April 14, 2014

The Victims of EPA’s Retreat from Enforcement

Since the year began, the Environmental Protection Agency has resolved enforcement actions against 12 different companies in the Chesapeake region for failure to comply with environmental laws.  In one case, EPA found that the U.S. Army had failed to inspect more than a dozen underground tanks at one of its Virginia military bases containing hundreds of thousands of gallons of jet fuel, diesel fuel, and gasoline.  A D.C. hospital was not properly checking for carbon monoxide leaks.  A solvent processing facility in Cockeysville, Maryland, was storing industrial waste in a room with a leaky floor.

The Army paid $41,000; the hospital forked over $15,000; the solvent processing facility was out $80,650.  Collectively, the 12 settlements amounted to nearly $325,000 in penalties.  Compared with the $5.15 billion the Texas oil company Anadarko Petroleum Corp. agreed to pay this month for a massive cleanup involving nuclear fuel, rocket fuel waste and other toxins, these penalties look like mere peanuts.  Yet to the neighbors of the Army base who count on clean groundwater, the patients who went to the D.C. hospital to get better, not poisoned, and the Cockeysville residents who live near the industrial plant, these violations could have serious, even fatal, consequences if left unchecked.

These cases typify the enforcement actions that are at risk under EPA’s newly released FY 2014–2018 Strategic Plan, which prioritizes “the largest, most complex cases that have the biggest impact” over smaller violators.  Essentially, this plan broadcasts to facilities like the Cockeysville processing plant, the Virginia Army base, and the D.C. hospital that EPA is very unlikely to get ever around to checking up on them.  Anyone who drinks water or breathes air is a potential victim of this new strategy.

Under the Strategic Plan, EPA’s enforcement footprint will shrink dramatically in the coming years.  By EPA’s forthright admission, it will be “doing fewer cases overall.”  Pages 92–93 of the plan lay out the specifics:

  • By 2018, EPA will conduct 15,800 inspections per year, down from an average of 21,000 per year between 2005 and 2009.

  • By 2018, EPA will initiate 2,800 civil cases, down from an average of 3,900 per year between 2005 and 2009.  The 12 examples cited above are all civil cases.

  • By 2018, EPA expects to conclude 2,720 civil cases a year, down from an average of 3,800 per year from 2005 to 2009.

  • By 2018, EPA will reduce 256 million pounds of water pollution per year, compared to the 320 pounds per year it reduced on average between 2005 and 2009.

The rationale for this retreat from tried and true enforcement techniques is the agency’s vision of a new enforcement paradigm referred to as “Next Generation Compliance,” or NextGen, which relies heavily on self-monitoring and reporting.  Instead of looking at the number of civil enforcement cases filed, for example, EPA will encourage polluters to use advanced monitoring to measure their own emissions.

As CPR scholars wrote in January when EPA released the first draft of its vision, the plan “could have a severe effect on regulated entities’ compliance efforts, creating public health and environmental risks that arise not only from previously unregulated or inadequately regulated activities . . . but also from backsliding on established controls applicable to known hazards.”  The CPR scholars identified four specific shortcomings:

  • The plan relies on industry to police itself, an approach that on its face invites noncompliance;

  • It signals a clear rollback in traditional deterrence-based enforcement, a tested and proven approach;

  • It seeks to mask the plain harm to enforcement of congressional budget cuts with breezy assertions of improved enforcement; and

  • The plan’s retreat from enforcement could irreparably delay the restoration of national treasures such as the Chesapeake Bay.

The Strategic Plan comes amidst severe cuts to the agency’s budget.  According to CNN, Republicans boast that they have cut the agency’s funding by 20 percent since 2010.  The President’s budget also follows the budget-cutting trend.  The President proposed a $300 million cut in EPA’s 2015 budget from the previous year and many of the cuts come from EPA’s enforcement efforts.

The table below compares EPA’s budget requests in 2014 in 2015.  It shows that EPA proposes to cut funding to each of every aspect of its enforcement activities.

Comparison of Budget Requests: FY 2014 & FY 2015

 

FY 2014 (millions of $$)

FY 2015 (millions of $$)

Compliance monitoring

128.9

120.1

Civil enforcement

193

183.8

Criminal enforcement

61.3

58.3

Forensics support

17

15.3

Superfund enforcement

166.9

154.3

Partnering w/ states

27.7 (grants for all programs)

23 (limited to enforcing TSCA and FIFRA)

Total requested

840.553.1

792.678.1

Given this drastic budget-slashing, EPA had little choice but to take a hard look at its priorities.  But it’s not fooling anybody when it says its new scheme of letting industry police itself will produce better outcomes.  Conceivably, NextGen could produce innovative ways to ensure compliance; EPA’s electronic reporting initiative, for instance, could promote public access to compliance information.  But such hope is way too slender a reed upon which to hang EPA’s important enforcement obligation.  NextGen must supplement, not supplant, existing enforcement and compliance work.  The agency is taking a huge risk when it relies on untested NextGen techniques to replace traditional deterrence-based enforcement efforts that are well understood and have long represented effective tools for enhancing compliance and ensuring environmental improvement. 

Would any police chief anywhere in the country take comparable action — removing cops from the beat and then predicting it’ll reduce crime?  No way.


Rena Steinzor, Professor of Law, University of Maryland Carey School of Law. Bio.

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