POLLUTERS BREATHE EASIER
EPA ENVIRONMENTAL COURT ACTIONS DECLINE
October 12, 2004
The Department of Justice and the U.S. Environmental Protection Agency have gotten shy about taking polluters to court lately. A review of publicly available data shows that civil lawsuits for violation of anti-pollution laws declined more than 75% in the first three years of the Bush Administration, thanks to White House decisions to rewrite environmental rules and put the brakes on enforcement actions. This downward trend affects those complaints filed in federal court by the Justice Department because polluters have refused to settle voluntarily and clean up past violations. The analysis is limited to civil actions and does not include Superfund.
In the last three years of the prior Administration, the Justice Department filed 152 lawsuits in federal court against companies for violations of the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, and federal hazardous waste laws. But EPA’s own records document only 36 such enforcement actions in the first three years of the Bush Administration. A complete list of these actions, compiled from public data available from the Environmental Protection Agency, appears on Attachment 1.
The attached charts show that enforcement has fallen sharply across all environmental statutes. For example:
· Enforcement of the Clean Air Act has come to an almost complete stop. Only 9 lawsuits were filed from January 19, 2001 through January 18, 2004, compared to 61 in the three years ending on January 18, 2001.[1]
· Clean Water Act enforcement has met a similar fate, as lawsuits declined from 56 in the three years ending January 18, 2001, to only 22 in the three years ending January 18, 2004.
· Only last week, the Washington Post headlined extensive efforts by some water utilities to hide evidence that drinking water standards for lead are not being met. But the Justice Department filed only one civil lawsuit for violation of Safe Drinking Water Act standards in the first three years of the Bush Administration.
· Lawsuits for violation of federal hazardous waste law (the Resource Conservation and Recovery Act) have dropped from 19 to only 5 over comparable three year time periods.
· The nation’s largest energy companies (and biggest polluters) seem to be enjoying an extended vacation from enforcement actions. While the Justice Department has continued to litigate the cases it inherited from the previous Administration, it has filed new lawsuits against only three energy companies between January 19, 2001, and January 18 of 2004. That represents almost a 90% percent decline when compared to the twenty-eight lawsuits filed against power companies, oil companies, and pipelines in the three years before the Bush Administration took office. While refineries and coal-fired power plants appear virtually immune from prosecution, the Justice Department did find time to take a dry cleaner to federal court for failure to pay an administrative penalty.[2]
· Enforcement has dwindled even where the Agency has clear evidence of serious and ongoing violations of environmental law. EPA has referred fourteen Clean Air Act cases against power plants to the Justice Department with a recommendation that a complaint be filed.[3] But these and other enforcement actions have been stopped at the political level, because they involve violations of “New Source Review” regulations the Administration has sought to undo.
What You Can Expect to Hear from EPA or the Department of Justice:
The above statistics cover those cases where civil enforcement actions are brought in federal court because the violator has refused to comply or to remedy past violations. When confronted with the decline in environmental lawsuits, whoever speaks for the Administration will likely refer to some of the more significant settlements obtained in recent years. Most enforcement actions are ultimately settled when violators agree to comply, pay an appropriate penalty, and clean up any pollution caused by their violations. But some of the largest and most successful agreements are obtained only after the Justice Department has taken polluters to court and, in some cases, obtained favorable decisions on the law.
For example, the City of Los Angeles agreed to spend $2 billion overhauling its sewer system to greatly reduce raw sewage spills – after the court rejected the city’s argument that it was not liable for such overflows.[4] Murphy Oil agreed to clean up its sulfur recovery plant in Wisconsin – after a stinging opinion from the judge found the company had misled regulators and violated the Clean Air Act.[5] A federal enforcement settlement restored safe drinking water to Louisiana residents – but only after a court transferred ownership from the company that had mismanaged treatment plants.[6]
In other significant cases, the filing of a case has convinced defendants to settle by persuading them that the government is confident in the merits of its case. Last year, EPA celebrated a record penalty and cleanup of spills from Colonial Pipeline, but the company had to be taken to court before it would settle.[7] Other significant cases settled after the filing of a complaint by the Justice Department appear on Table A.
Many companies do agree to settle voluntarily before the government has filed its case in court. But these voluntary settlements will start to dwindle once defendants release they can stall negotiations indefinitely, or worse, use their political connections to get the government’s enforcers off their back.
Living on Borrowed Time
EPA has been able to mask the decline in its enforcement program by cashing in
settlements that were set in motion by investigations or by complaints brought before the Bush Administration took office. In fact, as Table A illustrates, many of the most significant settlements that EPA has celebrated either in press releases or in its annual enforcement reports resulted from lawsuits filed by the previous Administration.
Other settlements or penalty actions that have been announced recently reflect agreements reached years ago. For example, this year a federal court finally ratified a $1.2 billion cleanup of Virginia Electric Power Company’s power plants that had actually been announced by the Justice Department in November of 2000.[8] The Justice Department advertised “record” civil penalties of almost $200 million last year, but two-thirds of that amount ($128 million) came from automatic payment of a stipulated penalty by Caterpillar for failing to meet deadlines established in a 1998 consent decree with heavy duty diesel engine manufacturers.[9]
Enforcement takes time and many cases begun by one Administrator will need to be completed by the next, although the exhausting debate over New Source Review no doubt played a significant role in delaying the Virginia Electric Power consent decree. What is disturbing is that while EPA and the Department of Justice have completed some of the cases they inherited, very few new enforcement actions are being taken.
Environmental Enforcement: A Record of Political Interference
The sharp drop-off in civil enforcement actions is only the logical result of a series of policy decisions that have effectively muzzled EPA’s dedicated career staff. For example:
· EPA’s Office of Air and Radiation has effectively eliminated clean air “New Source Review” laws that forced power plants, refineries, and other manufacturers to clean up their oldest combustion or process units whenever they were physically modified in a way that increased emissions. As J.P. Suarez, the Bush-appointed Assistant Administrator of EPA’s enforcement program points out, the rule changes were designed to freeze ongoing efforts to enforce these laws: “It also became clear to me, during my tenure at EPA, that the goal of NSR reform was to prevent any enforcement case from going forward.”[10] And in fact, last November EPA’s enforcement staff were ordered to “set aside” ongoing investigations against seventy power companies for violations of the Clean Air Act.[11] On September 30 of this year, EPA’s Office of Inspector General confirmed that the regulatory rollbacks had not only seriously harmed enforcement, but cost the Agency a historic opportunity to reduce several million tons of pollutants linked to acid rain, smog, asthma attacks, and heart and lung diseases.[12]
· EPA staff were ordered to cease investigations of industrial scale “factory farms” that house tens of thousands of animals, and make the air in surrounding communities unfit to breathe. Instead, the Agency has wasted the past three years offering amnesty for a voluntary emissions monitoring program that has yet to materialize. Clean Water Act rules were rewritten to relieve large corporate owners from liability for illegal wastewater discharges at their contract farms.[13]
· The White House lost no time in trying to cut EPA’s enforcement office, proposing in March of 2001 to eliminate more than 13% of the Agency’s civil enforcement staff. Although Congress rejected these budget cuts, EPA delayed filling positions and “transferred” enforcement resources to homeland security functions that had already been fully funded by Congress. J.P. Suarez explains the cost of cutbacks in contract dollars that support the enforcement function: “We did not have enough money for travel, for technical support, for investigations, for depositions [and] for experts…I can tell you that there is going to be a major collapse if that is not rectified…”[14]
· Just this year, EPA voluntarily abandoned its authority to tighten emission monitoring requirements in individual permits.[15] This step backward ignores advice from the General Accounting Office and the EPA’s own Inspector General, which have issued stinging reports about how inaccurate and unenforceable monitoring undermines emission standards.[16]
· Former EPA Administrators William Reilly and Carol Browner issued clear policies to ensure that enforcement actions were kept free of political interference. Those policies have not been reissued or endorsed under the current Administration.
· Most significantly, a program that prided itself on being nonpartisan is now subject to political review, which has inevitably had a chilling effect on the career professionals who are the bedrock of environmental enforcement.[17]
Conclusion
Voluntary compliance is the ideal, but what happens when companies just refuse to comply? Both the general public and regulated industries understand that laws that are not enforced will eventually be ignored. EPA Administrator Mike Leavitt has said that, “Without consistent and smart enforcement, an environmental standard becomes an empty vessel.”[18]
Teddy Roosevelt, perhaps our greatest environmental president, understood that, “No man is above the law…compliance with the law is demanded as a right, not asked as a favor.” William Reilly, who headed EPA under the first Bush Administration, said, “Enforcement of the environmental laws is at the very heart of the integrity…of our regulatory programs.”[19] And in his inaugural speech in January this year, Mike Leavitt promised EPA employees that, “[A]nyone who evades the law should feel the full weight of the law until compliance is met.”[20]
But a 75% decline in lawsuits against violators who refuse to settle speaks louder than words. EPA’s record suggests that the “full weight of the law” has gotten a lot lighter over the past three years.
ENDNOTES
[1] Total number of media cases may exceed overall number of cases noted above, as some violations concern more than one environmental regulation.
[2] U.S. EPA Press Release, “US Sues Dry Cleaners to Enforce EPA Orders,” February 23, 2004, available online at http://www.epa.gov/region02/news/2004/04026.htm.
[3] Samuelson, Darren. “Second Wave of NSR cases await Bush administration action.” Greenwire, 14 July 2004.
[4] “U.S. Dept. of Justice press releases “US Announces $2 billion sewage spill agreement for City of Los Angeles,” 6 Aug. 2004, available online at http://www.usdoj.gov/opa/pr/2004/August/04_enrd_542.htm; and “City of Los Angeles Admits Liability in Thousands of Sewer Spill Incidents Since 1994,” 22 April 2003, available online at http://www.usdoj.gov/opa/pr/2003/April/03_enrd_252.htm.
[5] U.S. Dept. of Justice press release, “Murphy Oil Required to Spend Over $12 Million to Reduce Pollution and pay $5.5 million in Civil Penalties,” 24 Jan. 2002, available online at http://www.usdoj.gov/opa/pr/2002/January/02_enrd_039.htm.
[6] U.S. Dept. of Justice press release, “Louisiana Firm to Take Over and Improve Sewage Treatment Systems Under Deal with Environmental Agencies,” 23 Oct. 2000, available online at http://www.usdoj.gov/enrd/jp8.htm
[7] U.S. Dept. of Justice press releases, “U.S. Reaches Landmark Settlement With Colonial Pipeline for Oil Spills in Five States,” 1 April 2003, available online at http://www.usdoj.gov/opa/pr/2003/April/03_enrd_201.htm. and “U.S. Sues Colonial Pipeline for Oil Spills in Nine States,” 28 Nov. 2000, available online at http://www.usdoj.gov/enrd/pipe.htm.
[8] U.S. Dept. of Justice press release, “United States and New York Reach Agreement with Virginia Electric Utility to Reduce Air Pollution,” 16 Nov. 2000, available online at http://www.usdoj.gov/enrd/vepco.htm.
[9] U.S. Dept. of Justice press release, “Justice Department Announces FY 2003 Record Year For Recovery of Civil Penalties in Environmental Cases,” 16 Dec. 2003, available online at http://www.usdoj.gov/opa/pr/2003/December/03_enrd_694.htm.
[10] Mintz, Joel A, “Treading Water: A Preliminary Assessment of EPA Enforcement During the Bush II Administration,” [hereinafter, “Treading Water”], October, 2004, ELR News and Analysis, 34 ELR 10933 at 10939, available at http://www.eli.org.
[11] Id., at 34 ELR 10940, citing Christopher Drew and Richard Oppel Jr., “Lawyers at EPA Say It Will Drop Pollution Cases,” NY Times, Nov. 6, 2003, at A1.
[12]
Office of Inspector General, U.S.EPA, “New Source Review Rule Change Harms EPA’s Ability to Enforce Against Coal-Fired Electric Utilities,” (Report No. 2004-P-00034), 30 Sept. 2004, available online at http://www.epa.gov/oigearth/reports/air.htm.
[13]
“Treading Water,” 34 ELR 10941.
[14] Id., at 34 ELR 10942.
[15]Revisions to Clarify the Scope of Certain Monitoring Requirements for Federal and State Operating Permits (Final Rule), 69 Fed. Reg. 3202, 22 Jan. 2004 at 3202.
[16]
Office of Inspector General, U.S. EPA, “Emission Factor Development,” 31 Jan. 1997, Chapter 1, available online at http://www.epa.gov/oigearth/reports/1996/emistabl.htm
[17] “Treading Water,” at 10942.
[18]
Leavitt, Mike, “Introductory Address of EPA Administrator Mike Leavitt, 2 Dec. 2003, available online at http://epa.gov/adminweb/leavitt/speeches.htm. [hereinafter Leavitt Speech].
[19]
Reilly, William K., “The Future of Environmental Law,” 6 Yale J. on Reg. 351, 354 (1989).
[20]
Leavitt Speech.