The New York Times published a report over the weekend detailing a fall-off in the EPA’s enforcement activities during Scott Pruitt’s tenure as EPA Administrator. The changes are driven by top down directives from Washington to the regional offices.
The Times found that Scott Pruitt’s EPA started about 1,900 enforcement actions in the nine months since he was confirmed, around a third fewer than the equivalent period during the Obama administration and a quarter fewer than during the same stretch of the George W. Bush administration. The analysis found that the civil penalties the current EPA has sought are also less than they were under Pruitt’s predecessors.
Perhaps most significant has been the drop in demands for injunctive relief against alleged violators. The $1.2 billion of requests made under Pruitt is just 12% of what was sought by the Obama administration in its first nine months.
Data of this kind over the relativity small time period of nine months can be misleading because enforcement actions take time to develop. Final outcomes – penalties collected and compliance investments compelled – are a better gauge of how aggressive and effective an administration’s enforcement activities are. Nevertheless, several parameters strongly suggest a fundamental shift to a more lax approach to enforcement under Scott Pruitt.
The Times found evidence in addition to enforcement data that shows a purposeful decision by the Agency’s political appointees to rein in enforcement. For example, it has moved to curtail some of its regional offices’ operating autonomy with respect to issuing information requests to regulated entities. A confidential May 31, 2017 memorandum from the Director of the Office of Civil Enforcement instituted a new policy. Now “HQ review is required prior to issuance of information requests under CAA § 114, RCRA § 3007 and CWA §308.”
In response to the New York Times article, EPA issued a release accusing the newspaper of distorting facts about enforcement under the current administration, although the statement does not dispute any specific factual statements in the article. EPA’s response also asserts that, to date, “no request to gather enforcement information has been denied.”
The article did not include aggregate data on the number of information requests issued since the memorandum was delivered to each of the regional offices. The Times did, however, discover that, in Region V, requests for information that include a monitoring or testing requirement fell from an average of 4.2 per month to only 1 since May 31st of this year. It is probably too early, however, to tell if this is indicative of future levels or just a temporary slow-down due to new procedures.
How much control over information requests EPA exercises from Washington is something we will be watching very closely. They are an essential tool for discovering violations and building enforcement actions. Which individual information requests, if any, Pruitt’s administration declines to permit might also give an indication of what industries are likely to avoid enforcement generally. Check back with Environmental Law Next in coming months for more information on this subject.