EPA Enforcement In The Coming Years

Breazeale Sachse & Wilson LLP
John B. King

April 11, 2018

EPA’s enforcement presence has been reduced over the last several years. This trend will continue during the Trump Administration as EPA re-defines its relationship with states and tribes. Even so, EPA has announced an enforcement approach that will maintain it as a formidable enforcer of our environmental laws.

According to EPA’s web-site, EPA’s budget was $10.3B in FY 2010, $8.1B in in FY 2016, and $8.06B in FY 2017. For those same years, EPA’s employee count was 17,218, 14,779, and 15,408, respectively. So, EPA’s budget and employee count were on a downward trend during the Obama years. [1]

Indeed, it was because of the declining budgets and employees that EPA re-focused its enforcement efforts in 2014. In announcing its Next Generation Enforcement Strategy in October, 2014, EPA stated: “Budget uncertainties and constrained resources only reinforce the imperative to move forward with Next Generation Compliance.” [2] Next Gen was organized around five interconnected components: combined more effective regulations and permits, advanced monitoring, electronic reporting, expanded transparency, and innovative enforcement. Next Gen concepts, such as advanced monitoring and electronic reporting, were incorporated into many of the regulations issued and settlements entered into during the last years of the Obama Administration.

Although there was indeed a pre-existing downward trend prior to the Trump Administration, there are several metrics highlighting a pronounced decline in activities in the last fiscal year. As to the number of federal inspections, in FY 2016, there were 14,000 and in FY 2017, there were 12,000. As to the number of civil enforcement cases initiated, in FY 2016, there were 2,414 and in FY 2017, there were 1,938. As to the amount of administrative and civil penalties assessed, in FY 2016, there was $5.9M and in FY 2017, there was $1.6M. As to the number of criminal cases opened, in FY 2016 there were 170 and in FY 2017 there were 115. [3] In announcing these metrics, EPA acknowledged the downturn while noting that states and tribes are the primary implementers of federal environmental law and that EPA acts only in limited situations, such as when states or tribes do not have the resources to take appropriate action. [4]

EPA, under Administrator Pruitt, will rely heavily on the notion of cooperative federalism and has made it clear that environmental protection is a “shared responsibility” between states, tribes, and the federal government. [5] Nevertheless, EPA has provided insights into how it will approach enforcement in the coming years.

First, EPA “will refocus efforts toward areas with significant noncompliance issues and where enforcement can address the most substantial impacts to human health and the environment.” [6] EPA has always reserved the right to take direct enforcement actions in such cases, even in delegated states. But, it also seems to be signaling that it will rely on states to remain the primary implementer and enforcer of environmental laws and will initiate actions in areas where it has direct implementation responsibilities and assist delegated states in meeting national standards.

Second, EPA will “encourage regulated entities to correct violations rapidly.” [7] This goal ties in with the various metrics noted above, which “do not count informal actions or EPA assistance with state enforcement actions.” As a result, EPA will “focus the enforcement program on returning facilities to compliance by setting goals to reduce the time between the identification of an environmental law violation and its correction and to increase environmental law compliance rates” and will develop metrics to measure “capture all the enforcement and compliance assistance work the Agency undertakes by tracking informal, as well as formal, enforcement and compliance actions and support to states.” [8]

Third, EPA seems to have embraced Next Gen concepts, such as advanced monitoring technology, as they “offer great opportunities for improving the ability of EPA, states, and tribes to ensure compliance.” EPA will work with states and tribes to “help prepare for and use these advanced monitoring technologies.” [9]

In trying to distill these concepts, it would seem that EPA will continue the trend of reliance on states and tribes to enforce the environmental laws. However, it will still conduct inspections and utilize new technologies to identify non-compliance. In situations where there is significant non-compliance, it may take action and/or assist the state in taking action. In non-significant situations, it will seek to obtain compliance as promptly as possible. The facility should promptly take corrective action and communicate that effort to EPA. In non-significant situations, this very well may be the end of EPA’s enforcement effort. Obviously, even if EPA does not act, states may take action or citizens may become involved through the citizen suit process.

While EPA may reduce its presence in delegated states, it will remain an important player in environmental enforcement. Further, states and citizens are likely to take action when EPA does not. As such, it would be wise to maintain compliance to avoid any potential for enforcement by any entity.

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This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. King and may not reflect the opinions of Synergy Environmental, Inc., Breazeale Sachse & Wilson LLP  either of those firms’ clients.

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