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.

Today, the Environmental Integrity Project released a report finding that in the first six months of the Trump administration, the federal government has collected 60% less in civil penalties in environmental enforcement actions than it did, on average, during the equivalent periods of the Clinton, George W. Bush and Obama presidencies.   Between inauguration day and July 31st, only $12 million has been paid by defendants in actions brought by EPA and the Department of Justice, spread over 26 cases.  The previous three administrations averaged $30 million during their first six months.

Below the headline figures are perhaps more interesting numbers on the amount of money violators are being required to invest to fund injunctive relief, such as pollution control equipment, and other measures to comply with environmental standards.  EPA has only been estimating costs in this category for about 20 years, so there is no reliable data from the first year of the Clinton administration.  In the first six months of President Obama’s first term, however, 22 reported cases required more than $1.2 billion be spent on injunctive relief.  Under President Trump, the amount has been only $197 million.

Although the sample size is limited, and most if not all of the cases involved were brought by the previous administration, these numbers provide a good deal of insight into how the Trump administration is approaching environmental enforcement.  The penalties agreed to by the Trump administration are down not just in the aggregate, but per enforcement action.  The Obama administration recovered three times as much money as the Trump administration in penalties with only eight more cases.  It would therefore not be surprising if the pace of settlements increases in coming months and years.  The regulated community may come to see this moment as a good time to get out from under enforcement litigation on favorable financial terms, while viewing unnecessary delay as a risk.

The EPA announced today that it is delaying the effective date of all regulations that have been published in the Federal Register but are not yet effective.  There are 30 such regulations, all of which are now scheduled to become effective on March 21, 2017.  The action was taken to comply with the White House’s “Regulatory Freeze Pending Review” memorandum, which was issued to the heads of all executive departments on the day President Trump was inaugurated.

The 60 day period “is necessary to give Agency officials the opportunity for further review and consideration of new regulations,” according to the rule.

The Agency’s action was taken without public comment pursuant to the good cause exceptions to the Administrative Procedures Act.  5 U.S.C. §553(b)(B) allows the administration to forgo regular notice and comment procedures when they are “impracticable, unnecessary, or contrary to the public interest.”

The rule adding a Subsurface Intrusion (SsI) component to the CERCLA Hazard Ranking System (HRS), which we wrote on two weeks ago, is among those affected by this action.  It was set to become effective on February 8, 2017.

The Agency specifically left open the possibility of delaying implementation of some affected regulations beyond March 21, 2017.

Since the beginning of the fracking boom, the potential impact of fracking operations upon groundwater has been a hotly contested area.   The most recent addition to the public debate is a new EPA report, entitled “Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States”. The report sets forth the results of EPA’s latest investigation on this subject, which relied on independent research as well as published materials.

The agency concludes that fracking can affect drinking water resources under some circumstances, with impacts ranging in severity from temporary changes in water quality to contamination so severe that it renders water from private wells undrinkable. But the report also concluded that there are too many gaps and uncertainties in the available data to determine the frequency with which Americans’ drinking water is impacted by fracking operations.  Similarly, EPA could not fully characterize the severity of the impacts of fracking on drinking water nationwide.

Unsurprisingly, the report found that among the factors and activities that make impacts likely to be more severe or frequent are (1) withdrawals of water for fracking in areas of declining groundwater resources; (2) spills of hydraulic fracturing fluids; (3) wells with inadequate mechanical integrity; (4) injection of fracking fluids directly into groundwater; (5) discharge of inadequately treated fracking fluid wastewater; and (6) disposal of fracking fluid wastewater in unlined pits.

This relatively inconclusive report is receiving criticism from fracking supporters for failing to more forcefully endorse the safety of the practice.  They are highlighting the statement included in the draft version of the report, but removed from the final one, that EPA “did not find evidence that [fracking related activities] have led to widespread, systematic impacts on drinking water resources in the United States.”

The report puts a spotlight on an interesting choice facing the Trump administration, which has been clear about its desire to promote domestic oil and gas production. At Environmental Law Next, we will be watching to see whether incoming EPA Administrator Scott Pruitt pursues further studies with the aim of providing fracking with the government’s imprimatur of safety, or if he decides to just keep his agency away from the debate.

Last week the Environmental Law and Policy Center, (ELPC) a Midwest-focused public interest environmental legal advocacy organization, held a post-election briefing outlining its plan for action during the Trump presidency.   Featuring prominently in the presentation was the launch of ELPC’s High Impact Environmental Litigation Program, or HELP.   The organization envisions a platoon of pro-bono attorneys bringing civil suits against polluters to make up for what it expects will be a reduction in the amount of federal environmental enforcement.

ELPC will likely not be alone among environmental non-profits in marshaling resources for citizen suits. In Environmental Law Next’s take on the likely implications of the election, we predicted that there will be a drop in the amount of EPA enforcement actions and a rise in private litigation in response.  Most federal environmental statutes allow anyone to bring a suit for injunctive relief to address ongoing violations, and even for civil penalties, if the government forgoes its right to act as the plaintiff.

What does this mean for the regulated community? No matter the resources organizations like ELPC can muster for this kind of litigation, it cannot fully assume the place of EPA and other federal enforcement agencies.  Citizen suit provisions give private organizations standing, but not many of the other legal rights that make an efficient, comprehensive enforcement regime possible.  The ability to conduct inspections on private property, for example, is central to EPA’s ability to identify violations and gather evidence.

Nevertheless, a citizen suit can be big problem for a company that finds itself defending one. ELPC is not hiding its intentions with this program, stating its hopes of bringing high impact lawsuits; it is not looking to give slaps on the wrist.  The cost of defending and resolving citizen suits brought by sophisticated non-profits could be as high if not higher than for government enforcement actions.

 

 

Mr. Trump made cutting regulations a central promise of his campaign. At one point he suggested 70% of federal regulations could be eliminated.  Although his staff quickly walked that number back, there is little doubt that at least a few EPA regulations will be among those the administration will target.

An agenda that involves a thoughtful attempt to revise and simplify the environmental title of the Code of Federal Regulations would be a welcome development and might receive broad support.  Observers from most of the political spectrum will concede there are at least some incidents of over-regulation and counterproductive micro-management for which the EPA is responsible.  According to the Heritage Foundation, the annual cost of EPA regulations enacted during the Obama Administration constitute nearly half of all new annual federal regulatory costs imposed during that period.  Examples of over regulation abound in all spheres of environmental law, where it now takes specialists to understand each subdivision of the regulations.  For those who want examples, see the “verified recycler” exemption at 40 C.F.R. 261.4(a)(24), any portion of the land disposal restrictions at 40 C.F.R. Part 268, or the newly issued New Source Performance Standards and Emission Guidelines for Municipal Solid Waste landfills.

It is too early to know whether Mr. Trump will strike the right balance.  His campaign was short on the relevant details.  There were a few areas, however, where he got specific. Some of President Obama’s signature environmental regulations are likely to be completely abandoned.  One way or another, the Clean Power Plan is dead.  At the moment the statutory challenge to it is awaiting adjudication by the full panel of the U.S. Court of Appeals for the D.C. Circuit.  But if his harsh criticism of the rule in the past left any doubt, Mr. Trump recently announced he would appoint an unabashed climate skeptic to lead his EPA transition team.

Similarly, it is likely only a question of how, rather than whether, the United States will reverse course on the Paris Agreement on climate change.  Among Mr. Trump’s options are to formally exit the deal through the process it provides, but that would mean America would still be bound by it until 2020.  He may choose instead to simply ignore the agreement by failing to implement the Clean Power Plan or any other policy that would cause the country to meet its voluntary goals; there is no punishment mechanism in the agreement for those that fall short.

The Clean Water Rule, which was supposed to resolve the issue of jurisdictional limits of the Clean Water Act, will also not survive, at least in its current form.  Before the election it was already being challenged by opponents, on whose behalf 88 Republican members of Congress filed an amicus brief arguing that the agency was expanding its jurisdiction beyond what was intended by the statute and encroaching on the States’ authorities.  And Mr. Trump has excoriated the rule on the campaign trail and said he would eliminate it.  He will now be able to do that.  Look for Mr. Trump to instruct the Justice Department to stop defending the rule in court.

The circumstances Mr. Trump faces with respect to the Clean Water Rule, however, highlight the flaw of his over-simplistic attacks on the quantity of EPA regulations.  Many regulations do not actually impose costs and burdens themselves.  To the contrary, they give clarity and predictability to otherwise ambiguous statutes.  The Clean Water Rule was intended to establish when Clean Water Act permits are required.  Without it, costly and time consuming case-by-case evaluations will be necessary.  If Mr. Trump is truly concerned with cutting bureaucratic red tape he will act swiftly to replace, rather than eliminate, the Clean Water Rule.

Mr. Trump has talked less about President Obama’s GHG emissions standards for light-duty vehicles, which were designed to double the fuel efficiency of new cars and trucks between 2011 and 2025.  A mid-term review of these regulations was already scheduled, and the auto industry sees an opportunity.  This week, the Alliance of Automobile Manufacturers wrote to President-elect Trump asking him to reduce the targets.

There are probably not any monumental changes coming to the regulations that govern the waste and recycling industry.  Several likely policies could provide an indirect boon to business, however.  Corporate tax cuts, a one-time allowance for repatriation of foreign domiciled profits, or a big infrastructure bill would each likely result in higher volumes of waste for disposal.  Gas to energy businesses may not fare as well as focus shifts back to fossil fuels though.

As we learn more about Mr. Trump’s energy and environmental plans, we will keep you updated here.

Donald Trump is set to assume the presidency on January 20, 2017.  At Environmental Law Next we are taking a look at what that will mean for American environmental law.  We will be providing our own perspective as well as directing our readers to the insights of others that are keeping an eye on what appears likely to be a distinctly new era in the field.

Mr. Trump indicated that he would diverge drastically from his predecessor’s approach to environmental protection.  On the stump he promised time and again that he would significantly roll back environmental regulations, and even eliminate the EPA altogether.

It is unlikely Mr. Trump will be able to dump the EPA outright, even if he actually wants to.  It would take an act of Congress and might be too much to stomach even for some Republicans.  And unless the “nuclear option” is invoked in the Senate, the Democrats there will retain the ability to filibuster even a united Republican effort.  Similarly, regulations on the books cannot just be erased with the stroke of a pen.  But by substantially reducing enforcement activities and re-writing some key regulations, Mr. Trump could go a long way towards neutralizing the agency for the duration of his presidency.

What would a retreat of the federal government from this space mean for the environment?  Certainly it would suffer, and probably not insignificantly.  But a crippled EPA would not lead to a wholesale abandonment of environmental standards.  Rather, meaningful environmental regulation would be transferred to the states – at least those states with progressive environmental agendas – and result in a patchwork of substantive standards and enforcement procedures.  The authority is already there.  Most states have been delegated the power to administer some of the major federal environmental regulatory regimes, such as Clean Air Act and Clean Water Act permitting, in addition to their own environmental protection laws.  There are also citizen suit provisions in many statutes that allow environmental groups and others to compel compliance through the courts.

Regulatory gaps might also revive, to some extent, the role of tort law in controlling the degree to which industrial pollution is permitted to harm individuals.  But the effectiveness of tort remedies for protecting common environmental resources – surface and ground waters, clean air and toxic-free land – is rather limited.  Tort claims, which require proof of causation tied to specific damages, are ill-suited to combating complex, multiple-source environmental degradation.  Acid rain, dangerous levels ground level ozone, and the pollution of major water bodies, for example, are typically caused by the collective emissions from hundreds or thousands of facilities; none of them on their own might be problematic or actionable in tort.

Even with the proper authority to intervene, courts lack the expertise to fashion efficient and effective environmental remedies.  Most states rely on the EPA to determine proper technical requirements and health-based standards.  Questions such as what is the acceptable level of lead in drinking water? How much particulate matter in the air is too much? And what are the proper procedures for cleaning up an oil spill? demand resources and experience to answer well.  These questions are also inextricable from policy decisions more properly made by a political branch of government.

Moreover, tort law is generally reactive.  There is often no cause of action until it is too late and the damage is done.  No court order can revive an endangered species after it becomes extinct.

Mr. Trump claims he will bring a business friendly efficiency to environmental protection while also “ensuring clean air and clean, safe drinking water for all Americans.”  Accomplishing both will require that EPA maintain its leading role.