Symposium | Rebuilding Enforcement

Environment: Restoring the Rule of Law

By Steven Chester

Tagged environmentenvironmental protection agencyTrump Administration

The founding of the U.S. Environmental Protection Agency (EPA) almost 50 years ago ushered in the bipartisan passage of the bedrock environmental laws that we have relied on ever since to protect our health and the environment. Congress and the Nixon Administration recognized that government action was needed to address the deteriorating state of the nation’s air, land, and water. These laws authorized EPA to write rules and regulations to protect people from exposure to a wide range of air and water toxins as well as hazardous substances, and provided enforcement mechanisms to hold those who violate the law responsible.

Fifty years of environmental progress is now threatened by an Administration that has let polluters off the hook. Now is the time to reset the course of EPA and put the teeth back in environmental enforcement. In a short time, the Trump Administration has significantly decreased the enforcement of environmental laws, rolled back a broad range of regulations that protect people from exposure to harmful pollution, and undermined public confidence in the rule of law.

A February 2019 analysis of EPA enforcement trends by the Environmental Integrity Project (EIP) found that agency enforcement actions fell sharply during the 2018 fiscal year. Based on federal data analyzed by EIP, EPA completed just over 10,600 facility inspections and evaluations, the lowest in almost two decades and only about 60 percent of the average annually since 2001. During that period, EPA sent significantly fewer cases to the Department of Justice (DOJ) for civil prosecution than in prior years, and recovered $69.5 million in total civil penalties, the lowest in actual and inflation-adjusted dollars since 1994.

In March 2020, as the country began to grapple with COVID-19, the Administration relieved companies that believed they had been impacted by the pandemic from their pollution monitoring requirements. The policy covered oil refineries, coal-fired power plants, waste treatment systems, and other facilities that are required to meet regulations that protect people’s health and the environment. If a company found that it was not “reasonably practicable” to comply with monitoring and reporting requirements, it was instructed to simply document its determinations and make them available to EPA or to the given state, but only if requested. EPA pledged not to pursue enforcement for violations.

The Environmental Enforcement Watch Project of the Environmental Data & Governance Initiative, a non-profit that monitors changes in federal government data, websites and policies to protect vulnerable data and promote data protections, found that facilities conducted 40 percent fewer tests of emissions from smokestacks in March and April 2020 compared to the same months in 2019. And while only 325 facilities required to monitor and report discharges under the Clean Water Act told EPA that they could not submit monitoring reports, there were 50 times as many facilities that did not file at all or that filed late.

Despite this policy being rescinded at the end of August, it is unlikely we will ever know how many potential violations occurred or how much pollution was released into the environment during the months the policy was in effect. We do know that frontline communities, which are disproportionately exposed to pollution, are the most vulnerable to COVID-19. This policy put our most at-risk communities at greater jeopardy.

Over the past four years, the Trump Administration has systematically dismantled the regulations that have improved the quality of our air, water, and drinking water; cleaned up contaminated land; protected us against the dangers of toxic chemicals and pesticides; and reduced greenhouse gas emissions that contribute to climate change. According to a recent analysis by The New York Times, the Trump Administration has repealed or weakened, or is in the process of rolling back, almost 100 environmental regulations, including the Obama Clean Power Plan; successful clean car regulations and fuel economy standards; and controls on the emission of methane, a powerful greenhouse gas.

In the aftermath of the Flint, Michigan lead contamination tragedy, there is broad agreement that the Lead and Copper Rule must be revised to require removal of the hundreds of thousands of old lead-containing pipes that remain part of most drinking water systems. Lead can damage the central nervous system, and cause learning disabilities, behavioral problems, and lower IQs in children. The Administration’s plans to revise the rule, however, fail to include any consideration of the substantial support in federal funding required to make the safe and timely removal of lead pipes a reality, leaving several generations of children at risk.

The one-two punch of regulatory rollbacks and weak enforcement is an assault on the rule of law. Widespread environmental compliance cannot be achieved without well-structured regulations, effective monitoring, and a commitment to innovation.Vigorous, effective, timely, and fair enforcement of environmental laws is essential to public health and protection of the environment, especially in low-income and communities of color across the country.

Recognizing the clear need for new directions at EPA, the Environmental Protection Network (EPN), a national, bipartisan organization of more than 500 former EPA career employees and political appointees, developed a comprehensive set of recommended actions for EPA leadership to take in resetting the course of the agency. The Resetting the Course of EPA report covers 17 subject areas, and lays out immediate, 100-day, first-year-plus, and long-term actions and strategies for the future. The critical need for strong enforcement is among its highest priorities.

Resetting the Course of EPA makes four overarching recommendations to improve environmental enforcement and compliance. The first is to restore confidence in vigorous enforcement and the rule of law, which have been severely undermined by restrictive Administration policies at EPA and DOJ. A strong commitment by EPA to the enforcement of our nation’s environmental laws is fundamental to achieving clean air, water, and land, as well as addressing climate change and advancing environmental justice. EPA must also ensure that complying companies are treated fairly, and assure the public that political interference has no place in environmental enforcement.

The second set of recommendations focuses on the importance of modernizing enforcement and compliance through the use of up-to-date technologies and innovative strategies. No government agency can be fully effective without an adequate set of tools. An early step will be to upgrade existing EPA data systems that track compliance to increase capacity, transparency, and public usability. The agency will also need to purchase advanced compliance monitoring equipment for itself and states, and build national communities of practice around these technologies.

In the area of innovation, EPA has, for decades, had the discretion to resolve enforcement actions by allowing companies or individuals that violate environmental laws to undertake projects that provide tangible public health benefits in lieu of paying all or part of financial penalties. In March 2020, DOJ chose to eliminate the practice of allowing such projects, known as Supplemental Environmental Projects (SEPs). According to the Harvard University Environmental & Energy Law Program, SEPs “have resulted in significant environmental benefits, helping affected communities recover or avoid future harmful emissions.” EPA must revive the inclusion of SEPs in settlements, especially for the benefits they provide to low-income communities and communities of color.

EPN’s third recommendation is to reset relationships between the agency and the states. Our environmental laws envision a dynamic and shared responsibility between EPA and the states, which is absolutely critical to effective enforcement. Many states have suffered severe funding cuts over the past decade, and state environmental programs, on average, rely on federal funding for about 25 percent of their operating budgets. Despite paying lip service to the theme of “states’ rights,” the Trump Administration’s true intent is reflected in its budget proposals for state environmental programs. As in prior years, the Administration’s proposed budget for fiscal year 2021 would defund and slash grant funding for state environmental programs by a whopping 43 percent. Congress thus far has declined to adopt and impose these severe cuts.

EPA must reemphasize its commitment to enforcement partnerships with states and tribes, and engage proactively with them to set enforcement priorities and identify resource needs. The agency will need to revise its state grant program to allow states to use federal funds to improve the enforceability of state permits; prioritize the collection, analysis, and display of monitoring data; and develop cutting-edge monitoring methods and expertise. EPA should also provide needed training for states in areas such as advanced data collection and forensic analysis.

EPN’s final recommendation—invest the necessary resources to get the job done—is essential to achieving its overall vision for the future enforcement of environmental laws. Next February, the President’s budget for fiscal year 2022, which runs from October 1, 2021 to September 30, 2022, will be proposed. EPA must seek an increase in both EPA and state funding to support both enforcement and compliance activities.

EPA should seek funding to restore staffing levels and the budget baseline for the EPA Office of Enforcement and Compliance Assurance to at least fiscal year 2000 levels, and cover additional staffing for compliance innovation. The agency will also need adequate funding to fill knowledge gaps, including expertise on industry sectors, advanced monitoring, data analytics, and innovative practices; upgrade existing data systems; invest in advanced monitoring for the agency and states; and conduct other critical activities. An increase in funding to support state enforcement and compliance efforts will be pivotal in truly resetting relations with the states.

With fires burning in the West, hurricanes pounding the Gulf Coast, and the entire country struggling with a pandemic that has had a devastating impact on our most vulnerable individuals and communities, it seems appropriate to pause for a moment and reflect on how, as a nation, we came together to overcome past crises. Before EPA was established, it was common for emissions from factory smokestacks to darken and pollute our skies, for acid rain to ravage New England’s forests, and for rivers coated in oil and chemicals, like Ohio’s Cuyahoga River, to literally catch on fire.

Americans knew what was needed. An estimated 20 million people took to the streets on Earth Day 1970 to demand clean air, water, and land, and a sustainable environment.

Their efforts paid off, resulting in the creation of EPA and the passage of the nation’s major environmental laws. Enforcement of these laws has made it possible to make vast public health and environmental improvements over the past 50 years. We must make every effort to continue to vigorously enforce those laws. It’s time to reset the course of EPA and restore the bipartisan legacy of public health and environmental protection that has been decimated over the past four years.

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Steven Chester is the former Deputy Assistant Administrator of the EPA Office of Enforcement and Compliance Assurance (2011-2014) and served previously as the Director of the Michigan Department of Environmental Quality (now the Michigan Department of Environment, Great Lakes, and Energy). He is a member of the Environmental Protection Network, a national, bipartisan organization of EPA alumni working to protect the agency’s progress toward clean air, water, land, and climate protections.

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