July 09, 2019

Doing less with less at EPA: Environmental enforcement has plummeted in the era of Trump. Here’s what we can do about it.

Paul Gallay

EPA enforcement policy under the Trump administration

The U.S. Environmental Protection Agency (EPA) enforcement policy has always changed between presidential administrations, but the administration of President Donald J. Trump is unique in its passion to deregulate, cut EPA enforcement programs, and reduce facility inspections.

Indeed, President Trump’s stated agenda for EPA is to eliminate the agency “in almost every form” and leave behind only “tidbits.” Brady Dennis, EPA Head Defends White House’s Plan for Massive Cuts to His Agency, Wash. Post, June 15, 2017. Beginning in 2017, Trump has consistently sought a greater than 30 percent reduction in spending at EPA, the staff of which is already 8 percent smaller than it was at the start of the current administration. J. Eilperin et al., New EPA Documents Reveal Even Deeper Proposed Cuts to Staff and Programs, Wash. Post, Mar. 31, 2017; B. Dennis et al., With a Shrinking EPA, Trump Delivers on His Promise to Cut Government, Wash. Post, Sept. 8, 2018. The largest cuts at EPA have been those at the Office of Compliance and Enforcement, the staff of which is 16 percent smaller than it was just two years ago.

A wide range of EPA enforcement statistics, from total actions commenced to fines and penalties collected to the number of negotiated settlements, show extraordinary declines under the Trump administration. For example, in 2018, total penalties collected by EPA dropped at least 55 percent compared with averages during the previous two decades, and the total number of compliance inspections performed by EPA has fallen by half since 2010. J. Eilperin & B. Dennis, Civil Penalties for Polluters Dropped Dramatically in Trump’s First Two Years, Analysis Shows, Wash. Post, Jan. 24, 2019; J. Eilperin & B. Dennis, Under Trump, EPA Inspections Fall to a 10-Year Low, Wash. Post, Feb. 8, 2019.

EPA officials have argued that individual states and territories can pick up the slack left by steep cuts in federal environmental inspections and enforcement. Such arguments don’t hold up, though, as budget cuts at many state agencies, fed by reductions in federal funding, are driving declines, not increases, in state-level inspection and enforcement. Institute for Policy Integrity New York University School of Law, Irreplaceable: Why States Can’t and Won’t Make Up for Inadequate Federal Enforcement of Environmental Laws, June 2017.

Less enforcement, more pollution

The decline in federal and state enforcement and inspection programs described above is exposing Americans to higher levels of pollution. From 2015 to 2018, inspections of large water pollution discharge permit holders declined by 8 percent, while serious incidents of water pollution increased by 10 percent (rising from 1,507 to 1,659). U.S. Environmental Protection Agency: Enforcement and Compliance History Online: State Water Dashboard. Similarly, inspections at facilities regulated under the Clean Air Act also dropped between 2015 and 2018, correlating with a striking 28 percent increase in high profile violations at such facilities (rising from 362 to 462). Id.

This means trouble for our health and welfare. Whether due to the abandonment of efforts to control methane flaring in North Dakota, the loosening of selenium and sulfur dioxide restrictions at power plants in West Virginia and Texas, or the significant delays related to regulating chlorpyrifos in California farm fields, countless Americans are less safe due to the increases in pollution associated with President Trump’s desire to eliminate EPA “in almost every form.” S. Eder et al., This Is Our Reality Now, N.Y. Times, Dec. 27, 2018. The damage will fall most seriously on people of color, as shown by studies like that by Dr. Robert Bullard, Distinguished Professor at the Barbara Jordan-Mickey Leland School of Public Affairs at Texas Southern University, who famously demonstrated that “poor whites do better than middle-class blacks,” when it comes to exposure to pollution, because of inequitable housing policies, barriers to full participation in permit proceedings, and the resulting concentration of toxic activities in heavily-minority neighborhoods.

Reversing the trend

History suggests that inspections and enforcement totals will eventually climb again, especially given the aberrant nature of current EPA enforcement policies. But, can anything be done during the balance of the current administration to reduce the damage caused by efforts to eliminate the EPA “in almost every form”?

The best antidote to Trump-era anti-environmentalism may lie in citizen science and community advocacy, which can trigger more robust action by state governments for cleaner rivers and safer drinking water. For example, years of bacteria testing by nongovernmental organizations and volunteer citizen scientists drove New York State to enact a comprehensive “Sewage Pollution Right to Know Act,” in 2012, to assure public access to critical information about water treatment plant failures and storm-related contaminant discharges into the waters where everyday New Yorkers swim, boat, and fish.

In 2017, with local advocates clamoring for action in the face of well over two thousand “right to know” pollution incident reports, New York State lawmakers approved $2.5 billion in grants, over five years, to cut emissions from aging wastewater treatment plants, leaking septic systems, old landfills, lead in water supply lines, overburdened stormwater systems, and the state’s expanding dairy industry. Another $500 million in clean water grants was added in 2019. A. Dunne, Environmental Groups Say More Is Needed To Fund Water Infrastructure Projects, WAMC, Apr. 1, 2019.

Just as importantly, in 2017, New York State enacted an “Emerging Contaminants Protection Act,” as a companion to its multibillion-dollar infrastructure improvement grant program. As a result, the Department of Health will require virtually all of New York State’s public drinking water supplies to test for a broad suite of previously unregulated chemical pollutants, the health impacts of which are only now becoming known.

Together, these measures exemplify the principle of “using all the tools in your toolkit”: they represent a multifaceted program of legislation, inspection, enforcement, compliance assistance, and investment, supported and spurred on by citizen science and broad public disclosure of water pollution incidents, all helping to deliver cleaner rivers and safer drinking water.

Fulfilling the promise of clean air and water

In 1972, the Clean Water Act promised every American drinkable, swimmable, fishable water within ten years. Now, nearly 50 years later, nearly half our rivers aren’t safe for recreation and tens of millions lack safe water to drink. U.S. Environmental Protection Agency: National Summary of State Information, Assessed Waters of US; B. Plumer & N. Popovich, Here Are the Places That Struggle to Meet the Rules on Safe Drinking Water, N.Y. Times, Feb. 12, 2019. Without a robust new federal commitment to environmental inspection, law enforcement, and infrastructure investment, coupled with citizen action and public disclosure of pollution incidents, access to the benefits of the Clean Water Act and other bedrock environmental laws will become harder to achieve—and easier to lose—for millions of Americans.

What we must do, to provide healthier rivers, safer drinking water, and a cleaner environment for all Americans, is inspect, report, enforce, and invest in achieving compliance with our environmental laws. What we must not do, if we aspire to a cleaner, safer environment, is to allow continuation of the declines in staffing, inspections, and law enforcement that have been seen at EPA in recent years.

Paul Gallay

Paul Gallay has been president of Riverkeeper, an advocacy organization for the Hudson River and its tributaries, since 2010. Paul previously served in New York State’s Departments of Law and Environmental Conservation, in the land conservation movement, and in private practice. He teaches “U.S. Water and Energy Policy” at Columbia University.