Ask anyone in the industry, or check the record: No one is enforcing our environmental laws.
Whether or not that was the goal of the Trump Administration, it certainly seems to be one of the effects of its recent moves, beginning with the appointment of Scott Pruitt last year to head the Environmental Protection Agency (EPA).
Pruitt was an outspoken critic of the EPA when he was Oklahoma Attorney General.
The White House earlier this year proposed a 31 percent cut in the EPA’s budget for 2018. While the budget was not slashed nearly as much as proposed, we can expect a significant decrease in the criminal enforcement of the federal environmental laws, as well as a decrease in the civil enforcement of these same laws.
Under federal law, there are supposed to be 200 EPA criminal agents (out in the field investigating environmental crimes). These agents interview people, examine documents, and perform surveillance, similar to the duties other law enforcement officers perform in the investigation of criminal activity.
That’s still only about three-quarters of what Congress has statutorily mandated. The number of EPA enforcement agents has not been at the congressionally mandated level for years. Based upon early indications, it will not reach that congressionally mandated level at all during the Trump Administration.
Recently, the Environmental Integrity Project documented the significant decline in environmental enforcement during the first six months of the Trump Administration.
Why does this matter?
Nothing compares to the power and weight that the federal government brings to a criminal investigation of a company, individual or industry.
In the pre-Trump era, criminal enforcement was an effective tool to protect our waterways, lands and forests. According to the EPA’s own statistics, during 2017, the agency had a 94 percent conviction rate and won 79 percent of the cases that went to trial.
When a search warrant is issued, charges result about 70 percent of the time. Roughly 85 percent of those who were charged were individuals, and the remainder were corporate violators. While those numbers may seem high (and they are comfortable numbers if you are a prosecutor), the percentages do not tell the whole story. The number of cases being made by the fewer and fewer criminal investigators will tend to skew the percentages.
All the same, the industry should not get too comfortable. While the likelihood of being criminally investigated by the federal government may be reduced, enforcement of state environmental criminal laws continue—but will also be less because much of the EPA budget is in the form of grants to the states for enforcement purposes.
There are also mechanisms for private party enforcement under federal environmental laws.
In states where an environmental law program has been delegated, the state shares in the opportunity to bring criminal charges. Nonetheless, state criminal enforcement of the environmental laws is almost non-existent.
This is due to a number of historical factors as well as money considerations.
For years, all environmental criminal charges had to run through the Department of Justice’s environmental and natural resources division. Not even local United States Attorneys were allowed to bring the case.
That has changed over the years. However, based in part on this historical development, the states have largely stayed out of the environmental criminal enforcement arena. The states are more apt to bring a civil enforcement action.
In most states now, though, the environmental agency is constrained by budgetary considerations and as a result, enforcement is an afterthought.
Could private, non-governmental organizations take up the slack by intensifying enforcement efforts under the citizen suit provisions of federal environmental statutes?
The major environmental statutes allow private party enforcement, including the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act, the Safe Drinking Water Act and the Toxic Substance Control Act. And there are few limitations on who can pursue a citizen suit.
The concept of “standing” is a hurdle (and always has been), but it is not an insurmountable hurdle. Then there is the required notice to the government and prospective defendants of the alleged violations before filing the citizen suit.
In the absence of a government response and enforcement, the citizen suit may proceed. The citizen suit plaintiff may also be allowed the recovery of its attorneys’ fees. Citizen suits are no substitute for having a robust criminal enforcement program at the federal level.
Most importantly from an enforcement standpoint, no one can go to jail as a result of a citizen suit, no matter what the outcome. The citizen suit is about enforcing compliance with a statutory provision. Essentially only money, not freedom, is at stake.
Robust criminal enforcement of the environmental laws is critical.
The federal government’s ability to pursue a criminal investigation against environmental violators is just too important a tool to be abandoned or left to the states or citizens.
Congress will need to provide oversight and pass a budget for 2019 that provides for a more robust enforcement of our environmental laws. After all, the Republican Party is the party of law enforcement – right?
Walter D. James III is an attorney whose practice focuses primarily on environmental counseling and environmental litigation, which includes civil enforcement and environmental criminal defense. He welcomes comments from readers.