The EPA and its state counterparts are too short-staffed to adequately police environmental crimes around the country, an agency official said.
Mike Fisher, director of the Legal Counsel Division in the Environmental Protection Agency’s Office of Criminal Enforcement, said most states don’t have officials dedicated to prosecuting pollution-control crimes, and the EPA often can’t fill the gap.
“We’re trying to make smart and maximally environmentally protection-oriented decisions about allocating our own scarce resources,” he said at a Nov. 12 American Bar Association conference, noting that he was giving his personal view.
The EPA’s team of criminal investigators has been declining since before President Donald Trump took office.
The Pollution Prosecution Act of 1990 required the agency to hire 200 agents. Data from the Congressional Research Service shows that EPA started to dip below that threshold in 2012. The agency had just 140 agents last year, according to Public Employees for Environmental Responsibility,
EPA’s criminal enforcement budget was $48 million in fiscal 2017 and $44 million in fiscal 2018. The next year it jumped slightly to almost $45 million, and the Trump administration requested $44 million for fiscal 2020.
‘We’d Rather Work a Bigger Case’
Fisher said the criminal enforcement team tries to focus on the most harmful environmental violations, including incidents that caused injury.
“In most of the country, if somebody dumps 10 drums of ignitable waste in a ditch, we’d rather work a bigger case,” Fisher said.
“But the question we may face is, well, we could work it up criminally and try and get the [attorney general] or the [district attorney] to prosecute it, or no one will deal with this criminally,” he added. “Hopefully somebody will deal with it civilly.”
EPA data shows that both the number of environmental crime cases the agency opened and the number of defendants charged have generally trended downward over the past decade, other than a slight uptick in the number of new cases between 2017 and 2018.
University of Michigan law professor David Uhlmann, a former Justice Department official who studies enforcement trends, said the agent levels “really drive these numbers.”
In an earlier discussion at the ABA event, EPA Office of Civil Enforcement Director Rosemarie Kelley said the agency’s leaner overall staff—from more than 18,000 in the 1990s to fewer than 14,000 now—has had an effect on enforcement.
“That’s a huge decrease in resources,” she said. “There’s no way to say that doesn’t impact what we do.”
But she said the agency is working to promote its enforcement work more to send a message to polluters that “the enforcement cop is on the beat.”
Top political officials overseeing environmental enforcement defended their work during the conference, criticizing “misconceptions” about metrics that show declines in the number of inspections the EPA does, the amount of civil penalties levied, and the number of case initiations.
“We don’t have a quota, and that would be a terrible thing if we did,” said Susan Bodine, who heads the EPA’s Office of Enforcement and Compliance Assurance (OECA). “We are trying, of course, to go after the significant cases.”
She added that the numbers don’t reflect all the work the EPA does, as they leave out cases turned over to states and informal efforts to increase compliance. Bodine noted that her Obama-era predecessor, Cynthia Giles, also touted the office’s commitment to the most high-impact cases, rather than trying to boost numbers.
“I don’t know, maybe it was OK if she said it, not OK if I say it,” Bodine said.
Policing ‘Bad Guys’
Bodine said she’s committed to policing the “bad guys” who violate environmental laws, and said her eyes were opened to the magnitude of the problem when she joined the agency after working in private practice and on Capitol Hill, where she often fielded industry complaints about EPA.
“When you get to EPA, you get to OECA, oh my God, there are a lot of bad guys out there,” she said.
“The significant amount of noncompliance that’s out there is just, it’s astonishing to me,” she added. “We have an incredibly important role to play in doing the compliance assurance, in doing the enforcement, and making sure people know that we’re out there to create the deterrent effect.”
Jeffrey Bossert Clark, head of the Justice Department’s environment division, said enforcement metrics can be misleading and used by the EPA’s detractors to make the agency look bad.
“I think these kinds of comparisons are misleading and largely meaningless because, basically, Susan and I are not in the widget production business,” he said. “Each of the cases that comes to us is its own thing.”