Burr & Forman

02.4.2019   |   Blog Articles, Enforcement Actions, Environmental Law Matters, EPA

EPA Enforcement Actions Down Substantially

EPA enforcement actions as reflected by the amount of assessed civil penalties have dropped substantially during the first two years of the Trump Administration.  (Washington Post, January 24).  According to an analysis reported there, EPA’s civil fines averaged more than $500 million a year when adjusted for inflation during the twenty years prior to the beginning of the Trump Administration.  The total for 2018 was approximately 85% below that amount.  This continues but expands a trend initiated in 2017 when penalty amounts apparently dropped by half (Reuters, 2/15/2018), reflecting policy decisions initiated early in the Trump Administration by former EPA Administrator Scott Pruitt.  (nbcnews.com).

These EPA enforcement trends have attracted the attention of investigative arms both inside and outside the Agency.  The Government Accountability Office has launched an investigation of declining EPA enforcement actions, and the EPA Office of Inspector General has initiated its own probe.  (The Hill, 1/15/19).   Both are expected to issue reports later this year.

In partial response, EPA officials have indicated that the numbers reflect a change of emphasis whereby the agency is encouraging compliance rather than pursuing legal action.  Compliance efforts are said to include self-audits, compliance assurance inspections (as opposed to enforcement-oriented inspections) and encouraging more compliance efforts by State environmental agencies.  And it is certainly correct that State agencies typically have primary jurisdiction over the enforcement of many environmental laws, so enforcement decisions by EPA do not necessarily dictate those of the State agencies.  This means that the regulated community cannot operate as if no EPA enforcement means no enforcement at all, at least for most federal programs.

Finally, it bears noting that, while the focus here is on environmental issues, enforcement trends at federal agencies across the board appear to be down markedly under the Trump Administration.  (Insurance Journal, July 26, 2018).  Thus, any de-emphasis of enforcement is more likely a broad-based policy rather than one focusing exclusively on environmental issues.

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