In early February 2018, the EPA released its environmental enforcement results for 2017. The data revealed shifts in emphasis, the number of civil and criminal actions initiated, and how the EPA views its own enforcement role in relation to enforcement undertaken by the states.
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Overall, during its first year, the Trump EPA initiated about 50 percent fewer enforcement cases and assessed about 50 percent fewer in penalties when compared to the first year of each of the Clinton, G.W. Bush, and Obama administrations; the drops reflect reductions in actions taken mainly under the Clean Air Act (CAA) and Clean Water Act (CWA). At the same time, the current EPA’s enforcement priority is directed at reenergizing cleanups under Superfund and the Resource Conservation and Recovery Act (RCRA).
Release of the 2017 data was preceded by significant interest in how aggressive EPA Administrator Scott Pruitt would be in pursuing alleged violators of federal environmental law and regulation. Pruitt has repeatedly stated that laws must be obeyed and violators will be punished. Yet his background is not notable for aggressive environmental enforcement. As attorney general (AG) of Oklahoma, he eliminated his office’s environmental enforcement division and opened a federalism unit to fight “federal overreach.” The Environmental Integrity Project (EIP) reported that of the 714 press releases Pruitt issued during his 6 years as AG, not one described any kind of environmental enforcement action or environmental penalty. In describing the role of the EPA, Pruitt frequently refers to cooperative federalism, a concept under which the federal government and the states work as partners in the administration of federal law. Pruitt believes the previous administration strayed from this concept by too often dictating what states must do under the environmental statutes. Pruitt aspires to give the states more of an equal role, a policy that clearly extends to enforcement.
OECA Assistant Administrator
This theme has been taken up by Susan Bodine, whom Congress approved by voice vote on December 2, 2017, as assistant administrator for EPA’s Office of Enforcement and Compliance Assurance (OECA). Bodine, an attorney, served as EPA’s assistant administrator for Solid Waste and Emergency Response for 3 years in the G.W. Bush administration. During her nomination hearing in June before the Senate Committee on Environment and Public Works, Bodine mentioned cooperative federalism several times in her opening statement.
“Those who have worked with me know that I use a collaborative and inclusive approach to tackling complex environmental issues,” said Bodine. “For the Assistant Administrator of OECA, this means collaboration and consultation with states that are authorized to carry out their own laws, in lieu of federal law, states that are delegated the authority to carry out federal law, and EPA program offices that write the regulations that implement the statutes Congress writes.”
In its news release for the 2017 enforcement report, the EPA cites cooperative federalism as the main reason federal enforcement numbers are down. The Agency states:
“States and tribes are often authorized to be the primary implementers of federal environmental law. Accordingly, the overwhelming majority of EPA’s enforcement actions are taken in programs that are: (1) not delegable to the state or a federally-recognized tribe; (2) in states or tribes that have not sought authorization to implement a delegable program; or (3) in states or tribes that do not have the resources, expertise, or the will to take action, or that seek assistance from the Agency—and all of these actions are taken in coordination with the states or tribes. As a result, in FY [fiscal year] 2017, EPA continued the trend of reducing the number of individual federal inspections and federal enforcement actions. These numbers do not count informal actions or EPA assistance with state enforcement actions.”
But Pruitt’s critics emphasize that there should be no expectation that states can manage more enforcement. The primary reason is lack of money. For example, the Center on Budget and Policy Priorities reported in April 2017 that 33 states face revenue shortfalls in fiscal years 2017 and 2018. The Trump administration is also intent on reducing federal grants to the states, and this will affect their ability to independently conduct inspections and take enforcement. In June 2017, the Institute for Policy Integrity (IPI) at New York University School of Law published a brief report called Irreplaceable: Why States Can’t and Won’t Make Up for Inadequate Federal Enforcement of Environmental Laws.
“In response to criticism of their enforcement efforts, states often plead poverty,” stated the IPI. “EPA grants account for a substantial share of state environmental agency budgets—27 percent on average, and close to 60 percent in some states—and state regulators have long argued that they cannot satisfy their myriad responsibilities under laws like the Clean Air Act and Clean Water Act without increased federal aid.”
Results
The EPA lists the highlights of its 2017 enforcement program as follows:
- An increase in the value of commitments by private parties to clean up Superfund and Corrective Action sites to more than $1.2 billion;
- An increase in the environmental benefits of EPA Superfund and RCRA Corrective Action enforcement, with commitments to address an estimated 20.5 million cubic yards (cu yd) of contaminated soil and 412 million cu yd of contaminated water;
- An increase in the total criminal fines, restitution, and mitigation to $2.98 billion;
- An increase in the years of incarceration resulting from EPA’s criminal enforcement actions to 150 years;
- An increase to nearly $20 billion in the value of actions taken to improve compliance with the law and reduce pollution; and
- $1.6 billion in administrative and civil judicial penalties, higher than any of the previous 10 years other than FY 2016, which included the $5.7 billion BP action.
But Pruitt’s EPA had only a partial role in generating some of these numbers. For example, the CAA case against Volkswagen for intentionally falsifying vehicle emissions data was initiated under the Obama administration. Criminal fines against Volkswagen accounted for $2.8 billion of EPA’s total $2.98 billion in criminal fines for 2017. Civil penalties against Volkswagen amounted to $1.45 billion of the 2017 total of $1.6 billion.
Superfund
As noted, Pruitt is investing a considerable portion of the Agency’s resources in expediting the cleanup of Superfund sites to spur economic development. Enforcement in this context mainly involved pushing potentially responsible parties (PRPs) into cleaning up contaminated sites. The Agency states that in 2017, the value of commitments by private parties to clean up sites increased to more than $1.2 billion. The same economic motivation is propelling action under RCRA’s Corrective Action program. The Agency says it has also entered into agreements with third parties to do work at Superfund sites.
EIP Analysis
The EIP has focused on Pruitt’s enforcement actions, clearly a priority interest of Eric Schaeffer, an EIP cofounder who served as director of the OECA from 1997 to 2002. In its analysis, the EIP asserts that the current agency is inflating its data. For example, the Agency states that it obtained a commitment from ExxonMobil to spend $300 million to install pollution controls that would eliminate several thousand tons of pollutants a year at eight chemical plants in Texas and Louisiana. “Pruitt touted the agreement as an example of EPA’s ‘commitment to enforce the law,’” says the EIP. “But these totals include emission reductions that have occurred since the beginning of 2013—up to four years and ten months before the enforcement agreement with EPA.”
The EIP is equally concerned that the Agency has done little to clear a backlog of hundreds of environmental enforcement cases. The analysis looks at 15 of these cases that involve stationary source emissions of criteria and hazardous air pollutants.
“Many of those cases will drop out of sight if Congress agrees to cut the Agency’s enforcement budget by 17 percent, as President Trump has proposed,” continues the EIP. “EPA’s own data show that more than a quarter of a million people live within 3 miles (well within breathing distance) of just the 15 facilities profiled in this report, and almost all of these neighborhoods have poverty rates well above the national average. There will be no environmental justice for these neighborhoods if local polluters are not held accountable for violating laws that protect the public’s health.”
In its 2019 budget proposal, the EPA is seeking to eliminate the environmental justice component of its enforcement program, which, under Congress’s continuing resolution, is being funded at $554 million in 2018.
EPA Defends Its Program
In December 2017, The New York Times also reported on decreased enforcement by the EPA. The paper requested comment from the Agency, which responded in detail. Following are several EPA statements provided by the Times.
“The last administration crippled EPA’s criminal enforcement program, as they cut 24 percent of the agents who pursued environmental violations. Administrator Pruitt is highly supportive of our program, he took the unprecedented step of meeting with our criminal investigators and reaffirmed that we’d have the resources to carry out our mission.”
-Henry Barnet, Director, EPA’s Office of Criminal Enforcement, Forensics, and Training
“There is no reduction in EPA’s commitment to ensure compliance with our nation’s environmental laws. EPA and states work together to find violators and bring them back into compliance, and to punish intentional polluters. As part of this effort, we are collaborating more with states and we are focusing more on outcomes. Unless the activity is criminal, we focus more on bringing people back into compliance, than bean counting. This means that it is okay for EPA Regions to share the work with states, and it is okay for Regions to use informal as well as formal enforcement actions.”
“This administration is focused on achieving and maintaining compliance with environmental laws through aggressive enforcement against bad actors and compliance assistance for small businesses. We are focused on outcomes. For example, the Agency’s draft Strategic Plan for FY 2018–2022 includes two new enforcement measures, enforcement of and compliance with environmental laws: reducing the time between identification and correction of environmental law violations and increasing the environmental law compliance rate. These outcomes can be achieved through a variety of enforcement tools.”
“Cooperative federalism means cooperation. As noted in a recent letter from the Deputy Regional Administrator in Region 7 to the State of Missouri, there are a variety of reasons for EPA to take enforcement action in an authorized state. But, under cooperative federalism, EPA and state managers consult with one another.”
“Enforcement results may vary over the short term. This is nowhere more true than in judicial consent decrees. These are our most complex, significant cases, which take the longest to develop and conclude. Settlements lodged during the first nine months of this administration therefore have much more to do with the pace of enforcement near the end of the last administration, than the commitment to the rule of law and enforcement in this administration. Our enforcement data show that there was a drop in enforcement intensity during the first year of the Obama administration (measured by value of injunctive relief, penalties assessed, and environmental benefits).”