POLLUTERS TO FACE EVEN LESS RESISTANCE FROM EPA IN SECOND BUSH TERM; ENFORCEMENT WILL SHIFT TO STATES, CITIZEN LAWSUITS, SAYS NRDC AND EIP
2004 EPA Penalties Were Lowest in 15 Years; Groups Expect Downward Trend to Continue
WASHINGTON (November 9, 2004) -- The reelection of President George Bush means that polluters will enjoy four more years of lax enforcement of the Clean Air Act and Clean Water Act by the U.S. Environmental Protection Agency, according to experts from the Environmental Integrity Project (EIP) and the Natural Resources Defense Council (NDRC). The good news, the groups say, is that at least some state attorneys general and citizen enforcers will step in to tackle the worst cases when the EPA fails to act.
Also today, EIP released a new analysis showing that civil penalties imposed by the EPA against polluters in 2004 hit a 15-year low. The $56.8 million in 2004 civil penalties is the lowest amount since 1990, the first year for which such "big picture" penalty information is readily available, EIP reported.
Commenting on the implications of this month's elections for EPA enforcement, Environmental Integrity Project Director Eric Schaeffer said: "Watch out for efforts to break up the federal enforcement program at EPA through 'reorganizations,' or through continued budget cuts. If we want our environmental laws to survive, we had better be prepared to make creative use of the opportunities we have in a federal system. 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 -- such as the recent Hatsfield's Ferry case in Pennsylvania - that are brought when EPA drops the ball."
John Walke, director of NRDC's Clean Air Program, agreed. "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." Additionally, Walke predicted that the administration will continue to cut enforcement budgets at EPA and the Department of Justice.
Concerns about the conduct of the EPA in a second Bush term appear to be well founded in light of what happened over the last four years. "The low level of 2004 fines is only the latest in a series of signs that enforcement by the current EPA of the Clean Air Act and Clean Water Act is slowing down, as major polluters now face fewer legal challenges from the agency," said Schaeffer. "Major polluters are now enjoying an extended holiday under the current management of the EPA, because the agency is much more reluctant to take polluters to court when they refuse to clean up or comply with environmental laws."
The new 2004 penalty data compares to previous years as follows: 1990, $61.1 million; 1991, $72.3 million; 1992, $90.8 million; 1993, $72.0 million; 1994, $90.5 million; 1995: $64.9; 1996: $96.0 million; 1997: $94.5 million; 1998: $89.0 million; 1999: $164 million; 2000: $82.7 million; 2001: $121.7 million; 2002: $90 million; and 2003: $96 million. These estimates include judicial and administrative penalties assessed in all civil cases except Superfund. EIP noted that Superfund penalties usually only account for 2 or 3 percent of annual fines, or even less.
An October 12, 2004, EIP report found a 75 percent decline in EPA civil lawsuits filed over the last three years against polluters that refused to comply, when compared to the last three years of the previous administration. "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," the report found. "But EPA's own records document only 36 such enforcement actions in the first three years of the Bush administration."
The following are key details from the October 12, 2004, data released by EIP:
Clean Air Act enforcement is at a near stand still. Only nine such lawsuits were filed by the EPA from January 19, 2001, through January 18, 2004, compared to 61 in the three years prior to January 19, 2001.
Clean Water Act enforcement is off sharply. This category of lawsuits declined from 56 between 1998 and mid-January 2001, to only 22 between 2001 and mid-January 2004.
Hazardous waste law cases are way down. Lawsuits for violation of federal hazardous waste law (the Resource Conservation and Recovery Act) dropped from 19 to only five over the comparable three-year time periods.
The nation's largest energy companies (and biggest polluters) are on an "extended vacation" from EPA 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, 2004. That represents about a 90 percent decline when compared to the 28 lawsuits filed against power companies, oil companies, and pipelines in the three years leading up to January 19, 2001. The EIP report notes: "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."