Administrator Scott Pruitt will have wide leeway to shape enforcement policy at U.S. EPA, even as he slogs through bureaucracy and legal hurdles to stamp out Obama-era regulations.
But Pruitt’s philosophy on environmental enforcement is mostly unknown. He doesn’t have much of a record on the topic from his time as Oklahoma’s Republican attorney general, and it didn’t come up much during his confirmation process. No replacement has been chosen for Obama-era enforcement chief Cynthia Giles.
Giles says Pruitt’s dedication to enforcement will be a key test of commitments by Pruitt and President Trump to keep air and water clean.
"That can’t be done without making sure companies play by the rules that protect people’s health," Giles told E&E News. "Enforcing the law is how we make sure those protections are real on the ground."
Environmental groups say they expect the worst. But some agency veterans say law enforcement is where GOP environmental officials can really shine. Former EPA enforcement attorney Rich Alonso said that could well include Pruitt.
"He comes from a ‘rule of law’ philosophy," said Alonso, a former air pollution enforcer at the agency. "That’s good for enforcement."
But even Republicans allow that big budget cuts could fall especially hard on enforcement, one of the agency’s most labor-intensive functions. And the Trump administration is talking about deep cuts in spending at the agency.
"I think he’s going to be awful," said Environmental Integrity Project Executive Director Eric Schaeffer, who ran EPA’s Office of Civil Enforcement from 1997 to 2002. "I hope I’m wrong."
The full 24 percent cut for EPA that has been floated by the administration would not likely make it through Congress (E&E News PM, Feb. 27). But any cuts would come after years of deep pruning at EPA’s enforcement branch, called the Office of Enforcement and Compliance Assurance (OECA). The number of inspections by agency staff dropped by nearly one-third between 2012 and 2016, from nearly 20,000 to a little more than 13,500.
Any across-the-board cut for the agency would be even deeper for branches like OECA if Pruitt succeeds in protecting grants to state governments (Climatewire, March 3). A Heritage Foundation spending proposal seen as having influence with the Trump team recommends a 30 percent cut in the enforcement budget, declaring that "EPA engages in unnecessary and excessive legal actions" (Greenwire, Jan. 27).
Some former enforcement officials suggest paying particularly close attention to the travel budget, saying cuts there would keep inspectors from tracking down polluters in the field. Others say the travel budget isn’t so important, because compliance is now often monitored by reviewing reams of data in EPA offices.
Another target for cuts is likely to be the Justice Department division that goes to court for EPA. The Heritage Foundation blueprint calls for sharp cuts to the Environment and Natural Resources Division (ENRD). The authors point blame at the office for pursuing "sue-and-settle" policies.
But that could backfire. ENRD also defends against suits brought by environmental groups.
"Do they think we’re going to stop suing?" said Schaeffer, a careerist who quit EPA in frustration with the George W. Bush administration.
Another trial balloon launched in the early weeks of the Trump era was a proposal to dismantle OECA and disperse staff to "program offices" such as air and water (E&E Daily, Feb. 9).
"It would be a way of stifling enforcement without saying you’re abolishing enforcement," said Joel Mintz, a law professor at Nova Southeastern University and author of "Enforcement at the EPA: High Stakes and Hard Choices."
That was the avenue pursued by Administrator Anne Gorsuch Burford during her brief, stormy tenure at EPA under President Reagan, said Mintz, who is also a former EPA attorney.
Giles said she doesn’t think it would "politically acceptable" to openly reduce enforcement. So she said she’s watching for "backdoor" attacks.
Ways to undermine enforcement, Mintz said, include requiring headquarters approval before any enforcement, ordering enforcement staff to defer to the states in all or most cases, or preventing staff from referring cases to the Justice Department.
Will states’ rights guide Pruitt?
Though Pruitt is one of Trump’s most controversial appointees, there has been limited discussion of his philosophy of environmental enforcement. And that’s in some ways surprising, since enforcement may be where he has the most latitude to shape the agency.
"You can’t sue the federal government for failure to enforce," Schaeffer said. "In theory, you could not enforce at all."
Environmental enforcement was not a big part of his job as attorney general. In six years, he didn’t announce a single environmental enforcement action (Energywire, Jan. 18). His confirmation hearing focused on climate change, political contributions and his lawsuits against the Obama administration.
Given his emphasis on the role of states, some, like Schaeffer, look to Pruitt’s attitude toward big national settlements by his fellow attorneys general. In 2011, Pruitt was the only attorney general in the country to opt out of a national settlement with mortgage lenders. Pruitt said he was concerned that the settlement was straying beyond fraud by the banks into requiring loan modifications.
But Schaeffer said sticking narrowly to the confines of the law means "you don’t know how to negotiate a settlement."
A key goal of settling, Schaeffer said, is to waive some of the punishment allowed by the law in favor of pursuing a larger good for the public. EPA usually settles for pennies on the dollar, he said, and if Pruitt wants to stick narrowly to the statute, "then they should pay what the statute says they should pay."
Alonso said he does think that Pruitt might follow a "more traditional" enforcement strategy.
"Look at what’s in the law and nothing more," explained Alonso, now a lawyer in private practice with the Bracewell LLP firm.
Early in the George W. Bush administration, Tom Sansonetti trooped over to EPA as the Justice Department’s new ENRD chief. He delivered a message to the enforcement staff: Enforcement staff is neither Republican nor Democratic.
"I wanted to make sure people understood if there’s something being dumped in the river, they understood we were going to chase bad people," Sansonetti recalled recently.
Schaeffer took heart.
"It was a good message," he said, "and it didn’t have me thinking he was some closet liberal."
Sansonetti, who is now with Holland & Hart LLP, said there is a strong enforcement structure at EPA and Justice, which can soldier on under Republican or Democratic presidents. But its strength does depend on funding. Sansonetti said he focused on a few select areas in order to get the biggest "bang for the buck" in terms of deterrence. One such area was waste dumping by cruise ships.
"We fined them out the ying-yang, and the Coast Guard stopped seeing as many slicks on the water," he recalled.
Schaeffer said Republicans can do aggressive environmental enforcement without compromising conservative bona fides. For example, many local governments are allowing pollution because of failed sewer systems. Pruitt could pursue such cases.
"If he does that, we’re gonna say, ‘Good,’" Schaeffer said.
But the former EPA officials say that if Pruitt does choose to cut back on enforcement, he may find that reports of public anger at EPA are overrated.
"When you get outside the Beltway," Alonso said, "people realize they want clean air and clean water."