EPA's Enforcement Retreat

Backtrack Will Harm the Chesapeake

EPA’s draft FY 2014 – 2018 Strategic Plan signals that the agency will retreat significantly from traditional enforcement in the coming years. Specifically, EPA aims to conduct 30 percent fewer inspections and file 40 percent fewer civil cases over the next five years as compared to the last five.

In CPR’s newest Issue Alert, CPR President Rena Steinzor, Member Scholar Rob Glicksman, and Policy Analyst Anne Havemann argue that traditional enforcement should be the last function to be cut because it is the most cost-effective weapon to prevent backsliding on the progress the nation has made in reducing traditional pollution. The authors also wrote a letter to EPA Administrator Gina McCarthy urging her to abandon these misguided plans.

Instead of traditional enforcement, the agency’s plan embraces “Next Generation Compliance,” a new enforcement paradigm. NextGen relies on self-monitoring and reporting, aims to make regulations “easier” to comply with, and alters how EPA measures the effectiveness of its enforcement activities.

The precipitous cuts could have a severe effect on regulated entities’ compliance efforts, not only creating new public health and environmental risks, but also backsliding on regulatory requirements applicable to known hazards. Many companies in a position to threaten public health will not behave responsibly if left to their own devices. Only the threat of criminal and civil penalties will keep such bad actors in line. Indeed, among the most troubling aspects of the draft strategic plan is its short-sighted determination to broadcast curbs on enforcement to the regulated community.

Budget Cuts

The authors acknowledge the pressure EPA is facing from the severe budget cuts imposed by Congress. Republicans recently bragged that they have slashed the agency’s budget 20 percent since 2010. Unfortunately, EPA’s new plan pretends that the EPA staff can do even more with less when the reality is that these cuts will have severe consequences for American families. By taking the budget cuts as a given and responding with untried or inferior solutions, the draft strategic plan conveys the message that the agency can accomplish all its complex responsibilities with ever-shrinking resources. If legislators believe that budget cuts do not have adverse consequences for the agency’s fundamental mission, they are likely to have no qualms about making even further, devastating cuts.

Harm to the Chesapeake

The Chesapeake Bay is a potential casualty of EPA’s proposed “enforcement-lite” paradigm. Buried in the plan is a reference to projected environmental conditions in the Bay that anticipates significantly slower progress on Bay restoration than the pace set forth in the Total Maximum Daily Load (TMDL). Whether the approximately 15 percent reduction in restoration progress was an acknowledgement that diminished enforcement will slow down restoration or the Bay-related benchmarks in the plan were the result of a failure of communication within the agency, the fact remains that the strategic plan’s drastic enforcement cuts will harm the Bay. With the sharp cuts to enforcement called for in the plan, Bay cleanup efforts could easily veer this far off track.

Shortcomings

In short, EPA’s new enforcement scheme has at least four specific shortcomings:

1. It relies on industry to police itself, an untested and unproven approach that on its face invites noncompliance;
2. It signals a clear rollback in traditional deterrence-based enforcement, a tested and proven approach;
3. It seeks to mask the plain harm to public health and environmental protection of congressional budget cuts with breezy, even risible assertions of improved enforcement; and
4. Its retreat from enforcement and related budget cuts could irreparably delay the restoration of national treasures such as the Chesapeake Bay

This retreat from enforcement could severely undercut regulated entities’ commitment to meet their regulatory responsibilities, exposing the public to unacceptable health and environmental risks. Enforcement should be the last function to suffer from inadequate budgetary allocations.

• Read the Issue Alert: EPA’s Retreat from Enforcement Will Harm the Chesapeake Bay, CPR Issue Alert #1402, by CPR President Rena Steinzor, Member Scholar Robert L. Glicksman, and Chesapeake Bay Policy Analyst Anne Havemann, January 2014. Also see the day-of release blog post.
• Read the follow-up letter to EPA Administrator Gina McCarthy from Steinzor, Glicksman, and Havemann urging the agency to abandon its plans to replace traditional enforcement techniques with untried “Next Generation Compliance.”
• Read the strategic plan as released in draft form by EPA in November 2013. 

CPR is grateful to the Town Creek Foundation and the Rauch Foundation for their support of this project.