‘Bottom Fell Out’ of Environmental Prosecutions During Trump Era: Report

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Smokestack in Stockton, Ca. Photo by Mick Tursky via Flickr

The number of prosecutions for environmental crimes sharply decreased during the first two years of the Trump administration, according to a new report.

The drop in the number of prosecutions for pollution represents a “dramatic departure from the non-partisan support for pollution prosecutions that had existed across administrations, which leaves Americans less safe and the environment less protected,” according to David M. Uhlmann of the University of Michigan School of Law.

He based his findings on comparative data covering the George W. Bush, Barack Obama and Donald Trump presidencies, between 2005 and 2018.

Earlier studies have drawn similar conclusions. An analysis by the Transaction Records Access Clearinghouse (TRAC) at Syracuse University last year found the number of prosecutions against corporate polluters during fiscal year 2019 was lower than at any time since the mid-1990s.

The Michigan study added some additional details. For example, in just the first two years of the Trump administration, there was a 70 percent decrease in Clean Water Act prosecutions and a more than 50 percent decrease in Clean Air Act prosecutions, the study found.

Trump’s prosecutions and enforcement under the Clean Air Act dropped 37 percent of the level of the Bush administration in its second term, which represents “a significant decline in the average number of defendants charged across two Republican administrations,” wrote Uhlmann, who served as the top environmental crimes prosecutor at the Justice Department from June 2000 to June 2007.

When examining the number of defendants charged in pollution cases per year, the author notes that there was a decline during the Obama administration. There were 191 defendants for pollution prosecutions in 2011, which dropped to 106 in 2014.

While there was a decrease in defendants in the Obama administration, Uhlmann said the “bottom fell out with Trump.” In 2017 there were 90 defendants and just 75 in 2018—40 percent lower than the lowest Bush year and 30 percent lower than the lowest Obama year.

While both the Obama and Trump administration saw sharp drops in defendants, the author attributes the drop during the Obama administration to fewer resources allocated to the Environmental Protection Agency (EPA), rather than lack of support for the environmental crime strategy, which is intended to have non-partisan support.

However Uhlmann suggests that the low numbers during the Trump years are connected with decisions by the president and Attorney General William Barr that “politicized criminal enforcement in ways that prior administrations—both Democratic and Republican—scrupulously sought to avoid.”

The author also notes that a lack of resources around the environmental crimes program under Trump could be “because EPA special agents were diverted from investigative work to provide a security detail for EPA Administrator Scott Pruitt.”

The report also details how under the Trump administration there have been significant decreases in Clean Water Act and Clean Air Act prosecutions and a very slight increase in Resource Conservation and Recovery act cases, which is historically opposite of how administrations usually prosecute cases.

The study notes that out of the database of 1,874 defendants from 2005 to 2018, more than 97 percent were found guilty of at least one of four aggravating factors: repetitiveness, environmental or public health harm, deceptive or misleading conduct and operating outside the regulatory system.

The most common aggravating factor in pollution cases throughout the entire time period was repetitiveness—or repeat offenses—which accounted for 81 percent of all defendants, and 97 percent when the defendant showed two or more factors.

But by 2016, deceptive or misleading conduct became almost as common as repetitiveness, linked to 75 percent of the defendants. This, among other data in the research, implies that some of the general shortcomings of pollution prosecutions could have been caused at the end of the Obama administration, not directly by Trump.

With only two years of data on Trump’s administration, report noted that it was too early to conclude whether prosecutorial discretion has changed throughout the three presidencies, but the findings do reflect that discretion does tend to criminally charge those who show at least one of the aggravating factors.

“I expected that President Trump’s record would not be different from prior Republican administrations that had less than stellar environmental policies—most notably President Bush—yet strongly supported the environmental crimes program,” wrote Uhlmann.

Research will continue on prosecutions during the last two years of Trump’s administration starting in 2021 when data becomes available from the EPA.

More data will help help determine whether or not Trump’s lack of environmental policy is a direct effect of the decline in cases, the author said.

David M. Uhlmann now serves as Jeffrey F. Liss Professor from Practice and the Director of the Environmental Law and Policy Program at the University of Michigan Law School.

Additional Reading: Environmental Crime: The Prosecution Gap, by Graham Kates, The Crime Report, July 14, 2014.

The full report can be accessed here.

 Emily Riley is a TCR Justice Reporting intern.

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