EPA’s enforcement retreat

Last month the Environmental Protection Agency published its draft strategic plan for the next five fiscal years. To the bitter disappointment of environmentalists and some state environmental officials, it promises significant cuts in just exactly the wrong place: in EPA’s inspection and enforcement efforts. Other sections of the plan concerning air and water pollution control, cleaning up contaminated communities, ensuring chemical safety and preventing new pollution, seem quite sensible and worthwhile, but EPA’s new enforcement approach represents a retreat from the Agency’s longstanding tradition of firm but fair deterrent enforcement, with potentially devastating real world consequences.

The enforcement portion of EPA’s plan calls for significant cutbacks in EPA enforcement inspections of industrial facilities—from 21,000 annual inspections in most previous years to an average of 14,000—a 33 percent drop-off—and it calls as well for a major decrease in the volume of EPA Superfund cleanups at hazardous waste dumpsites.

{mosads}Second, the plan proposes new, and frankly, worse ways of measuring EPA compliance-forcing activities. The agency aims to increase the number of regulated facilities that use technology that “self-monitors” for contamination, yet fails to make clear that this new set of metrics will replace, not supplement, its existing enforcement and compliance measurements.

At present, the EPA keeps track of the numbers of its and states’ enforcement actions and facility inspections, 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 whatsoever in response to any violations it knows about—all without the knowledge of Congressional overseers or the public at large.

The threat of EPA enforcement acts as a crucial deterrent to contamination of our drinking water, pollution of our air and devastation of our neighborhoods.   Without the EPA’s prodding and measurement, none of the controls on interstate air contamination would exist.

The EPA has never had sufficient resources to do the myriad environmental protection jobs it is charged with, but with the severe cuts to the federal budget of the last two years, coupled with a hiring freeze and a decline in the size of the Agency’s staff through attrition, the strain is now more pronounced.  Without enough money to hire the personnel necessary to bring our environmental laws to life, the EPA has done triage. However, if the draft strategic plan is put into effect with its revised enforcement approach, the Agency will have less incentive to correct environmental violations. As a result, in future years, polluters will be less likely to be deterred from violating standards that protect health and the environment, and discharges and emissions of pollutants will likely increase.

EPA Administrator Gina McCarthy and others at the Agency have clearly tried to put as good a face on the proposed changes as possible. Nonetheless, we are convinced that EPA’s enforcement proposals are very bad news for anyone who breathes air or drinks water.  New technology that more closely monitors permitted pollution sources can indeed be a step in the right direction, and in recent years considerable progress has been made in the development of ever-more precise and sophisticated pollutant monitoring equipment. But improvements in monitoring what goes into our air, water and land won’t make up for a loss of direct federal enforcement, without which the Nation’s various pollution control laws seem doomed to lose credibility–and teeth—in an era of ever-looming environmental problems.

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 environmental laws are followed. We recognize that sequestration has made already scarce resources all the scarcer, and that EPA was forced to cobble together an enforcement strategy that stretched dollars as far as they could be stretched. But EPA’s approach on this is all wrong.  Rather than pretending that its “enforcement lite” approach is better, it should making noise — and plenty of it — about the problems that budget stinginess is creating, instead of papering over them.

The truth is that past history and simple common sense tell us that the enforcement components of EPA’s draft strategic plan will ultimately cause unintended, yet considerable, environmental damage.  We hope that Congress will recognize this fact, and urgently restore the funding necessary for the EPA to do the vitally important job of carrying out the landmark environmental laws Congress has passed.

Mintz is a professor at Nova Southeastern University Law Center in Fort Lauderdale, Florida. Flatt is a professor of Environmental Law at the University of North Carolina Law School. Both are member scholars of the Center for Progressive Reform.