Audit, Compliance and Risk Blog

I’ve written numerous times in this space about specific efforts by the Trump administration to reduce environmental regulation and enforcement. A new study from the University of Michigan Law School quantifies reductions in the administration’s criminal enforcement levels. The report is part of the school’s “Environmental Crimes Project,” and includes the first two years of the Trump Administration as the latest in a 14-year series of federal environmental enforcement data. Readers should note that federal criminal environmental enforcement is brought by the US Department of Justice (DOJ) on behalf of the US Environmental Protection Agency (EPA); EPA and delegated state agencies bring their own civil cases, and most state criminal enforcement is brought by state prosecutors on behalf of state regulatory agencies (I summarized agency enforcement in the first year of the Trump administration HERE).

How are criminal violations defined and prosecuted?

Environmental protection statutes focus on particular aspects of the environment and species (including humans) that live in the world:

• • Environmental media – notably air (Clean Air Act (CAA)), water (Clean Water Act (CWA)), species and ecosystems (Endangered Species Act (ESA))

  • types of pollutants harmful to humans and/or the environment, and usually on acceptable concentrations of those pollutants – notably CAA, CWA, solid and hazardous wastes (Solid Waste Management Act (SWMA) and Resource Conservation and Recovery Act (RCRA)), drinking water (Safe Drinking Water Act (SDWA))

  • hazardous materials in routine use – onsite (Occupational Safety and Health Act (OSHA) and fire and building codes)), and in transportation

EPA and other regulatory agencies focus their administration of these laws on:

• • numerical standards for identified pollutants and their releases, and on “safe” concentrations of pollutants in the receiving environmental media or living receptors

  • requirements for training, planning and implementation of required activities by regulated entities

  • prohibitions against exceedances of regulatory limits, including releases made without prior approvals (e.g., permits)

  • requirements to clean up excessive contamination from unauthorized releases

Most violations are subject to some form of civil enforcement, which often encompasses both administrative civil penalties issuable directly by agencies, and civil prosecution in court cases involving agency staff and attorneys from the agency or DOJ (or their state equivalents). Criminally-sanctioned violations typically involve some combination of:

• • very large exceedances of numerical standards, including those that may pose acute hazards

  • ongoing patterns of violations that can imply gross negligence or deliberate noncompliance

  • repeat violations that can imply gross negligence or deliberate noncompliance

  • repeat violations that include violations of consent decrees or other provisions from prior enforcement actions

  • false reporting or other deliberate attempts to mislead regulators

  • events that endanger people, wildlife or the environmental medium being protected by the applicable law

How does the law school track enforcement data?

The Environmental Crimes Project receives detailed enforcement data from EPA every two years, analyzes those data, and creates snapshot and time-series evaluations. The lead researcher (Professor Uhlmann) worked at DOJ for many years, including 7 as the chief of the agency’s Environmental Crimes Section during 2000-2007. He applies his practical experience and agency knowledge, as well as subsequent academic research approaches, to prepare the Project’s evaluations and reports. Based on this experience, he looks not just at numbers of cases per law (CAA, CWA, etc) but also to see whether federal prosecutors are tending to focus on what he calls “aggravating factors” when deciding which cases deserve criminal prosecution rather than just civil enforcement. He identifies the following common aggravating factors:

• • significant harm

  • deceptive or misleading conduct

  • operating outside the regulatory system, and

  • repetitive violations

This report states that from 2005–2018, 97.3% of criminal cases were directed at defendants whose misconduct involved at least one of these aggravating factors. The percentages vary year-to-year, administration-to-administration, and law-by-law.

How have the enforcement levels changed?

The Project’s data cover the Bush, Obama and Trump administrations. The report offers generalizations about enforcement priorities across these administrations. Total numbers are roughly comparable across the Bush and Obama administrations, with 75-101 cases filed each year under President Bush, and 58-101 under President Obama. There were differences between the Bush and Obama administrations, including higher CWA prosecution levels under President Bush and higher CAA prosecution levels under President Obama. In all years for those two presidents, CAA and CWA were the first and second highest numbers of cases, with prosecutions under the Act to Prevent Pollution from Ships as the third.

Things changed dramatically in the first two years of the Trump administration (the latest data available).

• • Total numbers of prosecutions dropped dramatically

As reported, total criminal filings were:

• • 2017 – 34 cases

  • 2018 - 42 cases

  • Priorities shifted

The most common three laws covered by these cases were:

• • RCRA – average of 17 per year

  • CAA – average of 15.5 per year (16 in 2017, 15 in 2018)

  • CWA – average of 13 per year (17 in 2017, 9 in 2018)

The report doesn’t yet cover 2019-2020, but the author states that other administration information sources suggest that case levels are comparable.

What’s Next?

As I write this, the US presidential election is two weeks away. If President Trump is reelected, there is no reason to expect that enforcement levels would increase. In contrast, if Joe Biden is elected, I expect that enforcement levels would rise again, although I’ve seen nothing that indicates whether enforcement levels would return to Bush and Obama levels, or end up higher or lower. Keep in mind that the total number of federal environmental prosecutions is tiny compared to the huge numbers of regulated entities – never more than 101 cases in a year, nationwide.

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Where Can I Go For More Information?

• • David M. Uhlmann, “New Environmental Crimes Project data shows that pollution prosecutions plummeted ruing the first two years of the Trump Administration,” University of Michigan Public Law Research Paper No. 685 (October 2020) 

  • US DOJ, Environment and Natural Resources Division web portal 

About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years. 

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at: tei@ix.netcom.com