Who’s Enforcing Our Environmental Laws?

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Photo by Salim Virji via Flickr

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.

Walter James

Walter James III

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.

2 thoughts on “Who’s Enforcing Our Environmental Laws?

  1. I think this article is generally on point. However, I would add that 1.) enforcement varies dramatically from state to state, and 2.) businesses that comply with environmental laws and regulations (i.e. do the right thing) are put at a competitive economic disadvantage to those to don’t comply. Regarding the former, virtually all “Red” states view environmental regulation as over reaching and an unreasonable burden on business, which is not supported by any data. Regarding the later, businesses need to make a better case that consistent enforcement levels the business playing field and drives innovation.

    • As someone who was deeply involved with EPA enforcement, both civil and criminal, for over thirty years, I feel compelled to comment on some of the points raised in the article.

      First, the number of Special Agents has long been set at 200, that number is a ‘floor,’ not a ‘ceiling.’ However, for several administrations prior to Administrator Pruitt the number of active investigators has been well below that ‘floor level.’ But, the loss of fifty agents, while programmatically significant, is as inconsequential to an effective national criminal enforcement program as, say, 150 more agents.

      EPA’s criminal program operates across the country (including all territories) through ten ‘Area’ offices, each covering several states and varying geographical expanses. An equitable resource distribution (at the current ‘street agent’ level) would put, say, 15 agents in each office? Those 15 agents would be responsible for monitoring compliance with all federal environmental laws with criminal provisions within each state in their Region. In some Area Offices (San Francisco, for example) that jurisdiction would cover dense urban and remote rural environs with social, ethnic and cultural differences. Some may also be hostile to the public health mission of the Agency.

      Second, enforcement and prosecution statistics are often misleading. It is difficult to look at charging or conviction statistics and extrapolate how significant the prosecutions may be in deterring future environmental violations. If the defendants are predominantly small companies or individuals that cannot afford an effective defense they may misrepresent the percentage of convictions or penalties. Large corporations may negotiate plea agreements that include, what may appear to be, huge financial settlements in exchange for cessation of prosecution of individual responsibility.

      But, remember, ENRD and/or the USAOs are the final arbiters of what investigations are criminally prosecuted and how vigorously, not EPA. It sometimes seems that the larger the corporation the more likely they are to settle their criminal charges by writing a check. Federal criminal investigations and prosecutions are expensive propositions, and the bigger they are, the more expensive they are.

      Overall, I couldn’t agree more with Mr. James. Without a societal re-commitment to providing the resources necessary to pursue investigations of the most significant environmental public health violations, and the will to prosecute criminals to the fullest extent, we may well find we have made America polluted…again.

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