U.S. EPA’s former top cop is worried about the agency’s ability to catch lawbreakers.
Budget cuts and staff reductions have chiseled away at the agency’s workforce in recent years, leaving EPA’s criminal enforcement program with fewer cops to track down crooks who dump hazardous waste, illegally spew air pollution and commit other environmental crimes.
Even as the agency has pushed to staff back up, the criminal program hasn’t gotten the necessary support from top agency officials, said Doug Parker, who left his post last week as director of EPA’s Criminal Investigation Division after two decades working on criminal enforcement.
The enforcement program Parker left last week is very different from the one he joined when he became a special agent in 1993, he said in a recent interview. The ranks of special agents — EPA’s "boots on the ground" — have been depleted to nearly an all-time low.
The staffing depletion could have big consequences for the environment and the public, he said.
"EPA’s criminal enforcement program is the only law enforcement organization that spans the country that focuses on environmental crime and the serious public health impacts that arise from it," said Parker, who starts next week at the law and consulting firm Earth & Water Group (Greenwire, April 11).
The agency now has 159 special agents despite a congressional mandate that EPA have 200 working cops. The staffing decline has come amid broader budget and staffing cuts; EPA’s total staff dipped below 16,000 in fiscal 2013 and 2014, plummeting to its lowest levels since 1989.
But "as the agency has begun to hire back up in the last year," Parker said, there hasn’t "been a focus on front-line enforcement agents" like special agents and inspectors. Instead, he said, it has hired more people in the policy realm, like attorneys and policy analysts. During a hiring surge by EPA this year, the enforcement and compliance office brought on 17 headquarters-based attorneys and just three new special agents, he said.
"Lawyers are more efficient to hire" than law enforcement and technical agents, he said, "but that doesn’t mean it makes the most sense to do that."
Those policy staffers aren’t "on the ground dealing with catastrophic explosions, people who have been harmed, facilities that need to be inspected or emergency responses," Parker said. He compared it to the Army hiring "people to staff the Pentagon" versus "people who are going to be on the front line."
At the root of the hiring problem, Parker said, is "tepid support at the political level" at EPA for criminal enforcement. "Criminal enforcement hasn’t found the level of political support that it needs to be at the level that it needs to be for the American public."
EPA spokesman Nick Conger said today in a statement, "Increasing staffing in EPA’s criminal program is a priority, in line with the agency’s broader staffing effort. In recent years, budget constraints, retirements and normal attrition have affected staffing levels across the agency, including EPA’s criminal program."
Parker isn’t the only former EPA official concerned about the hit the enforcement program has taken.
Even though the budget has declined, "it’s not like there are less environmental regulations now than there were a decade ago," said Granta Nakayama, a partner at King & Spalding who was EPA’s enforcement chief during the George W. Bush administration.
"If you don’t have those 200 agents, there are going to be that many fewer cases," Nakayama said.
EPA’s enforcement office has taken a bigger hit than other parts of the agency because a high percentage of its budget is salaries, he said. While other offices can trim costs elsewhere, he said, when the enforcement budget is slashed, "they just lose people."
Suzanne Murray, a partner at Haynes and Boone in Dallas who was regional counsel in EPA’s Region 6 office until last year, said the budget and staffing constraints do "make a difference" for the agency’s enforcement efforts. They impact the agency’s ability to cover bigger cases and investigate the number of tips it would like to.
Particularly when it comes to criminal investigations involving interviews and document reviews and executing search warrants, "those are things that you have to have people to do," she said.
Agency officials have warned in recent years that they’ve been forced to scale back their criminal investigations in certain regions and issue areas, and that environmental crimes have gone unchecked as a result (Greenwire, April 10, 2014).
EPA’s criminal program has also been a target of Republican lawmakers.
Last year, Sen. Dan Sullivan (R-Alaska) led an effort to strip EPA’s special agents of their ability to carry firearms. His concerns stemmed from a 2013 incident near Chicken, Alaska, where miners complained they’d been intimidated with weapons and body armor by enforcement officials from EPA and other agencies who were investigating potential violations of clean water laws.
The congressional effort to strip EPA special agents’ guns failed but dealt a blow to morale among law enforcement officials at EPA and other federal agencies (Greenwire, Jan. 29, 2015).
EPA officials have defended their work in light of the budget cuts and political attacks.
EPA’s top political appointee in the enforcement office, Cynthia Giles, told a conference of environmental lawyers last week that "things are actually going incredibly well."
In the wake of budget cuts and a reduction in the number of inspections and total enforcement cases, she said, "the silver lining is that it forces everybody to focus — laser focus — on what are your most important things to do and make sure you have your priorities straight" (E&ENews PM, March 31).
"EPA continues to maintain a strong criminal enforcement presence," spokesman Conger said today. "This is highlighted by large, high-impact cases that deter violators and help to remedy the harm caused by criminal conduct."
The agency is being forced to make changes across the board, Haynes and Boone’s Murray said, "because it doesn’t have the number of employees it once did." But even as the agency tries to focus on the most significant events, it doesn’t "have the boots on the ground to make all those cases."
On the civil enforcement side, EPA has been aided by electronic reporting and automatic monitoring, King & Spalding’s Nakayama said. But "that’s not true for intentional criminal violations," like people who discharge pollution at night. "That’s where you just need the boots on the ground, and that’s why I think the criminal program especially doesn’t have a way to make up for the loss in numbers."
You can have an enforcement agenda driven by what’s available and "just wait for some big case to blow up in the news." That’s "opposed to doing the hard work" and finding the real issues, Nakayama said.
Parker said the criminal enforcement shop continues to do good work despite its strained resources.
"It’s a mixed bag. There’s some tremendous case work going on right now," he said. Parker said the quality of criminal cases being brought by EPA is "the highest it’s ever been," and the staff members in the enforcement program are "an incredibly committed and capable group."
Still, the staffing cuts have been bad for morale. "It is discouraging," he said.
Staff has been stretching to cover important cases, he said, but "we’re running out of patches."
One recent example of a stretched staff involved investigations in a recent case in which the pesticide manufacturer Terminix International Co. LP was fined for illegally spraying a banned pesticide in the U.S. Virgin Islands, including at a resort where a family became ill on vacation last year (Greenwire, March 30).
The case resulted in a $10 million penalty for the company, but EPA "had to cover the case from hundreds of miles away because we didn’t have enough agents to staff it locally," Parker said. Agents flew in to work the case from Puerto Rico, New York and North Carolina. "You can’t do it remotely," he said. "You’ve got to be on the ground."
In another series of major cases in Hawaii, EPA investigators were looking into large-scale pollution in the Honolulu harbor. "We had one agent working out there for years because we couldn’t get it staffed up" by adding a second person to the case, Parker said.
"With marginal increases in numbers, we can do a lot."