There are countless ways EPA can execute President Biden’s campaign promise to “hold polluters accountable” and pursue environmental offenders “to the fullest extent permitted by law.”
But one decision EPA enforcement agents will have to make will be particularly important: how much authority to delegate to the states.
“It may be the hardest political issue that the administration will have to deal with,” said Eric Schaeffer, a former EPA enforcement official.
Environmentalists and enforcement watchdogs are imploring EPA to take back the power the Trump EPA farmed out to the states during the past four years.
They say state environmental departments are underfunded and lack necessary resources to aggressively pursue environmental criminals.
And politics can be an obstacle.
“Ohio is not going to bring enforcement cases against coal cases,” said Schaeffer, who founded the Environmental Integrity Project. “We won’t see Texas bringing cases against refineries unless there is a big accident that killed people. That’s the reality.”
Newly confirmed EPA Administrator Michael Regan — just recently the head of the North Carolina Department of Environmental Quality — was asked during his confirmation hearing by Sen. Kevin Cramer (R-N.D.) about what is known as “cooperative federalism.”
“At this point, I haven’t seen a lot of cooperation coming from the White House,” Cramer asserted, complaining that states were not consulted before Biden signed executive orders on oil, gas and climate.
Regan replied by saying he sees the Biden orders as “setting goals and vision.”
The orders “leave plenty of room for how these things will be implemented,” he said. “So we have a ton of time in my opinion to aim for these goals but massage the process by which we will achieve those goals.”
The policy of “cooperative federalism” dates back many years and was a centerpiece in the Trump administration’s approach to environmental oversight. Former EPA enforcement chief Susan Bodine issued a 2018 memo calling for “shared governance” and “enhanced collaboration with state, tribal, local, and federal partners using the full range of compliance and assurance tools.”
EPA formed a work group with the Environmental Council of the States, which has long advocated for more independence and less supervision.
In a speech before ECOS, Regan recently reaffirmed the agency’s “commitment to working collaboratively and cooperatively with the states to protect public health and the environment.” An EPA spokesperson said the agency will review the 2018 Bodine memo.
Alexandra Dunn, a Trump EPA assistant administrator in the chemical office, noted that states have long brought about 90% of enforcement actions.
“The conversation around who is on first with enforcement between EPA regions and the states is always a topic of conversation,” she said. “However, what is really important over the last number of years, the states and EPA have worked toward agreements to maximize enforcement results.”
She likened it to any law enforcement case, where local and state troopers tend to go in first. “It’s about who knows enough to make it a successful case,” she said.
“When I was [EPA Region 1 administrator], we tried a lot of innovative programs to bring sectors into compliance through letters or outreach or working with different associations or manufacturers,” she said.
For example, there were many Clean Air Act violations by frozen food purveyors in New England, where seafood is pervasive. “We were working with refrigeration associations to spread knowledge about compliance to improve the entire sector,” she said.
“I think it’s going to be really important that Administrator Regan and whoever is going to be assistant administrator for the Office of Enforcement and Compliance Assurance to remain committed to enforcement truly being a joint endeavor with shared resources and shared priorities,” she said.
Schaeffer said the concept of cooperative federalism sounds great but in reality is more difficult.
“Who can argue with it without sounding uncooperative?” he said. “But it is usually used to delineate the limits of EPA authority rather than to explain EPA authority. In the last administration, it kind of functioned as a state veto, and that does not work.”
In Texas, for example, the environmental commission and EPA have an antagonistic relationship, said Adrian Shelley, a director at the Texas chapter of left-leaning group Public Citizen.
In fact, when he was the state’s attorney general, Texas Gov. Greg Abbott (R) sued the Obama EPA over almost every action, Shelley said.
Texas Railroad Commission spokesperson Andrew Keese said the agency’s mission includes working closely with EPA and the state commission “as the need arises.” He pointed to a press release about a recent case where EPA agreed to delegate the National Pollutant Discharge Elimination System to the state, which he said “greatly benefits the energy industry” by making regulations easier to understand.
States like California have a tougher reputation, with robust air pollution programs, but their hazardous waste programs are “meh,” Schaeffer said.
With lack of enforcement at the federal level, states tend to do less, too, said Steven Chester, who worked in the Obama EPA enforcement office.
In fact, environmental agency workforce levels declined in 40 states between 2008 and 2018, according to Schaeffer’s research in 2018. Ten states shed 20% or more of their staff during that period.
Yet Brian Israel, an Arnold & Porter attorney, said that in recent years, anecdotally, he has seen an “awakening” in state environmental enforcement in deep-blue states like California and New York but also in Montana and Illinois.
“To the extent there is an increase in federal enforcement — which we all expect — I would not expect state enforcement is going to decrease as a result,” he said.
Yet funding at EPA has long been an issue.
In the last decade, funds for EPA regulatory and enforcement staff dropped by 31%, according to Betsy Southerland, a former EPA career official now with the Environmental Protection Network.
“The fundamental problem is we really don’t have an environmental cop on the beat,” said Judith Enck, a former EPA regional administrator. “We never did. There’s this perception that there are inspections looking for noncompliance, but most inspections are announced in advance.”
If the Biden EPA wants to be serious about environmental justice, it must take independent actions, even if those are not part of national priorities, she said.
Is EPA confident that states like Texas and Louisiana are scrutinizing plastic manufacturers? “If they are not, EPA should step in,” she said.
After the decline in enforcement during the Trump administration, the Biden team will need to beef up, not just with more staff but also with resources, Enck said.
“It’s not just boots on the ground,” she said. “There are special air pollution monitors and sophisticated equipment that goes along with the people.”
Generally, she called it a “mistake” that EPA has long deferred to the states. States often wave off EPA agents, she said, telling them, “We got this.”
“I think it’s too early to know what [the Biden administration] is going to do,” she said.
Tim Whitehouse, executive director of Public Employees for Environmental Responsibility, said funding shortages and outright hostility to EPA will create lasting challenges for the agency.
“They may begin their term with some high-profile cases, to let the regulated community know there is a new sheriff in town, but change will not come quickly,” he said.
One early test for the Biden administration will be the pollution-plagued Limetree Bay refinery in a predominantly poor, Black and Latino area of St. Croix, one of the U.S. Virgin Islands (Greenwire, Nov. 21, 2019). The region does not have a strong local environmental enforcement presence, and environmentalists on and off the island have petitioned the Biden EPA to revoke a federal permit.