A pass for polluting? Environmental groups, employees say EPA enforcement efforts lacking
Staffing at the EPA is down and so are enforcement activities; data shows the 123 criminal cases opened in 2021 were barely a quarter of what they were 20 years prior.
In December 1999, a headlight manufacturer named Guide Corp. in Anderson, Indiana, began dumping thousands of gallons of toxic waste into the White River, one of the state's most important waterways.
Within days, massive amounts of dead fish accumulated along the river's course. More than 4 million died in a 50-mile stretch from Anderson to Indianapolis, the largest fish kill in state history.
Investigators from state and federal agencies worked the case. Nicole Cantello, an enforcement attorney for the U.S. Environmental Protection Agency's regional offices in Chicago, was one of them.
The investigations determined Guide Corp. deliberately polluted the river, knowing the consequences, leading to criminal and civil lawsuits. Guide settled for $14 million, and officials used much of the money to restock the river with fish, reviving the ecosystem and allowing sport fishermen to return to the waters.
To Cantello, the case stands out as a career highlight and testament to what happens when the EPA is enabled to fulfill its mission to prevent pollution.
“We stopped the polluters, and the people of Indiana were able to have their fishery back,” Cantello said. “EPA was on the job.”
Cantello, as head of the union American Federation of Government Employees Local 704, is among a chorus of EPA employees and environmental groups who told USA TODAY this month that they're concerned the agency is falling far behind in its role as pollution watchdog. After suffering decades of budget and staffing cuts spanning both Democratic and Republican tenures, data shows the EPA has been on a sharp downward trend in the number of inspections it conducts, legal cases it brings and closes and fines it secures.
“We're at our lowest staff levels since the Reagan administration,” Cantello said. “We've been trying to do more with less ... but you do less with less.”
The nomination of David Uhlmann, the Biden administration's pick to lead the EPA's Office of Enforcement and Compliance Assurance, has stalled in the U.S. Senate for nearly a year. On May 4, 55 environmental groups jointly issued a letter to Senate leaders calling for Uhlmann to be confirmed, arguing that the leadership vacuum further diminishes the agency's ability to enforce the nation's pollution laws.
“The EPA's enforcement of the Clean Water Act, the Clean Air Act and other environmental statutes has declined sharply in the past few years, exposing vulnerable communities to higher levels of illegal pollution and law-abiding companies to unscrupulous competitors,” the groups wrote. “We respectfully request that the Senate give EPA a fair opportunity to reverse this trend by confirming David Uhlmann as the agency’s new enforcement chief as soon as possible.”
Accompanying the letter were annual EPA enforcement figures pulled from agency reports. From 2006 to 2011, the data shows, EPA enforcement staffing levels never fell below 3,000 full-time positions. But staffing has declined ever since, bottoming out below 2,500 positions in the last two years of the Trump administration and recovering only slightly during the first year of the Biden administration.
Enforcement activities followed suit. In the early 2000s, the EPA opened about 480 criminal cases each year, data shows. Over the past five years, the agency has averaged about 150 cases a year, less than a third of the prior figure.
Similar decreases in civil cases led to a drop-off in the number of fines and penalties the agency imposes. From 2005 to 2011, the EPA took in about $78.9 billion in penalties from polluters after removing large-scale outliers. In the past seven years, the agency has gotten $37.9 billion, or less than half of the previous rate.
The data fits with the experiences of Tim Whitehouse, a former senior attorney at the EPA who helped enforce water pollution laws in the 1990s and early 2000s. During his tenure, Whitehouse said, he felt the agency was supported by Congress, which provided higher funding and more meaningful oversight, not only to the EPA but the U.S. Department of Agriculture and U.S. Army Corps of Engineers.
“There was a sense we were moving in the right direction to protect water quality and protect some of the most valuable wetlands in the country,” Whitehouse said.
An executive director of the nonprofit Public Employees for Environmental Responsibility, Whitehouse said there has been a “complete breakdown” in bipartisan support for the EPA. That has manifested in lower funding and staffing and more hostility in Congress and from some state environmental agencies.
“It makes it very difficult for the EPA” to complete its mission, Whitehouse said.
Current and former EPA employees described a long downward trend in the agency's enforcement efforts.
The administration of President George W. Bush, Cantello said, took conservative positions on important policies but generally staffed the agency's enforcement offices adequately. President Barack Obama advocated for more liberal policies, but after Republicans swept into congressional power in 2010 during the Great Recession, he signed austere budget agreements that cut funding to the agency, she noted.
Several employees said that during the Trump administration, budget cuts, buyouts and political leaders openly hostile to the EPA's mission dropped staffing to all-time lows.
“A ton of people retired because the Trump administration was so depressing,” said Justin Chen, an EPA air pollution enforcement officer and president of AFGE Local 1003 in Dallas. “We lost a lot of people in the last three years.”
Chen, speaking on behalf of his union, and several other EPA employees noted that the Biden administration's budget proposals offered only a modest turnaround in enforcement positions – 2,558 in 2021 and a proposed 2,646 in 2022, both of which are less than before the Trump administration.
Chen said many younger employees are not elevated to higher pay scales vacated by a mass exodus of experienced employees during the Trump administration, leading to a “brain drain” as they leave for higher paying jobs in the private sector.
Chen's job entails visiting industrial facilities to protect against toxic leaks that could cause mass deaths or cancer clusters in adjoining neighborhoods. He said he worries about the dangers inherent in a diminished EPA, particularly as climate change supercharges storms like Hurricane Harvey, which struck Texas and released massive industrial pollution in 2017.
“The house is definitely on fire,” Chen said. “But there's no political will to address it.”
The EPA told USA TODAY that the COVID-19 pandemic limited the ability of employees to conduct in-person inspections over the past two years. Now that inspectors are returning to the field, the agency “anticipates an increase in the results” from its enforcement program.
“EPA and the Biden-Harris Administration are committed to robust enforcement of environmental laws," the agency said in a statement. "We know that enforcement is essential to reducing pollution, leveling the playing field for regulated companies, and protecting public health.”
In the Senate, Democratic staff of the Environment and Public Works Committee said Uhlmann's nomination to head the EPA's enforcement office reached a tie vote during a meeting April 7. That leaves it up to Senate Majority Leader Chuck Schumer, D-N.Y., to call a vote in the wider Senate once he can be assured a supportive majority is present. EPA employees told USA TODAY they're aware such planning discussions are ongoing but not solidified.
Regardless of the nomination's outcome, Chen said the EPA will need robust increases in staffing and funding to complete its mission to prevent environmental catastrophes and, ideally, legislation to bolster environmental laws and authorities.
For Whitehouse, the need goes deeper – for everyday Americans to not only value clean air and water but to demand elected officials support the EPA to ensure it.
“Change needs to come from the bottom up,” Whitehouse said.