In a very thoughtful CPRBlog piece, dated April 14, 2014, Rena Steinzor presents a powerful critique of the enforcement aspects of EPA’s 2014-2018 Strategic Plan. As Professor Steinzor rightly points out, EPA’s projected cutbacks in source inspections, civil judicial enforcement, administrative enforcement actions, and other enforcement work will likely encourage air and water pollution by small and medium-sized polluters that will have harmful effects on human health and the environment. At the same time, however, when one compares the final Strategic Plan’s enforcement components with the enforcement sections of the draft Strategic Plan that the Agency released for public comment last November, it becomes evident that the final Plan contains a modest silver lining in an ominous dark cloud.
The Agency’s initial draft Strategic Plan sought public comment on some proposals for changing the system by which EPA measures the success or failure of the enforcement work of individual states, as well as of EPA itself. Under those proposals—which were meant to evaluate the effectiveness of the Agency’s incipient “Next Generation Compliance” program—EPA would measure and assess the number of facilities that use advanced self-monitoring for contamination and that electronically report the results of their self-monitoring.
This aspect of EPA’s draft Strategic Plan drew sharp public criticism from two CPR scholars, Professor Victor Flatt and me, in an op-ed article in The Hill. Professor Flatt and I wrote:
At present, the EPA keeps track of its and the states’ enforcement actions. It measures the volume of pollutants reduced as a result of enforcement actions, and it uses other, similar methods in order to effectively monitor and measure the impact of those actions on public health and the environment. If these longstanding metrics are abandoned, ineffectual EPA enforcement will be much, much easier to camouflage. For example, the proposed changes could allow EPA to gather additional information regarding environmental violations and then fail to take any enforcement actions in response to any violations it knows about—all without the knowledge of congressional overseers or the public at large.
Fortunately, the Agency heeded this aspect of our comments on its draft Strategic Plan. In its final Strategic Plan, the Agency declared that its current enforcement metrics “are useful and we will continue to report on them.” The final Plan also stated that “[e]lectronic reporting is not a panacea…it also highlights the need to check on the accuracy of the reports we receive.” Moreover, EPA wrote that “we plan to experiment with new measures as a supplement to the more traditional measures (emphasis added).” This new language corrects the troubling ambiguity of EPA’s draft Strategic Plan. It effectively removes from the table an enforcement measurement proposal whose most logical reading would have invited distortion and secrecy in a critical environmental program.
This victory aside, however, Rena Steinzor’s pointed criticisms of EPA’s plans for enforcing environmental requirements over the next five years seem right on the mark. Beyond its immediate, deleterious impacts, the Agency’s planned, projected decrease in the number of on-site inspections, enforcement cases and Superfund cleanups that it will pursue will do considerable long-run damage to the deterrent impact of EPA’s enforcement work. As Victor Flatt and I wrote in our op-ed piece,
We have done extensive research and analysis of the impact of enforcement of environmental laws, and the record is crystal clear: Nothing so far tried can replace actual enforcement when it comes to making sure that environmental laws are followed.
One can only hope that the Agency’s leaders, the Obama White House, and the Congress will reverse course and give EPA’s enforcement program the resources that it needs to perform its crucial enforcement responsibilities.