EPA Isn't the Only Place Where Enforcement Is Being Put on Ice

by Evan Isaacson

Recently, the Environmental Integrity Project released a report highlighting the freeze that Administrator Scott Pruitt has placed on the enforcement of the nation's environmental laws. The headline figures are stunning: "Civil Cases for Pollution Violations Decline by 44 Percent and Penalties Down by 49 Percent." And these numbers may understate the situation, as former EPA officials have noted that some of the cases and penalties that the agency has been touting were brought by the previous administration, not Pruitt's EPA. 

While the data are alarming, I suspect few people familiar with Pruitt's track record or the Trump administration's talking points would be surprised to discover that the EPA is scaling back the number of legal actions it takes against violators. What may be more surprising to environmental advocates, however, is just how far environmental enforcement has dropped off at the state level, including in wealthier and "bluer" states with long track records of environmental protection. What happens to state-based enforcement is extraordinarily important as it makes up the vast majority of all legal actions to protect the environment under state and federal laws – far more than EPA, other federal agencies, and actions taken by citizens and environmental groups, combined. 

By way of example, I suspect many Marylanders would be shocked and disappointed to discover the current state of affairs at the state's Department of the Environment. The department recently released its annual "Enforcement and Compliance Report" as required by a 1997 law sponsored by Maryland's current Attorney General and long-time environmental champion, Brian Frosh. The report details just how far traditional enforcement has fallen. Excluding the data on lead paint cases, which are highly variable from year to year, the rest of the department's overall enforcement actions are at their lowest levels in more than a decade. 

As the Chesapeake Bay Policy Analyst at CPR, I closely follow the state's implementation of the Bay restoration plan (known as the "Bay TMDL") and the enforcement of state and federal clean water laws needed to reduce pollution under that agreement. In flipping to the section of the annual report on the department's enforcement of our clean water laws, I was dismayed by the extent of the recent decline in the agency's pursuit of violations. Consider a few of the following examples:

  • The 771 enforcement actions taken by the department's Water and Science Administration is barely half of the 2016 total and the lowest number in a decade (in comparison, EIP found EPA's enforcement actions dropped by 44 percent over the last year).
     
  • Looking at enforcement of the department's core water pollution program, including federal Clean Water Act (NPDES) permits, the department is reporting a total of only 36 completed administrative and civil actions in fiscal 2017; this amounts to a 40 percent drop from 2016, which itself was the second-lowest enforcement total on record.
     
  • Similar declines and low levels of enforcement can be found in other Maryland water programs, including enforcement actions for groundwater pollution discharges, construction site stormwater pollution, and tidal wetlands infractions, all of which were facing record low numbers of administrative and civil cases brought by the department in 2017.
     
  • Perhaps most surprising is the lack of reported activity from the attorney general's Environmental Crimes Unit. Given Frosh's genuine interest in environmental issues and, specifically, the need for strict enforcement of environmental laws, it is disappointing to see the number of cases and size of penalties at their lowest levels in years. Part of this decline is likely due to the continued staffing shortages within the Environmental Crimes Unit, as well as throughout MDE, which refers cases to the unit for prosecution. 

Beyond these facts and figures are plenty of other disappointing items. But importantly, this is not a Maryland-specific issue. Rather, declining resources for inspection and enforcement of environmental violations is a broader, long-term, and, to some extent, bipartisan trend affecting environmental enforcement throughout the United States at all levels of government. 

This has been the case in Maryland (although the current leadership has certainly taken things to new and alarming levels), and it appears to be the case around the country. From Oklahoma to Massachusetts, Pennsylvania to Louisiana, Wisconsin to Connecticut, and in programs throughout EPA, everywhere you look, you will find reports of declining levels of inspections and legal actions, particularly as a result of funding cuts. Certainly, budget cuts have played a large role in the decline of environmental enforcement activity in Maryland, where the state's general-fund support for the Department of the Environment has declined by about 6 percent since 2000 (not accounting for inflation), even as the size of the state's general fund budget has nearly doubled. 

Politics play a role, as well. Recently, Susan Bodine, the head of EPA's enforcement office, described its new strategy to elevate "informal actions" alongside "compliance assistance" as EPA's preferred methods of bringing facilities into compliance. Bodine suggests that informal actions, like an inspector notifying the facility of their noncompliance, will speed corrective actions. This notion seems absurd. Inspectors generally communicate the results of their inspections to facility managers already, and many facilities self-report pollution coming from their pipes and stacks to EPA automatically and electronically and have day-to-day, if not minute-to-minute access to their compliance status. 

One simple and proven way of bringing violators back into compliance, and preventing future violations, is to issue penalties stiff enough to actually deter violations. Of course, the true motivation behind EPA's new strategy isn't to improve compliance; it's to spare those that break the law from having to pay for exceeding permitted levels of air and water pollution and otherwise violating environmental laws. And if the new compliance strategy relies on inspectors telling facilities that they're polluting the air, water, and communities around them and then politely asking them to fix the problem, EPA is going to need many more inspectors than they have now after decades of cuts

In the midst of this striking decline in enforcement of our nation's environmental laws, advocates, the public, and lawmakers need to ask what those laws are for. Many are justifiably concerned and outraged by the Trump administration's efforts to roll back and weaken environmental protections whenever it can, and advocates and members of the public cheer when the courts stop EPA and other agencies from doing so. But what if these agencies simply stop enforcing the laws on the books? State lawmakers continue to pass new laws to protect the environment and public health. But what if the state agencies in charge of carrying out these new laws simply decide not to do so? What is the point of a new law if it's never enforced? What is the point of litigation to stop an arbitrary environmental rollback if the agency simply refuses to enforce the reinstated regulation?

It is obviously critical that EPA and state environmental agencies be given the resources needed to do their jobs. But the agencies must also be held accountable when they are intentionally not enforcing the laws on the books, and it's incumbent upon all of us to pay attention and notice when they're not.



© 2016 The Center for Progressive Reform