Reversing rollbacks in the post Trump-era is not enough

The Biden administration will surely halt the Trump-era assault on the Environmental Protection Agency (EPA), which featured regulatory rollbacks and ruinous proposed budget cuts. But to protect the health of our nation’s people and environment, the new administration must go further — effectively enforcing our existing laws and providing adequate resources for environmental protection.

A centerpiece of the Trump-Wheeler team’s environmental “agenda” was an endless parade of regulatory rollbacks, 104 by one count — promptly reversing them is an obvious first order of business. But the sad reality is that, even without rollbacks, over 130 million Americans live in areas that don’t meet air quality standards, and almost half of the nation’s rivers and streams are in poor condition. 

One reason we face these problems is that environmental regulations can only protect our nation’s people if they are being followed. But serious violations of environmental requirements are rampant, with noncompliance rates of 25 percent common among all pollution sources, and much higher rates for those with the biggest health effects. More than 80 percent of the most significant air polluters violate the Clean Air Act, and nearly every large city violates the Clean Water Act. More than 90 percent of large sewer systems illegally discharge raw sewage and contaminated stormwater.

These numbers, bad as they are, may understate the problem. Pollution levels are typically measured and recorded by monitoring equipment, but that only catches pollution that occurs at the monitor’s location during the time it is operating.  Noncompliance may go unreported and states may not share compliance information with the EPA. We also know that a relative handful of facilities are responsible for an enormous share of our nation’s toxic contamination, and may produce hundreds or thousands of times more than similar facilities. 

Such wholesale violations of environmental requirements have real consequences: air that is not safe to breathe; impaired water quality for rivers and streams; contaminated drinking water; and human exposure to dangerous chemicals. Often the biggest burdens fall on low-income and minority communities.   

These realities underscore the need to use the full range of enforcement tools — inspections, monitoring, compliance orders and penalties for non-compliance — to protect the environment. A robust enforcement program can identify, address and penalize noncompliance and deter potential violators by signaling that compliance is expected and violations will be found and addressed.  

But, instead of using enforcement as a tool to enhance protection, the EPA is supplementing its regulatory rollbacks with a stealth program of enforcement rollbacks. In 2018, inspections reached their lowest level in almost two decades. The Trump administration has brought fewer than half as many pollution cases annually as the Bush and Obama administrations. The EPA enforcement actions have also been less effective, with the lowest spending on reducing pollution since 2003. We’ve also seen smaller reductions in illegal air emissions and wastewater discharges and fewer cleanups of contamination under the Superfund program.

Criminal enforcement is a linchpin of an effective enforcement program, prosecuting the most serious violations and deterring others. But in 2018, the EPA charged the fewest polluters with environmental crimes in this century, and brought a mere nine Clean Water Act criminal enforcement actions — for the entire nation. Fines were down, and the number of felony prosecutions — a measure of the seriousness of the crimes — has dropped steeply. Perhaps the starkest indicator of the Trump administration’s disdain for criminal enforcement was then-Administrator Scott Pruitt’s decision to divert EPA criminal enforcement staff from their work protecting the environment to providing him with a round-the-clock private security detail. 

Another front in the Trump-Wheeler team’s war on environmental protection was the EPA resources. Every year, the Trump administration’s biggest proposed agency budget cuts were aimed at the EPA. While bipartisan majorities in every Congress rejected the cuts, the onslaught and the size of the cuts — around 30 percent — normalized the expectation that the EPA should be cut, effectively preempting discussion of the critical need to increase environmental protection resources.  

In effect, the proposals created a sideshow that distracted attention away from the slow resource erosion that the EPA has faced for many years. Twenty years ago the EPA’s staff was 30 percent larger than it is today, and in 1980 federal spending for the EPA in constant dollars was twice its current level. The agency’s budget would have tripled since then if it had just kept pace with the growth in federal discretionary spending. The EPA’s state and tribal partners have faced similar problems, with more than a decade of shrinking resources. This crippling decline in environmental protection resources has largely stayed below the radar, but it is hard to imagine real environmental progress without addressing it.  

All this points up the need to do more than reverse the Trump-Wheeler team’s regulatory rollbacks and slow the erosion of resources. While both steps are essential, they must be accompanied by effective use of enforcement, with the staff and resources to do the job right. The Biden administration must repair the damage of the Trump years, and invest in a cleaner, healthier future.

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.