Irreconcilable Differences Mark Evaluations of EPA’s Performance

The first “EPA Year in Review” under Environmental Protection Agency Administrator Scott Pruitt celebrates his “back to basics” agenda and offers numbers indicating that its enforcement operations collected more in penalties than any of the past 10 years save one. But the nonprofit group Public Employees for Environmental Responsibility has reached a very different conclusion—EPA’s civil, criminal, and administrative enforcement actions against “pollution law violators are all on a sharp downward trajectory,” the group said.

The agency’s own annual review, whose cover features a photo of Pruitt shaking hands with coal miners, says the agency collected $1.6 billion in fiscal 2017 in administrative and civil judicial penalties, “higher than any of the previous 10 years, other than fiscal 2016, which included one $5.7 billion action taken.”

“EPA also celebrated an increase in the value of commitments by private parties to clean up land to more than $1.2 billion,” the agency said, “an increase in the total of criminal fines, restitution and mitigation to $2.98 billion, and an increase in the value of actions to improve compliance to nearly $20 billion.”

Overall from Jan. 20 to Sept. 30, 2017, EPA and the Justice Department together imposed more than $1.72 billion in civil penalties, cost recovery, natural resource damages, and other monetary recoveries; more than $2.91 billion in criminal fines, restitution, and other assessments; and more than $3.13 billion in injunctive relief and environmental mitigation projects, according to the review.

The agency also cited enforcement actions against ExxonMobil, PDC Energy and Indiana Harbor Coke Co.

“Days after being sworn in, I addressed EPA's employees and committed to listening and working cooperatively with states and stakeholders to tackle today's environmental challenges,” Pruitt wrote in the report. “I committed to refocusing the agency on its core mission. Today, we are focusing on cleaning up contaminated lands, improving air quality and rebuilding America's water infrastructure. Finally, I promised that we would restore the rule of law.”

But the advocacy group PEER, using numbers from EPA’s results and analysis and trends website, concluded that the number of administrative enforcement cases initiated by EPA fell by more than one-third in 2017 from just five years earlier, and are on a course in 2018 “to set an all-time low.”

The number of new civil cases initiated in 2017, the group found, are nearly half the total for 2009, and one-fifth fewer than the number of cases filed in the prior year.

Criminal cases referred for prosecution by EPA are off by more than half since 2011, it said, and case referrals to Justice for prosecution in 2017 are below annual levels going back to 1990. The pace this year could be the lowest in 30 years, PEER added.

The trend is apt to continue, PEER said, given that Pruitt is unveiling an enforcement pilot program that would “allow polluters to come into compliance without paying penalties and avoiding judicial and administrative oversight.”

“Under Pruitt, anti-pollution enforcement is on a path to extinction,” said PEER New England Director Kyla Bennett, an attorney and scientist formerly with EPA. “By eschewing administrative enforcement, EPA is giving up one of its most effective and cost effective compliance tools that does not require the time and expense of litigation.”

The proposed informal and behind-the-scenes enforcement negotiations would follow policies in which “pollution becomes a no-harm, no-foul proposition in which the economic incentive to follow the law is removed and the profits realized from cheating are not recovered,” said PEER Executive Director Jeff Ruch. He warned against undue influence from corporations that give campaign money.