Chapter 3 - The Assault on Environmental Enforcement
Weakening enforcement by government regulators
In recent years, cuts to regulatory budgets at both the state
and federal levels are forcing regulators and public officials
to consider drastic reductions in enforcement allocations, a move
that would seriously weaken the ability of government to act as
an effective enforcer of key environmental statutes. A study by
U.S. Public Interest Research Group (US PIRG) found that each of
the Bush Administration’s proposed budgets for the Environmental
Protection Agency included significant cuts that would have meant “fewer
inspections and more pollution.”[17] The
current budget request from the Bush Administration (FY 2006) includes
an even more dramatic cut of $830 million dollars, or nearly 6%,
to the EPA budget[18] at
a time when an increasing number of industrial polluters are escaping
prosecution.
More disturbing is the mounting evidence that politics is contributing to a decline in public enforcement. A report from the EPA watchdog group, the Environmental Integrity Project[19], showed a steep decline in federal enforcement of major environmental legislation during the first three (3) years of the Bush Administration.[20] According to their report, the EPA was taking 75% fewer polluters to court, and major cases brought against polluters were down a remarkable 90%. Civil penalties collected against polluters have hit a fifteen-year low, underscored by a staggering $39-million-dollar drop in penalties in the last year alone, from $96 million to $56.8 million dollars.[21]
The report points to an even more telling statistic: the marked decline in enforcement actions initiated. In the last three years of the Clinton Administration the Department of Justice filed suit in federal courts against 152 polluters compared to only 36 actions during the first three years of the Bush Administration.[22] Only 9 Clean Air Act and 22 Clean Water Act lawsuits were filed against polluters during Bush’s first three years, compared to 61 Clean Air suits and 56 Clean Water suits in the final three years of the Clinton Administration.
Considering this accumulated evidence, John Walke, director of NRDC’s Clean Air Program, articulated the growing consensus among watchdogs of federal enforcement efforts:
“The EPA likely will cut back its enforcement efforts against large industrial air polluters even more than it did during the first term,” he said. “It is possible that the agency will drop all of its new source review enforcement cases against coal-fired power plants, and weaken consent decrees with refiners that settled previous cases. The agency also likely will block attempts to force large animal feedlots to comply with the Clean Air Act.”[23]
The EPA’s own Inspector General issued a report in late September 2004 offering more evidence of this disturbing trend. In that report, Inspector General Nikki Tinsley found that the New Source Review rule promulgated by the EPA “has seriously hampered” clean-air litigation against electric utilities by scaling back a requirement that polluters install emissions controls when adding to their facilities.[24]
The EPA’s former top enforcement official, Eric Schaffer, warned that the long-term repercussions of these trends could have grave implications for environmental enforcement at every level. He warned of moves to break up the EPA’s enforcement programs through reorganizations and continued budget cuts and urged advocates to look for creative ways to preserve existing environmental enforcement laws.[25]
These developments make it even more important to protect and strengthen private enforcement. As Schaffer noted in the November EIP report,
“We’ll need to put pressure on state agencies to enforce the law when EPA won’t, and to hold both federal and state elected officials accountable when agencies fail to protect the public. We also anticipate an increase in the number of citizens’ lawsuits … that are brought when EPA drops the ball.”[26]
