Joel Mintz on CPRBlog {Bio}

EPA’s Final Enforcement Strategic Plan: A Small Silver Lining in a Very Dark Cloud

In a very thoughtful CPRBlog piece, dated April 14, 2014, Rena Steinzor presents a powerful critique of the enforcement aspects of EPA’s 2014-2018 Strategic Plan. As Professor Steinzor rightly points out, EPA’s projected cutbacks in source inspections, civil judicial enforcement, administrative enforcement actions, and other enforcement work will likely encourage air and water pollution by small and medium-sized polluters that will have harmful effects on human health and the environment. At the same time, however, when one compares the final Strategic Plan’s enforcement components with the enforcement sections of the draft Strategic Plan that the Agency released for public comment last November, it becomes evident that the final Plan contains a modest silver lining in an ominous dark cloud.

The Agency’s initial draft Strategic Plan sought public comment on some proposals for changing the system by which EPA measures the success or failure of the enforcement work of individual states, as well as of EPA itself. Under those proposals—which were meant to evaluate the effectiveness of the Agency’s incipient “Next Generation Compliance” program—EPA would measure and assess the number of facilities that use advanced self-monitoring for contamination and that electronically report the results of their self-monitoring.

This aspect of EPA’s draft Strategic Plan drew sharp public criticism from two CPR scholars, Professor Victor Flatt and me, in an op-ed article in The Hill. Professor Flatt and I wrote:

At present, the EPA keeps track of its and the states’ enforcement actions. It measures the volume of pollutants reduced as a result of enforcement actions, and it uses other, similar methods in order to effectively monitor and measure the impact of those actions on public health and the environment. If these longstanding metrics are abandoned, ineffectual EPA enforcement will be much, much easier to camouflage. For example, the proposed changes could allow EPA to gather additional information regarding environmental violations and then fail to take any enforcement actions in response to any violations it knows about—all without the knowledge of congressional overseers or the public at large. 

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NEPA Section 102(1): A Useful (Yet Rarely Used) Tool for Public Interest Environmental Lawyers

The National Environmental Policy Act of 1969 (NEPA) was one of the first environmental statutes of the modern era. Best known for its environmental impact statement (EIS) requirement, and for establishing the Council on Environmental Quality, NEPA has been the basis for numerous lawsuits challenging federal government projects that will or may have an adverse impact on the human environment. Despite that fact, however, one brief, yet potentially crucial, portion of the statute has been all but overlooked by environmental public interest lawyers and the federal courts: sub-section 102 (1). This pithy provision states: "[t]he Congress authorizes and directs that, to the fullest extent possible[,] the policies, regulations and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this [Act]."

NEPA’s stated policies are broad indeed. The statute’s announced purpose is “to declare a national policy which will encourage productive and enjoyable harmony between man and his environment,” and “to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.” Moreover, NEPA declares it to be the “continuing policy” of the federal government to “create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”

On a careful reading, several aspects of sub-section 102(1) are apparent. First, the subsection is unquestionably mandatory. Congress has not merely urged or suggested that the interpretation and administration of the laws referred to in the provision be consistent with NEPA’s thoughtful policies, it has required that to occur in clear terms. Second, the sub-section makes clear that what is to be construed and implemented consistent with NEPA’s policies are--without limitation--all federal legal authorities that may be described as policies, regulations or public laws. Thus, the provision implicitly directs that all of the Nation’s environmental laws must be interpreted and administered in the fashion mandated by the provision.  Third, NEPA plainly requires that the legal interpretation and administration to which it refers must take place “to the fullest extent possible.” As that phrase has been interpreted in the courts in the context of NEPA’s EIS requirement—and consistent with the statute’s brief but clear legislative history—it is evident that what Congress has required in sub-section 102 (1) is nothing less than a vigorous and wholehearted application of NEPA’s environmentally protective policies.

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Cutting EPA's Enforcement Budget: What It Might Mean

Last week, members of the American Federation of Government Employees (AFGE) union at EPA released an internal Agency memo describing the Agency’s proposed plan to cut back on specific areas of enforcement in response to looming budget cuts in FY 2013.  The memo, by Larry Starfield, EPA's Deputy Assistant Administrator in the Office of Enforcement and Compliance Assurance lists “Areas of Proposed Budget Adjustment for FY13.”  Federal agencies have an unenviable task: they must plan for budgets that are unpredictable; and at this time we don’t know where next year’s EPA budget will ultimately end up. Nonetheless, the proposals in the Starfield memo are troubling. The contingency plan it sets forth raises concerns about the future of enforcement at EPA.   

Several points regarding proposed budget cuts at EPA seem worth noting. First, even the most draconian cuts to the Agency will do almost nothing to balance the federal budget since EPA appropriations account for less than a tenth of one per cent of total federal expenditures.  Moreover, although cuts across the board are expected for many federal programs, cuts to EPA’s Office of Enforcement and Compliance Assistance are particularly unwise because effective enforcement is critical to the integrity and success of EPA’s work—a fact well known to regulated industries and their supporters in Congress.  EPA is already severely underfunded in a number of areas, including enforcement. Regrettably, these proposed cuts will further handicap the Agency’s ability to protect human health and the environment. 

If cuts must be made, the Agency’s approach of prioritizing certain enforcement areas—rather than planning for completely equal cuts across the board—makes good sense.  The goal of enforcement is to have a deterrent effect both on individual actors and groups of industries and municipalities.  EPA’s contingency plan generally preserves a deterrent approach in a number of priority areas under the Clean Air Act, Clean Water Act, Superfund, and other environmental statutes.  By pursuing cases in these priority areas, the Agency can maximize its resources. 

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After Sackett: What Next for Administrative Compliance Orders?

Earlier this week, the U.S. Supreme Court handed down its much-anticipated decision in Sackett v. Environmental Protection Agency. In a unanimous decision--key features of which are summarized in a thoughtful post by Nina Mendelson--the Court held that the plaintiff landowner had a right to challenge the Clean Water Act administrative compliance order (ACO) which EPA had issued to it under the Administrative Procedure Act. The Court's opinion is narrowly drawn--in some ways, perhaps, an immediate benefit to EPA and other agencies who regularly issue administrative orders to enforce environmental statutes. At the same time, however, the Sackett decision raises troubling questions regarding the future direction of the law in this area, along with potentially vexing practical difficulties for EPA's enforcement program.

The case certainly could have come out worse. The Supreme Court's opinion avoided all of the plaintiff's constitutional claims, and it contained no discussion of the applicability of its holding to the ACO provisions of other environmental statutes. The decision was remarkably free of rhetorical excess. Moreover, as Justice Ginsberg pointed out in her concurrence, the Court's opinion did not reach the question of whether pre-enforcement judicial review is available to parties who challenge the terms and conditions of ACOs issued under the Clean Water Act. Thus, it is possible that the Sackett decision will be narrowly viewed, in the lower courts, as applying only to challenges to the EPA's jurisdictional authority under the Act--and perhaps only to challenges to EPA assertions that particular parcels of property are "waters of the United States," within the meaning of that statutory phrase.

At the same time, however, the very narrowness of the decision leaves the future of ACOs--a useful and important tool to compel broad compliance with important environmental requirements--very much in doubt. In the wake of Sackett, future judicial challenges to ACOs issued under the Clean Air Act, the Resource Conservation and Recovery Act, the Superfund statute and other federal environmental statutes seem certain to follow. The Court's decision in this case gives little hint as to how they may be resolved.  

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Will Sackett Sock It To EPA Enforcement?

Two of my CPR Member Scholar colleagues, Nina Mendelson and Holly Doremus have done a first-rate job of previewing and analyzing the oral argument in Sackett v. EPA – a case now awaiting decision by the U.S. Supreme Court.

I fully share Professor Doremus's hope that, even if the case results in a loss for the government,  the Supreme Court's decision in Sackett will not be decided on constitutional grounds and will be limited in its impact to the Clean Water Act. At the same time, however, I am less sanguine than she is about the potential that exists for even a relatively narrow decision to damage EPA's underfunded and overstressed enforcement effort.

It is a little known fact – but it is a fact – that the collective resources of EPA and the states have simply not been able to keep up with the challenges of enforcing Clean Water Act requirements. The governments' portfolio of water pollution threats has evolved from visible discharges from factories and sewage treatment plants to include hundreds of thousands of sources of mining wastes, industrial and municipal storm water runoff, spills of sewage from aging sewer systems, and agricultural runoff. In recent years, the NPDES permit system has drastically expanded in scope. As EPA's 2009 "Clean Water Act Enforcement Action Plan" candidly acknowledged: "The sheer magnitude of the expanding universe of the NPDES program itself, from roughly 100,000 traditional point sources to nearly a million sources...presents challenges in how we regulate and enforce the laws of this country."

At the same time, however, the resources available to EPA and the states to meet these challenges have been considerably diminished. EPA's budget has nominally "plateaued" since the mid-1990s. However, the Agency's statutory responsibilities have grown and (until recently) it has had to pay its employees salary increases mandated annually by Congress – a situation that has gradually, but significantly, reduced the funds available to EPA for its regulatory and enforcement work.

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Some Encouraging News About Everglades Restoration

The past year has certainly had disappointments for people who care about protecting the environment. A major international conference on global climate change yielded no sweeping agreement to reduce greenhouse gases. The United States Senate declined to pass comprehensive climate change legislation, and residents of Louisiana and other states bordering the Gulf of Mexico suffered the ill effects of a long-running, disastrous offshore oil spill. One recent—far more sanguine—development development should not be overlooked, however: the decision of a special district in Florida, the South Florida Water Management District, to purchase a large tract of land for use in the treatment and storage of surface water. The deal was approved by the District earlier this month and cleared one of its final legal challenges on Monday.

The “sugar deal,” as it is known to many Floridians, represents a significant victory for the environmentalists and scientists who seek to protect the fragile, endangered Everglades. Under the plan, the Water Management District will pay $197 million for 26,800 acres of land owned by U.S. Sugar Corporation, a major sugar grower in the Everglades Agricultural Area (EAA) situated south of Lake Okeechobee and north of the “river of grass.” The District was also given an option to purchase the remainder of U.S. Sugar’s EAA property—more than 100,000 additional acres--if and when the District’s property tax revenues increase.

To understand the significance of this major land purchase, one must consider the history of its evolution. In the 1980s and 1990s, when scientists drew up plans to restore the Everglades, they noted the critical importance of converting some of the farmland in the EAA to use as a water treatment and storage area. The problem, as those scientists saw it, was that the water flowing into the Everglades from EAA agricultural operations contained such excessively high levels of nutrient contaminants that it had to be captured and treated. Moreover, under the prevailing arrangement, there was frequently a need to divert oversupplies of water into nearby rivers and the Everglades itself. This situation did (and continues to do) considerable damage to the Calusa and St. Lucie estuaries and to the natural systems of the Everglades themselves.

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Assessing the Federal Response to the Deepwater Horizon Catastrophe

The recent horrific events in the Gulf of Mexico have presented immense challenges to the Obama administration and many of the federal career officials who are responsible for regulating the safety of offshore oil extraction and responding to spills like the one that continues to gush from the remains of the Deepwater Horizon oil rig at great volume. To their credit, a number of presidential appointees and career officials with duties regarding spill countermeasures have been working very hard to oversee the intense and complex efforts now underway to cap and contain the spill—efforts which have been greatly complicated by the depth and inaccessibility to human beings of the point of discharge. Undoubtedly, their response to this emergency has been far more robust than the G.W. Bush administration’s confused and tepid reaction to the devastation wrought by Hurricane Katrina. Nonetheless, thus far the federal response to the emerging environmental disaster in the Gulf raises a number of significant questions and concerns.

One basic question is why the Obama administration was so quick to reverse the president’s campaign promise to oppose the expansion of offshore oil drilling—and why it is now so adamant in its insistence that such drilling continue to expand.  It seems quite possible that the administration’s positions have, at least in part, been an attempt to enlist the political support of oil companies for broad federal legislation regarding climate change and energy. Nonetheless, the president’s current stance on this issue seems substantively flawed and politically maladroit. As recent events have shown, deepwater offshore drilling is far from safe for the environment. It is also designed to produce a fossil fuel whose continued use will generate greenhouse gases that will exacerbate global climate disruption. Moreover, the Obama administration’s continued insistence that new oil and gas production go forward in the Gulf region seems out of touch with public opinion in the Gulf states—and elsewhere in the nation—which appears to be shifting rapidly away from support for new oil and gas drilling in the waters off America’s coasts.

A second (related) question that arises is why the Department of Interior's Minerals Management Service (MMS) has continued to grant new permits and environmental waivers for fuel drilling projects in the Gulf. According to an article in Monday's New York Times, since the April 20th Deepwater Horizon blowout, MMS has approved at least 19 environmental waivers for Gulf drilling projects and at least 17 new permits. At least 5 of those waivers and 7 of those permits have been granted since President Obama announced a “moratorium” on such waivers and permits. This state of affairs raises real questions as to whether the responsible MMS officials are more responsive to the oil companies they nominally oversee than the elected public officials whom, in theory, they report to.

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Is It Time To Depoliticize EPA's Regional Administrators?

As it nears the close of its first year in office, the Obama Administration has thus far failed to name half of the regional administrators for its ten regional offices of the U.S. Environmental Protection Agency (EPA); and it was only on November 5th that it named those five officials. The reason for the lengthy delay in making appointments to these posts is not immediately apparent. Perhaps the Administration is anxious to avoid stirring up any political controversies regarding particular appointees, whose designation may create discontent among elements of the president’s political coalition or fodder for partisan Republican attacks. Alternatively, the Administration—which has been quite slow to fill other high posts at EPA and some other federal agencies—may simply be way behind in “vetting” all candidates for federal appointments. Yet another possibility is that Administration officials may now be too preoccupied with other pressing environmental issues to pay more attention to filling vacancies at the regional level. Whatever their cause, however, some employees in EPA’s regional offices tell me they are now beginning to view these unusually long appointment delays as a signal that the importance of their work has been minimized by the Obama Administration’s leaders--a most dysfunctional and unwelcome trend.

Beyond these short-term, intra-Agency consequences however, the continuing delays in the appointment of EPA regional administrators raise a more fundamental question: should EPA regional administrators be political appointees in the first place? In the past, these significant regional posts have often been filled by individuals who are beholden to state and local officials within the group of States that comprise their regions. While EPA regional administrators are not subject to confirmation by the U.S. Senate, presidential Administrations traditionally consult with the Senators from the states in a particular region with regard to candidates for those jobs. Individual Senators, in turn, are often influenced by the opinions of officials in State environmental agencies, entities which (in some instances) are unduly receptive to the concerns of polluting industries within their State. Without question, there have been exceptions. Nevertheless, in a number of situations, this political process has resulted in the selection of EPA regional administrators who have resisted attempts to oversee state agency performance in a robust manner, and who have been unsympathetic to pressures (from EPA headquarters and elsewhere) to enforce federal environmental laws vigorously.

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Lisa Jackson's Memo on CWA Enforcement -- Looks Like a Good First Step

In a memo sent to EPA’s Office of Enforcement and Compliance Assurance on July 2nd, Lisa Jackson, the Agency’s Administrator, observed that “the level of significant non-compliance with [Clean Water Act] permitting requirements is unacceptably high and the level of enforcement activity is unacceptably low.” She directed Agency officials to develop a new plan for improving Clean Water Act enforcement at the federal and state levels.

Although the details of such a plan are yet to emerge, Administrator Jackson’s memo is certainly welcome news. States have varied considerably in their approaches to environmental enforcement. Some states have put considerable emphasis on deterring environmental violations by taking timely, appropriate enforcement actions when significant instances of non-compliance come to their attention. In contrast, other states have relied upon informal, “cooperative” enforcement practices that have often proven ineffective in coaxing industries and municipalities to meet their environmental responsibilities. Still other states have shown almost complete indifference when instances of significant environmental non-compliance have come to their attention. Moreover, the vast majority of states –as many as 45, if a recent draft report from the EPA is accurate—currently fail to calculate, document, and collect enforcement penalties in an effective manner.

Almost any environmental enforcement plan that EPA adopts seems likely to result in at least some improvement in state environmental enforcement performance. Nonetheless, the extent to which environmental enforcement and permitting will truly be improved—particularly in those states that have traditionally resisted a vigorous, deterrent approach to enforcement—seems likely to depend upon several factors. One of those will certainly be the extent to which EPA will be willing to take back its delegations of authority to issue pollutant discharge permits in states that have poor records of performance.

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