on several fronts, which is enough for us to rate Obama's promise as In the Works.
for the Superfund Polluter Pays Act (H.R. 832)
THOMAS, summary page for H.R. 564
Rep. Frank Pallone, "Pallone Introduces Legislation Ensuring Polluters Pay for Superfund Cleanup" ( news release ), Feb. 3, 2009
Sen. Frank Lautenberg, statement on the Environmental Protection Agency's Fiscal Year 2010 Budget, May 12, 2009
Meline MacCurdy, "Reinstatement of Superfund Tax Proposed in Congress, Presumed in President Obama's Budget" ( legal analysis ) April 22, 2009