March 01, 2014

The Back Page

I worked as a litigator for EPA for 24 years. During that time, I tried more administrative enforcement cases than anyone in EPA. One might reasonably conclude that I was in court on a daily basis, but that was hardly the case. In those 24 years, I took thirteen cases to hearing. Just thirteen, and that number belies the myth of the heavy-handed EPA enforcement.

We frequently hear arguments that EPA will fine homeowners and small businesses millions of dollars for some minor violations. But the numbers do not support the rhetoric. Let’s look at the state of Idaho between 2000 and 2012. Idaho is one of the four states in which the EPA runs the Clean Water Act (CWA). Any fines brought under the CWA are brought by EPA or by a citizen group, not the state. Administrative enforcement comprises the bulk of EPA penalty actions, so let’s inspect those numbers first. Looking at all of the administrative settlements and judgments under the CWA in Idaho fiscal years 2000 to 2012, EPA collected a total of $3.3 million in 221 enforcement actions. About half of those were small construction stormwater cases brought during the housing construction boom years—2004 to 2008. That averages to nineteen actions per year with an average penalty of $14,111. If one carves out the large number of stormwater construction cases, EPA filed an average of six administrative cases per year over that time for an average penalty of $22,783. The statutory maximum penalty for a CWA administrative case is $177,500.

The Idaho federal court cases show a similar picture. There is no maximum penalty under the CWA in federal court, so the potential maximum fines are much larger. During that same 2000–2012 period, EPA filed just six cases, and all were against large corporations. Those federal court cases collected a total of $3.2 million, for an average penalty of $537,125.

The data base covers three administrations: Clinton, Bush, and Obama. (Because of the lag time in developing cases, the 2000–2001 cases were mostly developed under the Clinton Administration.) It is interesting to note that the numbers are relatively flat across the three administrations, showing that the number of enforcement cases brought has remained moderately low under all three administrations.

These Idaho CWA data show by example that the agency does not file a large number of penalty actions, and the penalties it collects are substantially below what Congress authorized. The few large fines are all against large corporations, not small businesses. Most of us would agree that laws without enforcement are, as Lincoln so aptly said, merely good advice. A reasonable enforcement program keeps the playing field level and encourages participation. And the data show that EPA’s enforcement is, in fact, reasonable. Some might even argue it is meek.