Second to the rollback or potential rollback of major air, water, and vehicle regulations issued by the Obama EPA, new Democratic leaders in the House seem most alarmed by what they perceive to be the current EPA’s changed stance on enforcement. These concerns were expressed in a December 2018 letter to Acting Administrator Andrew Wheeler, which included seven multipart questions requesting clarification of “changes the Administration made to EPA’s enforcement program.”  That letter was sent by three ranking members of House committees—all Democrats who now chair those committees. In a new letter sent to Wheeler February 1, 2019, the three chairs state that the administrator and the EPA have not provided the information requested in the first letter. Accordingly, the chairs repeat their concerns and requests for information and ask that those requests be met by February 15, 2019.

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The two letters mention “EPA documents and press reports over the past year that indicated several disturbing trends, including a decline in the number of enforcement cases initiated; a reduction in enforcement staff; an overreliance on state enforcement programs; and an increased political review of potential or pending enforcement actions.”

As with the first letter, the follow-up was signed by Rep. Frank Pallone, Jr. (NJ), who now chairs the House Committee on Energy and Commerce, the lead environmental committee in the House; Rep. Paul Tonko (NY), who now chairs the House Subcommittee on Environment and Climate Change; and Rep. Diana DeGette (CO), who now chairs the House Subcommittee on Oversight and Investigations.

The letters rely on news reports from The New York Times (Times), The Washington Post, and NBC News, as well as EPA memos and e-mails and a report by the EPA’s Office of Inspector General to paint a picture of an Agency that in 2018 reached a “historic low” across the board for enforcement actions.

“The number of new civil and criminal cases, defendants charged, and federal EPA inspections and evaluations all reached their lowest levels in at least a decade, according to the date,” write the Congress members.

Among several data points, the letter notes monetary penalties. “The Agency sought civil penalties of about $50.4 million from polluters for cases initiated under Mr. Trump,” the lawmakers state, based on a Times article. “Adjusted for inflation, that is about 39 percent of what the Obama administration sought and about 70 percent of what the Bush administration sought over the same time period.”

OECA staff down 15.7 percent

The chairs indicate that the enforcement reductions appear to result from several developments, including a 15.7 percent drop in staff between January 2017 and August 2018 at the EPA’s Office of Enforcement and Compliance Assurance.

But the deeper concern appears to be “political review” of enforcement activities; that is, policy changes that require career EPA enforcement staff to submit their enforcement plans to EPA political appointees for approval before taking further action. The letter lists five EPA memos that scale back the enforcement discretion of enforcement staff. For example, a March 2018 memo from the OECA’s assistant administrator to regional enforcement personnel instituted interim procedures requiring early notice to EPA political appointees of civil judicial referrals to the U.S. Department of Justice.

“We are concerned that headquarters review will cause further delays in the enforcement process,” write the Democrats. “According to Justin Pidot, former deputy solicitor for land resources at the Interior Department, ‘[t]he notion that this process will speed up enforcement is laughable to me … anytime you bring in the front office, everything slows down.”

The revised policies may also impact enforcement at the state level, say the lawmakers, particularly in states that are “philosophically opposed to taking enforcement action.”

The letters requests information about vacated positions; whether there was any analysis about how the vacancies would impact enforcement; how requests by enforcement staff to acquire information from regulated sectors have been handled; referrals to the DOJ; and how much time the OECA’s assistant administrator is spending on reviewing these referrals.