EPA Success Masks Problems
Penalties from criminal and civil prosecutions by the Environmental Protection Agency are expected to reach a record high for fiscal year 2008. The agency’s success with big cases in the last six months marks a big accomplishment for the Bush administration. But many experts say this could be misleading. All those cases coming in the same fiscal year, which began October 2007, are the culmination of years of work.
While the EPA conviction rate may have been high this year, the last seven years actually reveal a sharp drop in the agency’s criminal and civil cases. Under the Bush administration, the EPA has gone after fewer major polluters and sought weaker penalties for those convicted. Those familiar with environmental law say the agency’s enforcement divisions lack the personnel to get the job done right.
Environmental lawyers and activists say the Bush administration has failed to make enforcement a priority. Enforcement has dropped under President George W. Bush, many say, both because the administration has failed to allocate appropriate resources and because it decided to pursue fewer polluters.
The number of criminal prosecutions, convictions and new investigations dropped by more than a third from previous administrations, according to data from the Dept. of Justice and the EPA. The EPA has also filed far fewer lawsuits against defendants who refused to settle. Experts say the Criminal Investigation Division is understaffed — the number of EPA criminal investigators has in fact dropped 20 percent, from 200 to 160.
An analysis of EPA data by the watchdog group the Environmental Integrity Project compared enforcement during the Bush years with enforcement during the Clinton years. There was a sharp decline in federal enforcement for environmental crimes between fiscal years 2002 and 2006. The number of criminal fines dropped by 38 percent, the number of new criminal investigations launched each year dropped by 23 percent and civil penalties dropped by about 24 percent. In the biggest change, the number of lawsuits against violators who refused to settle environmental cases dropped by 70 percent.
Overall, the Environmental Integrity Project found that polluters were paying significantly less under the Bush administration.
Those numbers continued on a downward slope well into fiscal year 2007, said Eric Schaeffer. Schaeffer was the director of the EPA office of civil enforcement until he quit in 2002. He says he was growing ever more frustrated over the changes in enforcement under the Bush administration. (Read his resignation letter here.) He went on to found the Environmental Integrity Project in 2002.
In some divisions, a decline in enforcement can be attributed to a severe lack of human and monetary resources. Bill Sapp was a wetlands enforcement attorney at the EPA until 2007. He said his division lacked the resources to prosecute all the cases he and his colleagues wanted to.
"The only problem was we did not have enough resources to do the job really effectively," Sapp said. "We did not have enough wetlands investigators and folks that could go out there and respond to the different violations. We were limited in the number of cases we could take."
Sapp, now a senior attorney for the Southern Environmental Law Center, said that in his division, the lack of resources was the main obstacle to pursuing polluters. "[F]rankly, we were not discouraged from taking any particular wetlands cases," Sapp said, "It’s not like anybody said, don’t take that case for political reasons or anything. …It was more of a resource thing than anything else."
But now, in his work for the SELC, Sapp says he has come face to face with the EPA’s unwillingness to go after big industrial polluters. For example, the SELC joined the EPA in prosecuting an air pollution case against Duke Energy. When they lost at the appellate level, the SELC wanted to appeal to the Supreme Court. But the EPA decided not to.
The case, Sapp said, was "an example of where EPA didn’t step forward in an enforcement action that arguably they should have…If you want a big picture kind of example of where EPA enforcement fell down, you can say it’s that Duke Energy case."
Schaeffer of the Environmental Integrity Project, also talks about an unwillingness to file suits against defendants who refuse to settle. He says the decline in such suits has had a big impact on the EPA’s reputation. Prior to Bush taking office, it was standard for the Dept. of Justice to file about 55 such lawsuits a year, but that number dropped to about 12 to 15 annually, he said.
"You’re proudly reporting big settlements, but suing fewer polluters," he said. "People take you less seriously, and then it takes longer to settle, and the settlements are weaker because [violators] know you’re not going to sue."
The EPA says its decline in criminal and civil prosecutions during the Bush administration is a result of going after bigger cases, which require more resources. "The criminal enforcement program," said agency spokeswoman Roxanne Smith, "is pursuing a strategy of investigating more ‘high impact’ cases with major health and environmental considerations. Typically, high impact cases involve more complex investigations that take more agents and resources to investigate than others."
But that brings up another drop in enforcement. The team of agents, or criminal investigators, is well below the mandatory number. The 1990 Pollution Prosecution Act, signed into law by President George H. W. Bush, requires a minimum of 200 agents. The EPA currently has only 160.
The agency’s goal is to get that number up, said spokeswoman Smith. "[W]e are implementing a three-year (FY 2008-2010) hiring strategy to increase the number of criminal investigators to 200," she said.
Environmental law professor Patrick Parenteau, of the Vermont Law School, says the decline in resources has hurt enforcement at the federal and state levels. The EPA, he explained, used to provide funding for state enforcement programs, in addition to federal programs, but that money has dwindled. "Enforcement capability has gone down," he said.
Alice McKeown, of the Sierra Club’s environmental quality program, says the lack of resources in the EPA’s criminal investigation division shows where the administration’s priorities lie. "It’s more about funding priorities," she said. "And this administration has shown a bigger interest in funding activities that will undermine our environmental laws."
Specifically, McKeown pointed to the New Source Review program, that she said the administration has weakened. As part of the Clean Air Act, the New Source Review is meant to require new or expanding factories to install the most current air pollution controls. The Sierra Club says that, under Bush, the EPA has failed to ensure that such controls are installed.
With environmental enforcement, says Schaeffer, lack of funding isn’t a good excuse. When the government sues polluters, he points out, it rakes in money for the U.S. Treasury. So the program nearly pays for itself. "In the end, enforcement doesn’t really cost much," he said. "The average enforcement staff comes close to paying for themselves. The cost of the program is substantially offset by the amount of penalties that go to Treasury as a result of program activity. This is a program that brings money in."
With fewer resources for enforcement, the EPA says it’s putting all its eggs into a few big baskets. "Because high-impact cases are often more complex and, therefore, consume more investigative resources than conventional cases," said Smith, the spokeswoman, "we reduced our target for the number of new environmental crimes cases opened annually."
According to Schaeffer, though, the argument that the EPA is going after bigger fish doesn’t correlate with the decline in penalties. "If you’re going after bigger cases, the penalties should not be dropping as much as they have," he said. "Looking over this decade, we’re in the eighth year now of the Bush administration. If the penalty trend for criminal cases is down 30 percent, that’s a pretty long stretch of time."
McKeown from the Sierra Club agrees. "We’ve definitely seen, under the Bush administration, an unwillingness to enforce environmental regulations on the books," she said. "This administration has shown a propensity for weakening standards."
Recent months show that things may be changing. In October 2007, BP Products North America, Inc. agreed to pay the largest criminal fine ever for violations of the Clean Air Act. The $60-million fine was largely for damages in a tragic 2005 case in which an accidental explosion at BP’s Texas City refinery killed 15 people and injured more than 170 people.
Also this fiscal year, in January 2008, Massey Energy agreed to pay a $20 million civil penalty for violating the Clean Water Act, the largest civil penalty ever for wastewater permit violations.
"Certainly the Massey case that was settled earlier this year was monumental," said McKeown. "It’s a move in the right direction."
Yet it can’t be ignored, Schaeffer says, that these cases are the culmination of years of work. His time at the EPA taught him about a stats game in which fluctuation from year to year doesn’t necessarily mean much. "When you have a big case launched several years ago," Schaeffer said, "most of the work was done several years ago. So you can have a year in which nothing is done in enforcement and you’ll have really big numbers to report."
That’s why a few big cases are not enough to alter the bigger picture, which depicts a poor overall enforcement record for the Bush administration. Shaeffer says that determining a trend requires an examination of multiple years. Trying to determine trends by looking at the numbers from month to month, or even year to year, can lead to unreliable conclusions, he says.
It may be true, however, that some things are turning around for EPA enforcement. Schaeffer says recent success in civil and criminal cases can be attributed to quality management that cares more about results than politics. He says that the current head of the Office of Enforcement and Compliance Assurance, Granta Nakayama, is exactly what environmental enforcement needs. "Nakayama is really pretty good," said Schaeffer, "and the program got lucky in that he’s not at all ideological and he is enforcement minded. It’s taken years to shake off Bush damage to the Clean Air Act and criminal enforcement, but it seems like they’re really starting to turn the corner."
Even so, both the Environmental Integrity Project and the Sierra Club stress that a few victories late in the game can’t overshadow the bigger picture of weak enforcement during the Bush administration. "If Bush is changing," said McKeown, "it’s too little, too late. He’s left behind an awful environmental legacy."