EPA's enforcement presence has been reduced over the past several years. This trend will continue during the Trump administration as EPA redefines its relationship with states and tribes. Even so, EPA has announced an enforcement approach that will maintain it as a formidable enforcer of our environmental laws.
According to EPA's website, EPA's budget was $10.3 billion in FY 2010, $8.1 billion in FY 2016 and $8.06 billion in FY 2017. For those same years, EPA's employee count was 17,218, 14,779 and 15,408, respectively. So, EPA's budget and employee count were on a downward trend during the Obama years.
Indeed, it was because of the declining budgets and employees that EPA refocused its enforcement efforts in 2014. In announcing its Next Generation Enforcement Strategy in October 2014, EPA stated, "Budget uncertainties and constrained resources only reinforce the imperative to move forward with Next Generation Compliance." Next Gen concepts, such as advanced monitoring and electronic reporting, were incorporated into many of the regulations issued and settlements entered into during the last years of the Obama administration.
Although there was indeed a preexisting downward trend prior to the Trump administration, there are several metrics highlighting a pronounced decline in activities in the past fiscal year. As to the number of federal inspections, in FY 2016 there were 14,000, and in FY 2017 there were 12,000. As to the number of civil enforcement cases initiated, in FY 2016 there were 2,414, and in FY 2017 there were 1,938. As to the amount of administrative and civil penalties assessed, in FY 2016 there was $5.9 million, and in FY 2017 there was $1.6 million. In announcing these metrics, EPA acknowledged the downturn while noting that states and tribes are the primary implementers of federal environmental law.
Under Administrator Pruitt, EPA will rely heavily on the notion of cooperative federalism and has made it clear that environmental protection is a "shared responsibility" between states, tribes and the federal government. Nevertheless, EPA has provided insights into how it will approach enforcement in the coming years.
First, EPA "will refocus efforts toward areas with significant noncompliance issues and where enforcement can address the most substantial impacts to human health and the environment." Second, EPA will "encourage regulated entities to correct violations rapidly." Third, EPA seems to have embraced Next Gen concepts, such as advanced monitoring technology, as they "offer great opportunities for improving the ability of EPA, states and tribes to ensure compliance."
In trying to distill these concepts, it would seem that EPA will continue the trend of reliance on states and tribes to enforce environmental laws. However, it will still conduct inspections and utilize new technologies to identify noncompliance. In situations where there is significant noncompliance, it may take action and/or assist the state in taking action. In insignificant situations, it will seek to obtain compliance as promptly as possible. The facility should promptly take corrective action and communicate that effort to EPA. In insignificant situations, this very well may be the end of EPA's enforcement effort. Obviously, even if EPA does not act, states may take action or citizens may become involved through the citizen suit process.
While EPA may reduce its presence in delegated states, it will remain an important player in environmental enforcement. Further, states and citizens are likely to take action when EPA does not. As such, it would be wise to maintain compliance to avoid any potential for enforcement by any entity.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney for enforcement for the Louisiana Department of Environmental Quality.
For more information, visit www. bswenviroblog.com, or contact John B. King at jbk@bswllp.com or (225) 381-8014.