New data indicates enforcement of environmental laws is slowing dramatically under the Trump Administration, and that’s even before budget cuts threatened by the White House become reality.
The Environmental Protection Agency (EPA) on February 8 released its enforcement data for fiscal year 2017, which shows significant drops in civil investigations, criminal cases opened, facility inspections, and case referrals to the Department of Justice, among other indicators. The data covers the final three months of the Barack Obama Administration and the first nine months of President Donald Trump’s.
But new data shows that the problem extends beyond the EPA. Justice Department data obtained through the Freedom of Information Act show that during October, November and December 2017—the first quarter of the 2018 fiscal year—the entire federal government launched only 55 new prosecutions for environmental crimes—a 14 percent drop from the previous year and a 45 percent drop from five years ago. If this low rate holds for the remainder of the year, fiscal year 2018 will have the lowest number of environmental prosecutions since the Justice Department began tracking environmental crimes more than two decades ago.
The data was obtained by the Transactional Records Access Clearinghouse (TRAC), a nonprofit based at Syracuse University that analyzes federal enforcement trends. (Disclosure: TRAC’s founder and co-director, David Burnham, sits on the Project On Government Oversight’s board.)
When investigations result in criminal charges, they are passed to the Justice Department for prosecution. Any federal agency can serve as the lead investigative agency on environmental crimes: In fact, only 16 of the 55 cases were headed by EPA. The others were led by the Department of Interior, specifically the Fish and Wildlife Service (23 cases), Department of Agriculture (11 cases), National Atmospheric and Oceanic Organization (2 cases) and Department of Homeland security (1 case).
Not all of the changes in EPA enforcement indicators are directly attributable to the Trump Administration: for example, a referral to the Justice Department could stem from an investigation originated during the Obama Administration, while a new civil investigation would have been initiated during the last fiscal year. Taken together, however, the new data shows a particularly pronounced downward trend since the beginning of the Trump Administration.
History has shown that cutting enforcement funding results in decreased prosecution of environmental crimes. The Trump Administration has made clear that it intends to cut EPA enforcement with both budgets it has proposed. The fiscal year 2018 budget released by the White House last year proposed a 24 percent cut to EPA’s Office of Enforcement and Compliance and slashed EPA state grants, which funds enforcement in many states. It also would have eliminated $20 million that the EPA allots annually to the Justice Department in order to fund litigation against polluters under the EPA Superfund program.
Last year’s White House budget plan didn’t go anywhere because Congress instead approved a series of continuing resolutions that put agency budget levels on autopilot, leaving them essentially unchanged. However, the White House budget proposal for fiscal year 2019, released on February 12, proposed a nearly 20 percent cut to enforcement. That figure does not count enforcement within the Superfund program, a priority of EPA Administrator Scott Pruitt’s that suffered no cuts. While it will consider the White House’s proposal, Congress has the final word on EPA’s budget.
But setting budgetary levels is only one way political leaders can make an agency’s enforcement posture less aggressive. Leadership can require cases to go through more reviews before management approves investigative steps, for example. Political leaders can also install managers who are less willing to tackle challenging cases or make other staffing changes that impact employee effectiveness. For example, after his confirmation as Administrator of the EPA in February 2017, Pruitt pulled up to 10 percent of the EPA's approximately 150 criminal enforcement officers away from their enforcement duties and instead used them for his personal security detail, according to Justice Department officials.
Pruitt has de-emphasized enforcement in favor of collaborating with states and industry to help them come into compliance with EPA regulations, in keeping with his “cooperative federalism” philosophy. Susan Bodine, Trump’s pick to lead the Office of Enforcement and Compliance Assurance (OECA) and a former lobbyist for several companies charged with violating environmental law, issued a memo last month to regional EPA administrators establishing guidance for working with states on compliance. The memo stated that EPA administrators should meet with states to discuss their work plans, and that any disagreements between states and regional offices should be resolved by the OCEA—a departure from the precedent of resolving conflicts within regional offices, Nancy Marvel, former head of the EPA’s Region 9 legal office, told POGO.
“Some states have a philosophical opposition to enforcement—what they call enforcement, we don’t call enforcement,” said Marvel, giving the example of sending a company a letter asking them to stop polluting rather than fining them for breaking the law.
Large cuts to EPA enforcement activities at both the federal and state level is guaranteed to result in some polluters getting away scot-free. Preventing investigators and lawyers from enforcing laws passed by elected officials hurts the honest brokers in industry who play by the rules. Congress should ensure that enforcement efforts are properly resourced and that unnecessary roadblocks put in place by political leadership don’t undermine environmental investigations.