Prosecuting Polluters Poorly

It was great to see Charles Duhigg's article about under-enforcement of water pollution laws yesterday.  Quite apart from the water angle, which we obviously care a whole lot about, it was wonderful to see that good print journalism is still alive and well.  The story included both analysis of pollution and enforcement data and extensive investigative reporting based on interviews with regulatory officials and victims of water pollution.  We need more of this kind of reporting.

I have some ideas about why enforcement is failing today.  I suspect a fair bit of it is coziness between regulators and the regulated industries, and that problem is worse in some places as compared to others.  Also, it can be resource-intensive to bring enforcement actions, and when those resources are cut, it's harder to ensure compliance. 

Sadly, enforcement has been a target for funding cuts - a couple years ago, the Government Accountability Office found that EPA's total budget for enforcement fell 5 percent in real terms from 1997 to 2006, with funding to regional enforcement (where most of the enforcement activity occurs) declining 8 percent in real terms.  EPA grants to states for environmental program implementation dropped 9 percent in real terms over the same period.  Consistent with these declines, "EPA reduced the size of the regional enforcement workforce by about 5 percent over the 10 years," a problem exacerbated by the fact that "[t]hese reductions in funding occurred during a period when statutory and regulatory changes increased enforcement and other environmental program responsibilities."

But another significant problem is the practical difficulty of doing enforcement today, in the wake of two Supreme Court decisions questioning which water bodies the Clean Water Act even covers, a subject I've written about here, here, and here, among other places.  These opinions have injected such uncertainty into the implementation of the law that even career enforcement professionals do not know with certainty which water bodies are covered by several pollution control programs in the law.  Because of the Supreme Court's misapplication of the Act:

  • In a speech at the National Press Club, EPA Administrator Jackson indicated that some EPA staff were spending as much as 40-60 percent of their time on figuring out whether various water bodies were protected by the law. (Video here)
  • Because of conflicting lower court rulings following the Supreme Court decisions, the legal standard for determining whether a water body is protected is different in certain States.
  • Earlier this year, multiple government agencies wrote to members of Congress that "[c]urrent agency guidance implementing the decisions contemplates complex findings that sometimes result in jurisdictional determinations that lack consistency across the country and can be time-consuming and expensive. Delayed and unpredictable decisions are frustrating and costly to persons seeking approval of projects related to these waters." 

A recent summary by EPA's Office of Inspector General underscores these points; the internal watchdog interviewed EPA personnel about the challenges to implementation of the Act caused by the Supreme Court's decisions.  EPA enforcement professionals reported that the most recent decision "has been a major resource drain for the program," that the decision "has created a lot of uncertainty with regards to EPA's compliance and enforcement activities," and that "it has become 'almost impossible' for EPA to refer" certain kinds of Clean Water Act cases to the Department of Justice.  The report also noted that "[a]n estimated total of 489 enforcement cases . . . have been affected such that formal enforcement was not pursued as a result of jurisdictional uncertainty, case priority was lowered as a result of jurisdictional uncertainty, or lack of jurisdiction was asserted as an affirmative defense to an enforcement action." 

Thus, fixing this problem is critically important, and EPA's first enforcement priority should be working with Congress to pass the Clean Water Restoration Act, which will ensure that all waters of the U.S. are protected. 

Beyond the problems the Supreme Court created, a large portion of the pollution sources with Clean Water Act discharge permits consist of stormwater systems, large animal feedlots, and other sources regulated for the most part under general permits that lack clear, enforceable standards.  The history of the Act demonstrates that a regulatory system works best when compliance with objective standards is required for all discharges, and all facilities are required to be permitted.  Self-monitoring and self-reporting requirements (verified as needed by outside inspections) can promote compliance and ease burdens on enforcement authorities. 

An example of how to do it wrong is EPA's rule governing water pollution from concentrated animal feeding operations, a regulation that fails to clearly identify the facilities that need to obtain permits and which even neglects to gather information from facilities that claim not to need such permits, in order to substantiate their claims.  NRDC and other groups have challenged this rule in a case now pending in federal court, but EPA can - and should -- address these problems by revisiting the rule, and putting a more protective and enforceable rule in place. 

Here's hoping that the New York Times' incredible reporting spurs EPA to address these and other failings in the enforcement program.