The Nickel Report

As the presidential transition draws nearer, many have asked what the change in administration will mean for the enforcement of our nation’s environmental laws. The Environmental Protection Agency, Department of Interior, Army Corps of Engineers, US Coast Guard and other agencies are all tasked with enforcement responsibilities under the major federal environmental statutes. The future of environmental enforcement under the incoming Trump administration thus depends on the future of each of these agencies.

Leadership appointments, administration policy goals, and budget proposals and appropriations all play important roles in determining how environmental enforcement programs will change in the coming months and years. Administrative and judicial civil enforcement actions as well as criminal investigations and prosecutions could be impacted by the new administration’s appointees and their policies and priorities for the agency. A new administration will act quickly upon particular priorities, but EPA is a large agency and any systemic change will likely be slow. For example, the agency has only 13 presidentially appointed and Senate-confirmed positions to manage more than 14,000 employees and a budget of approximately $8 billion. Much of the day-to-day work performed by EPA is mandated by statute or court orders or consists of ministerial duties — such as granting permits — that are critical for the operations of many industries under existing environmental statutes.

Although a shift in administration policy and enforcement priorities can be expected after January’s change of power, enforcement of the nation’s environmental laws will not cease altogether. In fact, compliance and enforcement business is likely to continue as usual, at least in the near term. Routine inspections of facilities, for example, will continue, as will the management of emergency response actions by federal agencies. Enforcement cases against alleged violators that EPA has already begun building are also likely to move forward. Similarly, cases already referred to the Justice Department’s Environment and Natural Resources Division for civil or criminal enforcement will not simply be dropped. Historically, for example, ENRD has been relatively resistant to rapid political change. ENRD is led by only two political appointees, among a cast of more than 400 attorneys, meaning that most case decisions are made by a cadre of career attorneys and not by political appointees. Finally, environmental nonprofit groups, many of which are already publicly touting increased donations, may use a budget spike to enforce federal laws such as the Clean Water Act and Clean Air Act under respective citizen suit provisions.

In anticipating the future of environmental enforcement, interested parties should watch three areas: budget, EPA’s national enforcement initiatives, and DOJ policies and directives.

Perhaps the most important factor in determining whether enforcement priorities and activities will change is appropriations. An agency’s enforcement efforts are closely tied to its budget. EPA’s enforcement statistics, for example, have declined in recent years as the agency has operated on a declining budget. Further budget cuts to EPA and other agencies charged with enforcing environmental laws, which may be likely with a Republican-controlled Congress, could continue that trend. EPA has responded to decreasing enforcement resources by prioritizing a smaller number of higher profile cases it expects will generate attention within the regulated community and drive compliance. Whether the new administration will continue to pursue that approach remains to be seen.

Particular attention should be paid to the budgets of EPA’s Office of Enforcement and Compliance Assurance and its Criminal Investigation Division. Because enforcement attorneys at EPA and DOJ rely on these divisions to build and refer cases against potential violators, a decreased budget in either division means fewer investigations that could eventually result in cases. The number of full-time equivalents working as enforcement attorneys either at EPA or within ENRD is also sensitive to budget cuts, and indicative of the capacity to bring enforcement cases.

National enforcement initiatives are intended to focus EPA’s resources on national environmental problems where EPA has found significant noncompliance with laws and it believes federal enforcement can make a difference. The priorities are announced every three years, and EPA recently released new enforcement initiatives that became effective on October 1, 2016. A new administration may substantially realign EPA’s enforcement priorities by revisiting the agency’s previously announced national initiatives.

DOJ policy guides career trial attorneys in pursuing and resolving civil and criminal environmental cases, influencing how they operate and prioritize cases. Examples of relatively recent policies include the Yates Memorandum, which directed prosecutors to carefully consider individual liability, and ENRD’s worker endangerment initiative, whereby ENRD began comprehensively coordinating with the Occupational Safety and Health Administration and the Mine Safety and Health Administration (among others) to pursue violations alleged to jeopardize workers’ health and safety. If these directives are revisited or when new directives are issued by senior political appointees, a change in direction in how DOJ handles civil and criminal enforcement may become apparent.

Ultimately, it is imperative to remain vigilant in complying with environmental legal requirements, throughout the transition and beyond. Although the focus and, possibly, degree of federal environmental enforcement may shift over time in the Trump administration, a widespread shift is unlikely to happen immediately. In the meantime, keep a watchful eye on Cabinet and agency appointments, policy developments and budgets.