There is no other way to look at it – criminal enforcement by the USEPA is down and is down significantly from past years. Why is that? Has the public all of a sudden decided to get religion and comply with all of the environmental laws? I doubt it. The environmental regulations are way to complex and the lure of making fast money is also great. So then, what gives?
In my opinion, there are several factors in play. As detailed in David LaRoss’ May 25, 2016, article in Inside EPA, the “Next Generation” compliance initiative is now in favor over in-person inspections. As Doug Parker, former director of the USEPA OECA, opined, “Next Generation” alone will not achieve a strong enforcement footprint to address potential risks to the environment. While it is intended to cut enforcement costs, as most law enforcement types will tell you, there is no substitute for good old fashioned police work. Next Gen alone will not cut it. There are fewer civil inspectors and there are fewer criminal investigative agents, all leading to much less enforcement.
I did a recent, very informal, survey of fellow practitioners in the environmental criminal defense practice area. Every single one reported that they have fewer cases open now than in the last four years. Based upon the survey, a majority did not currently have more than one active case open today. That compared with three, four, five, six and seven matters open in the last four years for these practitioners. The cases are just not being made by the USEPA CID.
Make no mistake, the USEPA does focus on high-visibility enforcement targets – think Deepwater Horizon, Duke Energy and Volkswagen (why does there always seek to be a disaster the predicates the investigation). But there has been a significant decline in oversight of the low -profile type cases – why has there been no federal criminal investigation as to the Flint, Michigan water issues or the Colorado mine release? The West, TX fertilizer plant explosion (an act of arson) has resulted in strengthening oversight of those chemical storage practices, but that was by executive order, not by initiative of the USEPA.
The USEPA does need to increase staffing and funding levels for enforcement. The USEPA is significantly below the Congressionally mandated level of 200 criminal investigators. Morale within the USEPA may be at an all-time low as well. Are the two related? Probably. Overlay the lack of support for a criminal program by the USEPA Washington leadership and you get the resulting inability to achieve quality environmental enforcement. The lack of support is echoed by Doug Parker’s comment to Inside EPA regarding the “general discouragement within the office of criminal enforcement.”
And what happens when a case is made and brought to the United States Attorney? Many offices just do not have the expertise to prosecute the case. And, there is still some resentment from the “old days” where the USDOJ ENRD had to approve and participate in the case. I have also received some anecdotal information that some United States Attorney's offices have been declining cases brought by the local USEPA CID agents for unknown reasons. They are being sent to the state and county prosecutors for prosecution. That practice has the potential to create discovery issues and sentencing (restitution) issues.
The bottom line? At the USEPA, morale sucks, money lacks and enforcement suffers. Why do I care? On the one hand, I live in this world as well and I want there to be clean water and clean air as well as other benefits of a regulated environmental scheme. I have clients that bend over backwards to comply with the environmental laws. On the other hand, that is what I do for a lining, defending clients when the government comes knocking. So it has an effect on the environmental bar as well.
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