Environmental Enforcement in the Crosshairs: Grave Threats to a Vital Protection for All Americans

by Joel Mintz

December 13, 2016

Efficient, professional law enforcement is a cornerstone of effective and responsible environmental protection. It is the cop on the environmental beat. While some regulated firms will likely continue to comply with environmental requirements in the absence of vigorous, evenhanded enforcement, other companies will certainly proceed to pollute America's air, water, and land with reckless arrogance. With these realities in mind, it is imperative to recognize the serious, potential threat posed to environmental enforcement by the forthcoming Donald Trump administration and the next Congress.

Perhaps the most extreme threat to environmental enforcement also seems the most unlikely one to be realized. That is a wholesale effort to repeal the current set of major federal environmental statutes and (perhaps) replace them with legal regimes that prevailed in the 1950s – an era when state governments dominated environmental protection and the federal government had a negligible role. This might occur. However, given the high level of public support for abating and preventing pollution that has long prevailed, so radical an approach to environmental policy would run significant political risks. The obviousness of those risks might well lead the GOP to plot a different course.

Unfortunately, though, federal and state environmental enforcement is also vulnerable to other, somewhat less politically hazardous, attacks. One such approach is to insert rider provisions into future budget bills that will prohibit the Environmental Protection Agency (EPA) from spending money to enforce particular provisions of current environmental laws. For example, this mechanism may be used to temporarily ban EPA enforcement of specifically identified provisions of the Clean Air and Clean Water Acts that regulate pollution from petroleum refineries, steel mills, mines, pulp and paper mills, and/or other industrial operations.

Alternatively (or perhaps in addition), the Trump administration may well attempt to subvert EPA enforcement from within. At this writing, the Trump transition team has not yet announced the President-elect's nominee to be EPA's Deputy Administrator, nor has it identified Mr. Trump's picks to be the agency's Assistant Administrators – including the Assistant Administrator for Enforcement and Compliance Assurance – or its Regional Administrators. Nonetheless, Trump's selection of Scott Pruitt to be EPA Administrator is deeply concerning. Pruitt's record as a climate change denier and an aggressive opponent of important EPA regulatory initiatives may well foreshadow the appointment of other, extremely conservative, anti-federal officials to important positions at the agency.

Assuming that, as presently seems likely, Pruitt's nomination will be confirmed over Democratic resistance by a GOP-controlled Senate, EPA's new administrator may well direct the agency to defer to state enforcement efforts in all, or nearly all, identified cases of polluter non-compliance. Such an attempt to decentralize and "devolve" environmental enforcement responsibility would be problematic in several respects.

Since the onset of the Great Recession, many state environmental agencies have experienced substantial cutbacks in their resources that have meaningfully reduced their enforcement capabilities. In 2011-2012 alone, some 24 states reduced – or further reduced – funding for their environmental agencies. Perhaps inevitably, state agency resource shortfalls have led to layoffs and attrition, hiring freezes, reductions in facility inspections by state personnel, declines in environmental permitting, and cutbacks in state outreach and technical assistance programs that enhance private compliance. In short, many state environmental agencies simply lack ample resources to "pick up the slack" if they are asked to take on EPA's enforcement responsibilities.

Beyond this, U.S. states vary considerably in the extent to which they have the political will to enforce environmental requirements. In part, the current regime of federal environmental laws was adopted to avoid a perpetual "race to the bottom" among states that wish to attract new industries by lowering state environmental standards and softening environmental enforcement policies. Transferring federal environmental enforcement responsibilities to state agencies would clearly risk the creation (and re-creation) of pollution havens in states with lax environmental enforcement programs.

Congressional leadership, perhaps at the urging of the new administration, may also attempt to decrease the budgetary resources of EPA. This is deeply troubling because EPA is already severely understaffed. From 1999 through 2015, the number of full-time EPA employees who pursued enforcement work declined by roughly 20 percent. That decline was paralleled by approximately a 20 percent decrease in civil judicial enforcement case referrals to the Department of Justice and the conclusion of pending civil judicial enforcement matters, as well as drastic decreases in the volume of in-person inspections of federal facilities by EPA employees.

In truth, EPA has been under-resourced for many years – a problem that has gone from bad to worse relatively recently by congressional design, even as the regulatory responsibilities assigned to the agency by Congress have dramatically increased. EPA now has no room to "do more with less," and further cuts to the agency's inadequate resource base will doubtless undercut its enforcement efforts in myriad ways.

EPA's enforcement program now faces grave threats. Unless there is a loud and visible public outcry over any attempt to undermine or dismantle the agency's enforcement efforts, the health and well-being of Americans and their families will, in time, be the biggest loser.

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Joel A. Mintz is a tenured full professor at Nova Southeastern University Law Center in Fort Lauderdale, Florida.

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