The Environmental Protection Agency does not pursue polluters like they used to.
At his confirmation hearing on Wednesday, interim administrator Andrew Wheeler tried to present the case to the senators on the Committee on Environment and Public Works in the sense that the application is a priority. "In fiscal year 2018, EPA enforcement measures required the treatment, disposal or disposal of 809 million pounds of pollutants and waste, almost double that of 2017," he said.
But according to government watchdog groups, under the Trump administration, the agency has seen large declines in both civil and criminal enforcement of environmental laws.
A report this week from Public Employees for Environmental Responsibility (PEER), a defense group for public sector workers dealing with environmental issues, shows that the number of criminal cases that the EPA referred to the Department of Justice under President Trump is at the lowest level. 30 years:
It follows a 2018 report from the Environmental Integrity Project, which found a mbadive drop in the amount of fines that the Trump EPA collected from polluters in relation to the last three administrations during the same period.
Both reports state that The EPA is neglecting its mission and leaving the bad actors free. That, in turn, could lead more criminals to ignore the critical rules of air, water and soil protection.
"The deterrent effect of these statutes is limited," said Jeff Ruch, executive director of PEER. "It could be said that, if they are completely ignored, there is a contamination that continues unabated."
A big part of EPA's job is to persecute people, companies and even local governments that violate environmental regulations. That may mean evaluating a civil penalty for a company that does not refine the fuel properly. It can also mean prosecuting an automotive engineer who conspires to cheat the emissions standards, leading to federal prison.
In general, cases referred to criminal proceedings involve actions that directly damage public health. But that requires the EPA to track potential clients, badyze the evidence and construct a legal case.
One of the main reasons why this type of application has been low in recent years is that there has been a large drop in research by its Division of Criminal Investigation, the enforcement branch of the armed law of the EPA, whose agents are trained to combat environmental crimes.
In 2017, the number of agents in the division was reduced to 147, below the legal minimum of 200 established in the Pollution Processing Law of 1990. That is less than half the number of agents employed in 2003.
"There is a direct relationship between the staff and the cases they can prosecute," Doug Parker, a former EPA career employee who led the CID under President Obama, told me. With fewer researchers to look for clues, "they are absolutely lost cases".
However, the Department of Justice also has discretion over which cases it chooses to process from the cases it receives from the EPA. Therefore, a reference is only the first step to advance in a case against a polluter. "If you look at the data, they reject a healthy percentage of EPA references," Ruch said.
In the last 32 years, the Department of Justice processed between 24 and 63 percent of the cases it received from the EPA in a given year. However, there were only 62 convictions in the 2018 fiscal year, the lowest since 1995.
Many of the ongoing cases now under the current EPA began under the previous administration, Parker said. "Everything I've seen announced in terms of substantive prosecutions have been cases that originated in the Obama administration," he said. "There's little I've seen that is not an investigation of the Obama era."
When asked to comment on the decline in the application of the law, an EPA spokesperson referred me to an EPA statement about the Fiat Chrysler agreement on allegations of emissions fraud announced last week. The agreement requires the company to remove and repair vehicles that were equipped with a deactivation device to cheat the emissions tests. Fiat Chrysler also has to pay a civil penalty of $ 305 million.
The statement explains the EPA's enforcement strategy:
the [Fiat Chrysler] The agreement also demonstrates how the achievements of the application each year are greatly influenced by large cases. The civil penalty only for the FCA case is more than four times higher than all the civil penalties charged in FY2018. This case also demonstrates that while our total number of case conclusions decreased slightly in fiscal year 2018 from 1,978 to 1,818 cases, the EPA continues to direct its resources to the most significant and impactful cases.
For example, the cases that EPA concluded in FY2018 required regulated entities to address more than 809 million pounds of waste and pollutants, an increase of more than 40% over FY2017. Similarly, while the dollar value of Superfund cleanup commitments, supervision costs and cost recoveries obtained in fiscal year 2018 ($ 613 million) is lower, these numbers are also greatly affected by some few cases. In fiscal year 2018, the EPA used its Superfund compliance tools to facilitate cleanup and redevelopment at more than 150 sites.
In essence, the EPA is arguing that the agency is chasing the big shot, that the number of cases has decreased, but the impact of the cases it pursues, in terms of settlements and avoided pollution, has increased.
Ruch is not convinced by this. He said that the EPA should be able to fight large and small cases at the same time, and that the reduced number of references reflects a lower priority in the application of the law under the current administration. "We consider that the application of the law is a fundamental part of its mission," he said.
And the Fiat Chrysler emissions fraud was first discovered by the EPA in 2015. The agreement is also a civil penalty, not a criminal one.
At the same time, the EPA is pursuing an aggressive policy agenda to backtrack and relax environmental regulations: greenhouse gas limits, mercury regulations and clean water authority, among others.
By changing the rules, the EPA is changing what counts as a violation in the first place. That means that if the changes of the Trump administration are maintained and do not fall apart in the courts, we may see even fewer prosecutions in the future.