Who's Policing the Polluters?


For most of Amy Adams' tenure as a regional director with the North Carolina Department of Environment and Natural Resources (NCDENR), she believed she was working for a standout law enforcement agency.

“If you had asked me five years ago, I'd have told you North Carolina was the leader in the (southeast) region,” Adams said during a recent interview with The Crime Report.

In November 2013, she resigned.

Her job overseeing surface water standards for 21 North Carolina counties had become untenable, she said, because local politicians had stripped her agency of its ability punish those who break the law.

Adams joined the non-profit advocacy group Appalachian Voices, a group that combines grassroots campaigning and legal action to push for environmental enforcement.

It's a job that activists and other former state regulators like Adams say should be the government's responsibility, but throughout the country, years of budget cuts and legislation have rendered many environmental agencies toothless.

In North Carolina, Adams said, the NCDENR started its downhill slide in 2010, after Republicans took control of both houses of the state legislature. According to Adams, they immediately began stripping the agency of power and funds.

Between 2009 and 2014, the NCDENR’s regulatory staff was slashed more than 37 percent, from 4,691 employees statewide to 2,936, according to a March 2014 investigation by the Raleigh News & Observer.

The final straw for Adams came not long after Republican Gov. Pat McCrory took office in January 2013.

Cost/benefit analysis

In its first year, the McCrory administration revised the NCDENR's mission statement to emphasize “cost/benefit analysis” in environmental enforcement. The new mission statement promises the agency will not be “a bureaucratic obstacle of resistance” to businesses.

Under its new focus, the state's approach to corporate environmental lawbreakers is best described as gentle. They receive warnings and suggestions about how they can comply, rather than stiff fines, criminal prosecutions or other measures that would hurt bottom lines.

Adams compares this approach to a highway safety agency controlled by drivers.

“Imagine if the governor went out and said, 'I'm pulling half the state troopers off the road; if you speed, report it to us and we'll see if we can help you slow down,' ” she said.

“That's basically what the governor has done.”

Others noticed the seemingly cozy relationship established by McCrory's new NCDENR with big business.

In February 2014, the Charlotte Observer editorial board declared that the agency, “lost its way.”

“Rather than responsibly safeguarding North Carolina's environment with tough enforcement, it admits to seeing polluters as partners,” the paper wrote in an editorial.

A few months later, the extent of that partnership became clear.

The Associated Press obtained emails between state staffers and employees of Duke Energy — the nation's largest electricity company — that appeared to suggestion collusion to prevent a potential lawsuit by activists about company groundwater violations.

McCrory, who worked for Duke for 28 years before entering politics, flatly denied that his office was seeking to assist the company.

But the emails showed state officials were concerned that non-profits were taking an active role in law enforcement, and in court proceedings. According to the AP, the emails proved the agency was trying to cut activists out of the enforcement picture.

McCrory's office isn't unique in preferring alternatives to punitive enforcement and criminal prosecution. It's following a nationwide trend, led by the federal Environmental Protection Agency.

Fewer cases in the courts

A recent investigation by The Crime Report, of thousands of records compiled by the EPA, reveals that enforcement of corporate environmental crime remains extremely rare.

The Crime Report's database, made with support from the Fund for Investigative Journalism, allows citizens to find out which companies have violated environmental laws in their communities; how much—if anything—they've been fined; and how long those companies have been operating in violation.

More than 64,000 facilities are currently listed in agency databases as being in violation of federal environmental laws, but in most years, fewer than one-half of one percent of violations trigger criminal investigations, according to EPA records.

A recent study by the Transactional Records Access Clearinghouse at Syracuse University confirms The Crime Report's findings.

During the first nine months of fiscal year 2014, the government launched 271 environmental prosecutions, on pace to decrease about 20 percent from 2013, when the government conducted 449 prosecutions. The 2013 total was significantly lower than in 2012, when 612 defendants were prosecuted.

Since President Barack Obama took office in 2008, the EPA has seen its enforcement budget slashed and has shied away from punitive enforcement.

In a June email exchange with The Crime Report, agency spokesperson Jennifer Colaizzi said the decrease in prosecutions is by design.

“EPA is focused on cases that have the highest impact on protecting public health and the environment. The decision to focus on the largest, high impact cases, combined with reduced budgets, means the overall number of cases will tend to be lower than in past years,” Colaizzi said.

Against this background, it's not surprising that many states, including Idaho, Massachusetts and New Mexico, are following suit in the face of budget cuts.

'No one's paying attention'

Even among the least proactive state environmental agencies, West Virginia stands out.

On a recent trek through Appalachian coal country, Vernon Haltom led The Crime Report on a tour of mountainside landmarks to environmental apathy.

Photo by Graham Kates

Vernon Haltom (Photo by Graham Kates)

Haltom is the executive director of Coal River Mountain Watch, a non-profit activist group based in Naoma, W. Va. The state's environmental enforcement regime relies on a system of voluntary disclosure of violations, and Haltom says the state rarely follows up.

“The trick of West Virginia's regulatory scheme is that no one's paying attention,” Haltom adds.

He points to site after site, lands stripped bare for coal—sediment and chemicals sliding into streams and rivers tucked away in the wooded mountains—where companies acknowledged their own violations, at times in the thousands.

But the state's regulators either didn't notice or didn't care, he said.

Coal River Mountain Watch keeps a close eye on mining industry sites near its headquarters.

Around 4 p.m. most weekdays, the unmistakable blasts from nearby mountaintop removal mines echo through Coal River Valley, Haltom said.

Those who grew up in the valley are accustomed to the sound, but Haltom, who moved to West Virginia with his wife in the early 2000s said he never learned to tune it out.

His organization has tried to map out the location of every site, so it can monitor for potential violations through water and air sampling, and also through flyovers of the sites.

But a satellite map that covers an entire wall of the Coal River Watch office reveals a region dotted with sites too numerous for even a sophisticated agency to police well.

One notorious location is the Brushy Fork coal slurry impoundment, a massive, 8.5 billion gallon manmade coal sludge lake, cut off from nearby villages by a heavily guarded dam.

For years, Alpha Natural Resources — the nation's largest coal company — submitted reports that activists argue should have triggered severe enforcement responses by the West Virginia Department of Environmental Protection.

Brushy Fork was discharging toxic amounts of the chemical selenium, activists said in a lawsuit settled in April. A federal judge agreed.

In a deal with the state, Alpha promised to comply with selenium standards by March 2016.

But Haltom said it's a problem that should have been dealt with a long time ago. He worries that environmental non-profits in West Virginia are becoming the state's only legitimate enforcement arm.

“The actual job of regulating has been left to us,” Haltom said. “And it's not like we have the resources to police every coal mining site there is.”

The writing on the wall

Back in North Carolina, John Dorney, a former administrator with the state's wetlands program, said he could read the writing on the wall when he retired three years ago.

“I retired just before the (gubernatorial) administration changed, but I probably would have been fired, frankly,” Dorney said during a recent interview.

During his 28 years with NCDENR, by his own account, Dorney practically wrote the state's rules for wetlands permitting and enforcement.

For years under his watch, wetlands sites could expect inspections, and consequence for violations; but towards the end of his tenure, he saw the state shed inspectors.

“The state is not doing any systematic compliance, they respond to complaints, which is fine, but they don't do any systematic sample and survey of permits,” Dorney said.

“If you're not going out and actively looking for the violations, you're missing them.”

Graham Kates is deputy managing editor of The Crime Report. He can be found on Twitter, @GrahamKates. TCR gratefully acknowledges the support of the Fund for Investigative Journalism for this project. Readers comments are welcome.

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