By David Michaels

How did the Congress pass legislation that not only cut EPA out of chemical plant safety, but also ensured that the job would be given to the Department of Homeland Security, which has neither the authority nor the commitment to do it right?

The job was done by Philip Perry, general counsel of the Office of Management and Budget (OMB), who is married to Vice President Cheney’s daughter Elizabeth. The sordid details are Art Levine’s new article in the Washington Monthly, “Dick Cheney’s Dangerous Son-in-Law.”

Levine describes a meeting in March 2003, at which senior Bush Administration officials — including Tom Ridge, head of the Department of Homeland Security (previously head of the White House Office of Homeland Security), and Christine Todd Whitman, administrator of the Environmental Protection Agency — met “to put the final touches on a proposed legislative package that would address what was perhaps the most dangerous vulnerability the country faced after 9/11: unprotected chemical plants close to densely populated areas.”

The package was the product of nearly a year’s worth of work led by [Ridge and Whitman]. Both had been governors of northeastern states (Ridge of Pennsylvania and Whitman of New Jersey) with a large number of chemical plants, and this only increased their concern about leaving such facilities unprotected. EPA staff felt such fears even more acutely: agency data showed that at least 700 sites across the country could potentially kill or injure 100,000 or more people if attacked.

The basic elements of the legislation were simple: the EPA would get authority to regulate the security of chemical sites, and, as a first step, plants would submit plans for lowering their risks. One man present at the meeting, Bob Bostock, who was homeland security adviser to the Environmental Protection Agency, was relieved to see that something was finally being done. “We knew that these facilities had large enough quantities of dangerous chemicals to do significant harm to populations in these areas,” he says.

No one present was prepared for what came next: the late arrival of an unexpected visitor, Philip Perry, general counsel of the Office of Management and Budget (OMB). Perry, a tall, balding man who bears a slight resemblance to Ari Fleischer without the glasses, was brusque and to the point. The Bush administration was not going to support granting regulatory authority over chemical security to the EPA. “If you send up this legislation,” he told the gathering, “it will be dead on arrival on the Hill.”

No one doubted the finality of Perry’s message. The OMB, which sets the course for nearly every proposal coming out of the White House, is a much-feared department that raises or lowers its thumb on policy priorities, a sort of mini-Caesar at the interagency coliseum. But Philip Perry could boast one more source of authority: he was, and is, the husband of Elizabeth Cheney, and son-in-law of Vice President Dick Cheney. After Perry spoke, only Bostock dared to protest, though to little effect. “He was obnoxious,” Bostock recalls.

For the chemical industry, which has always had a chilly relationship with the EPA, Perry has been a consistent, quiet friend. “Phil Perry was never the EPA’s biggest fan,” says Whitman, recounting the relationship. “I think there was a predisposition on his part that we were trying to overreach.” Indeed, like many Republican hardliners, for whom the EPA represents all that is wrong with government regulation, Perry has sought to limit the role of the EPA, not expand it. He’s been successful.

Levine’s piece describes how Perry looked for a way to ensure any legislation passed would be industry-friendly:

He would find it in a DHS appropriations bill in the Senate, to which had been attached an obscure amendment giving the DHS short-term regulatory authority over chemical security. 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. For example, the DHS would be barred from requiring any specific security measures, and citizens would be prohibited from suing to enforce the law. Best of all for industry, while the bill didn’t mention giving the DHS preemption authority, it didn’t bar it, either, leaving a modicum of wiggle room on the subject. In other words, if Perry was sufficiently brazen, he could claim for the DHS the power to nullify the chemical regulations in New Jersey.

Levine’s article documents a great if disheartening example of how things worked in Washington DC, at least until the new Congress took over. (Hat tip to Kevin Drum.) Yet, as the Bush administration’s new executive order amendments demonstrate, we must remember that even a lame duck executive has a great deal of power over how much our federal agencies are able to do to keep us safe.

David Michaels heads the Project on Scientific Knowledge and Public Policy (SKAPP) and is Professor and Associate Chairman in the Department of Environmental and Occupational Health, the George Washington University School of Public Health and Health Services.