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In the past two years, the administrators of the Environmental Protection Agency have been clear about their desire to correct what they see as overreach and overregulation on the part of the agency. They have sought to roll back numerous rules on pollution. But while those efforts work their way through the courts, some critics see a more immediate concern: an easing up on enforcement.
The most recent enforcement data released by the EPA paints a picture of an agency seemingly less willing to conduct inspections, levy penalties, and tackle big cases. The EPA insists it is and will continue to be serious about enforcement, and notes that the high variability of cases can make it challenging to compare enforcement data year to year.
But critics say the larger holistic picture that the numbers show leaves them concerned and has very real effects on the ground. “Enforcement is where the rubber meets the road,” says Leif Fredrickson, coauthor of a watchdog report on EPA enforcement. “You can have all the regulations in the world, and they won’t make a difference if they’re not enforced.”
Much attention has been paid to the Trump administration rollbacks of environmental regulations. But while those decisions can get tangled in the courts for months if not years, another shift is occurring on the ground: drastic reductions in pollution enforcement.
Earlier this month the Environmental Protection Agency released its enforcement data for fiscal year 2018, and in many key areas data continued to show a downward trend in the civil and criminal punitive measures meted out to large polluters. And on Tuesday the House Committee on Energy and Commerce announced it will hold a hearing next week to investigate the Trump EPA’s “troubling enforcement record.”
With large cases that often stretch out over several years, and where a handful of big settlements can drastically shift figures, the variability can make it difficult to compare enforcement figures year to year. But observers say a holistic look at enforcement across a wide variety of measures has raised strong concerns about the degree to which the agency is holding polluters accountable.
“Enforcement is where the rubber meets the road,” says Leif Fredrickson, coauthor of a report on EPA enforcement from the Environmental Data & Governance Initiative (EDGI), a federal watchdog group. “Many studies show that when you have strong enforcement, you have better outcomes: less pollution, less threats to public health. It’s fundamentally a public health issue.”
The EPA takes issue with the idea that it’s been lax on enforcement, emphasizing the high variability of annual results and its continued commitment to focusing resources on cases with major human health or environmental effects.
“In fiscal year 2018, we continued our focus on expediting site cleanup, deterring noncompliance, and returning facilities to compliance with the law, while respecting the cooperative federalism structure of our nation’s environmental laws,” said Susan Bodine, assistant administrator of the EPA’s Office of Enforcement and Compliance Assurance in an EPA announcement of 2018 enforcement results.
But the numbers, across the board, seem to indicate an easing up on that mission.
Take civil penalties, the fines resulting from cases brought by the EPA against polluters. For fiscal year 2018, they totaled about $69 million – the lowest, by a significant degree, since the EPA’s enforcement office was first created in 1994.
On another key measure, injunctive relief – what it costs a polluter to comply with an EPA order – the $3.95 billion figure reported by the EPA is the lowest in 15 years. Some 40 percent of the total is from cases that were settled by the EPA under former President Barack Obama. (Large settlements, which can stretch out for some time, often carry over into subsequent years.) The average annual cost of compliance is $7.74 billion.
Those two figures are particularly good indicators to evaluate whether the administration is actually going after the worst polluters, says Cynthia Giles, who was the head of the EPA’s enforcement office under Obama and is now a guest fellow in the Environmental and Energy Law Program at Harvard Law School.
“Injunctive relief tells you whether the EPA is taking on the tough, very hard, big pollution cases,” says Ms. Giles. “This data shows the Trump EPA is not doing that.”
A spokesperson for the EPA notes in emails to the Monitor that setting targets for any level of civil penalties or number of cases would be inappropriate and emphasized that a couple large cases – such as the high-profile ones around Volkswagen and BP – can strongly influence the figures for civil penalties. With the looming Fiat Chrysler settlement, for instance, the figure for civil penalties for fiscal year 2019 is already much higher than last year’s.
But critics say that the overall picture tells a different story.
The enforcement process generally begins with inspections, and then, depending on the severity of the violation, either civil or criminal cases are initiated. The most serious civil cases are referred to the Justice Department. As cases are concluded, fines are levied, compliance orders are issued, sentences are meted out in criminal cases, and compliance costs are measured.
“In basically all of those areas, fiscal year 2018 looks very bad,” notes EDGI’s Mr. Fredrickson. “In many of those cases, the measures are the worst on record.”
For the number of inspections, for instance, the 2018 data were the lowest since records began in 1994. The number of civil cases initiated was the lowest of any year since 1982. The number of judicial referral cases for both 2017 and 2018 was 110 – the lowest number since 1976 and less than half the average annual number of 239.
The effects of not enforcing such laws, say experts, can be serious.
Eric Schaeffer, executive director of the Environmental Integrity Project, points to the Denka Plant in LaPlace, La., where the EPA estimated that concentrations of chloroprene, a substance used to make neoprene and that is a likely carcinogen, ranged from 50 to 800 times the limit established by Occupational Safety and Health Administration (OSHA).
“The companies agreed to a ‘voluntary cleanup,’ ” says Mr. Schaeffer. “But if you read the inspection report, it sounds like a disaster at this plant.... Where’s the enforcement action? It’s nice to do some voluntary things to monitor chloroprene and bring [emissions] down, but you should pay” for having violated the law in the first place.
Schaeffer’s organization has been compiling a list of other cases opened before President Trump took office, many of which remain unresolved and have had little or no enforcement action taken. They include:
• An iron ore processing facility in Minnesota that, among other violations, allowed its furnaces to release particulates directly into the air for some 600 hours without going through the normal controls to reduce pollution. As a result, the furnaces released 10 times as much particulate matter as they should have.
• An Ohio company whose steel plants were emitting twice the limit of mercury and three times the limit of fine particulate emissions.
• Indiana hydrochloric acid regeneration plants that violated the Clean Air Act standards hundreds of times between 2006 and 2016, leading to high emissions of chlorine and hydrochloric acid.
“We’re looking at pretty bad stuff,” says Schaeffer. “This isn’t, oh, you got your form in late or your plant had a hiccup.”
When pushed about enforcement, the Trump-era EPA has sometimes said that it is emphasizing voluntary compliance – a tool that has been used by every administration to some degree – and the states’ role when it comes to enforcement of pollution laws.
“The states have an important role,” says Giles, noting that there’s always been a productive tension between federal and state interests. States have local perspective and knowledge, while the EPA brings more enforcement resources and the insistence that everyone in the country will be protected equally.
But many of the biggest, most technically complex cases – or ones involving multinational companies – are beyond the capacity of state agencies. What’s more, the impending threat of federal enforcement can incentivize violating companies to work with states, says Giles. “If the EPA is not there to be the gorilla in the closet, those companies will push back against states harder than they used to,” she says.
‘A backdoor to deregulation’
For the EDGI report, in addition to analyzing data the authors also conducted more than 100 interviews with current and recent employees of the EPA, which generated more nuanced anecdotal assessments of the agency’s stance on enforcement, along with some internal memos acknowledging that enforcement numbers are of concern.
“What we heard from a lot of people was the real concern that the EPA might be failing in its mission to protect [people from pollution] because of the pullback on enforcement,” says Marianne Sullivan, an associate professor of public health at William Paterson University in New Jersey and a coauthor of the report.
Some people interviewed cited high turnover and loss of agency staff and their institutional knowledge as a major reason, as well as some confusion over what their enforcement priorities should be, particularly if it involves a regulation that the EPA is trying to change.
One staff member told interviewers that employees had been instructed to stop inspecting natural gas drilling sites along Colorado’s Front Range (and the report notes that inspections of stationary sources under the Clean Air Act for that region were indeed down in 2018 by nearly 60 percent).
Another interviewee said they were seeing more pushback from industry in the past two years, even from smaller businesses, such as landlords who are required to inform tenants about the possibility of lead-based paint in homes that they rent.
“What we hear from staff is a lot of concern about what this means for communities in the US,” says Professor Sullivan.
Internal documents highlighted in the report also indicate both awareness and concern about the enforcement numbers from leadership within the EPA, with one document from June 2018 suggesting seven possible explanations, including “inconsistent messaging” – particularly around how much to defer to states – or a possible “chilling effect” of “various actions/perceptions of shifts in enforcement direction.”
Ultimately, say observers, they see a number of parallels between this EPA and the EPA in the early 1980s under President Reagan’s first administrator, Anne Gorsuch – a two-year period in which the agency’s budget was slashed and enforcement and regulations were relaxed and which ended in scandal.
There has been a clear and consistent message from both EPA Administrator Scott Pruitt and his proposed successor, Andrew Wheeler, that the EPA in recent years has been guilty of overreach and too much regulation and that some regulations need to be rolled back. Some large settlements, including the one reached with Volkswagen, have also been criticized by many conservatives as being tantamount to extortion. But rolling back regulations – as the EPA has started to do with the Clean Power Plan and limits on mercury and methane, among others – takes time and often long court battles.
“This is a backdoor to deregulation,” says Fredrickson. “Enforcement matters, because you can have all the regulations in the world, and they won’t make a difference if they’re not enforced.”