Compliance? Optional

A petroleum refinery at dusk.

By David J. Hayes
October 15, 2020

Every day seems to bring more news of the Trump administration’s failure to enforce environmental laws. Earlier this week, the New York Times reported that during the first two years of the administration, criminal prosecutions under the Clean Water Act and the Clean Air Act decreased by 70% and 50%, respectively. Our “Pass to Pollute” report, issued in June, chronicled a similarly alarming drop in the number of pre-enforcement inspections conducted by the EPA. The EPA even invoked the coronavirus pandemic to suspend environmental monitoring and reporting obligations before a lawsuit by state attorneys general forced the agency to reverse course.
While these examples confirm that federal enforcement of our environmental laws has reached new lows, the administration’s pernicious, wide-ranging attack on the culture of environmental compliance that our nation built up over the past fifty years is of even greater concern. It starts with the administration’s ongoing efforts to de-legitimize and, where possible, repeal key environmental protections on the dubious grounds that they put unnecessary burdens on industry. Gone are long-standing Clean Water Act protections on fully half the wetlands in the U.S. Also rolled back are meaningful automotive fuel economy standards, and restrictions on climate change-causing emissions from power plants and the oil and gas industry. 
Where existing regulations have been allowed to stay in place, the administration has systematically undermined their enforceability. For example, the EPA has finalized a rule that credits only some of the health benefits associated with the power sector’s Mercury and Air Toxics Standards, providing utilities with an open invitation to challenge enforcement of those standards. And it has proposed that a similar, truncated benefits analysis accompany all future Clean Air Act rulemakings.
Indeed, rather than emphasizing that companies must comply with environmental laws and regulations or face the consequences, the President and his Office of Management and Budget are accusing federal authorities of being too aggressive and violating companies’ “due process” rights when enforcing the law. That prompted a coalition of state attorneys general to fire back and “object to OMB soliciting proposals that threaten to hamstring federal agencies’ ability to fulfill their duties to enforce and adjudicate violations of a wide range of federal laws that protect the public health and welfare ... particularly ... given this Administration’s dismal record on enforcement of environmental, civil rights, and consumer protection laws.”
In a final blow to effective environmental enforcement, the administration has instructed prosecutors not to allow (much less require) companies to provide restitution for their environmental harms through “payments to various non-governmental, third-party organizations.” It was this philosophy that prompted the Justice Department to drop a $3 million air pollution mitigation program that Harley-Davidson had agreed to fund as part of a Clean Air Act consent decree. A coalition of state attorneys general strongly objected, noting that states routinely rely on mitigation projects in settlements to reduce pollution harms caused by violators. Also on the chopping block is the EPA’s long-standing policy of including qualified, polluter-funded “Supplemental Environmental Projects” as a condition of enforcement settlements.
As I summarized in a recent article on enforcement published in the Regulatory Review: “Yes, under the Trump administration, the EPA is conducting far fewer inspections, and bringing fewer enforcement cases than it has in the past. But the Trump administration’s attack on the enforcement of our environmental law goes much deeper. By systematically disparaging and removing key regulatory protections, and pushing to hard-wire favoritism for polluters over their victims in agency practices, the Trump administration is turning enforcement of environmental laws, and the very notion of the rule of law, on its head.”

David J. Hayes is a nationally recognized environmental, energy and natural resources lawyer who leads the State Energy & Environmental Impact Center.