Ep. 58: The Pollution Police

Under the 1990 Pollution Prosecution Act, the EPA is supposed to have no fewer than 200 criminal investigators. In December of 2010, there were 272 at the agency. Right now, it stands at 147. Photo: EPA

Under the 1990 Pollution Prosecution Act, the EPA is supposed to have no fewer than 200 criminal investigators. In December of 2010, there were 272 at the agency. Right now, it stands at 147. Photo: EPA

Data recently released by the Environmental Protection Agency shows fewer industrial facilities were inspected in 2018 than any time over the past decade. The agency also confirmed a Washington Post report showing that civil penalties dropped to the lowest average level since 1994. This is on the heels of another report that last year the EPA generated the fewest new criminal case referrals for prosecution than any year since 1988. So what does this mean? Why does the EPA need inspections, penalties and prosecutions? And how is the view of the EPA's role changing under the Trump administration?

On this episode, we hear from Juliet Eilperin. She covers national affairs for The Washington Post and has reported on these issues.

Julie Grant: So what does EPA inspect and what kinds of things are they looking for?

Juliet Eilperin: They’re looking at a slew of industrial activities across the country where you could have potential violations of some of our landmark environmental laws like the Clean Air Act or the Clean Water Act. They're essentially looking for operations where companies are not complying with the law and, as a result, could be making our air and our water dirtier.

Julie Grant: As you've reported, there has been a sharp drop in inspections under the Trump administration. Do we know why? And what are the implications of fewer inspections?

Juliet Eilperin: It’s a little hard to know why because EPA officials are not particularly forthcoming with information about what accounts for some of these trends. They did confirm the numbers. There's a different story on the criminal side and civil side of enforcement. On the civil side, it appears to reflect the administration's priority that they are trying to work more collaboratively with companies. They have even changed the names of titles of programs to try to say that this is really about compliance rather than enforcement. They would rather work with companies and try to fix things initially then crack down on them for violating the law.

Julie Grant: But don't they still need inspections in order to get compliance?

Juliet Eilperin: They do. Even the EPA's own website talks about the importance of inspections as a key element in enforcement and ensuring that companies are meeting their legal requirements. There has been a significant drop to roughly 10,600 inspections across the country. That is half the number that EPA conducted at its peak in 2010. Congress has been less generous to EPA in recent years so it does have fewer staffers. But this appears to be a trend that's accelerated under the Trump administration. So it's more than just staffing changes.

Julie Grant: Does this mean we're not going to catch as many problems if we don't have eyes out there looking?

Juliet Eilperin: There were lots of interesting numbers that came out in this data. One is that they're not initiating as many cases and investigations and they're also not completing as many cases. That's all part of this trend. The cases that EPA is bringing against companies is also declining which both shows that relationship and potentially some of the consequences of those actions.

Julie Grant: Can we talk a little about the difference between the civil penalties and the criminal penalties?

Juliet Eilperin: Criminal charges reflect intentional wrongdoing. So one incident that listeners might be familiar with is when there was a terrible coal ash spill in North Carolina on the Dan River in 2014. It involved Duke Energy. And what EPA was able to discover is that there had been folks within Duke Energy who had been warning that pipes were corroding and that they needed to be replaced or fixed in order to avert a disaster. That's criminal negligence. Another very well known one that EPA successfully pursued in recent years is the Volkswagen emissions cheating scandal. These are the kinds of cases that aren't going to be done by the states. They're expensive and take tremendous resources and it usually is the federal government that brings those kinds of cases.

What we have seen under Trump is a really steep decline in the number of criminal penalties. When you look at the number of defendants that were charged, the number of years of incarceration -- all of that has also declined. And there is a very clear connection to staffing. For example, under the 1990 Pollution Prosecution Act, the division is supposed to have no fewer than 200 criminal investigators pursuing these cases. In December of 2010, there were 272 at the agency. Right now, it stands at 147. So there simply aren't enough people working on criminal cases at the Environmental Protection Agency right now. And that, in part, is translating into a decline in the number of criminal cases that they're pursuing.

Now this decline started under the Obama administration, largely because of a 2010 budget standoff between President Obama and the Republican controlled Congress. You had a huge reduction in EPA's budget and that led to a real cut in the number of criminal investigative agents. But one thing that's particularly interesting about what's happened with staffing is that for the entire first year that Scott Pruitt was in office, he and his aides made the decision that he should have 24/7 protection That meant people who normally would be pursuing environmental crimes were dispatched to guard the administrator himself. So not only were there fewer criminal special agents compared to what is legally required, but then their ranks were thinned even further because so many of them, from across the country, had to take turns covering Scott Pruitt 24 hours a day.

Julie Grant: Can you talk about places where we've seen the reduction in civil penalties and what that might mean for the average person out there who is concerned about the manufacturing plant in their town or something like that?

Juliet Eilperin: We started to try to investigate this and I think it will just take more time. One thing that's difficult is that you have to file Freedom of Information Act requests to figure out where they've issued notices of violation. In other words, we can demand public records that would say here's a plant where there is a violation. Then you either go to the company and see if they will say whether they've responded to EPA's notice of violation or not. The agency itself doesn't discuss pending cases so it's difficult to pinpoint with precision the places continuing to violate public health safeguards after being notified. Identifying places where EPA hasn't gone, to some extent, is a needle in a haystack. So while I absolutely think that's a great reporting target, it will take time to figure out what's the most effective way to pin that down.

There's no question that EPA is identifying fewer instances of environmental lawbreaking across the country whether you're talking about the civil side or the criminal side. And so the question is, are companies much better actors now than they were a couple of years ago? Now it's true that to some extent they're delegating these responsibilities to the states. And they're relying on companies to self report and self audit their operations in a way they didn't before. Now can we trust all that information? Certainly it always is helpful to verify that independently, but it's clear that the stakes for the public are considerable. If there are toxic air emissions that are going into the air at a higher level than what's required, people aren't going to see or smell that, but it could still affect their health. And so that's one of the reasons why you have inspections as part of your enforcement program.

Julie Grant: Do we know if states are actually doing this work that they are being tasked with doing by the reduction in the federal government's authority or responsibility?

Juliet Eilperin: That's an excellent question and I think it's something that will take a lot of inquiry to determine. To some extent it depends on the states. There are some that are very interested in enforcing their environmental laws and so you could see more stringent enforcement in some states. But there are others that might not be as aggressive in policing what's happening in their operations. That's part of what happens when you delegate to the states. The Trump administration is a big believer in having the states take more responsibility for some of these functions. It also makes it of course cheaper for the federal government. But then the second question is do these states have the resources and the interest in enforcing the laws the way the federal government does.

LISTEN to the entire interview with Juliet Eilperin: