Is the long-term trend of declining environmental enforcement activity one that will continue or will we see an uptick in activity? Further, will increased enforcement lead to better environmental protection?
Declining Enforcement
The United States Environmental Protection Agency (USEPA) has stated on several occasions that under the current administration we will see more enforcement, especially as it relates to disadvantaged communities.
Larry Starfield, EPA Acting Assistant Administrator for Enforcement and Compliance Assurance recently said “…rigorous enforcement is back at EPA.” But based on a recent press release from the EPA, at least currently, the enforcement activity is not what some groups had envisioned.
According to Earth.com, “A recent press release from the Environmental Protection Agency (EPA) shows that enforcement data has declined for ten years. From 2018 to 2021, there was a decline in the number of inspections, criminal investigations, and prosecutions by about 50 percent compared to averages between 2002 and 2017. The amount of fines paid by violators was also down by 28 percent for civil cases and by 49 percent for criminal cases.”
E&E News states, “Criminal prosecutions against companies violating environmental laws continued to decline last year, with EPA referrals to the Department of Justice dropping to their lowest levels in more than three decades.”
“EPA referred just 152 criminal cases to DOJ last fiscal year — a third lower than the prior year, when the number had reached a new floor during the Trump administration, according to data obtained by Public Employees for Environmental Responsibility (PEER).”
“‘It has been steadily worsening and bottoming out under Trump,” said Jeff Ruch, a director at PEER. “This seems to indicate we may not have reached bottom.’”
The pandemic certainly has some role in this reduced activity. Recall that under the previous administration, the EPA issued a memo (on March 26, 2020) that stated, in part, “The EPA will exercise the enforcement discretion…for noncompliance covered by this temporary policy and resulting from the COVID-19 pandemic…” That policy ended on August 31, 2020.
Long-Term Trend in Enforcement
COVID aside, environmental enforcement has steadily declined, this decline is a longer-term trend.
The long-term trend in environmental enforcement has been downward (Image Source and Credit: USEPA).
In our October 2019 blog we wrote, “Observed federal trends relating to environmental enforcement date back several years. According to data from the USEPA, there has been a steady decline in Federal inspections (conducted by EPA) since 2012. For example, in 2012, there were 20,077 inspections, and in 2018, that number was nearly cut in half to 10,612 inspections.”
“Likewise, civil enforcement has shown a steady decline dating back to 2008. In fiscal year (FY) 2008, total “civil enforcement initiatives and conclusions” were around 3,700. In FY 2018, this number was cut in half to 1,800.”
Voluntary Disclosures Increased Dramatically
In the same blog, we also wrote, “Voluntary disclosures, on the other hand, have increased markedly. In FY 2015, there were 289 (at 666 facilities) voluntary disclosures. In 2018, that number had risen to 532 (at 1,561 facilities). The EPA states, ‘In the nearly three years since launching eDisclosure, EPA has seen about a 74% increase in the number of annual self‐disclosures as compared to the two years prior to its launch.’”
The cooperative federalism under the previous administration likely encouraged many of these companies to take advantage of voluntary disclosures, which ultimately leads to compliance.
Release of Toxics Reduced
Another noteworthy trend is the overall reduction of releases to the environment. According to the website “Inspectioneering,” from 2007 to 2019, the total disposal or other releases of TRI chemicals decreased by 19%.
This decline in toxics released was the subject of a March 3, 2022 press release from the EPA. “Today, the U.S. Environmental Protection Agency (EPA) released its 2020 Toxics Release Inventory (TRI) National Analysis, which shows that companies that manage chemicals continue to make progress in preventing pollution and reducing chemical releases into the environment.”
The EPA’s report is based on data from EPA Region 7 (Iowa, Nebraska, Kansas, and Missouri).
The report goes on to say, “In 2020, 87% of the TRI chemical waste managed at facilities in EPA Region 7 was not released into the environment, and was instead managed using preferred practices such as recycling, energy recovery, and treatment.”
For those who have been involved in environmental management for the past few decades, you know we have made progress in reducing the use and management of toxic chemicals. I can recall larger manufacturing companies that would generate significant volumes of waste every month. Thanks to advances in manufacturing, recycling of waste, and less toxic alternatives, these waste streams were either eliminated or reduced significantly.
Protecting human health and the environment is why many of us chose our career path. We have made significant progress in reducing the toxicity of chemicals we use in manufacturing and with additional investments, we can continue to do so.
Environmental protection does not necessarily mean the elimination of all chemicals or creating overly burdensome regulations. Environmental protection requires well-reasoned and scientifically-sound regulations, ethical behavior and management, a strong economy, and when necessary enforcement.
Experienced Assistance
While there is no way to predict federal or state environmental enforcement actions that may occur in the coming months, there are a lot of indicators that seem to suggest an active year. If you need help with an environmental issue, we can help. Put our team of environmental professionals to work for you. If you would like to start with an initial conversation, contact Jeffrey Bolin, M.S. at 248-932-0228, Ext. 125.
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