Congress needs to stop short-changing EPA enforcement

Fair and effective enforcement of environmental laws is one of the linchpins of environmental protection. But the erosion of support for the Environmental Protection Agency’s (EPA) enforcement program over the last two decades has been so severe that The Washington Post recently reported that a “lack of resources and workers” has undercut the EPA’s ability to carry out such critical enforcement functions as inspecting facilities, measuring contamination, and punishing violators. Congress needs to step up in the next budget cycle and give EPA the funding it needs to enforce well-established and effective environmental laws.

Not only have resources for existing programs waned, but the EPA enforcement program will need new resources to implement new climate and environmental justice provisions in the new Inflation Reduction Act (IRA) effectively. The enforcement program also needs institutional support, including timely confirmation of an assistant administrator to lead it.    

Effective enforcement uses a variety of tools to ensure that regulated facilities obey the laws and regulations protecting our nation’s environment and the terms and conditions of permits authorizing them to operate.  Source emission reports, inspections and monitoring can verify that companies are meeting their legal obligations. The enforcement program also works appropriately to help bring companies into compliance and uses civil or criminal enforcement actions as needed to penalize violators.

Such a system promotes compliance, deters violations and ensures a level playing field where everyone has the same incentives to follow the law and faces the same risks for failing to do so.  In the absence of effective enforcement, companies may be tempted to reduce costs and gain unfair competitive advantage by short-cutting or ignoring essential pollution control measures, exposing the public and the environment to harmful pollutants.

A widespread assumption that most facilities generally follow the law can obscure the need for effective enforcement. Recent studies have found that this assumption is mistaken and violations are widespread with rates of 25 percent or more in nearly all environmental areas along with higher rates for programs with the biggest impact on health. And many violations go unreported, from leaking chemical storage tanks, unlit flares, pollution-belching smokestacks, wastewater treatment plant overflows, spills or outright dumping.

We also know that a relatively small number of the worst polluting facilities are responsible for an enormous share of all toxic contamination. Such facilities produce pollutants at rates hundreds or even thousands of times higher than similar facilities and impose disproportionate environmental burdens on vulnerable marginalized communities with little power to resist. 

That underscores the need for a robust program of inspections and monitoring to detect the most serious environmental problems, and compliance assistance as well as civil and criminal enforcement to address those problems. Unfortunately, EPA has been moving in the opposite direction, toward reducing enforcement. Between fiscal years 2018 and 2021, by nearly every measure — inspections, criminal investigations, civil and criminal prosecutions, defendants charged, civil penalties, criminal fines and cleanup costs paid by polluters — enforcement declined to roughly half of historic levels.

Although these reductions partially resulted from policy choices by the Trump administration, they were also part of a two-decade decline in enforcement activities partly due to shrinking federal funding and resources. For example, in 2019, EPA’s enforcement staff was down by nearly one-quarter, to its lowest level in at least 20 years. That has reduced environmental protection by making violations less risky and enforcement consequences less likely — with even serious, repeated violations often not addressed promptly or appropriately.

Along with resources to beef up its existing program, EPA will also need more resources to implement the IRA. The act provides substantial new funding for air monitoring and enforcement technology that will make it easier to identify pollution problems, particularly those affecting overburdened front-line and fence-line communities. But EPA will also need enforcement resources and staff to use that monitoring information effectively to address pollution problems, improve compliance and protect overburdened communities.  

Similarly, EPA will need to boost the capacity of its environmental justice program, which is funded through the enforcement budget, to implement important provisions of the IRA. The IRA greenhouse gas reduction and environmental and climate justice block grant programs provide $18 billion to serve disadvantaged and low-income communities. In addition, the Biden administration’s Justice 40 initiative calls for directing 40 percent of the benefits of federal spending to disadvantaged communities even where there are no statutory directives to do so. To meet these new challenges and opportunities, EPA will need new resources to expand its environmental justice staff and its capacity to engage, work with and support disadvantaged communities.

Meanwhile, the enforcement program also needs adequate institutional support, with confirmed leadership to shape policy and direct the effective use of EPA enforcement authority and resources. But it has been nearly a year and a half since President Biden submitted to the Senate the name of David Uhlmann to direct the  agency’s Office of Enforcement and Compliance Assurance. This delay is unconscionable, and the Senate needs to do its job by confirming this well-qualified nominee. 

As we approach the December expiration of the continuing resolution currently funding the government, Congress needs to support EPA with an enforcement budget that gives the agency the resources and leadership to protect our nation’s people and environment.

David F. Coursen is a former EPA attorney and a member of the Environmental Protection Network, a nonprofit organization of EPA alumni working to protect the agency’s progress toward clean air, water, land and climate protection.